Tune in for this virtual event from UCI Law’s Fair Elections and Free Speech Center (free registration required).
The following is a guest post from William P. Wood, former chief counsel to the California Secretary of State:
Coming up to a tumultuous presidential election, with questions and concerns raised about the election process itself, it’s worthwhile to revisit what some California elections officials, airline pilots, diplomats, and nurses did during the 2000 election to make sure one badly injured voter got to cast his ballot.
Forty-eight hours before the polls opened in California, Sunday morning in November 2000, I got a call from Rob Lapsley, the chief deputy for Bill Jones, the Secretary of State. I was chief counsel. Rob said that Bill had just spoken at a church in Los Angeles. Gloria Wei approached him, asking if he could help her husband vote on November 7. Andrew Wei was a registered voter in LA and he was on Singapore Airlines Flight #006 on October 31 when it crashed in Taipei, Taiwan. He was recovering in a Taipei hospital’s burn unit.
Bill promised to help and Rob wanted me to see what could be done on such short notice.
I hurried down to the office, getting hold of our elections lawyers, Pam Giarrizzo and Oliver Cox, who agreed that something had to be done, if there was any way to make the election laws work for this injured voter. One saving grace: the time difference between California and Taiwan was fifteen hours ahead, we had gained some critical time.
While we started combing through the election laws, seeing what could be put together, I called the victim’s wife and told her what we were trying to do and she thanked us. The next series of calls went to the American Institute in Taipei, the de facto United States embassy in Taiwan. The two diplomats I briefed, Charles Bennett and Patty Hill, were also anxious to help out.
The election lawyers constructed an “emergency absentee ballot” that could be faxed to Taipei. But the law of that time didn’t allow it to be faxed back. I spent the rest of Sunday and Monday morning on the phone with the Los Angeles County Registrar, Connie McCormack. She had a few other things to do in those hectic hours before the election, but she and I spoke a dozen times about the logistics of making sure the voted ballot was physically delivered to her before the polls closed at 8 p.m. on November 7.
The clock was running. I faxed the emergency absentee ballot, instructions on how to vote it and put it together for some privacy and security, and got it to the Taipei hospital. Nurses were standing by to help the Andrew Wei complete the ballot. One of the diplomats from the American Institute then drove the voted ballot to the Taipei airport where China Airlines had agreed to fly it to Los Angeles. It was a thirteen hour flight.
The plane landed at LAX and an employee of Singapore Airlines picked up the ballot and drove it to Norwalk to the Los Angeles County Registrar’s Office and delivered it to Connie personally. The ballot arrived at 4:30 in the afternoon, November 7, 2000. Hours to spare.
I’m pleased to announce that the new 7th edition of Election Law–Cases and Materials is being printed now and will be ready in time for spring classes. Here is a detailed table of contents. The accompanying teacher’s manual should be ready in early December. Here’s a description of the new edition, and please reach out with any questions:
Cases and Materials
Forthcoming December 2021 • casebound
Tags: Election Law
2022 Teacher’s Manual forthcoming
The new student-friendly seventh edition of Election Law: Cases and Materials fully covers developments in election law through 2021, including extensive coverage of recent partisan and racial gerrymandering challenges; campaign finance cases in the Citizens United era; and challenges to new voter identification laws and other voting restrictions. It continues to include perspectives from law and political science, and it is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well.
New material in this edition includes coverage of the Supreme Court’s most recent cases on the Voting Rights Act and vote denial (Brnovich), donor disclosure and the First Amendment (AFPF v. Bonta), campaign contributions (Thompson v. Hebdon), bribery (Kelly v. United States), and the Electoral College (Chiafalo v. Washington); discussion of controversies and litigation surrounding the 2020 election and COVID-19-related election administration changes; and a completely rewritten section on partisan gerrymandering, including an edited version of the Supreme Court’s June 2019 decision in Rucho v. Common Cause.
If you are a professor teaching in this field you may request a complimentary copy.
A decade ago, North Carolina Republicans redrew their legislative districts to help their party in a way that a federal court ruled illegally deprived Black voters of their right to political representation. A state court later struck down Republican-drawn maps as based on pure partisanship.
So, as the GOP-controlled Legislature embarks this year on its latest round of redistricting, it has pledged not to use race or partisan data to draw the political lines. Still, the maps Republicans are proposing would tilt heavily toward their party. Several publicly released congressional maps dilute Democratic votes by splitting the state’s biggest city, Charlotte – also its largest African American population center – into three or four U.S. House districts and giving the GOP at least a 10-4 advantage in a state that Donald Trump narrowly won last year.
As the once-a-decade redistricting process kicks into high gear, North Carolina is one of at least three states where Republicans say they are drawing maps without looking at racial and party data. But those maps still happen to strongly favor the GOP.
Democrats and civil rights groups are incredulous, noting that veteran lawmakers don’t need a spreadsheet to know where voters of various races and different parties live in their state. Plus, under certain scenarios, the Voting Rights Act requires the drawing of districts where the majority of voters are racial or ethnic minorities.
“This is the first redistricting round I’ve ever heard of this,” said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is suing Texas Republicans over maps that the GOP said it drew without looking at racial data. “I suspect they’re trying to set up a defense for litigation. Because they know the race data – they know where the Black community lives. They know where the Latino community lives.”
Republicans have succeeded this year in passing a range of voting restrictions in states they control politically, from Georgia to Iowa to Texas. They’re not stopping there.
Republicans in at least four states where Democrats control the governor’s office, the legislature or both – California, Massachusetts, Michigan and Pennsylvania – are pursuing statewide ballot initiatives or veto-proof proposals to enact voter ID restrictions and other changes to election law.
In another state, Nebraska, Republicans control the governor’s office and have a majority in the single-house Legislature, but are pushing a voter ID ballot measure because they have been unable to get enough lawmakers on board.
Republicans say they are pursuing the changes in the name of “election integrity,” and repeat similar slogans – “easier to vote, harder to cheat.” Democrats dismiss it as the GOP following former President Donald Trump’s false claims that widespread fraud cost him the election. They say Republicans have tried to whip up distrust in elections for political gain and are passing restrictions designed to keep Democratic-leaning voters from registering or casting a ballot.
Months after Democratic leaders in Congress backed away from providing billions of badly needed dollars to support local election improvements, we now learn that the Senate plans to add the very same amount of money to the Defense Department’s $715 billion budget — even though the Pentagon didn’t ask for it.
You read that right: Congress gave an extra $10 billion to the Pentagon but zero to elections, ignoring multiple warnings and research the past three years emphasizing that America’s crumbling, underfunded election infrastructure presents a national security risk.
It’s not as if the threats to elections are subtle. The last six years have brought us stunning misinformation circulated by hostile foreign nations; direct attacks by those countries on our election infrastructure; a violent insurrection at the Capitol spurred by a former president convinced he is the rightful leader of the country; and continued violent threats to election administrators. Meanwhile, election administrators have been screaming into the wind, trying to convince Congress that Windows 7 is not a sustainable operating system for elections. Anemic election budgets are also to blame for the paperless voting machine problem. Despite a recent push for paper-backed voting, several counties are stuck with paperless systems. That makes them frequent targets of election skeptics, especially amid the intense new attention on audits and claims of hacked machines.
Election security is a war in which America is losing ground. Our generals are our representatives, and county workers are the soldiers, being sent into battle against hostile nation states with broken guns and body armor made of cardboard. The combatants are not the U.S. government versus Russia, or the U.S. government versus China. It is your county clerk versus those massive, well-resourced countries, and our representatives have told them to figure it out on their own.
After more than 18 months of deliberation, California’s political ethics regulators voted today to approve new rules when elected officials raise money for charities that they or their family control.
More public disclosure of their ties to the group getting the payments? Yes.
Limits on money from interest groups that lobby the officials? Not at all.
The new rules fall far short of what government watchdogs say is necessary to rein in the growing trend of charitable donations serving as a conduit for interest groups that seek to influence politicians. Stronger rules would need legislative approval, and lawmakers made clear they’re not interested.
The new rules on so-called “behested payments” were crafted by the Fair Political Practices Commission following a CalMatters investigation that showed how politicians increasingly use charitable organizations to raise and spend money outside the limits of the state’s strict campaign finance laws.
The CalMatters report revealed that a dozen nonprofits run by state lawmakers and their staffs reported raising nearly $3 million in 2019 from interest groups that lobby the Legislature; that a nonprofit tied to the Legislature’s technology caucus was keeping its donations secret; and that a lawmaker — now Attorney General Rob Bonta — routinely asked interest groups to donate to his personal foundation as well as to nonprofits that employed his wife Mia Bonta, who is now an assemblymember.
Sixteen months before last November’s presidential election, a researcher at Facebook described an alarming development. She was getting content about the conspiracy theory QAnon within a week of opening an experimental account, she wrote in an internal report.
On Nov. 5, two days after the election, another Facebook employee posted a message alerting colleagues that comments with “combustible election misinformation” were visible below many posts.
Four days after that, a company data scientist wrote in a note to his co-workers that 10 percent of all U.S. views of political material — a startlingly high figure — were of posts that alleged the vote was fraudulent.
In each case, Facebook’s employees sounded an alarm about misinformation and inflammatory content on the platform and urged action — but the company failed or struggled to address the issues. The internal dispatches were among a set of Facebook documents obtained by The New York Times that give new insight into what happened inside the social network before and after the November election, when the company was caught flat-footed as users weaponized its platform to spread lies about the vote.
acebook has publicly blamed the proliferation of election falsehoods on former President Donald J. Trump and other social platforms. In mid-January, Sheryl Sandberg, Facebook’s chief operating officer, said the Jan. 6 riot at the Capitol was “largely organized on platforms that don’t have our abilities to stop hate.” Mark Zuckerberg, Facebook’s chief executive, told lawmakers in March that the company “did our part to secure the integrity of our election.”
But the company documents show the degree to which Facebook knew of extremist movements and groups on its site that were trying to polarize American voters before the election. The documents also give new detail on how aware company researchers were after the election of the flow of misinformation that posited votes had been manipulated against Mr. Trump.
What the documents do not offer is a complete picture of decision making inside Facebook. Some internal studies suggested that the company struggled to exert control over the scale of its network and how quickly information spread, while other reports hinted that Facebook was concerned about losing engagement or damaging its reputation.
Yet what was unmistakable was that Facebook’s own employees believed the social network could have done more, according to the documents.
“Enforcement was piecemeal,” read one internal review in March of Facebook’s response to Stop the Steal groups, which contended that the election was rigged against Mr. Trump. The report’s authors said they hoped the post-mortem could be a guide for how Facebook could “do this better next time.”…
For years, Facebook employees warned of the social network’s potential to radicalize users, according to the documents.
In July 2019, a company researcher studying polarization made a startling discovery: A test account she had made for a “conservative mom” in North Carolina received conspiracy theory content recommendations within a week of joining the social network.
The internal research, titled “Carol’s Journey to QAnon,” detailed how the Facebook account for an imaginary woman named Carol Smith had followed pages for Fox News and Sinclair Broadcasting. Within days, Facebook had recommended pages and groups related to QAnon, the conspiracy theory that falsely claimed Mr. Trump was facing down a shadowy cabal of Democratic pedophiles.
By the end of three weeks, Carol Smith’s Facebook account feed had devolved further. It “became a constant flow of misleading, polarizing and low-quality content,” the researcher wrote….
In a September 2020 public post, Mr. Zuckerberg wrote that his company had “a responsibility to protect our democracy.” He highlighted a voter registration campaign that Facebook had funded and laid out steps the company had taken — such as removing voter misinformation and blocking political ads — to “reduce the chances of violence and unrest.”
Many measures appeared to help. Election Day came and went without major hitches at Facebook.
But after the vote counts showed a tight race between Mr. Trump and Joseph R. Biden Jr., then the Democratic presidential candidate, Mr. Trump posted in the early hours of Nov. 4 on Facebook and Twitter: “They are trying to STEAL the Election.”
The internal documents show that users had found ways on Facebook to undermine confidence in the vote.
On Nov. 5, one Facebook employee posted a message to an internal online group called “News Feed Feedback.” In his note, he told colleagues that voting misinformation was conspicuous in the comments section of posts. Even worse, the employee said, comments with the most incendiary election misinformation were being amplified to appear at the top of comment threads, spreading inaccurate information.
Then on Nov. 9, a Facebook data scientist told several colleagues in an internal post that the amount of content on the social network casting doubt on the election’s results had spiked. As much as one out of every 50 views on Facebook in the United States, or 10 percent of all views of political material, was of content declaring the vote fraudulent, the researcher wrote.
“There was also a fringe of incitement to violence,” he wrote in the post.
Even so, Facebook began relaxing its emergency steps in November, three former employees said. The critical postelection period appeared to have passed and the company was concerned that some pre-election measures, such as reducing the reach of fringe right-wing pages, would lead to user complaints, they said….
On the morning of Jan. 6, with protesters gathered near the U.S. Capitol building in Washington, some Facebook employees turned to a spreadsheet. There, they began cataloging the measures that the company was taking against election misinformation and inflammatory content on its platform.
User complaints about posts that incited violence had soared that morning, according to data in the spreadsheet.
Over the course of that day, as a mob stormed the Capitol, the employees updated the spreadsheet with actions that were being taken, one worker involved in the effort said. Of the dozens of steps that Facebook employees recommended, some — such as allowing company engineers to mass-delete posts that were being reported for pushing violence — were implemented.
But other measures, such as preventing groups from changing their names to terms such as Stop the Steal, were not fully implemented because of last-minute technology glitches, according to the spreadsheet….
In a Jan. 7 report, the scope of what had occurred on Facebook became clear. User reports of content that potentially violated the company’s policies were seven times the amount as previous weeks, the report said. Several of the most reported posts, researchers found, “suggested the overthrow of the government” or “voiced support for the violence.”…
Another report, titled “Stop the Steal and Patriot Party: The Growth and Mitigation of an Adversarial Harmful Movement,” laid out how people had exploited Facebook’s groups feature to rapidly form election delegitimization communities on the site before Jan. 6.
Some organizers sent hundreds of invitations to build the groups, essentially spamming people, the report found. They also asked everyone who joined to invite as many other people as possible, making the groups balloon in size. (Facebook has since begun more closely monitoring the amount of group invites.)
Some organizers of Stop the Steal groups on Facebook also appeared to be cooperating with each other for “growing the movement,” the report said.
“Hindsight being 20/20 makes it all the more important to look back, to learn what we can about the growth of the election delegitimizing movements that grew, spread conspiracy, and helped incite the Capitol insurrection,” the report said.
They called it the “command center,” a set of rooms and suites in the posh Willard hotel a block from the White House where some of President Donald Trump’s most loyal lieutenants were working day and night with one goal in mind: overturning the results of the 2020 election.
The Jan. 6 rally on the Ellipse and the ensuing attack on the Capitol by a pro-Trump mob would draw the world’s attention to the quest to physically block Congress from affirming Joe Biden’s victory. But the activities at the Willard that week add to an emerging picture of a less visible effort, mapped out in memos by a conservative pro-Trump legal scholar and pursued by a team of presidential advisers and lawyers seeking to pull off what they claim was a legal strategy to reinstate Trump for a second term.
They were led by Trump’s personal lawyer Rudolph W. Giuliani. Former chief White House strategist Stephen K. Bannon was an occasional presence as the effort’s senior political adviser. Former New York City police commissioner Bernard Kerik was there as an investigator. Also present was John Eastman, the scholar, who outlined scenarios for denying Biden the presidency in an Oval Office meeting on Jan. 4 with Trump and Vice President Mike Pence.
They sought to make the case to Pence and ramp up pressure on him to take actions on Jan. 6 that Eastman suggested were within his powers, three people familiar with the operation said, speaking on the condition of anonymity to describe private conversations. Their activities included finding and publicizing alleged evidence of fraud, urging members of state legislatures to challenge Biden’s victory and calling on the Trump-supporting public to press Republican officials in key states.
The effort underscores the extent to which Trump and a handful of true believers were working until the last possible moment to subvert the will of the voters, seeking to pressure Pence to delay or even block certification of the election, leveraging any possible constitutional loophole to test the boundaries of American democracy.
Donald Kirk Hartle looked troubled last November. It was a few days after Election Day and the Las Vegas man was telling a local news station that someone had stolen his late wife’s mail-in ballot and returned it to Clark County election officials, according to Nevada’s online ballot tracker.
“That is pretty sickening to me, to be honest with you,” Hartle said in an interview then with KLAS 8 News Now. “It was, uh, disbelief. It just — it made no sense to me.”
Hartle noted that his late wife, Rosemarie, had died in 2017, but remained on the voter rolls. The signature on the returned ballot had matched what election officials had on file for Rosemarie, KLAS 8 News Now reported at the time, leaving Hartle to wonder “who took advantage of his grief” and how had they pulled it off?
Nearly a year later, there appears to be an answer.ADVERTISING
On Thursday, the Nevada attorney general’s office announced it had filed two charges of voter fraud against Hartle, alleging that he forged his late wife’s name to vote with her ballot. Both charges — one for voting using the name of another person and another for voting more than once in the same election — are category D felonies that each can carry a prison sentence of up to four years, along with a fine of up to $5,000.
“Voter fraud is rare, but when it happens it undercuts trust in our election system and will not be tolerated by my office,” Nevada Attorney General Aaron Ford, a Democrat, said in a statement. “I want to stress that our office will pursue any credible allegations of voter fraud and will work to bring any offenders to justice.”
Hartle allegedly voted twice, including once in his late wife’s name, between Oct. 26 and Oct. 30 of last year, according to a criminal complaint. David Chesnoff, an attorney for Hartle, did not immediately respond to a request for comment Friday, but told the Las Vegas Review-Journal that his client would respond to the allegations in court. His first court appearance is scheduled for Nov. 18.
After last year’s flurry of pre- and post-election lawsuits, election litigation has not relented as lawyers meet in courtrooms across the country to hammer out voting rights disputes, redistricting disagreements, and a host of other elections-related issues.
Even months after the election, lawyers continue to litigate bans on “line warming” at polling stations, voting laws passed in Republican state legislatures after the election, and gerrymandered redistricting maps in numerous states.
Experts and election lawyers say the increased tempo of election litigation will not slow down—even outside of election years—as new legal issues arise and new law firms emerge to take on these issues, funded by outside organizations and party committees nearly a year after the 2020 election.
An explosion of funding has created an environment where, over the past two decades, election law has transformed from a once-niche area of the law practiced by small groups of lawyers to a full-blown practice that demands dedicated groups.
According to an analysis of Federal Election Commission data, the six major party committees on both sides—the DNC, DSCC, DCCC, RNC, NRSC and NRCC—increased their spending on legal services more than 1,700% between 2008 and 2021.
Between Jan. 1, 2020, and Oct. 4, 2021, the major parties spent more than $93 million on legal services as law firms battled out pre- and post-election lawsuits and advised them on compliance issues….
Since Bush v. Gore, Big Law firms such as Perkins Coie, Jones Day, and Wiley Rein have hoovered up the majority of the legal spend from major party committees. And that spend has shot up in recent years.
For instance, in the pre- and post-election in 2008, Perkins Coie billed the major Democratic committees $2.1 million for legal services and administrative fees. During the same period of 2016, the Seattle-based firm billed $8.6 million. But in the lead-up to and aftermath of the 2020 election, Perkins billed $52 million.
Similarly, Jones Day billed the major Republican committees $2.4 million in the 2016 election cycle compared to $6.3 million in the most recent one. Wiley Rein’s legal bills to Republican committees increased elevenfold in the last two election cycles.
The 2016 election in particular opened the funding floodgates for election lawyers, Pildes said.
“After the 2016 election, there was a tremendous outpouring of funding to support both groups that do work on election issues and election litigation and funding for, for example, Marc Elias on the DNC side,” he said. “You have more organizations focused on these issues, they have a lot more resources. For private law firms there’s a lot more money available and an incentive to litigate lots of issues in this space.”
But more recently, specialized firms staffed by top ex-Big Law and government lawyers, such as Consovoy McCarthy and the Constitutional Litigation and Advocacy Group, have billed millions to the same committees.
Former Perkins Coie election law chairman Marc Elias created among the biggest specialized firms to enter the market when he departed Perkins in September to form the Elias Law Group, which includes 10 other former Perkins political law group partners.
In a recent interview with Law360, Elias Law Group partner Elisabeth Frost said the practice’s increasing profile and partisan stature during the 2020 election cycle contributed to the split.
“We became more and more public-facing on our views about this stuff,” said Frost in the article. “And it just became clear that we needed the space, and it was time to spin off.”
It took the federal jury in U.S. District Court in Manhattan less than a day to find that Parnas committed fraud through donations to several state and federal candidates that were bankrolled by a Russian financier. Parnas was also found guilty on counts related to a $325,000 donation in 2018 to a joint fundraising committee that supported then-President Donald Trump.
Prosecutors told the jury that the illegal fundraising efforts documented in text messages and other trial evidence gave Parnas access to elected officials and candidates. They showed photos of Parnas with Trump and Giuliani, who was the president’s personal lawyer, schmoozing at high-end political fundraisers.
Prosecutors also said Parnas lied to the Federal Elections Commission about the source of the hefty 2018 donation, which he said in filings was from his start-up company Global Energy Producers. The company was in fact not profitable and not functioning as a real business, prosecutors argued. The donation was actually sourced through a mortgage refinance loan obtained by Parnas’s business partner, Igor Fruman, the jury found.
Fruman — whose alleged role in the events was regularly discussed in testimony at the trial — pleaded guilty last month to one count of soliciting foreign campaign contributions. He’s due to be sentenced early next year.
Carolyn Shapiro at Slogblog:
The ISLD is problematic for numerous reasons, but one that Judge Sutton might appreciate is that the doctrine, at least in its most extreme forms, is deeply contemptuous, even destructive, of a legal and political culture that takes state constitutions – and state courts – seriously. Many state constitutions have “free elections” clauses. In Arizona, for example, Article 2, section 21 of the state constitution reads: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” In New Hampshire, Part I, Article 11 of the constitution states: “All elections are to be free, and every inhabitant of the state of 18 years and upwards shall have an equal right to vote in any election.” There is no federal counterpart to these clauses.
And as Judge Sutton would expect, different state courts have interpreted and applied their free elections clauses differently. In 2014, for example, a Pennsylvania court declared a voter ID law unconstitutional under that state’s version of the clause because the statute failed to provide a “non-burdensome means of obtaining compliant photo ID.” The free elections clause also played a role in the Pennsylvania court’s ruling on gerrymandering. On the other hand, otherstate courts have upheld their voter ID laws against similar state constitutional challenges.
A maximalist ISLD, however, might suggest that a Pennsylvania constitutional holding cannot apply to federal elections. Indeed, the Republican party so argued in 2020 when it asked the U.S. Supreme Court to reverse a different Pennsylvania Supreme Court case related to absentee ballots. Leaving aside the merits of voter ID laws themselves and the administrative challenges of different requirements for state and federal elections, there would be consequences to this approach that should concern anyone interested in the development of state constitutional law.
For one thing, a state court might be more reluctant to find robust state constitutional protections, or to rely on constitutional avoidance when construing election laws, if doing so could lead to a two-tiered voting system. In other words, the ISLD could have a chilling effect on the state courts’ evaluation of their own laws and constitutional provisions. And as Judge Sutton has suggested, that chilling effect could implicate the development of federal constitutional law as well.
Second, this maximalist ISLD could well send voters a message of no confidence in their state courts….
Matthew Seligman for Slate.