On the third day of the Conservative Political Action Conference earlier this month, two men delivered on experts’ biggest concerns about attempts to access election machines after the 2020 election.
Using copies of election software — improperly removed from multiple counties — that has been circulating among election deniers, they presented an unfounded narrative that they had discovered evidence of fraud and foreign interference. They also discussed their goal to secure jobs as election officers and build a team of computer experts to access elections systems in more than 60 counties in order to prove their theories.
“This is exactly the situation that I have warned about,” said election technology expert Kevin Skoglund, a senior technical advisor at the National Election Defense Coalition. “Having the software out there allows people to make wild claims about it. It creates disinformation that we have to watch out for and tamp down.”
Skoglund is among the election security experts concerned that bad actors are using the time between the 2020 and 2024 elections to study election systems and software in order to produce disinformation during the next presidential election, such as fake evidence of fraud or questionable results.
Described as an election integrity presentation, the event wasn’t on the official CPAC agenda or sanctioned by the organization, but took place in a guest room at a nearby hotel. Some CPAC sponsors hold their own sessions, which are planned and produced by them and not CPAC.
Only a small number of people attended the event in person. At least 2,800 people watched live online through a far-right broadcast, according to that show’s host. That broadcast included commentary from election deniers before and after the presentation.
Category Archives: election subversion risk
“How to Protect American Democracy; U.S. Elections Are Still Vulnerable to Enemies Foreign and Domestic”
Larry Norden and Derek Tisler in Foreign Affairs:
Despite this outcome, it would be foolish to believe the danger has passed. Election deniers continue to work in some election offices around the country, and in 2022, they won more than 170 races for the House of Representatives, the Senate, and key statewide offices. Powerful figures, including former President Donald Trump and pundits with millions of followers and viewers, continue to undermine the public’s confidence in U.S. elections. Abroad, countries with massive resources have the motive and means to interfere in future contests. If anything, the heightened geopolitical stakes raised by the war in Ukraine and other global flashpoints will increase their interest in meddling in 2024. Elections have in many ways become a battlefield in a contest over global order.
With the next U.S. presidential election on the horizon, now is the time to further shore up the system’s defenses against threats foreign and domestic to help ensure that the democratic process is protected when Americans go to the polls in November 2024.
“Pence Must Testify to Jan. 6 Grand Jury, Judge Rules”
A federal judge has ordered former Vice President Mike Pence to appear in front of a grand jury investigating former President Donald J. Trump’s attempts to overturn the 2020 election, largely sweeping aside two separate legal efforts by Mr. Pence and Mr. Trump to limit his testimony, according to two people familiar with the matter.
The twin rulings on Monday, by Judge James E. Boasberg in Federal District Court in Washington, were the latest setbacks to bids by Mr. Trump’s legal team to limit the scope of questions that prosecutors can ask witnesses close to him in separate investigations into his efforts to maintain his grip on power after his election defeat and into his handling of classified documents after he left office.
In the weeks leading up to the Capitol attack by a pro-Trump mob on Jan. 6, 2021, Mr. Trump repeatedly pressed Mr. Pence to use his ceremonial role overseeing the congressional count of Electoral College votes to block or delay certification of his defeat.
Prosecutors have been seeking to compel Mr. Pence to testify about Mr. Trump’s demands on him, which were thoroughly documented by aides to Mr. Pence in testimony last year to the House select committee that investigated the Jan. 6 riot and what led up to it….
While Judge Boasberg issued a clear-cut ruling against Mr. Trump’s attempts to assert executive privilege, his ruling on the “speech or debate” clause was more nuanced, according to a person familiar with the matter.
The judge affirmed the idea that Mr. Pence had some protection under “speech or debate” based on his role in overseeing the certification of the election inside the Capitol on Jan. 6. But Judge Boasberg also said that Mr. Pence would have to testify to the grand jury about any potentially illegal acts committed by Mr. Trump, the person familiar with the matter said.
April 4 Free Online Webinar from Safeguarding Democracy Project: “Confronting the Insider Threat on Election Security and Protecting Election Officials” with Judd Choate and Liz Howard
I’m very much looking forward to this final event for the UCLA Law Safeguarding Democracy Project’s spring webinar series. Join us on April 4 at noon pacific time! (Free registration required.)
“Trump Puts His Legal Peril at Center of First Big Rally for 2024”
Former President Donald J. Trump spent much of his first major political rally of the 2024 campaign portraying his expected indictment by a New York grand jury as a result of what he claimed was a Democratic conspiracy to persecute him, arguing wildly that the United States was turning into a “banana republic.”
As a crowd in Waco, Texas, waved red-and-white signs with the words “Witch Hunt” behind him, Mr. Trump devoted long stretches of his speech to his own legal jeopardy rather than his vision for a second term, casting himself as a victim of “weaponization” of the justice system.
“The abuses of power that we’re currently witnessing at all levels of government will go down as among the most shameful, corrupt and depraved chapters in all of American history,” he said.
The speech underscored how Mr. Trump tends to frame the nation’s broader political stakes heavily around whatever issues personally affect him the most. Last year, he sought to make his lies about fraud in his 2020 election defeat the most pressing issue of the midterms. On Saturday, he called the “weaponization of our justice system” the “central issue of our time.”
Lamenting all the investigations he has faced in the last eight years that have — to date — not resulted in charges, Mr. Trump claimed that his legal predicament “probably makes me the most innocent man in the history of our country.”…
The rally featured one new twist: the playing of “Justice for All,” a song featuring the J6 Prison Choir, which is made up of men who were imprisoned for their part in the Capitol riot on Jan. 6, 2021.
The song, which topped some iTunes download charts, is part of a broader attempt by Mr. Trump and his allies to reframe the riot and the effort to overturn the election as patriotic. The track features the men singing “The Star-Spangled Banner” while Mr. Trump recites the Pledge of Allegiance.
“Trump, Escalating Attacks, Raises Specter of Violence if He Is Charged”
In an overnight social media post, former President Donald J. Trump predicted that “potential death and destruction” may result if, as expected, he is charged by the Manhattan district attorney in connection with hush-money payments to a porn star made during the 2016 campaign.
The comments from Mr. Trump, made between 1 a.m. and 2 a.m. on his social media site, Truth Social, were a stark escalation in his rhetorical attacks on the Manhattan district attorney, Alvin L. Bragg, ahead of a likely indictment on charges that Mr. Trump said would be unfounded.
“What kind of person,” Mr. Trump wrote of Mr. Bragg, “can charge another person, in this case a former president of the United States, who got more votes than any sitting president in history, and leading candidate (by far!) for the Republican Party nomination, with a crime, when it is known by all that NO crime has been committed, & also that potential death & destruction in such a false charge could be catastrophic for our country?”
“Why & who would do such a thing? Only a degenerate psychopath that truely hates the USA!” the former president wrote….
In a post early Saturday morning, Mr. Trump erroneously claimed that he was to be arrested three days later and urged people to protest and “take our nation back.”
Since then, he has called Mr. Bragg, the first Black district attorney in Manhattan, an “animal” and appeared to mock calls from some of his own allies for people to protest peacefully, or not at all.
“Our country is being destroyed as they tell us to be peaceful,” Mr. Trump said in a post on Thursday.
Mr. Trump has also attacked Mr. Bragg for having received indirect financial support from the billionaire philanthropist George Soros.
So far, Mr. Trump’s calls for protests have been largely ignored, with just handfuls of people coming out for a demonstration on Monday organized by some of his New York Republican allies.
Jason Marisam has posted this draft on SSRN (forthcoming, UCLA Law Review Discourse). Here is the abstract:
In 2020 and 2022, multiple Republican county canvassers refused to perform their ministerial duty to approve election returns, obstructing the official certification of the results. The canvassers latched onto false claims of fraud and other conspiracies advanced by election deniers. They eventually relented, because of court orders and public pressure. The elections produced official winners, and crisis was averted. But, as long as election denialism rots our political discourse, election obstruction by canvassers will be a persistent risk with significant dangers for our democracy. This Essay provides a brief history of election obstruction by canvassers, examines the modern link between election denialism and election obstruction, and proposes two solutions to minimize the risk of election obstruction – diversifying canvassing institutions and bypassing county canvassers for national and statewide races.
“Six people affiliated with the Oath Keepers convicted in Capitol riot”
Six people described by authorities as being affiliated with the right-wing extremist group the Oath Keepers were convicted Monday of numerous federal crimes related to the Jan. 6, 2021, attack on the U.S. Capitol.
After a trial in U.S. District Court in Washington, the jury returned a total of 27 guilty verdicts, with every defendant convicted of at least one charge and most found guilty of several offenses. In all, the defendants faced 34 charges stemming from the Capitol riot. The jury, which is continuing to deliberate, issued not guilty verdicts on five counts and has yet to reach decisions on two others.
Four of the defendants were convicted of the most serious offense in the case, conspiring to obstruct an official proceeding. Theirs was the latest of several trials dealing with the militia group’s involvement in the Capitol mayhem.
Authorities have described the defendants, ranging in age from their 20s to their 70s, as members or associates of the Oath Keepers. Five of them originally were charged in early 2021 with conspiracy and aiding and abetting the obstruction of an official proceeding of Congress. Their trial was separate from two different, higher-profile trials in which other defendants, including Oath Keepers founder Stewart Rhodes, were accused of seditious conspiracy.
“Trump Says His Arrest Is Imminent and Calls for Protests, Echoing Jan. 6; His indictment by a Manhattan grand jury is expected, but its timing is unclear.”
With his indictment by a Manhattan grand jury expected but its timing uncertain, former President Donald J. Trump declared on his social media site Saturday that he would be arrested on Tuesday, and demanded that his supporters protest on his behalf.
Mr. Trump made the declaration on Truth Social at 7:26. a.m., in a post written in all capital letters that ended by saying, “THE FAR & AWAY LEADING REPUBLICAN CANDIDATE AND FORMER PRESIDENT OF THE UNITED STATES OF AMERICA, WILL BE ARRESTED ON TUESDAY OF NEXT WEEK. PROTEST, TAKE OUR NATION BACK!”
The Manhattan district attorney’s office declined to comment. An adviser to Mr. Trump did not respond to a message seeking comment.
Although prosecutors working for the district attorney, Alvin L. Bragg, have signaled that an indictment of Mr. Trump could be imminent, there was no immediate indication as to why the former president appeared confident that he would be arrested Tuesday. People with knowledge of the matter have said that at least one more witness is expected to testify in front of the grand jury, which could slightly delay any indictment.
Three people close to Mr. Trump said that the former president’s team had no specific knowledge about when an indictment might come or when an arrest could be anticipated. One of those people, who were not authorized to speak publicly, said that Mr. Trump’s advisers’ best guess was that it could happen around Tuesday, and that someone may have relayed that to him, but that they also had made clear to one another that they didn’t know a specific time frame.
Mr. Trump, who faced his first criminal investigation in the late 1970s, has been deeply anxious about the prospect of being arrested, which is expected to include being fingerprinted, one of the people close to him said. When the Trump Organization’s former chief financial officer, Allen H. Weisselberg, was arrested in 2021, Mr. Trump watched in horror as television coverage showed Mr. Weisselberg flanked by officers in the courthouse and said he couldn’t believe what was being done to him.
The call for protests echoed Mr. Trump’s call to his supporters, in the waning days of his presidency, to join him for a rally in Washington on Jan. 6, 2021, the day President Biden’s win was to be certified by a congressional approval of the electoral college votes. At that rally, at the Ellipse near the White House, Mr. Trump then told supporters to march to the Capitol, where the certification was taking place.
Mr. Trump’s post urging his supporters to “PROTEST, TAKE OUR NATION BACK!” carried unmistakable echoes of the incendiary messages he posted online in the weeks before the attack on the Capitol. In the most notorious of those messages, he announced on Twitter that he would hold a rally in Washington on Jan. 6, 2021. “Be there,” he told his millions of followers, “will be wild.”
Investigators later determined that far-right extremist groups as well as ordinary Trump supporters read that tweet — posted on Dec. 19, 2020 — as a clear-cut invitation and almost immediately sprang into action, acquiring protective gear, setting up encrypted communications channels and, in one case, preparing heavily armed “quick reaction forces” to be staged outside of Washington for the event.
“Trump-commissioned report undercut his claims of dead and double voters”
When Donald Trump called Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021, in a now-infamous bid to overturn the 2020 election, he alleged that thousands of dead people had voted in the state.
“So dead people voted, and I think the number is close to 5,000 people. And they went to obituaries. They went to all sorts of methods to come up with an accurate number, and a minimum is close to about 5,000 voters,” he said, without citing his study.
But a report commissioned by his own campaign dated one day prior told a different story: Researchers paid by Trump’s team had “high confidence” of only nine dead voters in Fulton County, defined as ballots that may have been cast by someone else in the name of a deceased person. They believed there was a “potential statewide exposure” of 23 such votes across the Peach State — or 4,977 fewer than the “minimum” Trump claimed.
In a separate failed bid to overturn the results in Nevada, Trump’s lawyers said in a court filing that 1,506 ballots were cast in the names of dead people and 42,284 voted twice. Trump lost the Silver State by about 33,000 votes.
The researchers paid by Trump’s team had “high confidence” that 12 ballots were cast in the names of deceased people in Clark County, Nev., and believed the “high end potential exposure” was 20 voters statewide — some 1,486 fewer than Trump’s lawyers said.
According to their research, the “low end potential exposure” of double voters was 45, while the “high end potential exposure” was 9,063. The judge tossed the Nevada case even as Trump continued to claim he won the state.
The “Project 2020” report conducted by the Berkeley Research Group has now been obtained by prosecutors investigating the Jan. 6, 2021, attack on the U.S. Capitol. A copy was reviewed by The Washington Post, and it shows that Trump’s own campaign paid more than $600,000 for research that undercut many of his most explosive claims. The research was never made public.
The Justice Department has sought and obtained multiple reports, emails and interviews from witnesses that show campaign officials analyzing, and often discrediting, claims that Trump was making publicly, according to several people involved in the investigation, who like some others spoke on the condition of anonymity to disclose internal details. The Berkeley report was provided to the Justice Department earlier this month, one of the people said, after some people involved in its crafting received a subpoena.
“Democracy on the Precipice?”
Archon Fong assesses the state of U.S. democracy.
“Saving Democracy, State by State?”
Miriam Seifter has posted this draft on SSRN (California Law Review). Here is the abstract:
In his Jorde lecture, Professor Steven Levitsky offers an important account of the nation at a crossroads. Down one path is a thriving multiracial democracy; down the other lies democracy’s demise. To avoid the latter path, Levitsky presses the need for major institutional reform, including constitutional amendments to change the structure of the United States government in ways that could stave off minoritarian rule.
This Response offers a modest reframing. A crossroads suggests uncertainty, but democratic decline has already begun. Democratic decline may thus resemble what climate change scholars call a “super wicked” problem: an unfolding emergency where existing institutions and incentives block optimal solutions. Evaluating the state of our democracy this way paints a bleaker picture, but also forces reformers to think creatively and search for all available remedies, even if partial.
In that vein, I focus on the states as one vital site for increased engagement. Reforms to protect U.S. democracy should incorporate smaller-scale steps at the state-level to forge pro-democratic and anti-backsliding initiatives. Reformers should also aim to increase participation and dialogue at subnational levels of government. Strengthening state democracy cannot solve everything, but it might slow or even reverse democratic decline—and neglecting states could accelerate the decline beyond repair.
“Is anyone investigating Trump allies’ multi-state effort to access election systems?”
As news trickled out that former President Trump’s supporters had organized to access federally protected election machines and copied sensitive information and software, election expert Susan Greenhalgh waited for FBI or Justice Department leaders to announce an investigation.
“It just seemed so stunning that we thought, well of course there’s going to be a big reaction and the government is going to investigate,” said Greenhalgh, senior advisor on election security for the nonprofit Free Speech For People.
When months passed with no such announcement, Greenhalgh and over a dozen other election experts wrote a 14-page letter to Justice Department leaders in December outlining what they called a “multi-state conspiracy to copy voting software” and asking the agency to open an investigation.
Greenhalgh was baffled when she received a terse, noncommittal response from the FBI a month later that seemed to indicate no action had been or would be taken at the federal level.
Now, just months before the 2024 presidential primaries, it remains unclear whether any federal agency has plans for a comprehensive investigation of the effort to gain access to election systems. Election and law enforcement experts are concerned that the stolen information might be used to interfere with future elections and that the FBI and Justice Department may be sending the wrong signal to those responsible if agencies don’t investigate.
Without a national investigation, “we’re never going to know what the overall plan here was,” Greenhalgh said.
“Don’t we need to know that?” she continued. “We don’t know what this was all about, and it’s dangerous to guess or assume that, ‘Oh well, because President Biden was inaugurated on [Jan. 20], this no longer poses a threat.’”
The bulk of what is known about the effort has come from investigative reporting, a handful of state inquiries and a years-long federal civil suit against Georgia authorities over the security of the state’s elections. Those sources found that an organized network of people scrambled to access county election systems in the weeks after the 2020 election and in at least the first six months of 2021.
In two instances, courts or state lawmakers granted access to the systems. In a handful of states, Trump supporters convinced election officials or law enforcement to give them access to election machines, including in Mesa County, Colo.; Coffee County, Ga.; Fulton County, Pa.; and several Michigan counties.
After obtaining access, third parties copied sensitive information, including software used in election equipment in a majority of U.S. counties, and shared the information with an unknown number of people. It is not clear that every county where election systems were accessed has been identified. Those involved have indicated in news reports that similar efforts to access election machines were made in several other states.
Despite evidence that the same people were involved in multiple states and that the effort was funded in part by prominent Trump supporters including his former lawyer Sidney Powell, there is little indication a federal inquiry is underway.
“Because there is a nationwide pattern here involving the same people, and because of the risk that those individuals will organize this yet again, I think it is … important that federal authorities look at the larger pattern,” said Norm Eisen, a longtime election lawyer who was involved in Trump’s first impeachment. “It needs to be analyzed as a recurring pattern so that that pattern does not continue to occur in the future.”
“Some Election Officials Refused to Certify Results. Few Were Held Accountable.”
Doug Bock Clark for ProPublica:
Before 2020, local election officials seldom voted against certifying results. But in 2022, conservative officials in North Carolina, Arizona, Nevada, Pennsylvania and New Mexico refused to do so. Some admitted to refusing to certify for political reasons. In all the 2022 cases, the election results eventually were certified, sometimes under a court order.
Election law experts say that these disruptions reveal a weakness in the American electoral system, which relies on thousands of local officials to certify the totals in their counties and municipalities before their results can be aggregated and tallied for state and federal elections.
Local elections officials “could create chaos” all the way up the chain by refusing to certify, said Alice Clapman, a senior counsel in election law at the Brennan Center for Justice. “And in that chaos you have more room for political interference.” Five legal experts described to ProPublica scenarios in which legislatures, courts, secretaries of state or governors could use a failure to certify at the local level to exert partisan influence.
Clapman said that even if refusals to certify don’t affect election outcomes, they can violate state laws and can amplify and validate harmful misinformation that feeds election denialism because of the imprimatur of the officials’ offices.
A ProPublica review of 10 instances of local officials refusing to certify 2022 results in four states found that, for the majority of them, the state election authority did not ultimately pursue official consequences. Two of them have been referred for criminal prosecution, but the attorney general in that state would not comment on whether there is an open investigation. And two — the ones in Surry County — are facing potential removal from their posts by the State Board of Elections.
“There needs to be some sanction when there is lawlessness,” said Richard L. Hasen, an election law professor at the University of California, Los Angeles, and director of the Safeguarding Democracy Project. “If you allow these things to take place without any sanction, then you invite more serious rule-breaking in the future.”