Monthly Archives: May 2022

Supreme Court Stay, Ritter v. Migliori, and the PA Recount.

For those who are curious, Ritter v. Miliori itself had muddied the legal rules for the recount. This is because the Third Circuit’s decision does not strictly speaking bind Pennsylvania officials. The PA Department of of State, however, does believe its underlying logic should be applied and has issued an advisory opinion urging counties to segregate and count. Counties, however, can and are following their own rules about whether to include the undated ballots in their final vote tally, leading to additional uncertainty about the exact state of the election–for the moment.

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“Cyber agency: Voting software vulnerable in some states”


Electronic voting machines from a leading vendor used in at least 16 states have software vulnerabilities that leave them susceptible to hacking if unaddressed, the nation’s leading cybersecurity agency says in an advisory sent to state election officials.

The U.S. Cybersecurity and Infrastructure Agency, or CISA, said there is no evidence the flaws in the Dominion Voting Systems’ equipment have been exploited to alter election results. The advisory is based on testing by a prominent computer scientist and expert witness in a long-running lawsuit that is unrelated to false allegations of a stolen election pushed by former President Donald Trump after his 2020 election loss.

The advisory, obtained by The Associated Press in advance of its expected Friday release, details nine vulnerabilities and suggests protective measures to prevent or detect their exploitation. Amid a swirl of misinformation and disinformation about elections, CISA seems to be trying to walk a line between not alarming the public and stressing the need for election officials to take action.

CISA Executive Director Brandon Wales said in a statement that “states’ standard election security procedures would detect exploitation of these vulnerabilities and in many cases would prevent attempts entirely.” Yet the advisory seems to suggest states aren’t doing enough. It urges prompt mitigation measures, including both continued and enhanced “defensive measures to reduce the risk of exploitation of these vulnerabilities.” Those measures need to be applied ahead of every election, the advisory says, and it’s clear that’s not happening in all of the states that use the machines.

University of Michigan computer scientist J. Alex Halderman, who wrote the report on which the advisory is based, has long argued that using digital technology to record votes is dangerous because computers are inherently vulnerable to hacking and thus require multiple safeguards that aren’t uniformly followed. He and many other election security experts have insisted that using hand-marked paper ballots is the most secure method of voting and the only option that allows for meaningful post-election audits….

The CISA advisory specifically advises against using the machines as they are configured in Georgia, where a printed paper ballot includes both a barcode and a human-readable list reflecting the voter’s selections, and votes are tallied by a scanner that reads the barcode.

“When barcodes are used to tabulate votes, they may be subject to attacks exploiting the listed vulnerabilities such that the barcode is inconsistent with the human-readable portion of the paper ballot,” the advisory says. It recommends that the voting machines should be configured, if possible, to produce “traditional, full-face ballots” rather than summary ballots that use a barcode.

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Attitudes to Close Republican Primaries Display Racial Undertones of Election Fraud Hysteria

This article on Republican voters’ sanguine attitude to close primary elections, exposes once-again the racial undertones of the (false) election fraud narrative.

“Mr. Brooks offered a simple answer to why he’s not worried about his race: ‘Theres no fraud in Republican primaries, he said. ‘I’m in a Republican primary, and noncitizens don’t normally vote in Republican primaries,’ Mr. Brooks said.”

. . . . Part of the reason Republican candidates are accepting primary results without talking about fraud is they don’t have Democrats to blame, said Trey Grayson, the former Republican secretary of state in Kentucky.”

Wow! It is hard not to think that what they both really want to say is they don’t have black (or brown) people in the party. More evidence, that for many Republicans, the Democratic Party codes as black and thus untrustworthy.

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Breaking—Supreme Court Issues Administrative Stay of Third Circuit Order.

The Supreme Court issued an administrative stay in Ritter v. Migliori, the recent Third Circuit decision that determined that mail-in ballots that arrived without the necessary date should be counted. It will be interesting to see how long it takes for the Court to make its final decision on the emergency application and what impact it will have on the recount in the Pennsylvania Republican primary.

The Third Circuit was “asked to determine if a date on the outside of a mail-in ballot, required under state law, is material to the voter’s qualifications and eligibility to vote” for purposes of the Materiality Provision of the Civil Rights Act. That provision “prohibits any ‘person acting under color of law [from] deny[ing] the right of any individual to vote in any election because of an error or omission … if such error or omission is not material in determining whether such voter is qualified … to vote in such election.’” In a decision written by Judge McKee, the Third Circuit held the date was not material.

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Breaking and Analysis: Supreme Court on 5-4 Vote Reinstates District Court Order Temporarily Barring Enforcement of Texas Social Media Law; Good News for the First Amendment and Bad News for Those Seeking Law to Replatform Trump

In an unusual 5-4 vote, the Supreme Court has vacated a so-far-unexplained order from the 5th Circuit that stayed enforcement of a Texas district court order barring Texas from enforcing its new social media law. Among other things, this Texas law, if enforceable, could well require large social media companies such as Twitter and Facebook to re-platform Donald Trump after he was deplatformed for encouraging the January 6 insurrection at the United States Capitol. The district court held the statute likely violated the First Amendment and a Fifth Circuit panel, offering no reason thus far, stayed that order. That stay would have allowed Texas to enforce its law pending the appeal of the case. As it stands now, Texas cannot enforce its law. But the 5th Circuit will eventually issue an opinion and allow Texas to enforce its law, and the issue will almost certainly be back before the Supreme Court. This is especially true because of last week’s contrary 11th Circuit opinion, striking down a similar Florida law as violating the First Amendment rights of the private platforms to decide what content should be included or excluded.

The majority (C.J. Roberts, and Justices Barrett, Breyer, Kavanaugh, and Sotomayor) did not give a reason for vacating the 5th Circuit stay. Justice Kagan dissented, probably not on grounds of the merits but her views on whether the Supreme Court should be getting involved in these major pending cases on the shadow docket rather than letting them work their way through the courts.

But Justice Alito wrote an opinion for himself, Justice Thomas, and Justice Gorsuch. In the opinion, Alito does not say that the law is in fact unconstitutional. He argues that the matter is uncertain, buying into the arguments advanced in the past by Justice Thomas, Eugene Volokh, and others, that social media companies can be regulated like “common carriers” (such as the phone company) and forced to carry speech that they do not like.

The argument is one that is audacious and shocking for those (like Justice Thomas, less so for a Justice like Alito) who have taken near absolutist positions on First Amendment rights in the past, especially on issues such as campaign finance laws. I write about this in great detail in my Cheap Speech book, and explained the point briefly in this Slate piece:

It would be bad enough if the Supreme Court simply applied outmoded libertarian thinking to today’s information cesspool, believing that the truth will inevitably rise to the top and give voters the tools they need for informed decisionmaking. But the court’s inconsistent thinking on the First Amendment could make things far worse.

Consider the decision of Facebook and Twitter to “deplatform” Trump after he helped inspire the violent insurrection at the U.S. Capitol on January 6, 2021. Meta, which owns Facebook, and Twitter are private companies that make decisions all the time about what content to include, exclude, promote, and demote. The First Amendment does not limit these private companies and they can regulate speech in ways the government could not do. These companies remove hate speech, pornography, and other objectionable content from their platforms all the time.

But Justice Clarence Thomas—yes, the same Justice Thomas who believes that virtually all campaign finance laws violate the First Amendment—recently went out of his way in a case not presenting the issue to raise support for new laws, such as one passed last year in Florida, that would require social media companies to carry the content of politicians they do not like, even if those politicians support election violence or undermine voter confidence in the integrity of the electoral process. Justice Thomas has suggested that social media platforms are like telephone companies that could be subject to “must carry” provisions and cannot discriminate among customers based upon their political views.

But social media companies are much closer to newspapers and TV stations than telephone companies. The former but not the latter curate content all the time, and they can decide who appears on the platform and how. Justice Thomas appears to believe in the freedom of FOX News or the Atlantic to create a coherent brand with a message, but not Twitter or Facebook.

It is hard not to conclude that Justice Thomas was motivated toward this anti-libertarian position requiring private companies to carry speech they would rather not include on their websites because doing so would favor Donald Trump and those like Trump.

The good news from today’s opinion is that it looks like there are 5 or 6 votes at least to reject the Texas law and to hold that just like newspapers can decide what content to include or exclude, social media companies can do so too. Whether Section 230 of the Communications Decency Act recognizes it or not, social media companies exercise editorial discretion all the time. They should not be forced as private actors to carry dangerous and anti-democratic speech. People who want such speech can easily find it on Trump’s “Truth Social” platform or elsewhere.

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Recent judicial developments on the qualifications to run for Congress

It’s been a busy year for the typically-sleepy Qualifications Clause of the Constitution, but a couple of judicial developments are noteworthy.

First, Newsom v. Golden considered the Tennessee Republican Party’s move to boot a candidate who failed to meet the Party’s bylaws–specifically, a requirement that candidates must have voted in 3 of the last 4 statewide Republican primaries or be vouched for as a “bona fide” Republican by the Party. It came on the heels of new state law that adds qualifications to candidates, a direct shot at U.S. Term Limits v. Thornton (but a law that doesn’t apply to this election). And Rick Pildes here at ELB thought more about the Party’s power to exclude candidates, too.

The case has been voluntarily dismissed, but not before a judicial opinion denying the motion for preliminary injunction. There are several legal issues to sort through, but here’s a noteworthy part about the Qualifications Clause (which, frankly, also anticipates the unconstitutionality of Tennessee’s new law):

Continue reading Recent judicial developments on the qualifications to run for Congress
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Breaking: “Lawyer Sussmann, who worked for Clinton, acquitted of lying to FBI in 2016”


A federal jury found Michael Sussmann, a lawyer for Democrats including the Hillary Clinton presidential campaign,not guilty of lying to the FBI when he brought them allegations against Donald Trump during the 2016 presidential race.

Tuesday’s verdict was a major setback for Special Counsel John Durham, who was appointed during the Trump administration and has spent three years probing whether the federal agents who investigated the 2016 Trump campaign committed wrongdoing.

Sussmann was the first person charged by Durham to go to trial. Another person charged in the investigation is due to face a jury later this year.

The Sussmann jury began deliberating Friday, weighing testimony of current and former FBI officials, former Clinton campaign advisers, and technology experts. In closing arguments, prosecutors told the jury that Sussmann thought he had “a license to lie” to the FBI at the height of the 2016 presidential campaign. Sussmann’s defense lawyers countered that the case against Sussmann was built on a “political conspiracy theory.”

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“Supreme Court Spurns Texas GOP Lawmakers on Voting-Map Testimony”

Bloomberg Law–The U.S. Supreme Court has rebuffed a request to protect “three Republican lawmakers from being questioned under oath in lawsuits by the Biden administration and civil rights groups that claim new voting maps in Texas are racially discriminatory.” The legislators asked the Court to rule they were protected by legislative privilege from being deposed. Lower courts had rejected those assertions as premature and the Supreme Court left those decisions in place. The Court is scheduled to decide Merrill v. Milligan next term, a case expected to result in a further narrowing of the scope of the Voting Rights Act by the conservative Court.

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States’ Concerted Efforts to Curb Election Misinformation

Cecilia Kang, N.Y. Times, reports on efforts in several states to combat election misinformation in advance of November. The focus will be on unfounded rumors and lies about voting and election fraud. Connecticut “plans to spend nearly $2 million on marketing to share factual information about voting, and to create its first-ever position for an expert in combating misinformation” whose job will be to “to comb fringe sites like 4chan, far-right social networks like Gettr and Rumble and mainstream social media sites to root out early misinformation narratives about voting before they go viral, and then urge the companies to remove or flag the posts that contain false information.” Arizona, California, Colorado, Idaho, and Oregon are working on similar initiatives.

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NYT on “2000 Mules”/True the Vote Nonsense; Come for the Part Where Greg Phillip Says His Method to Track Supposed Voter Fraud is a “Trade Secret”; Stay for the Von Spakovsky Lie About Federal Law and Ballot Collection


The film, directed by the conservative commentator Dinesh D’Souza, is based in part on an erroneous premise: that getting paid to deliver other people’s ballots is illegal not just in states like Pennsylvania and Georgia where True the Vote centered its research and where third-party delivery of ballots is not allowed in most cases, but in every state.

What’s more, the film claims, but never shows in its footage, that individual “mules” stuffed drop box after drop box. (Mr. Phillips said such footage exists, but Mr. D’Souza said it wasn’t included because “it’s not easy to tell from the images themselves that it is the same person.”) Those claims are purportedly backed up by tracking cellphone data, but the film’s methods of analysis have been pilloried in numerous factchecks. (True the Vote declined to offer tangible proof — Mr. Phillips calls his methodology a “trade secret.”)

More broadly, Ms. Engelbrecht has said that the surge of mail-in voting in 2020 was part of a Marxist plot, aided by billionaires including George Soros and Mark Zuckerberg, to disrupt American elections, rather than a legitimate response to the coronavirus pandemic….

Mr. Phillips, whose firm OpSec does data analysis for True the Vote, is perhaps best known for making a fantastical claim in 2017 that more than three million illegal immigrants voted in the 2016 election, which was amplified by Mr. Trump but never backed up with evidence. Mr. Phillips is also an adviser to Get Georgia Right, a political action committee that received $500,000 from Mr. Trump’s Save America PAC this past March 25, the day after Mr. Phillips and Ms. Engelbrecht advanced their 2020 vote-fraud theories to a legislative committee in Wisconsin. Mr. Phillips said he had “received zero money” from Get Georgia Right, which backed Mr. Trump’s favored and failed governor-primary candidate, David Perdue.

Mr. Phillips and Ms. Engelbrecht have become controversial even within the hard-right firmament. They are embroiled in litigation with True the Vote’s largest donor, and Ms. Engelbrecht has feuded with Cleta Mitchell, a leading Trump ally and elections lawyer. John Fund, a prominent conservative journalist who was once a booster of Ms. Engelbrecht, has implored donors to shun her, according to videotape provided to The New York Times by Documented, a nonprofit news site.

“I would not give her a penny,” Mr. Fund said at a meeting of members of the Council for National Policy, a secretive group of right-wing leaders, in the summer of 2020. “She’s a good person who’s been led astray. Don’t do it.”…

The group has not presented any evidence that the ballots themselves — as opposed to their delivery — were improper. “I want to make very clear that we’re not suggesting that the ballots that were cast were illegal ballots. What we’re saying is that the process was abused,” Ms. Engelbrecht said in Wisconsin. In an interview, she backtracked, but when asked to provide evidence of improper votes, she only pointed to previous accusations unrelated to the 2020 general election.

A repeated contention of the documentary is that getting paid to deliver other peoples’ ballots is illegal in every state. Mr. D’Souza emailed The New York Times a citation to a federal statute that outlaws getting paid to vote — and does not discuss delivering other people’s ballots. Hans von Spakovsky, a Heritage Foundation fellow, appears in the movie agreeing that the practice is outlawed nationwide, but in 2019 he wrote that it was “perfectly legal” in some states for “political guns-for-hire” to collect ballots. (Asked about the discrepancy, Mr. von Spakovsky said he believed the practice is illegal based on federal law.)

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Labor Party Wins Australian Elections Due to Instant Runoff Voting

From the East Asian Forum:

      “Almost a decade of centre-right rule came to an end on 21 May when former prime minister Scott Morrison’s Liberal Party–National Party coalition was defeated by the centre-left Labor Party, which now holds office at the federal level for the first time since 2013 under the leadership of Prime Minister Anthony Albanese. 
       “Despite Labor only winning around a third of the first preference vote, Australia’s system of preferential or ‘instant-runoff’ voting means that the votes of lower-ranked candidates are redistributed, according to voters’ preferences, to the top ranked candidates until a majority is achieved. After distribution of preferences Labor won a decisive victory with a big swing in its favour across all constituencies except Tasmania. The swing to Labor in the resource-rich state of Western Australia was a massive 12–13 per cent.

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Yesterday’s Colombian Election and Two-Round Voting

As a follow-up to yesterday’s post on the prevalence of two-round voting systems in other countries for presidential elections, Colombia’s presidential election provides a terrific example. In Colombia’s first-round vote yesterday, three main candidates competed.

A former left-wing guerilla, Gustavo Petro, won 40% of the vote. A populist businessman who campaigned as an anti-corruption candidate, Rodolfo Hernández came in second, with 28% of the vote, which will put him in the runoff with Petro. A more establishment, center-right candidate, Federico Gutiérrez, came in third with 24 per cent.

Though Petro won 40% of the vote, commentators believe Hernández is likely to win the runoff. Petro’s support is viewed as capped at around that 40% level and nearly all of Gutiérrez’s vote is thought likely to go to Hernández in the runoff.

If things play out this way, the Colombian election will be a good example of the difference in outcomes that can be generated with plurality rules that enable more factional candidates to win versus systems, such as runoff elections or RCV, that select for candidates with broader support in the electorate.

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