“Study: How Online Propagandists Targeted The 2020 Election”

Steven Rosenfeld:

Partisan disinformation to undermine 2020’s presidential election shadowed every step of the voting process last year but took an unprecedented turn when the earliest false claims morphed into intricate conspiracies as Election Day passed and President Trump worked to subvert the results, according to two of the nation’s top experts tracking the election propaganda.

At the general election’s outset, as states wrapped up their primaries and urged voters to use mailed-out ballots in response to the pandemic, false claims began surfacing online—in tweets, social media posts, text messages, reports on websites, videos and memes—targeting the stage in the electoral process that was before voters. These attacks on the nuts and bolts of voting, from registration to the steps to obtain and cast a ballot, began as “claims of hacking and voter fraud… [that] honed [in] on specific events,” said Matt Masterson, who helped lead the Department of Homeland Security’s election security team.

“This is a lot of what we talked about with you at CISA [the U.S. Cybersecurity and Infrastructure Security Agency] in the lead-up [to Election Day], anticipating that were there were problems experienced, and then in the contested elections, those would be used to blow out of proportion or lie about what was actually taking place,” Masterson said, speaking to the nation’s state election directors in early February at a winter 2021 conference.

But as November 3’s Election Day approached and the vote-counting continued afterward in presidential battleground states, Masterson and a handful of teams working inside and outside of government to trace and track disinformation, and to urge online platforms and sources to curb their false content, saw an unexpected development. The narrowly focused threads that attacked earlier steps in the process of running elections swapped out purported villains and protagonists and became a full-blown conspiratorial tapestry attacking the results.

“They all got combined into one big narrative… one large lie to try to undermine confidence in the election,” said Masterson, whose presentation at the National Association of State Election Directors‘ (NASED) meeting traced this evolution.

“Misinformation is the frontier in election security and election integrity,” said Aaron Wilson, senior director for election security at the Center for Internet Security, which tracked 209 cases of misleading or deliberately false attacks on voting, at the same NASED forum….

Masterson’s and Wilson’s presentations were some of the most detailed analyses yet tracing the evolution of propagandistic attacks on 2020’s voting process and election administration. The Stanford Internet Observatory, where Masterson is a fellow, will release a full report—including naming the biggest purveyors of 2020 election disinformation, both the platforms and their highest-volume users—later this winter.

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Biden Administration Reverses Position Before Supreme Court in Arizona Voting Rights Act Case (Brnovich), But Does Not Say Plaintiffs Should Win

From the letter:

The Department has now concluded that, although it does not disagree with the conclusion in that brief that neither Arizona measure violates Section 2’s results test, the Department does not adhere to the framework for application of Section 2 in vote-denial cases set forth in the brief. In light of the approaching oral argument, however, the United States does not seek to make a further substantive submission in these cases. Instead, we have concluded that the most appropriate course under the circumstances is to notify the Court that the previously filed brief does not represent the current views of the United States.

Oral argument is March 2.

I have written an analysis of the case that will appear soon SCOTUSBlog.

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“Republican Efforts to Restrict Voting Risk Backfiring on Party”

Bloomberg:

Republican lawmakers in battleground states are rushing to enact stricter voting laws that Democrats worry could dampen Black and Hispanic turnout, but the moves could end up backfiring because of the changing face of the GOP coalition.

The flurry of legislation includes attempts to impose voter ID requirements and roll back pandemic-related expansion to mail-in access, steps that may inadvertently limit the participation of many of the older, rural and blue-collar voters that Republicans now depend on.

State legislatures across the country are considering more than a hundred bills that would increase voter ID requirements, tighten no-excuse vote-by-mail, and ban ballot drop boxes, among other changes.

That’s more than three times the number of bills to restrict voting that had been filed by this time last year, according to a report from the Brennan Center for Justice.

This flood of legislation comes despite research showing that voter ID laws passed over the last decade not only don’t hamper minority turnout, but may even boost it by motivating angry Democrats and spurring stronger get-out-the-vote efforts.

Nick Stephanopoulos, a Harvard professor who studies voting laws, said that the suburban, college-educated voters moving toward the Democratic Party are the least likely to be affected by new restrictions, since they have the resources to overcome them and tend to be regular voters already.

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“Pennsylvania G.O.P.’s Push for More Power Over Judiciary Raises Alarms”

NYT:

G.O.P. legislators, dozens of whom supported overturning the state’s election results to aid former President Donald J. Trump, are moving to change the entire way that judges are selected in Pennsylvania, in a gambit that could tip the scales of the judiciary to favor their party, or at least elect judges more inclined to embrace Republican election challenges.

The proposal would replace the current system of statewide elections for judges with judicial districts drawn by the Republican-controlled legislature. Those districts could empower rural, predominantly conservative areas and particularly rewire the State Supreme Court, which has a 5-to-2 Democratic lean.

Democrats are now mobilizing to fight the effort, calling it a thinly veiled attempt at creating a new level of gerrymandering — an escalation of the decades-old practice of drawing congressional and state legislative districts to ensure that political power remains in one party’s hands. Democrats are marshaling grass-roots opposition, holding regular town hall events conducted over Zoom, and planning social media campaigns and call-in days to legislators, as well as an enormous voter education campaign. One group, Why Courts Matter Pennsylvania, has cut a two-minute infomercial.

Republicans in Pennsylvania have historically used gerrymandering to maintain their majority in the legislature, despite Democratic victories in statewide elections. Republicans have controlled the State House of Representatives since 2011 and the State Senate since 1993.

Current schedules for the legislature make it unlikely the Republicans could marshal their majorities in the House and Senate to pass the bill by Wednesday and put the proposal before voters on the ballot in May. Passing the bill after that date would set up a new and lengthy political war for November in this fiercely contested state.

Republicans have some history on their side: Pennsylvania voters tend to approve ballot measures.

“You should be very suspicious when you see a legislature who has been thwarted by a Supreme Court in its unconstitutional attempts to rig the democratic process then trying to rig the composition of that Supreme Court,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice.

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“N.A.A.C.P. Sues Trump and Giuliani Over Election Fight and Jan. 6 Riot”

NYT:

The N.A.A.C.P. on Tuesday morning filed a federal lawsuit against former President Donald J. Trump and his personal lawyer Rudolph W. Giuliani, claiming that they violated a 19th century statute when they tried to prevent the certification of the election on Jan. 6.

The civil rights organization brought the suit on behalf of Representative Bennie Thompson, Democrat of Mississippi. Other Democrats in Congress — including Representatives Hank Johnson of Georgia and Bonnie Watson Coleman of New Jersey — are expected to join as plaintiffs in the coming weeks, according to the N.A.A.C.P.

The lawsuit contends that Mr. Trump and Mr. Giuliani violated the Ku Klux Klan Act, an 1871 statute that includes protections against violent conspiracies that interfered with Congress’s constitutional duties; the suit also names the Proud Boys, the far-right nationalist group, and the Oath Keepers militia group. The legal action accuses Mr. Trump, Mr. Giuliani and the two groups of conspiring to incite a violent riot at the Capitol, with the goal of preventing Congress from certifying the election.

The suit is the latest legal problem for Mr. Trump: New York prosecutors are investigating his financial dealings; New York’s attorney general is pursuing a civil investigation into whether Mr. Trump’s company misstated assets to get bank loans and tax benefits; and a Georgia district attorney is examining his election interference effort there.

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“As redistricting looms, Democrats jockey to counter GOP edge”

Nicholas Riccardi for AP:

In the name of fairness, New York Gov. Andrew Cuomo and his Democratic allies once welcomed the creation of a nonpartisan redistricting commission that would redraw congressional maps free of political influence and avoid contorted gerrymandering.

But now that the commission is stepping up its work, New York Democrats seem to be having second thoughts. The state may lose House seats and, under the old rules, Democrats would have had the power to redraw lines in their favor.

Some Democrats want to make it easier to overrule the commission.

As the once-a-decade redistricting conflicts heat up across the country, both Republicans and Democrats are wrestling with how far to press their advantage in a fight as consequential as any election. For Republicans that means building on the success of 10 years ago — even as some population and political trends work against them. For Democrats, it’s a test of their commitment to the changes they’ve long argued are needed to create a level playing field.

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“Opinion: Election integrity or suppression? Gov. Abbott is taking aim at voting rights.”

Stephanie Gomez oped in the Houston Chronicle:

Gov. Greg Abbott revealed his priorities for the 2021 Texas Legislative session, designating “election integrity” as an emergency item that lawmakers can vote on within the first 60 days of session, potentially bypassing the due deliberation and public input this issue deserves. House Speaker Dade Phelan named Rep. Briscoe Cain as the chair of the House Elections Committee, despite his notoriety for traveling to Pennsylvania to help overthrow the results of the 2020 election.

These actions signal an escalating attack on voting rights in a state that is infamous for being among the hardest in the nation to cast a ballot. It feeds and amplifies dangerously false rhetoric designed to undermine trust in our democratic system and prioritize partisan interests over the will of the people — exactly what fueled the failed white supremacist insurrection at the U.S. Capitol just weeks ago.

Opponents of democracy rely on unconscionable double-speak to assert there must be “trust and confidence in the outcome of our elections,” without ever acknowledging the complicity of the state’s leadership — Sen. Ted Cruz, Attorney General Ken Paxton and Lt. Gov. Dan Patrick — in undermining the trust and confidence the people hold in our democratic processes.

Abbott, Cain and their co-conspirators are willfully perpetuating distrust in democracy to hold on to power in Texas. Partisan actors have been chasing the specter of voter fraud for years, scaring Texans and funneling misinformation about the integrity of our elections to sow seeds of doubt and mistrust. It’s not new or surprising — their true mission is to continue Texas’s 150-year-old pattern of voter suppression.

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Ned Foley: The Election Law Implications of Trump’s Acquittal

The following is a guest post from Ned Foley:

What are the consequences of the Senate acquitting Trump from an election law perspective—the perspective, in other words, of protecting the electoral process in the future?

It depends, most basically, on whether or not Trump wishes to run again in 2024.

If he doesn’t, you can make the argument that the system will be safe from his unique danger to it, his uniquely narcissistic belief that an election can’t be fair if the vote count shows him losing.

On this view, any Trumpian protégé as the GOP nominee next time—be it Josh Hawley, or Ron DeSantis, or whomever—won’t present the same existential threat to “we the people” and our collective constitutional right to self-government that Trump does. Any of them would presumably accept the verdict of the voters, and not attempt a repetition of the “Big Lie” myth of a stolen election, and thus not be inherently toxic to democracy like Trump.

But you can argue this point the other way. It is often feared that Trump 2.0 will be a shrewder demagogue that Trump himself. Hawley, in other words, would be more successful in sabotaging the electoral victory of his own opponent than just making a symbolic challenge to President Biden’s win on behalf of the Trumpian base.

Rather than debating this unanswerable question, let’s agree on at least this: the Electoral Count Act of 1887, the statute at the heart of the congressional procedure for the January 6 session that was the object of the insurrection, must be amended to make unambiguously clear that no coup-like challenge to a candidate’s Electoral College victory is ever permissible, regardless of what party perpetrates the challenge and for whatever purpose.

Once an Electoral College win is set in the states, as Biden’s was, it was final for all congressional purposes, as Mitch McConnell and Liz Cheney properly understood. That understanding must be recodified in twenty-first century statutory text, replacing the impenetrably dense nineteenth-century verbiage of the 1887, and set in stone, so that nothing like January 6, 2021 is attempted again—not four years from now, not ever.

More must be done than fixing just one statute. We are already seeing a multitude of efforts undertaken by Republicans around the country to make it more difficult for Democrats to win, a motive that some GOP officials openly acknowledge. It has long been commonplace to observe that Republicans, as a party, have become ideologically opposed to free and fair elections.  If this is true, the danger to the future of American democracy is far greater than Donald Trump.

But we should be cautious with this diagnosis and whatever cure might follow from it. A healthy two-party system of electoral competition can’t exist if only one of the two parties is committed to the enterprise. So, if Democrats believe that Republicans have given up on their shared project of self-rule, what then?

There’s a philosophy ascendant among progressives that, if only the Senate would abandon the filibuster, Democrats can put in place an entirely new electoral system that will guarantee free and fair elections for the foreseeable future.  If there were actually the votes to jettison the filibuster, it would be an interesting experiment to see if this theory worked.

I’m dubious. How is it that one political party in two-party system can impose its own vision for running elections over the objections of the other party and expect the result to be successful? “You must play the game of electoral competition by our rules,” Democrats would be telling Republicans. “You don’t get a say in how the game is played, because we don’t trust you to play fair.” That doesn’t sound like a recipe for Republicans agreeing to playing the same game at all.

We must remember that the Voting Rights Act of 1965, our nation’s most important election law, was the bipartisan product of overcoming a filibuster, not one party’s unilateral decision to eliminate filibusters. It will be hard work and will require compromise, but the most pressing need for protecting American democracy—made more urgent because of the Senate’s handling of Trump’s second impeachment—is for Democrats to work with Mitch McConnell and Liz Cheney, who at least have a conception of a free and free election, to hammer out a set of bipartisan reforms that will resuscitate traditional two-party competition with both teams accepting the system’s premises and being willing to play by its rules.  As I’ve already indicated, I would put eliminating gerrymandering at the top of that list.

Okay, so now what if Trump does want to run in 2024? There’s the chance that his own legal and financial problems will prevent him from even being a viable candidate. But if he makes a serious bid for the Republican nomination, let’s hope the GOP still has enough soul to repudiate the man who left his own Vice President, Mike Pence, at the mercy of the mob.

Otherwise, there will need to be schism along the lines of 1912, when Teddy Roosevelt mounted a third-party candidacy.  The responsible center-right of American politics must offer its own alternative to the Party of Trump, if and when it comes to that.

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“Are Douglass Mackey’s Memes Illegal?”

Eugene Volokh in Tablet Mag:

In 2016, a Florida man named Douglass Mackey (using the online alias “Ricky Vaughn”) allegedly conspired to distribute a meme aimed at deceiving pro-Hillary voters.

Four years later, Mackey is now being prosecuted (as to this and as to other memes) for violating 18 U.S.C. § 241, a federal law that punishes conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution”—namely, the right to vote. Lying to voters in a way that keeps them from voting, the theory goes, is a crime.

Is this sort of prosecution constitutional? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed?

Surprisingly, the Supreme Court has never resolved the question. It hasn’t resolved the big-picture question: When can the government punish lies? It hasn’t resolved the medium-size question: Can the government punish lies in election campaigns? And it hasn’t resolved the particular question: Can the government punish lies about the mechanisms of voting, and in particular about how to vote?

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Michigan: “Secretary of State Benson: Statewide audit affirms election outcome”

Detroit News:

A statewide election audit has affirmed Michigan’s vote-counting machines are accurate and President Joe Biden won the state’s election, Secretary of State Jocelyn Benson said Friday.

Hundreds of municipal and county clerks from more than 1,300 jurisdictions took part in Michigan’s auditing exercise, hand-counting more than 18,000 ballots that were randomly selected, according to a press release from Benson’s office.

In the hand count, Biden received more votes than former President Donald Trump, and the percentage of votes for each candidate was within “fractions of a percentage point of machine-tabulated totals,” according to a press release.

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“A New Delay for Census Numbers Could Scramble Congressional Elections”

NYT:

The delivery date for the 2020 census data used in redistricting, delayed first by the coronavirus pandemic and then by the Trump administration’s interference, now is so late that it threatens to scramble the 2022 elections, including races for Congress.

The Census Bureau has concluded that it cannot release the population figures needed for drawing new districts for state legislatures and the House of Representatives until late September, bureau officials and others said in recent interviews. That is several months beyond the usual April 1 deadline, and almost two months beyond the July 30 deadline that the agency announced last month. The bureau did not respond to a request for comment but is expected to announce the delay on Friday.

The holdup, which is already cause for consternation in some states, could influence the future of key districts. And with Democrats holding a slim 10-seat House majority, it even has the potential to change the balance of power in the House and some state legislatures, according to Michael Li, the senior counsel at the Brennan Center for Justice at New York University School of Law. States need the figures this year to redraw district lines for the 435 seats in the House of Representatives and for thousands of seats in state legislatures.

The delay means there will be less time for the public hearings and outside comment required in many states, and less time once maps are drawn to contest new district lines in court, as often happens after redistricting.

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Letter to Facebook’s Oversight Board Supporting Trump Deplatforming As a Necessary Last Resort

New letter I spearheaded from Julia Azari, Associate Professor of Political Science, Marquette University; David Kaye, Clinical Professor of Law, UC Irvine; Jack Lerner, Clinical Professor of Law, UC Irvine; Janai Nelson, Associate Director-Counsel, NAACP-LDF; Cailin O’Connor, Associate Professor of Logic and Philosophy of Science, UC Irvine; Norm Ornstein, Emeritus Scholar, American Enterprise Institute; Bertrall Ross, Chancellor’s Professor of Law, UC Berkeley; Alex Stamos, Director, Stanford Internet Observatory; James Owen Weatherall, Professor of Logic and Philosophy of Science, UC Irvine, and me, as scooped by Politico.

Text of the letter:

Dear Oversight Board:

We write in our individual capacities to offer comments on the indefinite deplatforming of former U.S. President Donald J. Trump from Facebook and Instagram following his remarks during the January 6 insurrection at the U.S. Capitol. This letter also addresses related questions raised in the Board’s call for public comments.

As scholars and leaders who have long studied election laws, democratic theory, the United States Constitution’s First Amendment, American politics, and the rule of law, we believe that removing Donald Trump from Facebook platforms for an indefinite period of time was the correct decision. Removal of a political leader from the platforms should be strongly disfavored, and it should be a last resort given the great benefits of robust political debate and protection for political and election-related speech. But Trump’s actions justified the step of indefinitely deplatforming him. Over many months, Trump consistently undermined public confidence in the fairness of the 2020 U.S. election results based upon false and discredited theories of voter fraud, and he encouraged violent insurrection on January 6, 2021, as Congress engaged in the formal process of counting the electoral college votes and declaring Joe Biden the winner over Trump of the presidential election. Had the platforms granted Trump continued, broad unmediated access, he could have provoked additional violence and potentially further undermined the peaceful transition of power which is essential to a working democracy.

As a private actor governed by U.S. law in the United States, Facebook has the right to include or exclude content as it sees fit, consistent with U.S. law. As a responsible corporate citizen, Facebook should ensure that its fora allow for robust, political debate. It should have general policies of non-discrimination across candidates and political views. The platforms should not be in the business of favoring one candidate or party over another, and instead allow readers and viewers access to a variety of political viewpoints and expressions of political speech. The platforms should be especially wary of removing the speech of political leaders, whose comments are both newsworthy and likely helpful to voters as they decide which candidates and parties to support or oppose.

Thus, platform rules should begin with the strong presumption to include political speech, especially from political leaders, that can inform debate, share information, and allow voters to make decisions consistent with their interests and values. Allowing a platform for political speech generally promotes democratic governance and merits inclusion on the platforms.

The strong presumption in favor of inclusive political speech should be overcome only upon a clear showing that the speech threatens to undermine, rather than support democratic governance. Just as the right to free speech does not justify falsely yelling “Fire!” in a crowded movie theater, political speech which raises a serious and imminent danger of undermining democratic governance should be removed from the platforms and serial offenders, even political leaders, should be deplatformed, at least on a temporary basis. Facebook should have clear rules embodying these principles.

The easiest case justifying removal of posts and potential deplatforming is political speech which calls for political violence against a democratically elected government or against people. Such speech has no place in a democratic discourse, and Facebook has a moral obligation not to spread such speech. Such speech need not rise to the level of calling for imminent lawless action (under the First Amendment Brandenberg standard applicable to government suppression of speech) to merit removal from a private platform like Facebook; instead, speech that consistently justifies or supports violence deserves no amplification over social media. Such posts should be removed whether or not they lead to eventual deplatforming. A repeated pattern of conduct justifies more severe repercussions.

In addition, speech that consistently spreads misinformation about the democratic process—speech about when, where, and how people vote, and speech that makes demonstrably false claims about elections being “stolen,” “rigged,” or “fraudulent”—is similarly dangerous to democratic governance and justifies sanctions from the platforms. Again, repetition of such statements is more blameworthy.

Under these standards, President Trump’s statements and course of conduct culminating on January 6, 2021 justified his deplatforming from social media. Before January 6 the President had made over 400 comments falsely calling the election into question. He encouraged his supporters to come to the Capitol on January 6 for “wild” protests. He gave a speech shared on social media that encouraged his supporters to march to the Capitol and interfere with the vote counting, and in the post that led to his deplatforming, he praised those engaged in insurrection with “love” and repeated false claims of a “fraudulent” and “stolen” election as the violence in the Capitol was ongoing.

Anyone who doubts the risks of such speech need only look at the events of January 6, 2021 in the U.S. Capitol. Not only did such speech lead to the deaths of five people and injuries to countless others, including police officers guarding the Vice President of the United States and Members of Congress; those political leaders came within moments of being kidnapped or killed but for the bravery of law enforcement. Without social media spreading Trump’s statements, it seems extremely unlikely these events would have occurred. The eventual deplatforming of Trump’s accounts helped defuse a dangerous and antidemocratic situation.

There no doubt will be close calls under a policy that allows the deplatforming of political leaders in extreme circumstances. This was not one of them.

Thank you for your consideration.

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“2021-22 Redistricting Cycle Poses High Risk of Racial Discrimination in the South, New Projections Show”

Brennan Center:

The next round of redistricting in 2021 and 2022 is likely to be the most challenging in recent history and particularly detrimental to communities of color, according to a report by Michael C. Li, one of the nation’s leading experts on redistricting and gerrymandering and senior counsel at the Brennan Center for Justice at NYU Law.

The Redistricting Landscape, 2021-22 provides an overview of the battles ahead over the political maps being drawn this year and next that will apply to Congress and state legislatures for the next ten years. The report categorizes the 50 states according to their projected risk for partisan gerrymandering and/or racially discriminatory maps.

“Expect a tale of two countries,” Li writes. “In parts of the country, newly enacted reforms and divided government will make it harder to force through partisan gerrymanders or racially discriminatory maps. In other states, however, there may be even greater room for unfair processes and results than in 2011, when the country saw some of the most gerrymandered maps in its history.”

The risk for abuse in map drawing will be especially high in the South, where fast population growth and demographic change in Texas, Florida, Georgia, and North Carolina will combine with single-party control of the process and weaker legal protections for communities of color.

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“Massive Ballot Access Defeat in New York”

BAN:

On February 10, the Second Circuit refused to enjoin the new New York definition of a qualified political party. SAM Party of New York v Kosinski, 20-3047. Here is the twenty-page opinion, which was written by Judge Michael H. Park, a Trump appointee. It is also signed by Judge Robert D. Sack, a Clinton appointee, and Steven J. Menashi, a Trump appointee.

The new definition requires a party to poll 2% of the presidential vote to retain its qualified status. The decision says there are two state interests in the new, more difficult requirement: (1) to improve the chances that the winner will get a majority of the popular vote; (2) to save money, because the state now has public funding for candidates for state office, although it doesn’t start until 2024.

Both justifications are utterly without merit. Point one could be solved if the state used ranked choice voting. Point two is easily rebutted by pointing out that the Second Circuit already ruled in a Connecticut case that states need not provide public funding to minor parties or independent candidates.

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“Brindisi: New York should investigate ‘massive disenfranchisement of voters’”

Syracuse.com:

Former Rep. Anthony Brindisi said today that he conceded a disputed election to Claudia Tenney to spare the 22nd Congressional District from a months-long battle that could further divide the community.

But Brindisi also called for authorities to investigate irregularities and other systemic voting problems exposed in a three-month legal fight over ballots cast in eight counties across Upstate New York.

“I hope some higher authority comes in and investigates what I think is a massive disenfranchisement of voters in the district,” Brindisi told syracuse.com in his first interview since conceding the election.

See also Oneida County exec asks Cuomo to fire elections commissioners after NY22 debacle.

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“Top New York elections board lawyer retires amid misconduct probe”

NY Post:

The top lawyer at the embattled New York City Board of Elections has retired amid a Department of Investigation probe of his conduct, The Post has learned.

Chief counsel Steven Richman submitted his retirement papers last month and left the agency effective Jan. 30, an agency official said.

Richman, employed by the BOE since 1999, took a leave of absence in September amid the DOI probe — a key period when the elections agency prepared for new early voting and expanded mail-ballot systems for the November presidential election as well as special elections amid the coronavirus pandemic, and a new ranked choice voting system being implemented this year.

He never returned.

Richman, a Brooklyn resident who sat next to executive director Michael Ryan at board meetings, oversaw all election-related legal issues and court cases..

A DOI spokesperson said, “The investigation is ongoing and DOI declines further comment.”

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“Georgia Prosecutors Open Criminal Investigation of Trump Call”

NYT:

Prosecutors in Fulton County have initiated a criminal investigation into former President Donald J. Trump’s attempts to overturn Georgia’s election results, including a phone call he made to Secretary of State Brad Raffensperger in which Mr. Trump pressured him to “find” enough votes to help him reverse his loss.

On Wednesday, Fani Willis, the recently elected Democratic prosecutor in Fulton County, sent a letter to numerous officials in state government, including Mr. Raffensperger, requesting that they preserve documents related to Mr. Trump’s call, according to a state official with knowledge of the letter. The letter explicitly stated that the request was part of a criminal investigation, said the official, who insisted on anonymity to discuss internal matters.

The inquiry makes Georgia the second state after New York where Mr. Trump faces a criminal investigation. And it comes in a jurisdiction where potential jurors are unlikely to be hospitable to the former president; Fulton County encompasses most of Atlanta and overwhelmingly supported President Biden in the November election.

The Fulton County investigation comes on the heels of a decision Monday by Mr. Raffensperger’s office to open an administrative inquiry.

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“Top GOP lawmaker in Michigan falsely claims Capitol riot was ‘staged,’ dismisses Trump supporters’ role”

WaPo:

Michigan’s Republican Senate majority leader told members of his party that the storming of the U.S. Capitol was “all staged” and not perpetrated by Trump supporters in a moment captured on video that drew calls for his resignation Tuesday from Democrats.

State Sen. Mike Shirkey’s false claims about the Capitol attack — contradicted by reporting, video and statements from the rioters themselves — circulated as Republicans remain divided over basic realities of the 2020 election and former president Donald Trump’s role in the lead-up to the Jan. 6 insurrection, underscoring the continued promotion of debunked theories by prominent members of the GOP. Newly elected Rep. Marjorie Taylor Greene (R-Ga.) on Tuesday also suggested that Trump supporters were not to blame, testing her party’s willingness to condemn falsehoods and echoing her past claims that mass shootings were “false flag” events orchestrated by supporters of gun-control laws…


Shirkey apologized Tuesday in a statement for “insensitive comments” and said he regretted his choice of words after the Detroit Metro Times and other news outlets reported on the lawmaker’s claims during a Feb. 3 meeting with a handful of fellow Republicans.

“I said some things in a videoed conversation that are not fitting for the role I am privileged to serve,” Shirkey’s statement said. “I own that. I have many flaws. Being passionate coupled with an occasional lapse in restraint of tongue are at least two of them.”

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“Dozens of states see new voter suppression proposals”

Axios:

There are at least 165 proposals under consideration in 33 states so far this year to restrict future voting access by limiting mail-in ballots, implementing new voter ID requirements and slashing registration options.

Driving the news: As former President Donald Trump’s impeachment trial begins over his role in the deadly Jan. 6 insurrection that sought to overturn President Biden’s victory — fueled by baseless allegations of voter fraud — lawmakers in states with GOP majorities are pushing new ballot obstacles based on similar baseless allegations.

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“Last-Minute Tweaks to Voting Machine Standards Raise Cyber Fears”

USLW:

Last-minute changes to proposed federal standards for new voting machines could expose the equipment to cyberattacks, according to some members of Congress and security professionals.

The Election Assistance Commission, slated to authorize new voting system guidelines on Feb. 10, amended key sections of a 328-page document less than two weeks before the decision. The amended language of the Voluntary Voting System Guidelines 2.0 would allow next generation voting machines to include components capable of wireless communications, as long as they’re disabled. The changes were made even though the EAC’s technical advisory committee recommended an outright wireless ban.

Cybersecurity experts, some of the EAC’s own advisers and members of Congress are calling for the agency’s four commissioners to vote on a version of the document finalized in July 2020 which included the prohibition on wireless capability. In a letter reviewed by Bloomberg, a bipartisan coalition of more than 20 members of Congress led by Representative Bill Foster told the EAC’s Chairman Ben Hovland that the current version would “diminish confidence in both the federal voting system certification program and the security of our election systems.”

“We cannot sanction the use of online networking capabilities when they carry the very real and increased risk of cyber-attacks, at scale, on our voting machines,” reads the letter….

Meanwhile, others are asking the EAC to explain why changes to a document 15 years in the making were made less than two weeks before the scheduled vote.

“The issue here is the EAC made changes to some of the most commented-on sections of the standard without clearly explaining who made the change, why the change was made and that’s inviting a lot of questions,” said Matt Masterson a former EAC commissioner, referring to some of the 50,000 public comments submitted to the EAC in 2020.

Masterson said there’s no reason to believe the late amendments were born out of malfeasance. “There is an opportunity here for further transparency by the commission which I hope they provide,” said Masterson, former election security lead at the Cybersecurity & Infrastructure Security Agency, part of the Department of Homeland Security.

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“How Long Can Democracy Survive QAnon and Its Allies?”

Tom Edsall NYT column:

Has a bloc of voters emerged that is not only alien to the American system of governance but toxic to it?

“The central weakness of our political system now is the Republican Party,” Daniel Ziblatt, a political scientist at Harvard, said in an interview with Vox on Jan. 13, a week after the storming of the Capitol.

“The American Republican Party looks like a European far-right party,” Ziblatt continued. “But the big difference between the U.S. and a lot of these European countries is that the U.S. only has two parties and one of them is like a European far-right party. If the G.O.P. only controlled 20 percent of the legislature, like you see in a lot of European countries, this would be far less problematic — but they basically control half of it.”

A central question, then, is how distant from the rest of the American electorate the voters who align themselves with the radical wing of the Republican Party are….

Several political scholars and strategists argue that the fault lies in our political system, that the unique way America has combined its government structure with the mechanics of its elections serves to exacerbate conflict in a deeply polarized country. These scholars have produced a variety of proposals, many involving the creation of multi-member congressional districts and the encouragement of proportional representation to replace the current single district, winner-take-all system.

Lee Drutman, author of “The Two-Party Doom Loop: The Case for Multi-Party Democracy in America” and a senior fellow at New America, is a leading proponent of proportional representation….


Gretchen Helmke
, a political scientist at the University of Rochester, wrote that Bright Line Watch — a group of political scientists that conducts surveys of experts and the general public — found that there was

quite strong support among political scientists for the proposal to repeal the 1967 law mandating single member districts for the House so that states have the option to use multi-member districts on the condition that they adopt a nonwinner-take-all election model. Of the more than 500 expert respondents, 73 percent either moderately or strongly supported the proposal.

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Top Recent Downloads in Election Law on SSRN

Here:

1.A Simple Test for the Extent of Vote Fraud with Absentee Ballots in the 2020 Presidential Election: Georgia and Pennsylvania Data
John R. Lott
Crime Prevention Research Center
Date Posted: 29 Dec 2020
Last Revised: 11 Jan 2021
52,807
2.The Effect of Social Media on Elections: Evidence from the United States
Thomas FujiwaraKarsten Müller and Carlo Schwarz
Princeton University, Princeton University and Bocconi University – Department of Economics
Date Posted: 11 Dec 2020
Last Revised: 13 Dec 2020
442
3.Does Voter Fraud Pay? Texas Lt. Gov. Dan Patrick’s $1 Million Voter Fraud Offer
Michael Conklin
Angelo State University
Date Posted: 30 Dec 2020
Last Revised: 31 Dec 2020
149
4.Racial Transition
Yuvraj Joshi
Yale University, Law School
Date Posted: 16 Dec 2020
Last Revised: 19 Jan 2021
140
5.Why Do Vote-by-Mail Elections Boost Voter Turnout?
Yuki AtsusakaAndrew Menger and Robert M. Stein
Rice University, School of Social Sciences, Department of Political Science, affiliation not provided to SSRN and Political Science
Date Posted: 11 Dec 2020
Last Revised: 13 Dec 2020
124
6.Rage Against the Voting Machine: Dominion’s Defamation Lawsuit Against Sidney Powell
Michael Conklin
Angelo State University
Date Posted: 27 Jan 2021
Last Revised: 28 Jan 2021
124
7.Federalism, Democracy, and the 2020 Election
David LandauHannah Jacobs Wiseman and Samuel R. Wiseman
Florida State University – College of Law, Penn State Law – University Park and Florida State University College of Law
Date Posted: 11 Dec 2020
Last Revised: 22 Jan 2021
102
8.Freedom Through Foot Voting
Ilya Somin
George Mason University – Antonin Scalia Law School, Faculty
Date Posted: 22 Jan 2021
Last Revised: 24 Jan 2021
93
9.The Illiberalization of American Election Law: A Study in Democratic Deconsolidation
James A. Gardner
University at Buffalo Law School
Date Posted: 28 Jan 2021
Last Revised: 30 Jan 2021
93
10.Rucho Is Right – But for the Wrong Reasons
Louis Michael Seidman
Georgetown University Law Center
Date Posted: 11 Dec 2020
Last Revised: 13 Dec 2020
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Hal Krent on Being Cited in Trump’s Impeachment Brief: “It’s Nice to Be Quoted…Sometimes”

The following is a guest post from Chicago-Kent law prof (and former dean) Harold Krent:

Many have derided academics for writing only for each other.  But, others of us also hope that, in some small way, our research and writing can make a difference in society as a whole.  For law professors, that impact can arise from influencing the arguments of attorneys, the opinions of judges, and the direction of law reform.

            Thus, I felt some gratitude when friends alerted me on February 8th that the Trump impeachment team had cited my prior work with some detail in its brief defending the former President.  And, unlike with some of the other academics they cited, the brief did not misquote me.   Although not misquoted, the brief failed to disclose that my prior writing concludes that the Senate in these circumstances retains the power to convict the former President.

To be sure, I previously wrote, in contrast to the prevailing wisdom, that Congress’s impeachment power was not continuous.  The language in the Constitution seems to limit impeachment to those holding an “office;” the Framers consciously cut back on the scope of the impeachment power used by the British Parliament; and surrounding constitutional provisions reflect a deep concern over preventing Congress from punishing anyone not currently holding an office.  The Bill of Attainder Clause in particular prevents Congress from in any way punishing individuals.  That prohibition, in other words, must be reconciled with the impeachment power.  Although the constitutional language is far from dispositive and the record of why the language was chosen is sparse, I concluded that impeachments could only be directed at those officers holding office.

Indeed, all watching the debates will readily discern that something is different about this second impeachment in that Chief Justice Roberts has declined to preside over the trial, signaling that his duties are only triggered when a President is in office.  And, although not relied upon by the Trump impeachment team, Congress itself in the 1958 Former Presidents Act vested pensions and perquisites in all Presidents “whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America.“  Congress in so doing evidently intended to withhold pensions only from those who are disqualified  before serving out their term.  Congress apparently did not contemplate that Presidents could be impeached after “serving out their term.”  Thus, reading the Constitution to impose a temporal limit on Congress’s impeachment power as the Trump team argued is far from frivolous.

Nonetheless, I concluded previously that the Senate retained its power to convict when the impeachment process commenced before the President leaves office.   The House Managers’ concern that Congress must have some way to react to a President who goes off the rails in the final weeks of office is alleviated if the power to impeach continues as long as it starts when the President still is “in office.”  In the two historical examples in which the Senate considered and voted on whether it retained jurisdiction to convict an officer who no longer served, the impeachment process had already started, in one case a Senator accused of conspiring with the British was impeached by the House and expelled by the Senate before the Senate proceeded to consider whether to convict, and in the other a Secretary of War had resigned in the face of an impeachment inquiry into his fraudulent activities.  Indeed, it is not uncommon for tribunals to retain jurisdiction over parties despite subsequent events – here, removal from office – that, had they arisen previously, would have deprived the Tribunal of jurisdiction.  To provide one example, Chief Justice Marshall stated in Mollan v. Torrance, 9 Wheat. 537, 539 (1824), that “[i]t is quite clear, that the jurisdiction of the Court depends on the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.”  Thus, concluding that the Senate retains the power to convict and remove an officer as long as the House triggered the impeachment process while the officer still served in office reflects historical practice, preserves in Congress the power to continue what it started in response to a runaway President, and at the same time, avoids the otherwise jarring result that Congress could exercise a vindictive power to impeach a President twenty years after leaving office.  In short, although the impeachment process should have temporal limits, Congress should be able to finish what it started, and the officer’s resignation, expulsion, or expiration of his or her term should not defeat its jurisdiction.

Some legal academics started their careers as litigators.  And, with my litigation cap on, the fact that the Trump brief cited so extensively from academics who embrace the power of the Senate to continue the trial is telling.  Although the Impeachment process is not about winning legal arguments, the constitutional language, the historical examples, and consideration of the constitutional structure all support the House Managers’ position.  Nonetheless, it was still nice to be noticed.

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“60% of President Donald Trump’s post-election tweets sought to undermine legitimacy of presidential race”

Issue One:

Despite record turnout in the 2020 election, the American people’s confidence in our institutions and political system is at a dangerously low level. Against this backdrop, new research from Issue One reveals the extent to which then-President Donald Trump used his Twitter account to undermine the legitimacy of the 2020 election and sow doubts about our democratic processes. 

In a new analysis designed to chronicle the spread of dangerous lies and conspiracy theories that eroded voters’ confidence in free and fair elections in 2020, Issue One found that 60% of Trump’s 1,500-plus tweets between the day after Election Day and January 8, when Twitter permanently suspended his account, were messages that sought to challenge the results of the 2020 election — an average of about 14 tweets per day.

“For months before the election and then weeks afterward, then-President Donald Trump systematically utilized his Twitter account to broadcast hundreds of falsehoods about the election with the goal of manufacturing a crisis of confidence and overturning the results of the 2020 presidential election,” said Issue One Founder and CEO Nick Penniman.

Penniman continued: “Social media companies must do more to combat disinformation online, particularly when it comes to America’s elections. Moreover, a healthy democracy requires a commitment to norms that bolster the electorate’s faith in elections, including a willingness to accept electoral defeats and an inclination to participate in peaceful transfers of power.”

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“Georgia investigation opened into Trump’s call to overturn election”

AJC:

Georgia election officials opened an investigation Monday into Donald Trump’s phone call to Secretary of State Brad Raffensperger urging him to “find” enough votes to reverse the outcome of the presidential contest in the state.

The investigation will review Trump’s Jan. 2 call when he pressured Raffensperger to overturn the election, said Walter Jones, a spokesman for the secretary of state’s office.

Raffensperger, a Republican, has repeatedly said there was no widespread fraud that could have changed the results of the election, which Joe Biden won by less than 12,000 votes in Georgia. He told Trump the “data you have is wrong” as he resisted the president’s false claims that he had won in Georgia.

“The secretary of state’s office investigates complaints it receives. The investigations are fact-finding and administrative in nature. Any further legal efforts will be left to the attorney general,” Jones said.

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“January 6 Was Just One Day in a Sustained Campaign”

The Atlantic published this essay of mine on the impeachment trial. Here are some excerpts:

A risk exists that the Senate impeachment trial will focus too narrowly on the events of January 6, which culminated in the attack on the Capitol. As horrific as that day was, the broader picture cannot be allowed to slip from view: Donald Trump’s sustained, relentless efforts to propagate the myth that the election was stolen, including his attempts to recruit state and federal officials to embrace that myth and take action based on it….

For at least four reasons, this broader focus is important. First, if the trial centers on whether Trump incited the attack on the Capitol, the process is likely to get mired in hairsplitting debates, such as parsing his language at the rally to argue over whether he was urging peaceful protest or an actual attack, or what he meant by the word “fight.”

But in contrast to possible uncertainty about the express or implied meaning of his words on January 6, there can be no question that Trump used the bully pulpit of the presidency day after day to try to delegitimize the election—even for nearly a month after the Electoral College had voted. The entire country is fully aware of his relentless assertions about voting machines being rigged, ballots mysteriously showing up, dead people voting, and the like. Nor is there any dispute about the numerous concrete steps he took to persuade state and federal officials to act on his assertions, or even about exactly what he said to at least some of them. At a minimum, the public already has access to the recorded phone call between Trump and Georgia’s secretary of state, and to Trump’s many efforts to pressure Vice President Mike Pence to refuse the votes from some states. Similar efforts to pressure other state officials have been reported, but less publicly documented, and the trial could help further bring them to light….

Third, the other purpose of the trial, in addition to accountability, is to determine whether Donald Trump should be barred from future public office. In the weeks following November 3, many questions arose about whether he was willfully lying about the election, or had become so convinced of what he was saying (egged on by figures like Rudy Giuliani) that he had deluded himself into actually believing that the election was stolen. For purposes of criminal law, this distinction can matter; some laws require that the defendant “knowingly” violated the law. But for purposes of impeachment, this distinction does not matter, because the purposes of impeachment are very different from those of criminal prosecution.

Of course if Donald Trump was repeatedly lying to steal an election he knew he had lost, that would be impeachable. But even if he was “merely” massively deluded in believing that the election was stolen, and pressed numerous state and federal officials to act on the basis of his delusion, that would still make him extraordinarily dangerous in any future public office. And since the trial’s second major purpose is to determine whether, if convicted, disqualification is appropriate, a focus on the longer arc of his sustained false narrative—regardless of whether he intentionally deceived the country or believed everything he said—is particularly apt. Some might ask whether sustained delusion, and taking actions based on it, is a “high crime and misdemeanor” within the meaning of the impeachment clause. But federal officials have been impeached for being drunk when performing public duties. A delusion of this scale, on such a consequential issue, is far more dang

The horrifying events of January 6 will live forever in American history. Donald Trump’s role in them will rightly be part of his trial. But the unprecedented attack on the Capitol was the culmination of a much larger campaign to subvert the legitimacy of the election. Whether that campaign is best understood as “The Big Lie” or “The Big Delusion,” it is what must be most forcefully condemned, for the health of American government and American democracy going forward.
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“Impeachment Case Aims to Marshal Outrage of Capitol Attack Against Trump”

NYT:

When House impeachment managers prosecute former President Donald J. Trump this week for inciting the Capitol attack, they plan to mount a fast-paced, cinematic case aimed at rekindling the outrage lawmakers experienced on Jan. 6.

Armed with lessons from Mr. Trump’s first impeachment trial, which even Democrats complained was repetitive and sometimes sanctimonious, the prosecutors managing his second are prepared to conclude in as little as a week, forgo distracting witness fights and rely heavily on video, according to six people working on the case.

It would take 17 Republicans joining every Democrat to find Mr. Trump guilty, making conviction unlikely. But when the trial opens on Tuesday at the very scene of the invasion, the prosecutors will try to force senators who lived through the deadly rampage as they met to formalize President Biden’s election victory to reckon with the totality of Mr. Trump’s monthslong drive to overturn the election and his failure to call off the assault.

“The story of the president’s actions is both riveting and horrifying,” Representative Jamie Raskin, Democrat of Maryland and the lead prosecutor, said in an interview. “We think that every American should be aware of what happened — that the reason he was impeached by the House and the reason he should be convicted and disqualified from holding future federal office is to make sure that such an attack on our democracy and Constitution never happens again.”

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“Lawsuits Take the Lead in Fight Against Disinformation”

NYT:

In just a few weeks, lawsuits and legal threats from a pair of obscure election technology companies have achieved what years of advertising boycotts, public pressure campaigns and liberal outrage could not: curbing the flow of misinformation in right-wing media.

Fox Business canceled its highest rated show, “Lou Dobbs Tonight,” on Friday after its host was sued as part of a $2.7 billion defamation lawsuit. On Tuesday, the pro-Trump cable channel Newsmax cut off a guest’s rant about rigged voting machines. Fox News, which seldom bows to critics, has run fact-checking segments to debunk its own anchors’ false claims about electoral fraud.

This is not the typical playbook for right-wing media, which prides itself on pugilism and delights in ignoring the liberals who have long complained about its content. But conservative outlets have rarely faced this level of direct assault on their economic lifeblood.

Smartmatic, a voter technology firm swept up in conspiracies spread by former President Donald J. Trump and his allies, filed its defamation suit against Rupert Murdoch’s Fox empire on Thursday, citing Mr. Dobbs and two other Fox anchors, Maria Bartiromo and Jeanine Pirro, for harming its business and reputation.

Dominion Voting Systems, another company that Mr. Trump has accused of rigging votes, filed defamation suits last month against two of the former president’s lawyers, Rudolph W. Giuliani and Sidney Powell, on similar grounds. Both firms have signaled that more lawsuits may be imminent.

Litigation represents a new front in the war against misinformation, a scourge that has reshaped American politics, deprived citizens of common facts and paved the way for the deadly Jan. 6 attack on the Capitol. Fox News, for instance, paid millions last year to settle a claim from the family of a murdered Democratic National Committee staff member falsely accused by Fox hosts of leaking emails to WikiLeaks.

But the use of defamation suits has also raised uneasy questions about how to police a news media that counts on First Amendment protections — even as some conservative outlets advanced Mr. Trump’s lies and eroded public faith in the democratic process.

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“A Plan to Keep Extremists Out of the G.O.P.”

Timothy Egan for NYT Opinion:

Hear me out. In Washington, along with California, the top two vote-getters in a congressional primary, regardless of party affiliation, advance to the general election. Sometimes two Democrats make the final. Sometimes two Republicans. Often, it’s one of each, with partisan zealots left out.

In my home state of Washington, the Trump fanatics, conspiracy theorists and misinformation merchants who dominate the G.O.P. are in a lather over the votes by Herrera Beutler and Newhouse to impeach Trump.

“Turning a blind eye to this brutal assault on our Republic is not an option,” Newhouse said last month in announcing his decision.

“I’m not afraid of losing my job,” said Herrera Beutler. “But I am afraid that my country will fail.”

Republicans in her district, a moderate to conservative swath of southwestern Washington, called her vote shameful, and they vowed to primary her. Good luck with that.

In a top-two primary system, Herrera Beutler will almost certainly make the runoff, even if another Republican gets more Republican-leaning votes in the primary. But in the general, she’ll pick up independents and many Democrats, as she did in the past. She won by 13 percentage points last November, in a district that Trump carried by four points.

Removing the leverage to knock out Herrera Beutler in the primary allows her to be more accountable to her constituents than to her party. Little wonder that she’s also a member of the bipartisan Problem Solvers Caucus.

I expressed some similar views here at Slate:

Making these kinds of changes will help assure that elections are fairer and that results will more likely reflect the will of the people. But they won’t do enough to deal with the Trumpian wing of the Republican Party, which needs to be weakened to re-create a system in which both political parties are led by responsible actors, and where leaders cannot be held hostage to a radical minority within the Republican party.

To that end, we need structural change to help Republican moderates fend off primary challenges from Trumpians in the House and Senate. There are a number of forms such changes can take. As the Supreme Court recognized in Rucho v. Common Cause, Congress has broad power to set the rules for congressional redistricting even if states object. Congress can require districts to be drawn with bipartisan or nonpartisan commissions, which can help eliminate some of the more extreme forms of gerrymandering that lead to the election of more extreme Republican candidates. In light of the fact that moderate Republicans fear getting primaried by more extreme insurgents within the party, Congress can require the use of ranked choice voting, or other methods of voting that require winners to represent true electoral majorities.

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“Was Election Denial Just a Get-Rich-Quick Scheme? Donors’ Lawsuits Look for Answers” (with Juicy Tidbits on True the Vote Lawsuit)

Some great reporting here from Richard Salame:

Eshelman ultimately gave True the Vote a total of $2.5 million for its 2020 election efforts. True the Vote launched a massive undertaking in November to recruit whistleblowers, lobby legislatures, analyze data, and file lawsuits in seven battleground states. The project’s budget estimate of $7.3 million, as given in a project overview, was roughly 17 times True the Vote’s total 2018 revenue, the most recent year for which the group’s finances are publicly available. As part of the initiative, called “Validate the Vote,” True the Vote even budgeted $700,000 for a battle in the U.S. Supreme Court.

In the end, True the Vote filed suit in just four states and voluntarily dismissed those four suits just days later, before any hearings had taken place. The group has offered various explanations for the dismissals. In one email to supporters, the group referenced “an excruciating series of events that will one day be known, but now is not the time to air.” James Bopp, True the Vote’s general counsel, who brought those four suits, said that the decision was based on several factors, including his professional judgment that they weren’t going to bear fruit for his clients.

Eshelman and his advisers’ relationship with True the Vote soured around this time. According to Eshelman, the dropped lawsuits were a major part of this. Bopp, in an interview, contested that notion, saying that the relationship was strained by Engelbrecht’s hesitancy to pay a large invoice to one of Eshelman’s associates three days prior.

Through a representative, Eshelman said, “True the Vote failed, in every way, to make use of my donation to investigate and either prove or disprove election fraud, as agreed upon, and failed to respond to my requests for information about how the funds were spent. Any attempts by True the Vote to claim otherwise is a red herring the group is using to hide behind its deceptive and manipulative practices.”

According to court filings, the megadonor demanded a refund of most of his donation. When True the Vote offered to return only half that amount, Eshelman filed suit against the group in federal court, forcing open a window into its day-to-day operations for the first time.

The suit raised allegations against Gregg Phillips, a former True the Vote board member, who was listed, among other associates, as a defendant on the amended complaint. Phillips is best known as the original source of Trump’s bogus claim that millions of undocumented immigrants voted in the 2016 presidential election, costing Trump the national popular vote. But before he became the author of one of 2016’s most pernicious bits of misinformation, Phillips was a conservative warrior with a checkered past, including conflict of interest allegations in the Mississippi and Texas state governments. (Phillips, in news coverage, denied any wrongdoing in the incidents.)

In his suit, Eshelman accused Phillips, who sat on the True the Vote board of directors from at least 2015 to 2017, of siphoning funds from the group. The suit says Phillips formed an opaque entity, “OPSEC Group LLC,” just weeks before the 2020 election as a vehicle for moving funds. Public records show it was incorporated in September 2020; Phillips says it was founded in 2019. Eshelman’s lawyers alleged that Engelbrecht, the True the Vote president, is Phillips’s lover and that the pair actively conspired to defraud credulous conservative donors with talk of plans to detect voter fraud despite having no intention or ability to follow through. (Phillips did not respond to a detailed request for comment.)

Engelbrecht and True the Vote, as well as Phillips and OPSEC, denied these allegations in court. Among other defenses, they claimed that substantial work was accomplished as part of the “Validate the Vote” project. “Through its activities, True the Vote has acquired whistleblower testimony and information which has led to four indictments so far in Arizona, federal investigations in Nevada and Georgia, and investigations by Michigan officials,” a lawyer for both True the Vote and Phillips stated in court filings.

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“Financial Inclusion in Politics”

Terrific new draft paper with some key data from Abhey Aneja, Jacob Grumbach, and Abby Wood. Here is the abstract:

Our deregulated campaign finance system has a race problem. We use innovations in statistical methods and the universe of campaign contributions for federal elections to analyze the racial distribution of money in American politics between 1980 and 2012. We find that white people are severely overrepresented among donors. A stunning 91% of money contributed to state and federal candidates by individuals has come from non-Hispanic white donors. The racial gap in campaign contributions is significantly greater than the gap in voter participation and elected office holding. It is also relatively constant across time and elected offices.

This result is an important missing piece in the conversation about equity in political participation. We argue that the courts and Congress should take steps to address the racial gaps in campaign finance participation. The participation and representation problems that flow from racial inequality in deregulated campaign finance could inform claims under the Voting Rights Act (VRA), and politico-financial inequalities certainly bear on the normative problems that the statute intends to address. But the most politically viable way to address the campaign finance racial gap lies in adoption of public financing for political campaigns, which offer the promise of increasing the racial representativeness of campaign contributions. When racial representativeness in contributions is improved, improved equality in the distribution of resources and power in electoral and political systems should follow.

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“Claudia Tenney to be certified as winner of New York’s 22nd race, judge rules”

Syracuse.com:

 Republican Claudia Tenney will be certified as the winner of New York’s 22nd Congressional District race, a judge ruled Friday, ending a three-month ordeal in the only undecided House race in the country.

The ruling represents the most definitive answer to who won in an election saga with many twists and turns, though it’s not entirely over yet. Democrat Anthony Brindisi has promised to appeal at the state court, and he could seek to contest the election results at the House of Representatives itself.https://9bbfba686363572403305ba1ef9dc273.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

Tenney, of New Hartford, is ahead of Brindisi by 109 votes. She earned 156,099 votes to Brindisi’s 155,989.

State Supreme Court Justice Scott DelConte ruled that counties and the state elections board are to certify the election, rejecting an effort by Democrat Anthony Brindisi, who occupied the seat until November 2020, to keep the election unofficial until his appeal to a higher court concludes.

In ruling against Brindisi, DelConte argued that the Democrat did not provide enough evidence that certifying Tenney would cause “irreparable harm,” given that he still had a remedy at the federal level.

It’s not clear when Brindisi’s appeal will begin. His attorneys announced Friday morning that they will appeal DelConte’s rejection of several hundred ballots that Brindisi wanted counted.

In his ruling, DelConte criticized local elections boards for what he said amounted to “systemic violations of state and federal election law” that affected both candidates. In particular, he singled out Oneida County’s failure to process more than 2,400 applications from voters who registered via the DMV, which rendered them unable to vote on Election Day.

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“What of ‘Individual-1’? Feds’ Trump campaign case is ‘dead’”

AP:

When Donald Trump lost the legal shield of the presidency last month, some pundits speculated federal prosecutors might revive an investigation that implicated him in possible campaign finance crimes during his 2016 run for office.

But several people involved in the case say the U.S. attorney’s office in Manhattan has made no move to restart the hush-money probe that once dogged Trump’s presidency and sent his former attorney, Michael Cohen, to prison.

In fact, an attorney for one key witness described the investigation as “dead,” adding prosecutors have even returned certain evidence they collected — a likely indication no one else will be charged. The attorney spoke on the condition of anonymity because prosecutors have not discussed the case publicly.

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“Sen. Warner to unveil bill reining in Section 230, seeking to help users fight back against real-world harm”

WaPo:

Sen. Mark Warner is set to introduce a new bill that could hold Facebook, Google and other tech giants more directly accountable when viral online posts and videos result in real-world harm.

The measure is dubbed the SAFE TECH Act, and it marks the latest salvo from congressional lawmakers against Section 230. The decades-old federal rules help facilitate free expression online, but Democrats including Warner say they also allow the most profitable tech companies to skirt responsibility for hate speech, election disinformation and other dangerous content spreading across the web.

The senator’s new proposal preserves the thrust of Section 230, which generally spares a wide array of website operators from being held liable for what their users say. Instead, it opens an easier legal pathway for Web users to seek court orders and file lawsuits if posts, photos and videos — and the tech industry’s refusal to police them — threaten them personally with abuse, discrimination, harassment, the loss of life or other irreparable harm.

“How can we continue to give this get-out-of-jail card to these platforms that constantly do nothing to address the foreseeable, obvious and repeated misuse of their products and services to cause harm? That was kind of our operating premise,” Warner said.

Ultimately, it would be up to a judge to decide the merits of these claims; the bill mostly opens the door for web users to argue their cases without running as much risk of having them dismissed early. Facebook, Google, Twitter and other social-media sites stand to lose these highly coveted federal protections under Warner’s bill only in the case of abusive paid content, such as online advertisements, that seek to defraud or scam customers….

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Feb. 12 Event: “After the people vote: A book event with John C. Fortier”

This looks great:

Election Day is just the beginning of a long and complex process to count, certify, and ultimately inaugurate the next president of the United States. The fourth edition of “After the People Vote: A Guide to the Electoral College” (AEI Press, 2020) outlines the procedures that are set in motion after the polls close for the November general election. Edited by AEI’s John C. Fortier with chapters by AEI’s Karlyn Bowman and Norman J. Ornstein and other experts on the Electoral College, the book explores the mechanisms behind this uniquely American institution, including the processes for selecting electors, counting electoral votes, resolving disputes, and handling office vacancies.

Please join us for a discussion about the Electoral College and its future in American politics, with AEI’s Karlyn Bowman, John C. Fortier, and Adam J. White and the University of Iowa’s Derek T. Muller.

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