Monthly Archives: October 2021

“An Election Board that Operates Like a Mafia Without the Guns”

Any guesses as to what election board this refers to??

It’s the NYC Election Board, as lovingly described by the New York Times. Here’s more of the Times disemboweling of the Board:

If you built a laboratory solely to concoct the most inept, opaque and self-dealing election board imaginable, you would have a hard time outdoing the real-life specimen currently functioning — or more often malfunctioning — in New York City. From massive and illegal voter purges to broken-down voting machines and misaddressed ballots, the fiascoes of the city’s 10-member Board of Elections, which serves an electorate larger than that of most states, have been the stuff of national disgrace for decades

It is staffed with the friends, family members and other unqualified cronies of party bosses. It flouts city laws and actively resists serving the needs of voters in favor of a handful of political power brokers. Worst of all, it operates in an accountability-free zone where even the biggest bungles carry no consequences.

Most other large cities and jurisdictions don’t have these problems. As detailed in a new report by the Brennan Center for Justice, they take elections seriously by hiring professionals who know what they’re doing and training those who don’t. Their boards are much smaller and their commissioners can be removed by the same people who appointed them. They provide sufficient funds to run elections smoothly, and they make voting data easily available to the public. All of this is good government 101….

Why hasn’t all this happened already? Ask New York State lawmakers, many of whom have long been happy to maintain a status quo that works great for them and their friends, even as it disenfranchises everyone else. But that is starting to change. State Senator Zellnor Myrie, who heads the Elections Committee, has spent months touring the state holding public hearings on election administration reform; he hopes to propose legislation before the end of the year. The Assembly and Gov. Kathy Hochul need to get on board with these efforts and enact major reforms without delay. New Yorkers have waited long enough for functional elections.

The bottom line is that the elections board, entrenched in a perpetual culture of self-dealing, cannot fix itself. And while its incompetence has been part of the New York political landscape for generations, this year’s primary calamity should be the final straw. At a moment when the legitimacy of the democratic process is under assault across the country, the nation’s biggest city — home to more than 5.5 million registered voters — must be leading the charge by modeling how an election should be run. At the very least, it should not be bringing up the rear.

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“The Washington Post releases “The Attack: Before, During and After,” an investigation of the Jan. 6 Capitol insurrection and its aftermath”

As the subtitle says, this Washington Post three-part immersive series examines Jan. 6 and its fallout through audio, video, photography and revelatory new reporting.

The Washington Post today released a three-part investigation into the forces that led to the insurrection at the U.S. Capitol on Jan. 6 and the growing distrust in America’s elections that has spread in its aftermath. “The Attack: Before, During and After” reveals through new reporting how law enforcement officials failed to heed warnings of impending violence in Washington, documents the bloody consequences of President Donald Trump’s inaction during the siege and shows how a deep distrust of the voting process has taken root across the country.

“An event of the magnitude of the Capitol attack demands deep and revelatory reporting,” said Matea Gold, national political enterprise and investigations editor. “This newsroom-wide collaboration provides our readers with a definitive account of Jan. 6 and its lasting impact on American democracy.”

“The Attack: Before, During and After” lays out striking new details about the cascade of warnings law enforcement officials received before Jan. 6 and uses social media posts, text messages, videos and photographs to show how Trump radicalized his supporters and mobilized them to action. The project also features voicemails of threats made against election officials around the country, and includes intimate reporting about six individuals whose lives were affected by Jan. 6.

More than 75 journalists in the Post newsroom contributed to The Attack, including more than 25 reporters. The findings are based on interviews with more than 230 people and thousands of pages of court documents and internal law enforcement reports, along with hundreds of videos, photographs and audio recordings.

Readers can access “The Attack” on The Post’s website and across Post platforms:

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Why the Vote Counting in VA Will be Faster this Week Than in 2020

VA made a change in its election-administration policies after the 2020 election that I and many others had been advocating. In 2020, state law barred officials from starting to process must absentee ballots before polls had closed. This year, election officials are required to start that processing at least seven days before election day. To be clear, “processing” the ballots does not mean counting them; it means doing all the preliminary work to make sure the ballots are ready to be counted as soon as polls close.

This change might also lead to an inversion of the situation in 2020. If it turns out that Democrats again disproportionately makes use of absentee voting, then the early totals released initially — which will be weighted heavily toward the absentee vote — could favor McAuliffe. But if the election-day vote disproportionately favors Youngkin, those votes might get tallied a bit later in the evening.

The Washington Post has a good summary of the specifics here.

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“Parsing Partisanship and Punishment: An Approach to Partisan Gerrymandering and Race”

New Janai Nelson in the NYU Law Review:

The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither Rucho’s majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court’s failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering’s particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court’s racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment—if they are willing.

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“2021 Distinguished Regulation Lecture: Guy-Uriel Charles”

Nov. 2 at Penn (virtual):

The 2021 Distinguished Regulation Lecture, organized by the Penn Program on Regulation, will feature Professor Guy-Uriel Charles of Harvard Law School. His talk is titled, “Race, Political Power, and American Democracy: Rethinking Voting Rights Law and Policy for a Divided Nation.”

This event, which also is part of Penn Law’s Public Interest Week and the Penn Program on Regulation’s 2021-2022 Lecture Series on Race and Regulation, is co-sponsored by The Regulatory Review and the Penn Law Office of Equity and Inclusion.

This event will be held over Zoom andis free and open to the public. Please feel free to share word of this event with others who may be interested.

Register here for the lecture.

In this lecture, Professor Guy-Uriel Charles will explain how recent U.S. Supreme Court decisions have weakened the Voting Rights Act and undermined its race-based model for protecting voting rights, exploring what the implications are for the future of voting rights in today’s politically polarized and racially stratified society, where many states are considering changes to voting rules.

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“One of These People Is the Future of the Democratic South”

This is the opening of a Politico deep dive into the riveting Democratic Party primary for a Senate seat in NC:

By the time Jeff Jackson got here, he already had been to 95 of the 100 counties in the state, drawing crowds in not only Democratic strongholds but reliably Republican outposts as well. Now on a steamy Saturday morning an hour northwest of Charlotte, pressing into the more rural reaches of Lincoln County where last year more than 7 in 10 voters voted for Donald Trump, this Democrat running for the United States Senate bounded across a park toward a pavilion that was packed with 130 whooping, clapping supporters. “Y’all — I can’t tell you how surprised I am by how many people are here!”

Dressed in his uniform — brown shoes, khaki pants, soft blue Oxford shirt — Jackson launched into his characteristically spirited, borderline iconoclastic spiel. He told the throng what hordes of consultants had told him about how to win — polls, focus groups, “five key phrases in five key counties!” “I said, ‘Bullshit!’” he said, leaning forward to land the punchline. “That’s how you lose!”

In almost any Democratic primary in North Carolina in almost any cycle in the past, somebody like Jackson would have been all but a lock to win. A white father to three young children, an Army veteran who spent a year in Afghanistan and a former prosecutor in a conservative county who’s now a state senator from Charlotte, he is, even his critics grant, a gifted communicator — good on the stump, good on the internet, and good face-to-face, fist-bumping his way through rope lines and meet-and-greets, making apparent inroads in places where progressive Democrats usually are persona non grata.

But this cycle is not like all those other cycles — and maybe nowhere is that more clear than in this ultra-important state in this ultra-important race. Because the candidate who’s emerging as the frontrunner is not the 39-year-old Jackson. For now, the Democratic Senatorial Campaign Committee is not taking sides, but by any of the most traditional metrics — polling, fundraising, endorsements — the pacesetter seems to be Cheri Beasley, who is looking more and more like a part of a wave of Black candidates who are rapidly altering the dynamics of Senate campaigns across the country, especially in the South, challenging long-held maxims about what kinds of candidates are best positioned to appeal to the mixture of voters in a region with electoral demographics that are changing just as fast and where Black candidates have historically had to run as outsiders or long shots….

This real-time scrambling of notions and norms is riveting even to politicos on the other side of the aisle. “Is it possible we have an establishment African-American Democrat and a non-establishment white male?” Charlotte-based attorney and Republican consultant Larry Shaheen said when we talked this month. “Jeff Jackson is the anti-establishment Democrat in the race for North Carolina Senate, and Cheri Beasley has positioned herself as the establishment candidate — whether she wants to be called that or not.”…

“It is about as fascinating a question as we’ve had in North Carolina primary politics as I can recall because of the contrast,” said one. “It’s kind of like Beasley and Jeff are the polar opposites. It’s like he’s a great communicator with no gravitas, and she has all the gravitas and is doing an atrocious job of communicating,” said another. “Cheri Beasley is almost the opposite of him in that the political world wanted her to run,” said a third. “But she’s not working like he’s working.”

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“During Jan. 6 riot, Trump attorney told Pence team the vice president’s inaction caused attack on Capitol”

From the Washington Post:

As Vice President Mike Pence hid from a marauding mob during the Jan. 6 invasion of the Capitol, an attorney for President Donald Trump emailed a top Pence aide to say that Pence had caused the violence by refusing to block certification of Trump’s election loss.

The attorney, John C. Eastman, also continued to press for Pence to act even after Trump’s supporters had trampled through the Capitol — an attack the Pence aide, Greg Jacob, had described as a “siege” in their email exchange.

“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened,” Eastman wrote to Jacob, referring to Trump’s claims of voter fraud.

Eastman sent the email as Pence, who had been presiding in the Senate, was under guard with Jacob and other advisers in a secure area. Rioters were tearing through the Capitol complex, some of them calling for Pence to be executed….

Jacob’s draft article, Eastman’s emails and accounts of other previously undisclosed actions by Eastman offer new insight into the mind-sets of figures at the center of an episode that pushed American democracy to the brink. They show that Eastman’s efforts to persuade Pence to block Trump’s defeat were more extensive than has been reported previously, and that the Pence team was subjected to what Jacob at the time called “a barrage of bankrupt legal theories.”…

In the days before the attack, Eastman was working to salvage Trump’s presidency out of a “command center” in rooms at the Willard hotel near the White House, alongside such top Trump allies as Rudolph W. Giuliani.

Jacob wrote in his draft article that Eastman and Giuliani were part of a “cadre of outside lawyers” who had “spun a web of lies and disinformation” in an attempt to pressure Pence to betray his oath of office and the Constitution.

Jacob wrote that legal authorities should consider taking action against the attorneys.

“Now that the moment of immediate crisis has passed, the legal profession should dispassionately examine whether the attorneys involved should be disciplined for using their credentials to sell a stream of snake oil to the most powerful office in the world, wrapped in the guise of a lawyer’s advice,” he wrote in the draft.

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“Florida Bars State Professors From Testifying in Voting Rights Case”


Three University of Florida professors said in a federal court filing on Friday that they had been barred from assisting plaintiffs in a lawsuit to overturn the state’s new law restricting voting rights, an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights.

University officials told the three that because the school was a state institution, participating in a lawsuit against the state “is adverse to U.F.’s interests” and could not be permitted. In their filing, the professors sought to question Gov. Ron DeSantis, a Republican, on whether he was involved in the decision.

Mr. DeSantis has resisted questioning, arguing that all of his communications about the law are protected from disclosure because discussions about legislation are privileged. In their filing on Friday, lawyers for the plaintiffs said the federal questions in the case — including whether the law discriminates against minority groups — override any state protections.

Spokespeople for Mr. DeSantis and the university could not be immediately reached for comment.

The university’s refusal to allow the professors to testify was a marked turnabout for the University of Florida. Like schools nationwide, the university has routinely allowed academic experts to offer expert testimony in lawsuits, even when they oppose the interests of the political party in power.

Leading experts on academic freedom said they knew of no similar restrictions on professors’ speech and testimony and said the action was probably unconstitutional.

One of the professors in the latest filing, Daniel A. Smith, testified with the University of Florida’s permission in two voting rights lawsuits against Florida’s Republican-led government in 2018. One suit forced the state to provide Spanish-language ballots for Hispanic voters. The other overturned a state-imposed ban on early-voting polling places on Florida university campuses.

But university officials reversed course after a coalition of advocacy and voting rights groups sued in May to block restrictions on voting enacted this year by the Republican-controlled State Legislature. Among other provisions, the new law sharply limits the use of ballot drop boxes, makes it harder to obtain absentee ballots and places new requirements on voter registration drives.

Among other claims, the plaintiffs argue that the law disproportionately limits the ability of Black and Hispanic voters to cast ballots.

Lawyers for the plaintiffs sought to hire three University of Florida political scientists as expert witnesses: Dr. Smith, the chair of the university’s political science department; Michael McDonald, a nationally recognized elections scholar; and Sharon Wright Austin, who studies African American political behavior.

In rejecting Dr. Smith’s request, the dean of the university’s college of arts and sciences, David E. Richardson, wrote that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict for the University of Florida.” A university vice president overseeing conflicts of interest issued the other two rejections.

One lawyer for the plaintiffs in the case, Kira Romero-Craft, said that reasoning “goes against the core of what the University of Florida should stand for in terms of academic freedom.”

“It seems reasonable for us to understand whether the executive office of the governor had any role in participating in that decision,” she said.

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In Secretly Recorded Video, Eastman Proposes Primarying “Spineless” State Legislators Who Refused to Submit a Second Slate of Electors to Help Trump Based on False Claims of Fraud

More from the hidden camera video:

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“An Open Letter in Defense of Democracy”

The following letter appeared in The Bulwark and The New Republic:

We are writers, academics, and political activists who have long disagreed about many things.

Some of us are Democrats and others Republicans. Some identify with the left, some with the right, and some with neither. We have disagreed in the past, and we hope to be able to disagree, productively, for years to come. Because we believe in the pluralism that is at the heart of democracy.

But right now we agree on a fundamental point: We need to join together to defend liberal democracy.

Because liberal democracy itself is in serious danger. Liberal democracy depends on free and fair elections, respect for the rights of others, the rule of law, a commitment to truth and tolerance in our public discourse. All of these are now in serious danger.

The primary source of this danger is one of our two major national parties, the Republican Party, which remains under the sway of Donald Trump and Trumpist authoritarianism. Unimpeded by Trump’s defeat in 2020 and unfazed by the January 6 insurrection, Trump and his supporters actively work to exploit anxieties and prejudices, to promote reckless hostility to the truth and to Americans who disagree with them, and to discredit the very practice of free and fair elections in which winners and losers respect the peaceful transfer of power.

So we, who have differed on so much in the past—and who continue to differ on much today—have come together to say:

We vigorously oppose ongoing Republican efforts to change state election laws to limit voter participation.

We vigorously oppose ongoing Republican efforts to empower state legislatures to override duly appointed election officials and interfere with the proper certification of election results, thereby substituting their own political preferences for those expressed by citizens at the polls.

We vigorously oppose the relentless and unending promotion of unprofessional and phony “election audits” that waste public money, jeopardize public electoral data and voting machines, and generate paranoia about the legitimacy of elections.

We urge the Democratic-controlled Congress to pass effective, national legislation to protect the vote and our elections, and if necessary to override the Senate filibuster rule.

And we urge all responsible citizens who care about democracy—public officials, journalists, educators, activists, ordinary citizens—to make the defense of democracy an urgent priority now.

Now is the time for leaders in all walks of life—for citizens of all political backgrounds and persuasions—to come to the aid of the Republic.

Todd Gitlin
Professor of Journalism, Sociology and Communications
Columbia University

Jeffrey C. Isaac
James H. Rudy Professor of Political Science
Indiana University, Bloomington

William Kristol
Editor at Large, The Bulwark
Director, Defending Democracy Together

(Click on one of the links above to see the cosigners)

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“The New Vote Dilution”

This new article of mine just came out in the NYU Law Review. The piece skeptically considers a new legal theory that emerged during the 2020 election — that overly lax voting rules are unconstitutional because they enable fraud that dilutes the votes of honest citizens. Here’s the abstract:

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so.

Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

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“Tucker Carlson draws bipartisan backlash for ‘false flag’ claim about Jan. 6 in new documentary”

Washington Post:

Tucker Carlson, the most popular voice in conservative media, drew condemnation Thursday for the trailer of a new series he plans to debut next week promising to “tell the true story” of the Jan. 6 insurrection, in which one subject appears to float a baseless conspiracy theory that the Capitol riot was covertly orchestrated by the government.

“False flags have happened in this country,” an unidentified female speaker is heard to say in the clip of “Patriot Purge” aired on Carlson’s Fox News show Wednesday night, “one of which may have been January 6.”

Carlson said the three-part series will air as a “Tucker Carlson Original” on the streaming service Fox Nation starting Monday. “We believe that it answers a lot of the remaining questions from that day,” he said, arguing that the U.S. government has “launched a new war” on American citizens by prosecuting participants in the insurrection who ransacked the building and attacked law enforcement officers.

If Carlson endeavored to trigger a ferocious backlash with the trailer, he succeeded.

That outrage came from Republicans as well as from Democrats, and even included a member of the Fox News family. “’False flags!?’ Bull—-,” wrote Geraldo Rivera, a 20-year veteran of the network who serves as a roaming correspondent at large….

Carlson has previously suggested that the federal government was in on the attack, arguing on his show in June that individuals referred to as “unindicted co-conspirators” in government charging documents were likely “FBI operatives.” Late last month, Carlson had a slightly different take, arguing on his show that the Jan. 6 rioters “don’t look like terrorists — they look like tourists,” charging again that “they were not insurrectionists.”

Carlson betrayed no doubts about the veracity of the claims made in the series. “We’re proud of it,” he said on Wednesday night. “It’s the best thing we’ve ever done.”

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“Brad Raffensperger Says GOP Lawmakers Lack ‘Moral Courage’ On The Big Lie”

From a 538 interview, with GD = Galen Drake from 538:

GD: I know that you supported overall the election changes in Georgia this year. But those laws included making you no longer chair of the state election board, which is responsible for overseeing elections in Georgia. That chair is now selected by the state legislature. Does that make Georgia’s elections more susceptible to meddling from the legislature?

BR: Well, what it really does is it diminishes accountability of the state election board right now.

GD: Well, accountability for potentially doing screwy things? 

BR: Exactly. 

GD: Why even do this?

BR: Well, and that’s one aspect that I did not support. Because when the secretary of state chairs the state election board, I am held accountable by the voters. And so I understand that I report to the voters. Now the chair of the state election board actually reports to the General Assembly. So if you don’t like the decision that’s being made, who do you call? How do you have accountability? It’s so diffuse that everyone can start pointing fingers and it becomes like Washington, D.C. “Oh, I didn’t do that. It was this person, it was that person…” How do you hold anyone accountable? But when the state election board is chaired by the secretary of state, like it has been since the beginning of time here in Georgia, then all of a sudden, you know that you have accountability.

GD: Did you view that as personal retribution?

BR: Oh, yeah, [inaudible]. You know it was. It was really a blame-shifting. People didn’t know who and what had happened, and no one wanted to take responsibility and really speak truth to everyone and say here are the facts: President Trump did not get any votes from 28,000 voters. They skip. 28,000 people skip the presidential ballot.

GD: Why won’t Republicans in Georgia speak that truth?

BR: Moral courage. Lack of moral courage. And General Patton said that is probably one of the most lacking aspects of humankind.

GD: I mean, that’s a pretty big indictment of the Republican lawmakers in your party, that they lack moral courage. Does that make you question whether it’s the party for you?

BR: Oh, no, it doesn’t. It’s both parties. And we have to be honest about that. People don’t stand up on the left side to a lot of the diatribes that they hear from their hard left, and people don’t want to stand up to the hard right. I’m a capital-C conservative. But sometimes you have to say to people, I think with kindness and gentleness, but you need to speak the truth.

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“Virginia AG presses GOP senator for proof of claims of fraud in statewide elections”

Washington Post:

Virginia Attorney General Mark R. Herring’s office Thursday pressed a surrogate of Republican gubernatorial nominee Glenn Youngkin to share evidence supporting her claims that Democrats are trying to “steal” Tuesday’s election — allegations Herring (D), who is running for reelection, called a ploy to undermine voters’ confidence in the outcome before the results are in.2021 Election: Complete coverage and analysis

State Sen. Amanda F. Chase (R-Chesterfield), who has been working to rally the state’s conservative Trump-aligned voter base on behalf of Youngkin, recently told conservative talk radio host John Fredericks that she has shared evidence of a Democratic voting-fraud scheme with the Youngkin campaign….

The claims by Chase — a conservative provocateur in Richmond who was censured by the Senate after calling the Jan. 6 insurrectionists “patriots” — are part of a broader narrative promoted by Republicans, including Youngkin, that there is cause to be concerned about election integrity in Tuesday’s election.

In recent weeks, GOP poll watchers have camped out at early-voting sites and local elections offices to review voter rolls and monitor how officials are conducting the election.

Herring, a two-term incumbent who is running against state Del. Jason S. Miyares (R-Virginia Beach), said Chase’s claims, if unfounded, go beyond such efforts for more transparency.

“Let’s be clear: these kinds of baseless, false claims are simply designed to undermine confidence in our democracy and our elections,” Herring said in a news release about the letter sent to Chase. “If Sen. Chase has any evidence of cheating or voter fraud then she has an obligation to bring it to the attention of authorities who can do something about it rather than secretively sharing this supposed ‘evidence’ with political allies.”

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