Monthly Archives: January 2022

The Latest on the Bipartisan Senate Talks on Anti-Election Subversion Legislation

election subversion risk

Politico Playbook:

SCOOP: ECA GROUP TAKES ON ROGUE ELECTORS — The bipartisan Senate group trying to strike a deal to overhaul the Electoral Count Act is adding to its mission as it tries to ensure another Jan. 6 never happens again: a new legal process to ensure no rogue slates of electors come to D.C., according to two sources familiar with the conversations.

In addition to clarifying that the VP has no authority to ignore electoral slates, raising the bar for the number of lawmakers needed to protest slates, and protecting election workers, the group is considering a legal process that would rely on a federal judge to quickly litigate any discrepancies about who won the state.

The move comes after DONALD TRUMP tried to get GOP statehouses to send rogue slates of electors on his behalf to Congress on Jan. 6. The Senate gang wants to ensure that if that were to ever happen, the legal system could quickly dispense with the matter — rather than relying on Congress to figure out how to handle the situation.

We’re also hearing that group leader SUSAN COLLINS (R-Maine) has been encouraging the members to work quickly so they can release an outline as soon as possible, perhaps in the coming days. Lawmakers in the group are meeting over Zoom again today, and staff worked all week trying to iron out the pillars of an agreement, we’re told.

Talks heated up after top Democrats from Biden to Senate Majority Leader CHUCK SCHUMER have sent positive signals on ECA reform, after weeks downplaying the talks. Group members have taken note and were particularly encouraged to see JENNIFER RUBIN — the WaPo opinion columnist known to be close with the Biden White House — appear to suggest ECA reform is worth pursuing after dismissing it just a few weeks ago.

My suggestions for anti-subversion legislation appear at Slate and in this forthcoming Harvard Law Review Forum piece.

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Trump v. Biden On Appointing Legal Academics as Judges

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Hadn’t been aware of this until this post from Jonathan Adler at the Volokh Conspiracy:

One of the things that surprised me about President Trump’s judicial nominations was the (relatively) large number of legal academics he tapped for the federal appellate courts. Among the law professors President Trump appointed to the federal bench were David Stras, Joan Larsen, Steve Menashi, Stephanos Bibas, Allison Eid, Neomi Rao, and (of course) Amy Coney Barrett. By comparison, there were relatively few law professors in executive branch positions during the Trump Administration, particularly compared to the Obama Administration.

By contrast, there are a large number of legal academics working throughout the Biden Administration. Here, for instance, is a list of just the environmental law professors who have taken significant executive branch positions. Yet I can think of only one legal academics who President Biden has tapped for the appellate bench thus far: Toby Heytens for the U.S. Court of Appeals for the Fourth Circuit. Myrna Perez, who is now a judge on the U.S. Court of Appeals for the Second Circuit has also been a lecturer at Columbia Law School, but I do not believe this was a full-time appointment (and many judges nominated by both presidents have worked as adjuncts). I am not sure what explains this discrepancy, but I find it interesting. It is also possible that the gap will disappear if President Biden begins to nominate more legal academics to the courts

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“Dark Money Now Rivals the Political Parties”

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The sources and amounts of money contributed to the political parties must be fully disclosed. Not so for this type of outside funding. I have done empirical work, with Mike Norton, demonstrating “How Outside Money Makes Governing More Difficult.” The rise of all forms of outside money — not just undisclosed funding — has heightened divisions within each of the parties and increased political fragmentation, which makes putting together effective governing coalitions much more difficult.

From the Axios story:

Why it matters: The hundreds of millions funneled to politically active nonprofits on both sides rival the war chests of national political parties themselves. But the groups operate independently, often run by people whose roles are opaque or unknown entirely and with sources of financing that will likely never be revealed…

Between the lines: Those groups fill many of the key roles of any political infrastructure such as advertising, voter registration and turnout, issue advocacy and data collection.

  • But while campaigns and party committees engaged in that work must disclose substantial details about their activities and funding sources, these groups largely operate in the shadows.
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“Democracy remains under threat. Here is one thing that Congress still might do.”

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Washington Post editorial:

The focus of the Democrats’ failed bills was on ensuring Americans access to the ballot box — a response to voting restrictions imposed in 19 states by Republicans. But at least as important is ensuring that Americans’ votes are counted fairly and the results respected. U.S. democracy’s most severe test in modern times came when President Donald Trump tried to overturn the 2020 presidential election by pressuring local election officials, state lawmakers, Congress and the vice president. He failed, but exposed critical vulnerabilities in the nation’s political system.

Foremost is the 1887 Electoral Count Act, a creaky law prescribing how Congress tallies presidential electoral votes….

The law should treat as presumptively valid electors certified by governors, under court oversight, according to the popular vote systems in each state. Likewise, the law should refuse to acknowledge electors state legislatures might try to appoint outside this process, after a vote has occurred. Congress should extend protections to election workers, both from partisan officials seeking to pressure them and from members of the public who might threaten them with harm. And the federal government should provide money for better election equipment, staffing, training and statistically-sound vote auditing.

Sen. Susan Collins (R-Maine) has convened a bipartisan group to discuss such sensible changes; Sen. Angus King (I-Maine) has put forth a smart proposal. These are modest reforms to which no one who cares about the nation’s democratic system could reasonably object.

Senators cannot let this convergence of interest in reform pass. What they do now could determine whether the United States faces a crisis on the scale of — or worse — than what the country experienced on Jan. 6, 2021.

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“I Worked at Facebook. It’s Not Ready for This Year’s Election Wave.”

cheap speech

Katie Harbath NYT oped:

The world is not ready for the coming electoral tsunami. Neither is Facebook. With so many elections on the horizon — France, Kenya, Australia, Brazil, the Philippines and the United States will hold elections this year — the conversation now should focus on how Facebook is preparing.

I know what it’s like to prepare for an election at Facebook. I worked there for 10 years, and from 2014 through the end of 2019, I led the company’s work across elections globally. It has poured more than $13 billion into building up its safety and security efforts in the United States since the 2016 elections, when the platform was too slow to recognize how its products could be weaponized to spread misinformation.

Responsible election plans cannot be spun up in days or weeks. It takes time not only to organize internally but also to make meaningful and necessary connections with the communities around the world working to secure elections. Facebook must begin serious, concerted, well-funded efforts today.

For some of the elections happening in the first half of this year, Facebook is cutting it close. But there’s still time for Facebook to commit to a publicly available road map that outlines how it plans to build up its resources to fight misinformation and hate speech around the world. Algorithms that find hate speech and election-related content; labels that give people more context, like those in the United States applied to content that questioned the election results; and efforts to get people accurate information about where, when and how to vote should all be a part of the baseline protections Facebook deploys across the globe. On top of these technical protections, it needs people with country-specific language and culture expertise to make tough decisions about speech or behavior that might violate the platform’s rules.

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Marc Elias is Sometimes Counterproductive When It Comes to Protecting Voting Rights, Election Integrity, and the Interests of the Democratic Party

election law biz

I’m going to catch a lot of flak for this post, so let me begin with with some positive words about Marc Elias, one of the country’s leading (and certainly one of this country’s busiest) election lawyers representing Democratic party and allied interests. And his work was indispensable and heroic in the immediate aftermath of the 2020 election when he and his team helped defeat scores of lawsuits brought by Donald Trump and his allies in Trump’s attempt to overturn the election results based upon ludicrous claims of voter fraud and election irregularities.

But Marc is a controversial figure in the election law world, and he’s become something of an online bully, castigating those who disagree with him even on issues of strategy and tactics who might be natural allies. And once Marc attacks, he has 600,000 Twitter followers who follow suit and believe (thanks in part to some of Marc’s own posts and media appearances) that Marc is singlehandedly fighting against attempts to suppress votes and subvert election outcomes. (In fact, much of this work is done by voting rights lawyers, many without any affiliation with the Democratic Party.) I get lots of messages from election lawyers and professors complaining about Marc but reluctant to voice their criticisms publicly.

As far back as 2015, some voting rights advocates expressed the view that Elias was not following good strategy in pushing an aggressive reading of the Voting Rights Act in cases going to increasingly conservative federal courts. As one advocate recounted to me: “The voting rights community is concerned that that SCOTUS will use these cases to essentially wipe out Section 2 and removing the few teeth it has left. An adverse decision in these cases would give states a blank check to pass truly harmful laws without any vehicle for opponents to challenge them.”

Marc didn’t listen to such criticism, and he brought what I considered to be an extremely weak Voting Rights Act case in Arizona to disastrous results. As I posted at SCOTUSBlog in Feb. 2021 about the upcoming Bnrnovich case, “The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways.” And indeed the Supreme Court took this opportunity in Brnovich last summer to severely weaken Section 2. As I explained in this NY Times oped, in “Brnovich v. Democratic National Committee, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states.”

It’s not just about voting rights. Right now, there is an opportunity for real bipartisan movement on anti-election subversion legislation, including reforming the opaque and vague Electoral Count Act. As I explained last week at Slate, “The debate over whether Democrats should pursue their large voting rights package or a narrower law aimed against election subversion became moot on Wednesday when Democrats could not muster up enough votes to tweak the filibuster rule to pass their larger package. Some Republicans are now making noise that they would support narrower anti-election subversion legislation centered on fixing an 1887 law known as the ‘Electoral Count Act.’ Democrats should pursue this goal but think more broadly about other anti-subversion provisions that could attract bipartisan support. Bipartisan, pinpointed legislation is the best chance we have of avoiding a potential stolen presidential election in 2024 or beyond.”

Even though Marc has said that he mostly agrees with me on this point, his main public position has been that anti-ECA legislation is some kind of “trap.” Matt Yglesias went hard after Marc for his public statements against ECA reform, and Marc has been relentless in his criticism of other professors who have (like me) been pushing for bipartisan reform. (When he’s angry he tends to compare professors to “pundits” or to contrast them with “real” lawyers like him who practice law full time.) There are at least half a dozen Republican Senators who are in talks about anti-election subversion legislation, and that is at least a half a dozen more than those who support the Democrats’ larger voting package (a package which apparently has no chance of passing whether there is ECA reform or not.) This is an opportunity that should not be passed up, and Marc could play a much more constructive role here in working on anti-subversion legislation that could help stop subversion efforts in the states—even if it does not give Marc everything he thinks Democrats want.

And then there is Marc’s position on money in politics. Well before Marc was litigating major voting cases he was a campaign finance lawyer, fighting against regulation on the Democratic side. It was Marc working to loosen campaign finance limits on political parties, a move that has increased the role of big money in influencing candidates through the political parties.

Over the weekend, the NY Times reported that Democratic non-disclosing groups have now outpaced Republican non-disclosing groups. Marc has complained that the coverage is unfair because many of the groups on the left are working on issues such as increasing voter access (as though that is a good excuse for non-disclosure of the group’s donors—it’s not). One election lawyer wrote to me, “And did you notice that Elias was paid $20 million by dark money groups to fund his rogue, scattershot legal work in 2020?” The NY Times’ Nick Confessore made a similar observation on Twitter, and he got attacked by the Elias army. Marc’s primary response to the NYT reporting on Democratic-side “dark money” is to call to make it easier to sue journalists for defamation. (He’s since deleted the tweet but this followup remains.)

And this brings me to my final point, about Marc’s style. It is fine to be zealous in one’s advocacy, but one need not be an aggressive bully on social media or elsewhere. I wish that Marc would emulate better the demeanor and manner of his Perkins Coie predecessor, Bob Bauer. No one would accuse Bob of lack of zealousness in representing his clients. But Bob seldom raised his voice, and welcomed (and continues to welcome) fair and civil debate with those with whom he disagreed.

They say you can catch more flies with honey than vinegar, and I think Marc could take a lesson in how to productively engage not just his adversaries but many who sympathize with many of his ultimate goals. And perhaps listen more to others who share overlapping goals but disagree on strategy.

Update and correction: An earlier version of this post stated that Marc worked with Senator McConnell to push through the loosening of party money provisions contained in a 2014 bill. My memory on that was faulty. I apologize for this error but stand by the remainder of this post and the larger points.

Further update: Here’s some evidence of McConnell’s support for the provision, but not his cooperation with Marc.

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Donald Trump Calls for Massive Protests If He is Arrested, Calls (Black) Prosecutors Investigating Him “Racist,” and Suggests He Would Pardon Jan. 6 Rioters If Elected in 2024

election subversion risk

NYT:

 Donald J. Trump said on Saturday that if elected to a new term as president, he would consider pardoning those prosecuted for attacking the United States Capitol on Jan. 6 of last year.

He also called on his supporters to mount large protests in Atlanta and New York if prosecutors in those cities, who are investigating him and his businesses, take action against him.

The promise to consider pardons is the furthest Mr. Trump has gone in expressing support for the Jan. 6 defendants.

“If I run and I win, we will treat those people from Jan. 6 fairly,” he said, addressing a crowd at a fairground in Conroe, Texas, outside Houston, that appeared to number in the tens of thousands. “We will treat them fairly,” he repeated. “And if it requires pardons, we will give them pardons, because they are being treated so unfairly.”

At least 700 people have been arrested in connection with the Jan. 6 insurrection, including 11 who have been charged with seditious conspiracy. Some have said they believed they were doing Mr. Trump’s bidding….

In his Saturday speech, Mr. Trump also took aim at the New York State attorney general and the Manhattan district attorney, both of whom have been investigating his businesses for possible fraud, and at the district attorney in Fulton County, Ga., who is empaneling a special grand jury to investigate Mr. Trump’s efforts to overturn the 2020 election results in that state.

He urged his supporters to organize large protests in New York and Atlanta, as well as in Washington, if those investigations lead to action against him.

“If these radical, vicious, racist prosecutors do anything wrong or corrupt, we are going to have in this country the biggest protests we have ever had,” he said.

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“Campaigning to Oversee Elections, While Denying the Last One”

election subversion risk

NYT:

Nearly two dozen Republicans who have publicly questioned or disputed the results of the 2020 election are running for secretary of state across the country, in some cases after being directly encouraged by allies of former President Donald J. Trump.

Their candidacies are alarming watchdog groups, Democrats and some fellow Republicans, who worry that these Trump supporters, if elected to posts that exist largely to safeguard and administer the democratic process, would weaponize those offices to undermine it — whether by subverting an election outright or by sowing doubts about any local, state or federal elections their party loses.

For decades, secretaries of state worked in relative anonymity, setting regulations and enforcing rules for how elections were administered by local counties and boards. Some held their jobs for many years and viewed themselves not as politicians but as bureaucrats in chief, tending to such arcane responsibilities as keeping the state seal or maintaining custody of state archives.

The aftermath of the 2020 presidential election changed all that.

In the two months between Election Day and Congress’s certification of President Biden’s victory, Mr. Trump and his allies pressured Republican secretaries of state, election board members and other officials in battleground states to overturn his defeat. In a phone call that is now the subject of an Atlanta grand jury investigation into Mr. Trump’s actions in Georgia, the former president urged Brad Raffensperger, the Georgia secretary of state, to “find 11,780 votes” — the margin by which Mr. Trump lost the state to Mr. Biden.

That intense focus on a once-obscure state-level office has dramatically transformed its place in American politics — and the pool of candidates it attracts. Campaigns for secretaries of state this year are attracting more money, more attention and more brazenly partisan candidates than ever before.

All told, some 21 candidates who dispute Mr. Biden’s victory are running for secretary of state in 18 states, according to States United Action, a nonpartisan group tracking races for secretary of state throughout the country.

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“Democrats Decried Dark Money. Then They Won With It in 2020.”

campaign finance

NYT:

Spurred by opposition to then-President Trump, donors and operatives allied with the Democratic Party embraced dark money with fresh zeal, pulling even with and, by some measures, surpassing Republicans in 2020 spending, according to a New York Times analysis of tax filings and other data.

The analysis shows that 15 of the most politically active nonprofit organizations that generally align with the Democratic Party spent more than $1.5 billion in 2020 — compared to roughly $900 million spent by a comparable sample of 15 of the most politically active groups aligned with the G.O.P….

A single, cryptically named entity that has served as a clearinghouse of undisclosed cash for the left, the Sixteen Thirty Fund, received mystery donations as large as $50 million and disseminated grants to more than 200 groups, while spending a total of $410 million in 2020 — more than the Democratic National Committee itself.

But nonprofits do not abide by the same transparency rules or donation limits as parties or campaigns — though they can underwrite many similar activities: advertising, polling, research, voter registration and mobilization and legal fights over voting rules.

The scale of secret spending is such that, even as small donors have become a potent force in politics, undisclosed money dwarfed the 2020 campaign fund-raising of President Biden (who raised a record $1 billion) and Mr. Trump (who raised more than $810 million)….

Here’s how we conducted our analysis.

The Times’s analysis of 2020 data is likely incomplete: Lax disclosure rules and the groups’ intentional opacity make a comprehensive assessment of secret money difficult, if not impossible. Nonprofits come and go, adapting to shifts in political power and tactics. Some exist in the gray space between philanthropy and politics, many transfer money back and forth, and some can remain hidden in unexamined tax filings for years.

Yet a number of strategists in both parties said their own understanding comported with The Times’s findings that the left eclipsed the right in politically oriented nonprofit spending and sophistication in 2020.

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Arizona: “Cyber Ninjas CEO participates in contentious deposition, says he’s not ready to turn over audit records”

fraudulent fraud squad

Arizona Republic:

Cyber Ninjas CEO Doug Logan says he will not turn over records from the review of Maricopa County’s 2020 election until he has a “clear” ruling he can appeal to the highest court.

Logan answered questions during a contentious deposition with attorneys for The Arizona Republic and American Oversight. The news organization and the left-leaning nonprofit have battled in court for months for the release of texts, emails and other documents related to the ballot recount and related investigations of the 2020 election ordered by Republicans in the Arizona Senate.

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“Ga. Judge Won’t Toss Black Voters’ Redistricting Challenge”

Voting Rights Act

Law360:

A Georgia federal judge rejected on Friday Secretary of State Brad Raffensperger’s attempt to dismiss a lawsuit by Black voters and civil rights organizations challenging Georgia’s new redistricting maps for allegedly diluting Black voting power.


U.S. District Judge Steve C. Jones said the Georgia Secretary of State must continue to face allegations that he, as the state’s top elections official, is violating the Voting Rights Act. Judge Jones also denied a request by Raffensperger to certify his decision for immediate appeal to the Eleventh Circuit.

Several Black Georgians as well as a historically Black fraternity and church sued Raffensperger on Dec. 30, claiming Georgia’s newly adopted legislative maps violate Section 2 of the Voting Rights Act, which makes it illegal for states to draw district lines that water down the voting strength of voters from particular racial groups.

Judge Jones said Raffensperger had misinterpreted federal law when seeking dismissal on the basis that the plaintiffs had failed to request that a three-judge panel preside over the case, as required in actions challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.

Judge Jones said the law does not apply to purely statutory challenges, like the plaintiffs’.

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“The missing context in the debate about Halderman’s Dominion report”

voting technology

Jessica Huseman Votebeat column:

Experts who have reviewed Halderman’s report, such as Juan Gilbert, the University of Florida’s computer science department chair, have not found it to be nearly as dire as Halderman has publicly suggested. As part of the suit, Judge Totenberg granted Halderman unfettered access to the Dominion voting system in order to inspect the security of the machines. Because of his access, Totenberg sealed the report, making it available to only the attorneys on the case and the expert witnesses. And even though the state on Thursday asked Totenberg to unseal the document so as to clear public confusion, she seemed unready to do so. 

“I’m unhappy about the course of political treatment of the report…. it’s out of hand,” Totenberg said in court. “But I’m not going to release it without seeing what is being proposed with redactions.”

Still, the general contents of the report aren’t exactly a secret. Halderman has long claimed that ballot-marking devices could be manipulated by malicious actors. In a brief no one asked him to write, Halderman made public a high-level summary of his findings in early August. Marilyn Marks, the executive director of the Coalition for Good Governance who is among the plaintiffs in the Curling case, then distributed this summary to every county in Georgia by email the day after Halderman filed his report. Votebeat was provided with a copy of the email. She called Halderman’s finding an “urgent concern,” alarming enough for counties “to reconsider their use of BMDs this fall, and instead use hand marked paper ballots with voluntary robust audits.” No county acted on her warning.

Despite Judge Totenberg sealing Halderman’s assessment, the publicity campaign the plaintiffs have mounted over the report — which none of them has seen in full — has resulted in two media dustups over its contents, to the obvious discontent of Totenberg. The first was in August, when Halderman first publicized what he claimed were massive security flaws in the system, and then this week, when the Atlanta Journal-Constitution reported that the state had done nothing to unseal the report or to act on its findings. This is the exact kind of speculation Totenberg sought to prevent when she sealed the report. While the report has only been read by Halderman, the lawyers in the Curling case, and other expert witnesses, the AJC quoted multiple people who have no knowledge of the report’s details but who nonetheless implored the state to act. That’s not the responsible way to present these issues. 

The report, as far as is publicly known, does little to materially advance what Halderman has been claiming about ballot-marking devices for years. And, it’s not a surprise that he found ways to infiltrate the system. Judge Totenberg gave Halderman complete access to the machines along with passwords, and his report indicates that he did his research over 12 weeks. If you gave me access to a bank for 12 weeks, handed me the keys, and told the security guards to stand down, I’m pretty sure I could rob it. This is an unrealistic threat scenario that ignores the existence of physical security measures, machine testing, and risk limiting audits….

Allowing such unfettered access isn’t without value: If Halderman had, for example, been able to affect the ballots in a way that could not be detected and prevented by safeguards like risk limiting audits or standard quality checks, these problems should be addressed. But neither the AJC article nor those who have seen the report assert that he found such vulnerabilities. 

Still, folks are clamoring to get access to Halderman’s sealed report. The state of Louisiana, Fox News, and One America News Network have all asked Judge Totenberg to see it. Louisiana — which has already been denied access — says it wants a copy because it’s considering buying a Dominion system and would like to see what the vulnerabilities are. Fox and OANN want it because they think it might contradict Halderman’s testimony in defamation lawsuits filed by Dominion and by Eric Coomer, a former Dominion employee. In that case, Halderman testified in defense of Coomer and his work at Dominion — Coomer’s work was high quality, Halderman says, and there is no evidence that Dominion machines were compromised.

Despite what Fox News’s lawyers might hope, Halderman’s positions in each lawsuit are not necessarily contradictory. It could well be true that the 2020 election was secure — as he asserts in the Fox defamation suit — and that untapped vulnerabilities still exist in Dominion systems — as he asserts in the Curling suit.

But this is not the only time right-wing spreaders of the Big Lie have embraced the Curling lawsuit to back their false claims. A week ago, Politico reported on the text of a never-seen Trump executive order that would have dispatched the military to seize voting machines. The order, dated Dec. 16, 2020, specifically references the Curling lawsuit in justifying the federal government to “seize, collect, retain and analyze all machines, equipment, electronically stored information, and material records” from the election. The order would have given the defense secretary 60 days to release a report on the machines’ security — a move that would have thrown the election into uncertainty well into February 2021….

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