All posts by Rick Hasen

My New one @Slate: “Unfortunately, the Biggest Election Case of the Supreme Court Term Could Be Moot”

I have written this piece for Slate. It begins:

Will a power grab by the new Republican majority on North Carolina’s Supreme Court—ostensibly to reverse a power grab by the earlier Democratic majority on North Carolina’s Supreme Court—deprive conservatives on the United States Supreme Court of a power grab over U.S. elections? Or will it just delay an urgent election ruling to a much worse time—when it could decide the outcome of a major election?

The Supreme Court’s potential blockbuster election decision in Moore v. Harper, now expected by late June, could soon be rendered moot by an order that the North Carolina Supreme Court issued on Friday to rehear the underlying case. If Republican state justices in North Carolina moot Moore, it might simply delay an outcome on an issue that should be resolved sooner rather than later….

The good government group Common Cause and others sued over the new map, claiming it was a blatant partisan gerrymander that violated the Equal Protection Clause of the U.S. Constitution. In 2019’s Rucho v. Common Cause case, the Supreme Court in a 5-4 decision held that federal courts lacked judicially manageable standards to decide when taking partisanship into account might go so far. Chief Justice John Roberts, for the majority, said there were other ways to deal with the problem, like state courts applying state constitutional standards, Congress passing a statute governing congressional redistricting, or voter initiatives.

Undaunted, Common Cause went to the North Carolina state courts, arguing that partisan gerrymandering violates a part of the state constitution guaranteeing free and equal elections. The group was successful, with a lower court striking down the gerrymandered maps of the previous decade and forcing the 2020 election be run with new maps. It then secured a ruling from the North Carolina Supreme Court that the new congressional districts drawn for this decade violated the state constitution as well.

The politics of the state ruling was not lost on anyone who follows North Carolina politics. The North Carolina state constitution gives only its general assembly the right to draw congressional districts; the state’s Democratic governor, Roy Cooper, has no say. The state Supreme Court had a Democratic majority when it ruled that the redistricting violated the state Constitution, and Republicans attacked the ruling as a power grab. It’s worth noting that those same Republicans didn’t complain when similar state court rulings led to opposite outcomes, like when New York’s courts struck down its Democratic gerrymander of congressional districts as a partisan gerrymander under the New York Constitution, leading to a much more favorable map for Republicans in that state….

This past Friday, on a 5-2 party line vote, the North Carolina Supreme Court agreed to hear the case and rejected Common Cause’s petition to dismiss the rehearing request. Justice Anita Earls, an elected Democrat and former election law litigator, dissented: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” She called the decision “an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’”

The decision to seek rehearing is a curious one, and indicates some doubts on the part of Republicans that the U.S. Supreme Court’s decision in Moore would be a favorable one. After all, if you think there is a chance of getting a good ruling from the U.S. Supreme Court, why moot your case? And if you lose in the Supreme Court, you could always go back to the state supreme court in a new case to get the state court to reverse course.

Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.

Common Cause too may have reasons to argue for the case’s mootness. After all, a bad decision in North Carolina rejecting a partisan gerrymandering claim under the state constitution would only affect that state. In contrast, an embrace of the independent state legislature doctrine by the U.S. Supreme Court would have negative effects around the country.

But there is a cost here of throwing out the Moore case at this stage, and it is not just all of the lost effort on the part of lawyers, justices, and clerks. The ISL theory is not going away. It has come up in numerous cases over the last few years, and it is going to keep arising until the Supreme Court resolves it. Given the weaknesses of the legislators’ arguments in Moore, it seems like a pretty good case in which to get some clarity.

Moreover, it is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election. It is far worse when the Supreme Court’s involvement in election cases is outcome determinative, casting new doubts on the legitimacy on the courts and the electoral process. In this case, there is no individual outcome being threatened, but rather a group of future maps. And better to have rules set and understood in advance, then figured out after the fact….

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“Inside Harvard’s misinformation meltdown”

Ben Smith and Louise Matsakis for Semafor:

Joan Donovan, Research Director of the Shorenstein Center on Media, Politics and Public Policy, is a defining and combative voice in the study of how false information travels on the internet. She became a prominent commentator after the 2016 election of Donald Trump, when many Democrats blamed misinformation on social media for his election.

Her departure is tangled up in the arguments over whether misinformation is an academic pursuit or a partisan one, and it played out inside a cautious, American institution trying to hold a shrinking political center. “The Kennedy School’s decision to force out Joan Donovan and her team raises real questions about the school’s willingness to support critical and controversial work focused on democracy and technology,” said Garrett Graff, director of cyber initiatives at the Aspen Institute, which also invested in misinformation research.

Donovan’s public profile dominated the Shorenstein Center’s public image. She wrote opinion pieces for places like The New York Times, Wired, and The Atlantic, was regularly quoted by journalists at many outlets, and appeared on CNN and MSNBC. In October 2020, the House Intelligence Committee  invited her to testify on misinformation and conspiracy theories.

But behind the scenes, Donovan was also a source of discomfort for the Kennedy School, which has battled a kind of second-class status at Harvard as an institution run by journalists and politicians within a university dominated by superstar academics….

Donovan clashed with powerful social media platforms, which are a source of both data and funding to many other scholars. That conflict became clear during a private, virtual meeting of the Kennedy School’s “Dean’s Council” on October 29, 2021, where Donovan presented to the school’s top supporters on “Curbing the Damage Caused by Misinformation.”

One of the council’s members was Eliot Schrage, the former head of policy at Facebook. He aggressively challenged the premise of Donovan’s work, according to two people present. He delivered Facebook’s perspective that the platform should not be the arbiter of truth and falsity, and that journalists and academics often tag politics they don’t like as “misinformation.” (Donovan declined to comment on her status at the Kennedy School. Schrage declined to comment for this story.)

Donovan’s supporters believe her involvement with an archive of documents leaked by former Facebook whistleblower Francis Haugen led to her dismissal, though there’s no clear evidence directly linking the moves. Facebook’s then-COO Sheryl Sandberg gave more than $5 million to the Kennedy School between 2012 and 2018, according to a school report.

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“Election skeptics slow to get sweeping changes in GOP states”

AP:

Republicans in some heavily conservative states won their campaigns for secretary of state last year after claiming they would make sweeping changes aimed at keeping fraud out of elections.

So far, their efforts to make good on their promises are mixed, in some cases because their rhetoric has bumped up against skepticism from members of their own party.

Voters in politically pivotal swing states such as Arizona, Michigan and Nevada rejected candidates seeking to oversee elections who had echoed former President Donald Trump’s false claims about the 2020 presidential election. But newly elected secretaries of state in Alabama, Indiana and Wyoming who had questioned the legitimacy of that election won easily in those Republican-dominated states.

They are now facing the task of backing up their campaign pledges in states where Republicans have already set strict election laws.

In Indiana, Secretary of State Diego Morales has been relatively quiet. He has not been making the rounds at the Statehouse trying to persuade lawmakers to embrace the wide-ranging tightening of voting rules he promoted as a candidate.

After defeating the incumbent secretary of state for the Republican nomination last summer, Morales dialed back his description of Joe Biden’s 2020 presidential election as a “scam” and his calls for tighter voting laws. That push included cutting Indiana’s 28-day early voting period in half and requiring new voters to prove their U.S. citizenship when registering.

No bills for such steps were introduced for this year’s legislative session. Morales, who was an aide to Mike Pence when the former vice president was governor, also did not seek any money in his budget request to lawmakers for creating an “election task force,” which he had discussed as a candidate, that would investigate voting “shenanigans” around the state.

A concept backed by Morales for requiring voters to include a copy of their driver’s license with a mail-in ballot application is being sponsored by a Republican lawmaker, but he said he wasn’t working with Morales on the proposal.

Morales’ office has declined interview requests from The Associated Press since he took office Jan. 1. Kegan Prentice, the office’s legislative director, said Morales was “currently focused on the ongoing transition.”

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“As G.O.P. Rails Against Federal Spending, Its Appetite for Earmarks Grows”

NYT:

Even as Republicans, newly empowered after taking control of the House, call for deep government spending cuts and accuse Democrats of profligacy with taxpayer dollars, a growing number of them have joined Democrats in helping themselves to larger amounts of cash for their states and districts in the form of earmarks — now rebranded as “community project funding” — that allow lawmakers to direct federal money to pet projects.

A review by The New York Times of the nearly $16 billion in earmarks included in the $1.7 trillion spending law enacted in December — more than 7,200 projects in all — revealed that earmarks requested by members of both parties skyrocketed over the last year. And while Democrats secured a greater amount of spending on pet projects overall than Republicans did, the increase in G.O.P. earmarks since last spring was larger.

Compared to spending legislation in March, the number of earmarks in the December bill rose by more than 2,200, costing $7 billion more, with Democrats outspending Republicans by $2.3 billion. Republican members secured 85 percent more in spending for pet projects in the latest funding package than in previous one, whereas Democrats’ increase was 70 percent.

The totals still pale in comparison to the heyday of earmarking — lawmakers claimed $32 billion worth in the 2010 fiscal year, before the prohibition went into effect — but the uptick reflects a bipartisan return in enthusiasm for the practice.

Republican lawmakers claimed eight of the 10 most expensive earmarks, with Representative Brian Mast of Florida, securing the largest: $447 million for an ecosystem restoration project in South Florida.

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“Kari Lake, Still Refusing to Accept Defeat in One Race, Teases Arizona Senate Run”

NYT:

Kari Lake, the fiery former news anchor who narrowly lost a race for governor of Arizona last year, said in an interview that she is considering a Republican campaign for the U.S. Senate in Arizona next year.

She has also scheduled campaign-style events this month in Iowa — home to her party’s first presidential nominating contest — that typically signal White House ambitions.

Additionally, she is still contesting her November defeat in the Arizona governor’s race, despite her claims of misconduct being rejected in court. She has continued raising money to help finance legal bills related to her court challenges, and has also given several paid speeches, but declined to say for whom.

Ms. Lake’s maneuvering in recent months has signaled that she’s eager to build out her fledgling political résumé following a midlife career shift.

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“Democrats Overhaul Party’s Primary Calendar, Upending a Political Tradition”

NYT:

Upending decades of political tradition, the Democratic National Committee on Saturday approved a sweeping overhaul of the Democratic primary process, a critical step in President Biden’s effort to transform the way the party picks its presidential nominees.

For years, presidential nominating contests have begun with the Iowa caucuses and the New Hampshire primary, a matter of immense pride in those states, and a source of political identity for many highly engaged residents.

But amid forceful calls for a calendar that better reflects the racial diversity of the Democratic Party and the country — and after Iowa’s 2020 meltdown led to a major delay in results — Democrats voted to endorse a proposal that starts the 2024 Democratic presidential primary circuit on Feb. 3 in South Carolina, the state that resuscitated Mr. Biden’s once-flailing candidacy. New Hampshire and Nevada are scheduled to follow on Feb. 6, Georgia on Feb. 13 and then Michigan on Feb. 27.

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Henry Olsen WaPo Oped: “Republicans have a big Kari Lake problem”

Olsen column:

Attend a Kari Lake rally, as I did Sunday night, and you will see why so many conservatives will follow her to the ends of the Earth.

Lake has star power. She lights up a stage and can talk coherently for nearly an hour. She flatters her audiences and knows which buttons to push to rile them up and garner sympathy.

This gift poses massive problems for the Arizona Republican Party.

Lake is not rallying her forces to oppose Gov. Katie Hobbs’s outrageously liberal budget or to win school board elections. Instead, Lake is fixated on her narrow defeat last fall. Like former president Donald Trump, who called into her rally to pledge support, she says she was robbed.

Lake told the crowd she has “mountains of evidence.” She claims that “300,000 ballots lacked chain of custody” in Maricopa County, home to Phoenix, where she alleges the fraud took place. “A minimum of 140,000 fraudulent mail-in ballots,” which leaned Democratic, were counted despite “bad signatures,” she said. Meanwhile, 250,000 Election Day votes, which leaned heavily Republican, were “spit out and rejected” by faulty tabulating machines. The result: Democratic votes were overcounted; legitimate GOP votes were rejected.

But none of this is true. Fraud, although hard to prove, is easy to detect. If someone were stuffing ballot boxes, the results would be way out of whack compared to those in prior elections. Most places have pretty predictable turnout and voting patterns. If an area suddenly turns from red to blue or has a huge, unexplained turnout spike, something fishy might have happened….

That Lake continues to spout lies to her adoring fans creates huge problems for the state party. Its leaders know why they lost most statewide races and nearly lost control of the legislature. They know they need to win back the votes of some educated Whites while holding on to the people who backed Trump and Lake. Do that, and Arizona goes from the ultimate purple state to one that clearly leans Republican.

But how do they do that when so many of their voters believe in the voter-fraud myth? The base demands obeisance to faith that the election was stolen, and any statewide candidate will be tempted to pander to those views. But doing so would alienate the swing voters they need to win. Three straight election cycles in which Republicans lost narrowly to Democrats in their Senate and gubernatorial races prove that the hardcore base is not enough to win.

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Breaking: North Carolina Supreme Court Grants Rehearing in Case Striking Down Congressional Districts as a Partisan Gerrymander, Potentially Mooting U.S. Supreme Court’s Independent State Legislature Case, Moore v. Harper

On a 5-2 vote along party lines, the North Carolina Supreme Court has granted rehearing to reconsider its decision striking the state’s congressional districts as unconstitutional partisan gerrymanders under the state constitution. It is also considering the state districts as well as a separate voter id case; these were each decided just before the partisan majority on the Supreme Court changed. Justice Earl in her dissents calls out the court for granting the unusual rehearing and rejecting Common Cause’s motion to dismiss; the says that this is going to further politicize the judiciary and undermine the legitimacy of the courts.

The court put the congressional districting briefing on a very quick time frame, and it raises the question whether the U.S. Supreme Court’s decision in Moore v. Harper could become moot, after a lot of briefing and argument has already been considered by the Supreme Court on the independent state legislature theory.

As I recently wrote,

Back on November 9, I wrote:

Could the Flipping of the North Carolina Supreme Court to Republican Control Moot the Moore v. Harper Case about the Independent State Legislature Doctrine?

With news that the North Carolina Supreme Court has flipped to Republican control, there is a good chance that the this court’s holding that partisan gerrymandering violates the state constitution will be overturned. That ruling will allow Republicans to draw a partisan gerrymander of North Carolina’s congressional districts in time for the 2024 elections.

But it also may moot Moore v. Harper, the big “independent state legislature”/Elections Clause case. That case argues that the North Carolina’s ruling violated the power of the state’s general assembly to decide on the shape of congressional districts.

There have been a ton of amicus briefs filed (including my own) and oral arguments are set for December 7. Not clear to me how quickly a case could make it to the state Supreme Court to cause it to reconsider its partisan gerrymandering ruling, and if there might be an incentive to hold those suits to get a ruling from the U.S. Supreme Court on this issue.

Now, via Democracy Docket, comes this this petition for rehearing in the North Carolina Supreme Court in the remedial phase of the Harper case involving the maps. The case specifically asks for the original holding—-that the North Carolina congressional districts are an unconstitutional partisan gerrymander under the state constitution—be overturned.

If that case is overturned before the Supreme Court decides Moore, it seems to me that it likely moots the case.

Indeed, I wonder if SCOTUS will delay deciding this case if the NC Supreme Court grants rehearing.

I don’t know that the NC court would do so. As Marc Elias argues, doing so would be a radical act. But it could happen and then call into question whether we will find out the vitality of the independent state legislature theory or not in Moore.

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“Trump campaign staff on 2020 election lies: ‘fan the flame'”

AP:

A newly released audio recording offers a behind-the-scenes look at how former President Donald Trump’s campaign team in a pivotal battleground state knew they had been outflanked by Democrats in the 2020 presidential election. But even as they acknowledged defeat, they pivoted to allegations of widespread fraud that were ultimately debunked — repeatedly — by elections officials and the courts.

The audio from Nov. 5, 2020, two days after the election, is surfacing as Trump again seeks the White House while continuing to lie about the legitimacy of the outcome and Democrat Joe Biden’s win.

The Wisconsin political operatives in the strategy session even praised Democratic turnout efforts in the state’s largest counties and appeared to joke about their efforts to engage Black voters, according to the recording obtained Thursday by The Associated Press. The audio centers on Andrew Iverson, who was the head of Trump’s campaign in the state.

“Here’s the deal: Comms is going to continue to fan the flame and get the word out about Democrats trying to steal this election. We’ll do whatever they need. Just be on standby if there’s any stunts we need to pull,” Iverson said.

“Here’s the deal: Comms is going to continue to fan the flame and get the word out about Democrats trying to steal this election. We’ll do whatever they need. Just be on standby if there’s any stunts we need to pull,” Iverson said.</p>

Iverson is now the Midwest regional director for the Republican National Committee. He deferred questions about the meeting to the RNC, whose spokesperson, Keith Schipper, declined comment because he had not heard the recording….

Parts of the Nov. 5 meeting also center on Republican outreach efforts to the state’s Black community.

At one point, the operatives laugh over needing “more Black voices for Trump.” Iverson also references their efforts to engage with Black voters.

“We ever talk to Black people before? I don’t think so,” he said, eliciting laughter from others in the room.

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“Did Kansas criminalize voter registration drives? Supreme Court weighs election law case”

Topeka Capital-Journal:

Voter advocacy organizations are asking the Kansas Supreme Court to block a new state law that they argue criminalizes voter registration drives, despite lower courts rejecting the argument.

The justices of the state’s high court indicated in Wednesday’s hearing that their decision could hinge on the fact that legislators did not write a “reasonable person” standard into the law, appearing skeptical of the state’s argument that such a standard should still be applied.

The Supreme Court’s review focuses on a request for an injunction against a provision of HB 2183 that makes it a felony to impersonate an election official. Voter rights advocates say they halted voter registration drives out of fear of prosecution.

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“North Carolina Supreme Court Signals It May Roll Back Voting Rights for Thousands”

Bolts:

The state supreme court on Thursday held a hearing on whether North Carolinians should have the right to vote while on probation or parole. The case, CSI vs. Moore, is a challenge to North Carolina’s felony disenfranchisement law, which bars people from voting if they are incarcerated and if they are on some form of supervision over a felony conviction. 

Last year, a Superior Court in Wake County issued a landmark ruling in favor of the plaintiffs, effectively restoring the right to vote of 56,000 people in the run-up to the 2022 midterms.

The ruling kicked off a rush among civil rights organizers in North Carolina to tell those “second-chance voters” that they had regained their access to the ballot box, NC Policy Watch and Bolts reported in November. Some of them got to vote in November thanks to the ruling, which made North Carolina one of 24 states where anyone not incarcerated can vote.

But the 2022 midterms upended the political context in North Carolina by flipping the partisan majority of the state supreme court. Republicans picked up two seats, shifting the court to a 5-2 Republican majority and significantly diminishing the odds of major civil rights litigation like this lawsuit. 

The partisan shift loomed large at Thursday’s hearings. The two new Republican associate justices, Trey Allen and Richard Dietz, each signaled their skepticism toward the lower court ruling that expanded rights restoration. 

“The trial court seems to have imposed a remedy that’s beyond the authority of a court because the courts can’t grant the restoration of voting rights to felons,” said Allen. “The Constitution expressly provides that those rights can only be restored in the manner prescribed by law, and the authority to adopt such a law rests with the General Assembly, not with any court.”

“It seems that our constitutional doctrine is pretty clear, that in North Carolina, we don’t try to get into the minds of legislators,” said Dietz, pushing back against the idea that courts should remedy constitutional violations directly. “We declare something unconstitutional and then tell that other branch of government, ‘You need to try again. You enacted a law and it was unconstitutional. Enact one that is not unconstitutional.’”

Their GOP colleagues hinted that they largely shared this attitude. Should they rule to overturn the Superior Court, it could roll back last year’s voting rights expansion.

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“FEC announces 2023-2024 campaign cycle contribution limits”

Release:

The Federal Election Commission announced updated contribution limits that have been indexed for inflation and are effective for federal elections in 2023 and 2024.

The Bipartisan Campaign Reform Act of 2002 (BCRA) included provisions that indexed some contribution limits for inflation. The limit on individuals’ contributions to candidates, for example, was set at $2,000 per election in BCRA; it is adjusted at the start of each new election cycle. Adjustments are announced after the Department of Labor determines the inflation rate for the previous election year.

During the current two-year election cycle the limit for contributions by individuals to federal candidates for President, the U.S. Senate and the U.S. House of Representatives will increase to $3,300 per election.

Campaign finance provisions of the Consolidated and Further Continuing Appropriations Act, 2015 permitted national party committees to establish three additional accounts to defray certain expenses incurred with respect to presidential nominating conventions, election recounts and contests and other legal proceedings, and national party headquarters buildings. The contribution limits applicable to these accounts are 300 percent of the limits on contributions to national party committees.

The limit for contributions by individuals and nonmulticandidate PACs to national party committees has risen to $41,300, while the limit for individual and nonmulticandidate PAC contributions to each of the additional national party committee accounts has increased to $123,900 per year.

The limit on combined contributions by a national party committee and its Senatorial campaign committee to a U.S. Senate candidate over the six-year Senate cycle has increased to $57,800.

Michael Beckel crunches the numbers to find a person can give over $900,000 per year to political parties now:

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“Two years after Jan. 6, Trump is still promoting violent rhetoric”

Aaron Blake for WaPo:

It has been some 25 months since supporters of Donald Trump stormed the U.S. Capitol. Trump was later impeached for allegedly inciting the mob, with a historic number of Republicans voting to convict, though the Senate acquitted him. And many of those arrested for rioting said Trump’s suggestive language ahead of that date amounted to a call to arms.

Trump has shown little remorse and no signs of self-reflection about what happened that day. In fact, he’s making and promoting the same kind of references to political violence that preceded Jan. 6.

Perhaps the most pronounced recent example came Tuesday. On his Truth Social platform, Trump shared the message of a user actively encouraging physical violence on his behalf.

Discussing a hypothetical effort to disqualify Trump from office, the user said anyone behind such an effort “will have to figure out how to fight 80,000,000 + it’s not going to happen again.”

“People my age and old will physically fight for him this time,” the user said. “What we got to lose ? I’ll donate the rest of my time here on this planet to do it. And I know many many others who feel the same. They got my 6 and we Are Locked and LOADED.”

Trump decided this was a message that needed to be shared with his supporters.

Unlike many of Trump’s previous allusions to political violence, this one contains no real ambiguity or dual meaning that could be exploited for plausible deniability. It was a straight-up assurance that Trump supporters will “physically” fight for him, en masse.

This is only the latest instance in which Trump has gestured in this direction. Using Truth Social, in recent months he has upped his amplification of messages related to QAnon, a conspiracy theory that the FBI has linked to the threat of extremist violence and that was embraced by many Jan. 6 rioters.

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“‘I feel duped’: Inside the fast-food industry’s push to dismantle a new California labor law”

LAT:

Susan Bushnell was in a hurry when a man, clipboard in hand, approached her outside a Walmart Supercenter in Vista, Calif., one afternoon last September.

The man asked Bushnell to sign a petition as she wrangled her fussing 5-year-old daughter into a shopping cart. He said the petition would help to raise wages for fast-food workers in California.

“Oh, that’s a good cause,”Bushnell remembers thinking, having once worked in retail. Bushnell paused her rush into the San Diego County store to jot down her signature.

But what the man told Bushnell was false. The petition was part of an effort to kill a newly approved law that could bring significant wage increases for California’s fast-food workers.

That law, known as Assembly Bill 257, or the FAST Recovery Act, was set to go into effect Jan. 1 but is now on hold. State election officials said last week that a coalition of fast-food corporations and industry trade groups, which raised millions to oppose the law, secured enough valid signatures to block implementation of AB 257 until California voters decide next year whether to repeal the law.

Bushnell is among 14 voters interviewed by The Times who say petition circulators for the ballot measure to overturn AB 257 lied to them about what they were signing. Others said the signature gatherers made vague and misleading claims — a Hollywood canvasser, for instance, presented the petition as an inflation cure — or tried to hide legally required paperwork explaining the proposed referendum, sometimes becoming abusive when questioned.

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