All posts by Rick Hasen

Top Recent Downloads in Election Law on SSRN

Here:

RankPaperDownloads
1.Countering the New Election Subversion: The Democracy Principle and the Role of State Courts
Jessica Bulman-Pozen and Miriam Seifter
Columbia University – Law School and University of Wisconsin Law School
Date Posted: 01 Aug 2022
Last Revised: 01 Aug 2022
281
2.First Amendment Limits on State Laws Targeting Election Misinformation
David S. Ardia and Evan Ringel
University of North Carolina (UNC) at Chapel Hill – School of Law and University of North Carolina – Chapel Hill, Hussman School of Journalism and Media
Date Posted: 02 Sep 2022
Last Revised: 26 Sep 2022
228
3.Is Internet Voting Trustworthy? The Science and the Policy Battles
Andrew Appel
Princeton University
Date Posted: 12 Sep 2022
Last Revised: 14 Sep 2022
111
4.Election Reform: Past, Present, and Future
Richard L. Hasen
UCLA School of Law
Date Posted: 25 Sep 2022
Last Revised: 25 Sep 2022
90
5.Truth Bounties: A Market Solution to Fake News
Yonathan A. Arbel and Michael D. Gilbert
University of Alabama – School of Law and University of Virginia School of Law
Date Posted: 31 Aug 2022
Last Revised: 12 Sep 2022
80
6.The Unique Appearance of Corruption in Personal Loan Repayments
John J. Martin
Columbia University, School of Law
Date Posted: 12 Sep 2022
Last Revised: 12 Sep 2022
53
7.The Limits of Procedure: Litigating Voting Rights in the Face of a Hostile Supreme Court
Carolyn Shapiro
IIT Chicago-Kent College of Law
Date Posted: 19 Aug 2022
Last Revised: 09 Sep 2022
42
8.Changing Access to Voting in the Aftermath of the 2020 Election
Christina James and Charles Stewart III
Spelman College and Massachusetts Institute of Technology (MIT) – Department of Political Science
Date Posted: 30 Jul 2022
Last Revised: 30 Jul 2022
35
9.Comparative Election Law
James A. Gardner
University at Buffalo Law SchoolD
ate Posted: 22 Aug 2022
Last Revised: 22 Aug 2022
33
10.Defeating De Facto Disenfranchisement of Criminal Defendants
Neil L. Sobol
Texas A&M University School of Law
Date Posted: 20 Aug 2022
Last Revised: 31 Aug 2022
33
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Oral Argument Analysis of Merrill v. Milligan: Alabama Won’t Get All It Wants in Voting Rights Redistricting Case, But It May Well Get Enough

I listened to this morning’s argument in Merrill v. Milligan, and live-tweeted it here. My sense is that Alabama is not likely to get the Court to adopt its radical approach to rewrite Section 2 of the Voting Rights Act as a race neutral statute, but it might get something almost as good: a reworking of the existing Gingles framework to make it much harder for minority plaintiffs to get full representation in Congressional and other legislative districts.

There did not appear to be any appetite on the Court for Alabama’s constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district. That would look radical: the Court would be overturning decades of precedent, beginning with the Court’s 1986 decision in Gingles, which sets up a three-part threshold test for VRA redistricting claims, followed by a look at the totality of the circumstances.

Even Justice Alito, one of the most hostile justices to the VRA was not on board with that. He instead, however, aggressively and persistently pushed a reworking of the first of the Gingles factors in a way that would make it much harder for minority plaintiffs to prevail. It would essentially bring race neutrality in through the back door into that factor.

Justice Ketanji Brown Jackson, new to the Court, aggressively pushed back against Alito, and made very strong points about how Alito’s suggested approach is neither required by the Constitution nor in line with the text, history and precedent regarding Section 2 of the Voting Rights Act. It’s clear that Justices Kagan and Sotomayor are there with her.

Justices Barrett and Kavanaugh, and to some extent the Chief Justice, asked more of clarifying questions, and suggested they had an open mind on the question. (Recall that the Chief Justice, dissenting when a Court majority made up of the other conservative Justices put Alabama’s ruling on hold pending the hearing in this case, said that plaintiffs should win under existing law.) If one just listened to the oral argument, one might think that these Justices are up for grabs in this case. But we know from the oral argument in last year’s Brnovich case that they sounded openminded there too, but fell into line behind Justice Alito’s terrible opinion in that case. That could well happen again here. Indeed, I think that’s the most likely scenario. But it’s not certain.

Justice Thomas said little and I believe Justice Gorsuch did not ask a question (though I missed bits and pieces of argument and may have missed it). But they’ve been on record as saying that the VRA doesn’t even apply to redistricting. They are not going to be votes to help plaintiffs here.

We may not get a decision for a while. But if Justice Alito gets his way, there will be many fewer congressional districts, and state and local legislative districts, where voters of color get to elect representatives of their choice and have meaningful representation in legislative bodies.

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Stanford/UCLA October 14 Event: “Should Donald Trump Be Returned to Social Media?” (Free Webcast)

Very excited about this event:

The Program on Democracy and the Internet (PDI) at Stanford University and UCLA Law’s Safeguarding Democracy Project will host a half-day streamed conference, “Should Donald Trump Be Returned to Social Media?” Leading scholars in the areas of cyber law, election law, constitutional law, and human rights law will discuss whether former President Donald J. Trump should be restored to Twitter, Facebook, and YouTube if he declares that he is a candidate for the Presidency. Although at this moment that question is a private matter for the companies, they will be making the decision in the shadow of recent legislation in Florida and Texas (currently subject to First Amendment litigation) that would require certain social media companies to carry politicians’ speech under some circumstances. The conference will use this case study to foster a larger dialogue about the effects of deplatforming and replatforming political figures and discuss the key considerations involved in these decisions implicating free speech and safeguarding democracy.

Register for the October 14 conference

You may download papers for the conference at this link.

Conference speakers:

Register for the October 14 conference

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“Trump Allies Challenging Georgia Voters To Suppress Midterm Turnout”

Steven Rosenfeld:

On August 29, eight cartons of notarized paperwork challenging 25,000 voter registrations were delivered by pro-Donald Trump “election integrity” activists to Gwinnett County’s election offices in suburban Atlanta. They were accompanied by additional paperwork claiming that 15,000 absentee ballots had been illegally mailed to voters before the county’s 2020 presidential election.

Two days later, the activists held a briefing on the filings. It was led by Garland Favorito, a soft-spoken retired information technology professional who has been agitating in Georgia election circles for 20 years and heads a non-profit called VoterGA. Favorito began by citing six lawsuits the group has filed against state and county officials – claiming counterfeit ballots, untrustworthy or illegal voting systems, and corrupt 2022 primary results. Then he turned to Gwinnett County.

“We are delivering today 37,500 affidavits challenging voter rolls and handling of the 2020 election,” said Favorito. “As a reminder, the presidential spread for the entire state of Georgia was 11,000 and change, not quite 12,000 [votes]. And we have 20,000 [allegedly improper voter registrations] just in Gwinnett alone. This number will increase as our analysis is ongoing.”

The Gwinnett challenges are not unique. In Georgia’s Democratic epicenters, Trump backers have been filing voter roll challenges since last winter targeting upwards of 65,000 voters. The state’s post-2020 election “reform” bill, S.B. 202, authored by its GOP-led legislature, allows an unlimited number of challenges.

While most of the claims put forth by Voter GA are easily refuted, the challenges individually targeting voters could have an impact in suppressing some number of votes this fall in Georgia, where polls find some statewide contests are very close.

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“QAnon fans celebrate Trump’s latest embrace of the conspiracy”

CNN:

Supporters of QAnon on former President Donald Trump’s social media platform have celebrated what they see as his renewed embrace of the conspiracy theory over the past week after he shared a meme that was viewed as one of his most brazen nods to QAnon yet.

The meme Trump shared on Truth Social included an illustration of him wearing a “Q” on his lapel and two QAnon slogans – “The storm is coming” and “WWG1WGA” (Where we go one, we go all). A few days later, he held a rally in Youngstown, Ohio, where he delivered some of his speech to music that sounded almost exactly like a song associated with QAnon. As he did that, a group of his supporters in the crowd began pointing in unison toward the sky.

“Once we saw that, we realized we might have a problem,” a Trump aide told CNN. The former President’s team spent hours online after the rally trying to understand what the salute meant and where it might have come from, sources said.

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“Election equipment to be replaced in Coffee County after outsiders gain access”

AJC:

Georgia Secretary of State Brad Raffensperger said Friday that he will replace voting equipment in Coffee County after supporters of then-President Donald Trump and their computer analysts copied confidential data following the 2020 election.

The decision comes after tech experts hired by Trump attorney Sidney Powell visited restricted areas of the county’s elections office to copy information from an election server, voter check-in tablets, ballot scanners and other voting equipment on Jan. 7, 2021.

Replacing the equipment could cost taxpayers hundreds of thousands of dollars, but Raffensperger said it’s necessary to avoid “distraction and misinformation” before this year’s elections.

Election security experts who oppose Georgia’s voting system say the copying of election software increased the risk of hacks or malware that could attempt to manipulate election results, though there’s no evidence that has happened in an election so far.

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“Election Deniers Are Pivoting to November. Will Voters Buy It?”

NYT:

As post-primary pivots go, Don Bolduc’s overnight transformation from “Stop the Steal” evangelist to ratify-the-results convert could land him in a political hall of fame. It was an about-face so sudden and jarring that it undermined the tell-it-like-it-is authenticity with which he’d earned the Republican nomination for Senate from New Hampshire.

But Mr. Bolduc was hardly the only Republican candidate to edge away from his public insistence, despite a lack of evidence, that the 2020 election was stolen from former President Donald J. Trump, or that 2020 had undermined the integrity of American elections.

Blake Masters in Arizona, Tiffany Smiley in Washington State and Dr. Mehmet Oz in Pennsylvania have all made pivots — some artfully, some not — as the ardent, Trump-loyal voters who decided the Republican primaries shrink in the rearview mirror, and a more cautious, broader November electorate comes into view. These three Senate candidates haven’t quite renounced their questioning of the 2020 election — to right-wing audiences of podcasts, radio shows and Fox News, they still signal their skepticism — but they have shifted their appeals to the swing voters they need to win on Nov. 8.

The real question now is: Can they get away with it?

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“The Most Dominant Toxic Election Narratives Online”

NYT:

Ballot mules. Poll watch parties. Groomers.

These topics are now among the most dominant divisive and misleading narratives online about November’s midterm elections, according to researchers and data analytics companies. On Twitter, Facebook, Reddit, Truth Social and other social media sites, some of these narratives have surged in recent months, often accompanied by angry and threatening rhetoric.

The effects of these inflammatory online discussions are being felt in the real world, election officials and voting rights groups said. Voters have flooded some local election offices with misinformed questions about supposedly rigged voting machines, while some people appear befuddled about what pens to use on ballots and whether mail-in ballots are still legal, they said.

“Our voters are angry and confused,” Lisa Marra, elections director in Cochise County, Ariz., told a House committee last month. “They simply don’t know what to believe.”

The most prevalent of these narratives fall into three main categories: continued falsehoods about rampant election fraud; threats of violence and citizen policing of elections; and divisive posts on health and social policies that have become central to political campaigns. Here’s what to know about them.

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“Jury Rules Against Project Veritas in Lawsuit”

NYT:

A jury in a federal civil case on Thursday found that Project Veritas, a conservative group known for its deceptive tactics, had violated wiretapping laws and fraudulently misrepresented itself as part of a lengthy sting operation against Democratic political consultants.

The jury awarded the consulting firm, Democracy Partners, $120,000. The decision amounted to a sharp rebuke of the practices that Project Veritas and its founder, James O’Keefe, have relied on. During the trial, lawyers for Project Veritas portrayed the operation as news gathering and its employees as journalists following the facts.

“Hopefully, the decision today will help to discourage Mr. O’Keefe and others from conducting these kind of political spy operations and publishing selectively edited, misleading videos in the future,” Robert Creamer, a co-founder of Democracy Partners, said in a statement after the jury had reached a verdict.

Project Veritas said it would appeal the decision.

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“Arizona GOP secretary of state nominee stands by election conspiracy theories in debate”

CNN:

Arizona Republican secretary of state nominee Mark Finchem doubled down on the conspiracy theories that he has espoused about the 2020 presidential election in a debate against Democrat Adrian Fontes Thursday night, asserting that the votes in several key Arizona counties should have been “set aside” even though there was no evidence of widespread voter fraud in the 2020 contest.

“There are certain counties that should have been set aside as irredeemably compromised — Maricopa County was one of them. Yuma County was one of them,” the Republican state lawmaker said, echoing claims he made in a February resolution that called for decertifying the 2020 election results in three Arizona counties — even though legal experts say there is no legal mechanism to do so. “We have so many votes outside of the law that it begs the question, what do we do with an election where we have votes that are in the stream, which should not be counted?”

Finchem, a Republican state representative in Arizona, was endorsed by Donald Trump in September of 2021 after becoming one of the most vocal supporters of the former President’s lies about the 2020 presidential election. Trump is supporting a broad array of election deniers vying for office in November as he continues his unrelenting campaign to undermine and subvert the 2020 results.

Finchem is one of at least 11 Republican nominees running for state elections chief who have questioned, rejected or tried to overturn the results of the 2020 election, as CNN’s Daniel Dale chronicled last month — a trend that has alarmed election experts and increasingly drawn the notice of the public.

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“McConnell seeks a Jan. 6 mop-up on his terms”

Politico:

Mitch McConnell opposed conviction in Donald Trump’s second impeachment trial. He may yet help clean up the mess of Jan. 6.

Things are playing out differently in the Senate GOP after only nine House Republicans — all of them retiring from Congress — supported updating a 19th-century law that Trump’s allies sought to manipulate to keep him in power. Even as House GOP leaders whipped against the post-Jan. 6 legislation this week, McConnell has encouraged his members to seek a deal with Democrats and is himself leaning toward backing the effort, according to senators in both parties.

I presume that if we get the bill that was negotiated by the bipartisan group, that he’ll support it,” said Sen. Mitt Romney (R-Utah).

So far, the Kentucky Republican is keeping tight-lipped publicly amid the tension in his party over how to handle a bill directly aimed at Trump’s push to overturn his 2020 election loss, as well as the GOP lawmakers who objected to President Joe Biden’s Electoral College win. In a brief interview this week, McConnell said Congress does “need to fix” the 1887 law known as the Electoral Count Act. “And I’ll have more to say about my feelings about that later.”

He’s likely to reveal his position Tuesday, when the Rules Committee votes on the Senate legislation. McConnell is a member of the panel, alongside Majority Leader Chuck Schumer (D-N.Y.), who supports the effort….

The Rules Committee is scheduled to mark up the bipartisan bill Tuesday and is expected to make changes after receiving feedback from election law experts in August….

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