All posts by Rick Hasen

“Evaluating a New Generation of Expansive Claims about Vote Manipulation”

election subversion risk

Justin Grimmer, Michael Herron and Michael Tyler in ELJ. Abstract:

In the wake of Donald Trump’s attempt to overturn the 2020 presidential election, a cottage industry of conspiracy theorists has advanced ever more expansive claims of vote manipulation, going so far as to allege that all American elections are subject to manipulation—even in largely Republican states. In the extreme, these conspiracy theorists argue that candidates in U.S. elections are selected rather than elected. We evaluate two recent sets of claims about vote manipulation that allege algorithms are used to shift votes towards preferred candidates. Even though these claims are distinct, they fail for similar reasons. For example, both sets of claims assert that “unnaturally” accurate predictions of election results are evidence of vote manipulation, an allegation that is a result of predicting a variable with itself. Furthermore, both claims make easily refuted errors in logic and data analysis and in addition misrepresent historical election patterns. While recent claims about vote manipulation are prima facie outlandish, their effects on policy and the public are real. Refuting false claims about vote manipulation is essential to ensuring the continued functioning of U.S. elections and American democracy more generally

Share this:

“Gene Mazo survives petition challenge in NJ-10 special election”

campaigns

New Jersey Globe:

Eugene Mazo, a Rutgers law professor with a penchant for filing for political office in order to test out state election laws, has just barely survived a challenge to his nominating petitions for the special election in New Jersey’s 10th congressional district.

Leslye Moya, the co-executive director of the New Jersey Democratic State Committee, had filed a challenge against many dozen of Mazo’s 243 signatures, claiming that they had a variety of deficiencies. But Administrative Law Judge JoAnn LaSala Candido determined that only 43 of them were invalid, keeping Mazo at 200 acceptable signatures – exactly the threshold required for ballot access.

The attorney representing Moya, Raj Parikh, said at the end of the hearing that he will not officially withdraw his challenge until he speaks with his client.

The judge’s determination means that, at least for now, the Democratic primary field for the late Rep. Donald Payne Jr. (D-Newark)’s congressional seat will remain at 11 candidates. Two of those candidates, former East Orange Councilwoman Brittany Claybrooks and Newark City Council President LaMonica McIver, are also facing petition challenges that have yet to be resolved.

Either McIver or Claybrooks are far more likely to end up prevailing in the July 16 Democratic primary than Mazo, whose runs for office are usually not concerned with actually winning.

Mazo, a scholar of election law, has run for Congress several times before, utilizing unusual or provocative ballot slogans in order to challenge the state’s slogan restrictions. (In 2022, for example, he filed for the 8th congressional district using slogans like “Supported by the Governor” and “Endorsed by the New York Times,” statements that were not true.)

This year, Mazo filed at first with three ballot slogans referencing a variety of famous figures, fictional and real: “Vladimir Putin Is A Murderous Warmonger” in Essex County, “Xi Jinping Will Destroy Taiwan” in Hudson County, and “The James Bond of Newark” in Union County. But those were rejected by the Division of Elections; Putin and Xi, after all, had not granted Mazo their permission to use their names….

Share this:

“At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display”

Supreme Court

Jodi Kantor for the NYT:

After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.

One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors.

The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before. Mr. Biden’s inauguration was three days away. Alarmed neighbors snapped photographs, some of which were recently obtained by The New York Times. Word of the flag filtered back to the court, people who worked there said in interviews.

While the flag was up, the court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision. In coming weeks, the justices will rule on two climactic cases involving the storming of the Capitol on Jan. 6, including whether Mr. Trump has immunity for his actions. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances for re-election in the upcoming one.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot….

Interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple….

In recent years, the quiet sanctuary of his street, with residents who are registered Republicans and Democrats, has tensed with conflict, neighbors said. Around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews….

Share this:

“Can Suing People for Lying Save Democracy?”

cheap speech, chicanery

New Yorker:

Freeman hired a lawyer, though it wasn’t clear what could actually be done. But, in 2021, the lawyer was approached by a nonprofit called Protect Democracy. The group had been founded a few years earlier by former lawyers in the office of the White House counsel during the Obama Administration. Protect Democracy, which now has more than a hundred employees and a budget of thirty million dollars, aims to defend America from authoritarianism; it has worked on a range of litigation, legislation, research, communications, and software projects—including VoteShield, a platform now monitoring the integrity of voter-registration data in two dozen states—and has successfully advocated for changes to election laws. One of its founders, Ian Bassin, was recently given a MacArthur “genius” grant. But P.D. has often pursued its goals in novel ways. It has recently begun to use defamation law—which was designed to protect against reputational damage rather than authoritarian takeover—to fight against the flood of disinformation. If the group sued the right liars, its members believed, they could stop dangerous lies from spreading. The strategy has concerned some free-speech advocates. But Bassin believes that targeted defamation suits can “produce a systemic rebalancing of incentives to advance truth.” In late 2021, Protect Democracy sued Giuliani, and a half dozen others, for defamation of Freeman and Moss. Freeman, who often quotes from the Bible, told me that she felt like an underdog in the fight. “I think about David and his slingshot,” she said. “He had five smooth stones.”…

As this was unfolding, P.D. was working on what it called its “Law for Truth” strategy. “We could see the dominoes,” Rachel Goodman, a former A.C.L.U. attorney, who heads the Law for Truth project, told me. A relatively small number of individuals and media outlets, she explained, account for most election-related disinformation online. According to one study, more than half the retweets of the forty-three most prominent false or misleading stories about voting, prior to the 2020 election, originated from three dozen users. Since 1964, the protective standard in libel law has been “actual malice”: if you could show that someone had willfully lied or recklessly spread mistruths, and damaged a reputation in the process, you might hold him legally responsible. “The idea of getting accountability for people defamed as part of the Big Lie was really interesting,” Goodman said….

If there’s a center-left consensus on the perils of democratic instability at the moment, it does not extend to P.D.’s use of defamation law. Some of the pushback concerns free speech. “This kind of litigation may make liars more cautious,” Eugene Volokh, who teaches First Amendment law at U.C.L.A., told me. “But the good chilling effect on lies and the bad chilling effect on truths walk hand in hand.” In an age of incipient authoritarianism, it’s especially important that speech protections be broad, critics say, so that news organizations are not afraid of reporting on what they believe to be true. Fox invoked free speech in a recent counterclaim against Smartmatic, saying that its lawsuit is “designed to serve as a warning to others to think twice before exercising their own free speech rights.” In January, a judge allowed Fox to advance its claim. Nora Benavidez, a free-speech attorney in Atlanta, explained, “Going after the purveyors of disinformation must be very carefully done so we don’t develop case law that ultimately undermines free speech—which, by its very nature, includes lies.”

Samantha Hamilton, an attorney at the University of Georgia Law School’s First Amendment Clinic, told me that defamation law was a deficient tool in the fight against disinformation because the biggest lies, such as “The election was stolen” or “Vaccines don’t work,” typically don’t cause reputational harm to a specific individual. “Defamation really doesn’t have a role to play,” she said. Bassin defends the project’s results so far. Ten days after OAN was served with the lawsuit, DirecTV informed OAN that it would not renew the network’s contract that spring. Bassin acknowledged that several factors were at play but told me, “Our complaint was the straw that broke the camel’s back.” Soon after, Verizon also cut ties with OAN. “As a result of us filing, there’s a good case to be made that OAN lost access to a quarter of U.S. households with TVs,” Bassin said. (A spokesperson for DirecTV told me that its decision was primarily financial.) Still, as Benavidez pointed out, even millions in damages might have little long-term effect on behemoths like Fox. “It’s just the cost of doing business now,” she said.

Behavioral experts have also found that most people tend to discount or reframe new information, like legal verdicts, that don’t fit into their belief systems. This form of cognitive bias complicates the problem of disinformation and potentially undermines attempts to fix it with verdicts. “If we’re expecting defamation law to do much of the heavy lifting in solving a complex issue like disinformation, I think we’re expecting too much,” Hamilton said. During the Giuliani trial, I noticed an audience member in the courtroom, a lawyer named Fletcher Thompson, who seemed distressed. During a bathroom break, I approached him. After days of testimony, he was still convinced that Biden had stolen the election. “I can see what happened,” he told me. “I make my own inferences. I think there was a plan to do this.”

Law for Truth plans to file more suits in the coming months. Ultimately, though, Bassin and his colleagues understand that P.D.’s impact has limits. Democracy is neither a natural system nor an easy one to maintain…

Share this:

“A flyer in her name told migrants to vote for Biden. But she says she didn’t write it”

chicanery

NPR deep dive into a story previously featured on ELB from the NYT:

Zavala said a “blanket of fear” fell over her in the days after the flyers went viral.

“I didn’t know how to respond. I didn’t know if I should respond,” Zavala said. “If I say something, is it going to fuel the fire more? Will this cause more death threats?”

She shut down her social media accounts as the hateful messages kept coming.

She said it bothered her that no one publicizing the flyer on social media or in Congress had checked with her about whether she or anyone at RCM had written it.

“They never cared to call me and find out whether it was true or not,” Zavala said. “I mean, that really is, you know, an attack on my character as a person.”

Rubin told NPR that it “certainly occurred to me” to ask RCM to verify the flyer when he visited, but he didn’t want to bring attention to himself because he said he had previously been kidnapped by the Gulf Cartel near there. “I need to maintain a low profile here because I am in enemy territory. The cartel literally told me, ‘Never come back here again.'”

Howell, a former attorney for the Department of Homeland Security, acknowledged that the Oversight Project did not reach out to Zavala before publishing the X thread because “it was in the immediate public interest to know about the invasion in the United States.” He added, “Would the United States reach out to the CCP [Chinese Communist Party] to verify intelligence about them flooding fentanyl into this country? Of course not.”

Howell noted that the Heritage Foundation’s news outlet, The Daily Signal, sought comment from Zavala after the thread was published. The first story that The Daily Signal published about the thread, on April 15, does not mention seeking comment from Zavala; only the second story, on April 16, does. The second story says Zavala didn’t respond to The Daily Signal.

Sponsor Message

Zavala said there are a number of clues that suggest the flyer was not written by her or anyone at RCM.

It contains errors, such as “Bienvedinos” instead of “Bienvenidos” (Welcome). Zavala is not a native Spanish-speaker, but she said she checks the grammar and spelling of what she writes in Spanish.

Whoever made the flyer relied heavily on RCM’s English-language website, which has dated posts that stop after 2021. Zavala said she has not had the time or resources to update it.

The flyer lists a defunct phone number that Zavala said she hasn’t used in years but is still listed on the website.

The first two sentences of the flyer appear to be an old description of the organization copied directly from the website and run through Google Translate into Spanish. It mentions that HIAS shares the office, an arrangement that ended in 2022, according to both groups.

The next two sentences, which remind readers to vote for Biden when they get to the U.S., are written in a different style and are riddled with more errors than the previous ones. That section translates “United States” as “estados unidos,” without the usual capitalization, while the previous section uses the abbreviation “los EE. UU.”

There are also inaccuracies in the X thread. The thread says the site where the video shows the flyers is a “Resource Center Matamoras (RCM) location.”

But RCM has not staffed the site for years, which was also confirmed to NPR by people from other local nongovernmental organizations who work with migrants. Glady Cañas of Ayudándoles a Triunfar and Andrea Rudnik of Team Brownsville both told NPR that there is no longer a formal camp at that site.

NPR visited the site and saw an informal encampment with a small number of migrants staying there, but did not see any evidence of the flyers. Anyone can access the encampment, which is in a city park along the banks of the Rio Grande.

Share this:

“Are R.F.K. Jr. Signature Gatherers Misleading New Yorkers for Ballot Access?”

ballot access, chicanery

NYT:

Amy Bernstein, a traffic court judge in Brooklyn, was heading home from work one night in late April when, she said, a young man carrying a clipboard approached her on the subway platform, asking if she would sign a petition to help place independents on the ballot in New York.

The top of the petition was folded underneath itself, so that the names of the candidates were not visible, Ms. Bernstein said. She asked for more details and told the man she was a judge — at which point he yanked the clipboard away, she said, and asked: “Am I going to get in trouble?”

The petition was for Robert F. Kennedy Jr.’s independent presidential campaign, which is working to collect the signatures needed to secure a spot for him on the November ballot in New York State. The campaign needs 45,000 but is aiming for more than 100,000. Candidates often collect far more signatures than they need in case some end up being invalidated for various reasons.

“At a minimum, it’s misleading,” Ms. Bernstein said of the interaction. “I was just pretty much taken aback.”

More than a half-dozen New York City residents, including two who are journalists at The New York Times and were approached randomly, have described similar encounters with signature gatherers for Mr. Kennedy in Brooklyn over the past three weeks. In each case, the resident was approached by a clipboard-wielding petitioner and asked to support “independent” or “progressive” candidates, or, in one case, to help get Democrats and President Biden on the ballot.

In three cases, the petitioners said that they were being paid for the work, the people who were approached said; in four cases, the petitioners said they had been told by a supervisor not to show or mention Mr. Kennedy’s name. Descriptions and photographs of the petitioners suggest that they are at least four different people. The petitioners themselves could not be identified or reached for comment.

Share this:

“Henry Cuellar Indicted Over Bribery Scheme”

bribery, chicanery, legislation and legislatures

Missed this story (and the Illinois one Derek flags) while traveling:

Representative Henry Cuellar, a Texas Democrat in a crucial swing district, and his wife were charged with participating in a yearslong $600,000 bribery scheme involving Azerbaijan and a Mexican bank, according to a federal indictment unsealed in Houston on Friday.

The accusations against Mr. Cuellar, 68, and his wife Imelda, 67, center on allegations of bribery and money laundering in connection with their efforts on behalf of an oil and gas company owned by Azerbaijan’s leaders as well as an unnamed bank based in Mexico City, according to the 54-page complaint.

Mr. Cuellar, a Laredo native first elected in 2004, is also accused of acting as an agent of a foreign entity while a U.S. government official — by delivering a speech favoring Azerbaijan in Congress and inserting provisions into aid bills to benefit those who were paying bribes to his family.

I wonder how a Speech or Debate Clause defense might figure into claims based on delivering a speech in Congress.

Share this:

Irony Alert

Uncategorized

Politico:

North Dakota Gov. Doug Burgum on Sunday supported the election fraud allegations made by former President Donald Trump, claiming on CNN: “I think it’s clear that there’s vote-buying going on at a scale like we have never seen before.”…

Trump, never shy about alleging uncorroborated malfeasance by Democrats, said his rivals use “welfare” as an enticement to get people to vote for them. “Don’t underestimate welfare. They get welfare to vote, and then they cheat on top of that — they cheat,” Trump said in his remarks on Saturday.

Burgum didn’t endorse the idea that everyone receiving public assistance is being bribed to vote (“I don’t think that’s the intention that he meant when he said that”) but then circled back to the idea of vote-buying, citing President Joe Biden’s efforts to partially forgive some student loan debt.

“You start trying to give away hundreds of billions of dollars of taxpayer money, and it’s not even — it’s like we’re borrowing to give it away. It’s not tax and spend. It’s borrow, borrow from the Chinese, and give it away,” he said.

Burgum added: “Citizens understand those are like preelection payoffs. Those are like, hey, folks, please vote for us because we’re relieving your debt. So at what point does it cross over, programs like student debt, to just vote-buying?” He then answered his own question, saying he saw this as an unprecedented effort at obtaining votes.

A two-term governor, Burgum was part of the 2024 Republican presidential field until dropping out in December. In July 2023, in order to meet the threshold of individual donors each candidate needed to participate in the GOP’s first debate, Burgum announced a campaign to reward individual donors with $20 gift cards.

“Doug knows people are hurting because of Bidenflation and giving Biden Economic Relief Gift Cards is a way to help 50,000 people until Doug is elected President to fix this crazy economy for everyone,” spokesperson Lance Trover said at the time….

Share this:

“Sen. Tim Scott dodges on whether he would accept 2024 election results”

election subversion risk

NBC News:

South Carolina Sen. Tim Scott on Sunday did not directly answer multiple questions about whether he’d accept the results of the 2024 presidential election, regardless of who wins.

“At the end of the day, the 47th president of the United States will be President Donald Trump,” Scott, a Republican, said the first time he was directly asked whether he would commit to accepting the election results on NBC News’ “Meet the Press.”

Asked again by moderator Kristen Welker to answer, “Yes or no?” to the original question, Scott simply said, “That is my statement.”

Pressed a third time to answer the question, Scott said, “I look forward to President Trump being the 47th president — the American people will make the decision.”

Earlier this month, Trump himself told the Milwaukee Journal Sentinel that he would only accept the results of the presidential election in Wisconsin “if everything’s honest.”

“If everything’s honest, I’d gladly accept the results,” he said, adding, “If it’s not, you have to fight for the right of the country.”

Share this:

“Top RNC lawyer resigns after rift grows with Trump”

campaign finance, campaigns, chicanery

WaPo on the campaign losing the adult in the room:

The top lawyer at the Republican Party is resigning after he cited conflicts with his other work obligations and after Donald Trump grew angry about his criticism of the former president’s false claims that the 2020 election was stolen, people familiar with the situation said Saturday night.

The lawyer, Charlie Spies, is a long-respected GOP election operative who was hired by Trump’s top lieutenants in March after the former president engineered a takeover of the Republican National Committee, which in recent years has been the party’s main operation in both fundraising and field operations.

Trump had approved of the hiring but later learned about additional comments the lawyer had made. Spies in the past had worked for, either directly or indirectly, former Florida governor Jeb Bush (R), Sen. Mitt Romney (R-Utah) and Florida Gov. Ron DeSantis (R). He was liked by Trump’s top advisers, who orchestrated his hiring even though they knew he was skeptical of Trump’s false claims of a stolen election….

Spies had been tasked with leading the party’s vast legal spending and election integrity program, and his hire was viewed as a sign Trump’s RNC could attract significant party talent.

Trump aides had worked to save Spies from being ousted after learning Trump was angry about his previous comments. They’re trying to convince Trump that Spies was a stronger election lawyer than others and to forgive the comments, said people familiar with the matter, who spoke on the condition of anonymity to describe private conversations. He was viewed as close with LaCivita and Susie Wiles, Trump’s two top aides….

Spies has also repeatedly defended the presidential election system as being nearly impossible to rig, citing the broad distribution of authority in managing elections. During a 2021 appearance at the Conservative Political Action Conference, he said correctly that allegations of widespread voting machine error in Michigan were false and that repeated recounts in Georgia had failed to show any voter fraud in the 2020 race there.

“Let’s win the elections, and not get worried about things that aren’t true,” he said at that event.

Share this: