Registration Now Open for Feb. 28 UCI Law Event: Can American Democracy Survive the 2020 Election?

Very excited about this:

Can American Democracy Survive the 2020 Elections?

The role of media, law, political norms, and technology in assuring acceptance of election results.

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February 28, 2020
8:15 a.m.–5:00 p.m.
UCI Division of Continuing Education, Yosemite Ballroom

RSVP >

Tentative Schedule (PDF)

This event is presented in conjunction with the UCI Jack W. Peltason Center for the Study of Democracy and with the generous support of the Democracy Fund, the William and Flora Hewlett Foundation, and the Mertz Gilmore Foundation.

  • Andrew AppelEugene Higgins Professor of Computer Science, Princeton University
  • Julia AzariAssociate Professor and Assistant Chair of Political Science, Marquette University
  • David BeckerExecutive Director & Founder, Center for Election Innovation and Research
  • The Hon. Jocelyn BensonSecretary of State, Michigan
  • Bruce CainProfessor of Political Science, Stanford University
  • Jack DoppeltHamad bin Khalifa Al Thani Professor of Journalism, Northwestern University
  • Tiana Epps-JohnsonFounder & Executive Director, Center for Technology and Civic Life
  • Ned FoleyCharles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz, Ohio State University
  • John FortierDirector of Governmental Studies, Bipartisan Policy Center
  • Patty HansenCoconino County, AZ Recorder
  • Rick HasenChancellor’s Professor of Law and Political Science, UCI Law
  • Liz HowardCounsel, Brennan Center’s Democracy Program
  • Jessica HusemanVoting Rights and Election Administration Reporter, ProPublica
  • David KayeClinical Professor of Law, International Justice Clinic Director (UCI Law), and UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
  • Neal KelleyOrange County, CA Registrar
  • The Hon. Frank LaRoseSecretary of State, Ohio
  • Matt MastersonU.S. Department of Homeland Security
  • Michael MorleyAssistant Professor of Law, Florida State University
  • Janai NelsonAssociate Direct-Counsel, NAACP Legal Defense and Educational Fund
  • Brendan NyhanProfessor of Government, Dartmouth College
  • Cailin O’ConnorAssociate Professor of Logic and Philosophy Science, UCI School of Social Sciences
  • Norm OrnsteinResident Scholar, AEI
  • Nina PeralesVice President of Litigation, MALDEF
  • Nate PersilyJames B. McClatchy Professor of Law, Stanford University
  • Rick PildesSudler Family Professor of Constitutional Law, NYU
  • Song RichardsonDean and Chancellor’s Professor of Law, UCI Law
  • Bertrall RossChancellor’s Professor of Law, UC Berkeley
  • Alex StamosDirector, Stanford Internet Observatory, Stanford University
  • Charles StewartKenan Sahin Distinguished Professor of Political Science, MIT
  • Michael TeslerAssociate Professor of Political Science, UCI School of Social Sciences
  • Ciara Torres-SpelliscyProfessor of Law, Stetson University
  • James WeatherallProfessor of Logic and Philosophy of Science, UCI School of Social Sciences
  • Amy WilentzProfessor of English, UCI School of Humanities
  • Kim ZetterJournalist and Author
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Thank You to Justin Levitt and Dan Tokaji; And a Note About Election Meltdown Events to Come

I want to offer my huge thanks to Justin and Dan for filling in for me over the last 16 days. It is a lot of work for them because there is no off season in election law anymore. I think this is the longest I’ve been away from the blog since its inception in 2003. We were away on an adventure in Argentina (you can see pictures I’ve posted from the trip in the thread beginning here). It was great to recharge before the launch of my new book, Election Meltdown, and the start of the 2020 election season.

I’ll be putting up separate posts on my upcoming book-related events around the country, the related UCI conference, Can American Democracy Survive the 2020 Elections?, and more (including a five-part Slate podcast in conjunction with Dahlia Lithwick and Amicus, and a Balkinization symposium on the book). Thanks to all for reading, listening, and caring about these issues so crucial to American democracy.

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CFI Report on Small Donor Finance in New York State

“Small Donor Public Finance in New York State: Major Innovations – With a Catch,” by Michael Malbin and Brendan Glavin, available here (PDF). From the press release:

On January 1, 2020, New York became only the second state in this century with a new public campaign finance system for state elections – the first since the U.S. Supreme Court’s Citizens United decision in 2010. A major new report by the Campaign Finance Institute (CFI), a division of the National Institute on Money in Politics, argues that some of the plan’s innovative provisions are worth noticing nationally — particularly for legislative elections. At the same time, however, CFI’s fiscal analysis disputes the official claim that more restrictive ballot access laws were needed for the public financing package to meet budget targets.

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“Democrats sound election security alarm after Russia’s Burisma hack”

The Hill:

Congressional Democrats are raising fresh concerns about 2020 election security following a report this week that Russian military officers hacked Burisma Holdings, the Ukrainian gas company at the center of President Trump’s impeachment.

Several Democratic lawmakers are viewing the incident, reported by The New York Times on Monday night, as the first major sign that Moscow is gearing up for a repeat of its 2016 election interference. They cited what they call similarities between the Burisma attack and the Democratic National Committee hack four years ago.

The referenced NYT story on Burisma is here.

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“Despite Election Security Fears, Iowa Caucuses Will Use New Smartphone App”

NPR:

Iowa’s Democratic Party plans to use a new Internet-connected smartphone app to help calculate and transmit results during the state’s caucuses next month, Iowa Public Radio and NPR have confirmed.

Party leaders say they decided to opt for that strategy fully aware of three years’ worth of warnings about Russia’s attack on the 2016 presidential election, in which cyberattacks played a central role.

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“Millions of Americans have been purged from voter rolls—and may not even realize it”

Fortune:

Millions of Americans have been purged from the voter rolls in recent years, as state governments seek to remove the names of individuals who have died, relocated, or have otherwise become ineligible to vote.

But such purges have been widely criticized due to instances in which states have relied on bad information, unregistering eligible voters who are often unaware until they attempt to cast their ballots on Election Day.

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“Missouri GOP puts political fairness at bottom of redistricting priorities”

AP:

Republican senators rolled out a plan Tuesday to ask Missouri voters to undo key parts of a nationally unique redistricting model that directs a demographer to draw new legislative districts with “partisan fairness” and “competitiveness” as top criteria.

The Republican proposal would abolish the demographer position and relegate political fairness and competitiveness to the bottom of the priority list, behind such criteria as compact and contiguous districts that keep communities intact.

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New Issue of Election Law Journal

Now available. The contents of 18:4:

  • Segregated Ballots for Voters with Disabilities? An Analysis of Policies and Use of the ExpressVote Ballot Marking Device, by Jonathan Lazar
  • Diversifying the Donor Pool: How Did Seattle’s Democracy Voucher Program Reshape Participation in Municipal Campaign Finance?, by Brian J. McCabe and Jennifer A. Heerwig
  • Voter Identification and Nonvoting in Wisconsin—Evidence from the 2016 Election, by Michael G. DeCrescenzo and Kenneth R. Mayer
  • “No Man Can Be the Judge of His Own Cause”: Applying the Principles of Due Process to Our Elections, by Molly C. Greathead
  • Declination as a Metric to Detect Partisan Gerrymandering, by Marion Campisi, Andrea Padilla, Thomas Ratliff, and Ellen Veomett
  • Locating the Representational Baseline: Republicans in Massachusetts, by Moon Duchin, Taissa Gladkova, Eugene Henninger-Voss, Ben Klingensmith, Heather Newman, and Hannah Wheelen
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“Foreign Threats More Numerous, Sophisticated as 2020 Election Looms, Official Says”

WSJ reports:

Shelby Pierson, the principal adviser on election threats in the Office of the Director of National Intelligence, said Tuesday that actors intent on spreading malign influence have become more numerous and potent since Russia’s breaches in the 2016 election. She included Iran, China and North Korea, as well as Russia and hackers unaffiliated with governments, on the threat list.

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Missouri Supreme Court Upholds Ruling That Part of Voter ID Law Violates State Constitution

From the conclusion of today’s opinion in Priorities USA v. State of Missouri:

Because the affidavit requirement of sections 115.427.2(1) and 115.427.3 is misleading and contradictory, the circuit court’s judgment declaring the affidavit requirement unconstitutional is affirmed. Further, the circuit court did not err in enjoining the State from requiring individuals who vote under the non-photo identification option provided in section 115.427.2(1) to execute the affidavit or in enjoining it from disseminating materials indicating photo identification is required to vote. The circuit court’s judgment is affirmed

Coverage here.

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Citizens United at 10

Hard to believe, but one week from today will mark the 10th birthday of Citizens United. To help us commemorate/mourn the occasion, the Center for Responsive Politics has this report, “More money, less transparency: A decade under Citizens United.” And from Issue One “Coordination Watch: How candidates and outside groups work together to evade anti-corruption laws.” More to come, I’m sure, in the next several days.

Update: Ciara Torres-Spelliscy has this post, “Citizens United Made My Career: I Wish It Had Never Happened,” at ACSBlog.

Update 2: Brennan Center offers this analysis, “The 2018 Small Donor Boom Was Drowned Out by Big Donors, Thanks to Citizens United”

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Absentee Votes and Turnout in Michigan Could Delay Election Results

Free Press, with a quote from former election law prof Jocelyn Benson, Michigan’s Secretary of State:

Adding hundreds of thousands of voters, many of whom will now be able to cast their ballots by voting absentee, will overwhelm local clerks with ballots that they can’t begin counting until 7 a.m. on Election Day.

And that could translate into Michigan not being able to tally and announce the results of the 2020 election until a day or two after the polls close on Nov. 3, said Secretary of State Jocelyn Benson.

“Due to the great increase in voting by mail, without a change in law, it is likely that clerks across the state won’t be able to finish counting ballots on election night,” she said in a statement.

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Wisconsin Appeals Court Puts Purge on Hold

Journal Sentinel:

An appeals court ordered the state to keep more than 200,000 people on its voter rolls Tuesday, a day after an Ozaukee County judge found election officials in contempt of court for not following his December decision to suspend voter registrations. 

In a separate order, one of the judges on the appeals court blocked the contempt finding, relieving the commission and three of its members of $800 a day in fines.

More coverage from AP.

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“Texas Democrats launch largest voter registration campaign to hobble GOP’s grip on the state”

ABC News, on the collaboration with Stacey Abrams’ group Fair Fight 2020: ” Texas Democrats, fueled by the party’s nearly quarter-century-held dream of turning Texas blue, are mounting an aggressive ground-game operation with the largest voter registration program in the state’s history, according to the state party, and an expansive voter protection effort ahead of the 2020 election.”

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“Ohio bill proposes automatic voter registration for voting-age high schoolers”

Cleveland.com:

A group of Democratic state lawmakers has proposed automatically registering all Ohio high-school students to vote once they reach voting age.

The bill, introduced in the Ohio House on Monday, also requires the state BMV to offer Ohioans the chance — without any additional paperwork — to register to vote or to update their registration when they visit, with an eye toward expanding it to other state agencies in the future. That’s similar to another bill introduced last year in the state Senate with backing from Secretary of State Frank LaRose, a Republican.

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“Seattle City Council bans ‘foreign-influenced’ companies from most political spending”

Seattle Times:

The Seattle City Council voted Monday to ban most political spending by “foreign-influenced corporations,” in a move that could hinder attempts by multinational tech titans to influence the city’s elections….

The city’s new ban applies to corporations with a single non-United States investor holding at least 1% ownership, two or more holding at least 5% ownership or a non-U.S. investor participating in decision making related to U.S. political activities.

Update: The legislation and a press release from Free Speech for People are here. Reuters has this story.

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“Wisconsin judge orders up to 209K voter names be deleted”

From AP, the latest on the Wisconsin purge:

The state Justice Department asked [Ozaukee County Judge Paul] Malloy to stay his order of contempt pending an appeal of his ruling, but the judge denied the request. Malloy held in contempt the six-person commission and its three members who dissented in the case. But only the three dissenters will each face the $250 fine every [day] they they don’t comply, not the other three members. The commission as a whole, however, faces $50 fines every day the purge doesn’t happen.

More coverage from the Journal Sentinel and The Hill.

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“Bridgegate” in SCOTUS

Tomorrow, the U.S. Supreme Court will hear argument in Kelly v. United States. The Hill has this story, and Amy Howe’s SCOTUSblog preview is here. At issue in the case are the convictions of an aide to then-Governor Chris Christie and the Deputy Executive Director of the Port Authority for their parts in closing two lanes on the George Washington Bridge in September 2013. That created a massive traffic jam in Fort Lee, NJ, allegedly to punish its mayor for not supporting Christie’s reelection. The central legal question is whether a public official “defrauds” the government, under the federal wire fraud and federal program fraud statutes, by lying about the reason for their action.

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Federal Court Orders New York State to Include Names of Inactive Voters at Polling Places

U.S. District Judge Alison J. Nathan issued the order in Common Cause N.Y. v. Brehm on Friday. The Gothamist has this story, and Lawyers’ Committee this press release.

The order follows a four-day bench trial in October. From its conclusion:

The Court concludes that New York’s refusal to provide inactive lists at polling locations violates the Equal Protection Clause. The State is therefore ordered to provide the names of inactive voters registered to vote in a particular election district to the poll workers of that election district. The Court further concludes that the State’s affidavit-ballot process does not violate the Fourteenth Amendment. And the Court identifies three discrete voters as to whom the State violated the National Voter Registration Act.

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Can Election Rules Be Changed After the Election?

That’s what the Oregon state legislature is alleged to have done in the strange and fascinating case of the City of Damascus, in which a petition for review is pending before the Oregon Supreme Court. It’s been called the undead city, because of its unusual history. Briefly, as recounted in that story and ones here and here:

  • In 2013, a vote was held on whether to disincorporate the city. The measure received a simple majority among those voting, but failed to achieve the absolute majority of all registered voters required by state law.
  • In 2015, the legislature passed a law allowing voters to disincorporate the city by simple majority, rather than absolute majority of all voters.
  • In May 2016, voters approved disincorporation by a simple majority.
  • Also in 2016, a circuit court judge declared the election result valid, allowing the disincorporation to proceed in July.

Here’s what happened next, according to an attorney for the city, Ed Trompke:

On May 1, 2019, the Oregon Court of Appeals held that a disincorporation election held in May 2016 in the City of Damascus was not valid to dissolve the City. In response, the Oregon Legislative Assembly adopted SB 226 in June 2019 to overturn the court by retroactively changing the type of majority needed to carry the election (from a majority of the registered voters to a majority of those voting).  

It’s that law which is being challenged before the Oregon Supreme Court. Among its provisions are that a disincorporation measure “shall be approved if a majority of the voters voting on the question in the election votes in favor of disincorporation” and that this “applies to Acts enacted or referred, and elections held, before the effective date of this 2019 Act” (emphasis added).

The city and its supporters argues that the state legislature has “retroactively change[d] the rules applicable to elections in order to reverse the outcome,” citing Bush v. Gore. This is essentially an argument that it violates the “lawlessness principle,” as Rick has called it, drawing on a lecture by Akhil Amar. The principle is that elections should be decided based on the “rules of the game” in place on Election Day. The city and its advocates argues that didn’t happen.

The state’s response appears to acknowledge that the 2019 law applies retroactively to change the rules of the 2016 election, at least as those rules were understood by the Oregon appellate court. It characterizes the statute as authorizing a disincorporation measure “even where the referral occurred prior to the effective date [of the 2019 law].” But the state says this is entirely consistent with the Oregon Constitution and the Fourteenth Amendment’s due process and equal protection clauses.

The federal constitutional issue strikes me as an important one. And it’s a reminder that, nearly twenty years after Bush v. Gore, we’re still fighting over its meaning and import — thanks in no small part to the U.S. Supreme Court’s continuing refusal to acknowledge or clarify it. It remains the case that must not be named, at least in that court.

We may not get clarification of Bush v. Gore from the Damascus case. But perhaps we’ll finally get some clarity on the accuracy of the biblical prophesy: “Damascus will cease to be a city and will become a heap of ruins.” Isaiah 17:1.

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“Digital Threats on 2020 Elections”

NPR interview with Siva Vaidhyanathan. An excerpt:

MARTIN: So moving forward in 2020, as where we sit right now – obviously, it’s an election year in the United States. And I assume most Americans are very interested and concerned in that. Are there some things that people should be looking out for?

VAIDHYANATHAN: Yeah. We’re likely to see in 2020 much of what we saw in 2016, which means the development of Facebook groups that are large are going to be outside of the arm – the regulatory arm of Facebook itself. Facebook groups devoted to dividing Americans, you know, fostering, you know, Texas independence movements or anti-Semitic movements or any of those efforts that, like, hit viscerally at our identity as Americans. And those are likely to be supported by Russian influence or maybe even domestic extreme influence.

And look. The goal is not necessarily to reelect Trump. It wasn’t really the goal to elect Trump in 2016. The goal was to mess with us, so that no matter who becomes president, the United States is harder to govern, and that over the long run, democracy becomes harder to sustain.

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Bloomberg Open to Spending $1 Billion to Elect A Democratic President

NYT:  “Michael R. Bloomberg on Saturday did not rule out spending a billion dollars of his own money on the 2020 presidential race, even if he does not win the Democratic nomination, and said he would mobilize his well-financed political operation to help Bernie Sanders or Elizabeth Warren win in November if either is the party nominee, despite their sharp policy differences.”

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“North Carolina Republicans make last-minute plea to keep voter ID photo requirement”

AP:

North Carolina Republican lawmakers made a last-minute plea on Friday to a federal judge as they seek to save a photo identification requirement to vote that had been set to begin with the March primary.

The GOP legislative leaders already have been turned away by U.S. District Judge Loretta Biggs from entering the lawsuit that the NAACP filed against other state officials to challenge the December 2018 law. They’re again seeking to intervene while asking Biggs to suspend her decision last week that prevents the photo ID mandate from being implemented for the time being.

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“Why are felons in Minnesota stripped of their voting rights?”

Star Tribune:

Minnesota is one of 18 states where felons may not vote until they complete post-incarceration supervision, such as probation or parole. Others, like Michigan and Indiana, automatically restore those rights upon release from prison….

Last fall, the American Civil Liberties Union filed a lawsuit against the state of Minnesota to restore voting rights to those who have already served their time or were sentenced to probation rather than incarceration.

The case is pending ….

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“‘Online and vulnerable’: Experts find nearly three dozen U.S. voting systems connected to internet”

NBC:

[A] team of election security experts say that last summer, they discovered some systems are, in fact, online.

“We found over 35 [voting systems] had been left online and we’re still continuing to find more,” Kevin Skoglund, a senior technical advisor at the election security advocacy group National Election Defense Coalition, told NBC News…..

The National Institute of Standards and Technology, which provides cybersecurity frameworks for state and local governments and other organizations, recommends that voting systems should not have wireless network connections.

All the systems Skoglund’s group found online were manufactured by ES&S. The online systems were found in 11 states, in at least some precincts, as well as in the District of Columbia. The states were: Florida, Wisconsin, Michigan, Rhode Island, Illinois, Indiana. Kentucky, Minnesota, Massachusetts, Nebraska and Mississippi

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Breaking: SCOTUS Grants Cert in Political Robocall Case

Here is the order list showing the grant in Barr v. American Association of Political Consultants. The question presented in the cert petition (minus citations):

The Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243, 105 Stat. 2394, generally prohibits the use of any “automatic telephone dialing system or an artificial or prerecorded voice” to “make any call” to “any telephone number assigned to a * * * cellular telephone service.” 47 U.S.C. 227(b)(1)(A)(iii) (Supp. V 2017). The TCPA excepts from that automated call restriction any “call made for emergency purposes or made with the prior express consent of the called party.” In 2015, Congress amended the TCPA to create an additional exception for calls “made solely to collect a debt owed to or guaranteed by the United States.”

Respondents wish to use an automatic telephone dialing system or an artificial or prerecorded voice to make calls to the cell phones of potential or registered voters to solicit political donations and to advise on political and governmental issues. The court of appeals held that the government debt exception to the TCPA’s automated-call restriction violates the First Amendment. The court further held that the proper remedy was to sever the government debt exception, leaving the basic automated-call restriction in place.

The question presented is as follows: Whether the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Coverage from Bloomberg and SCOTUSBlog.

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“‘Chaos Is the Point’: Russian Hackers and Trolls Grow Stealthier in 2020”

Must-read report in today’s NYT:

The National Security Agency and its British counterpart issued an unusual warning in October: The Russians were back and growing stealthier.

Groups linked to Russia’s intelligence agencies, they noted, had recently been uncovered boring into the network of an elite Iranian hacking unit and attacking governments and private companies in the Middle East and Britain — hoping Tehran would be blamed for the havoc.

For federal and state officials charged with readying defenses for the 2020 election, it was a clear message that the next cyberwar was not going to be like the last. The landscape is evolving, and the piggybacking on Iranian networks was an example of what America’s election-security officials and experts face as the United States enters what is shaping up to be an ugly campaign season marred by hacking and disinformation.

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Muller Op-Ed: “California’s election rules make it hard to hold politicians accountable”

In today’s LA Times:

[A]ll [California] primary elections, including for members of Congress, will take place in March. California is now an outlier — all but eight states hold congressional primaries much closer to the general election, often in June or August….

Early primaries have the effect of insulating incumbents. If incumbents see no serious competitors after an early filing date, they may decide to act without regard to constituents — for example, when called upon to vote for or against impeachment.

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“Citing errors, Iowa removes list of felon voters amid review”

AP:

Iowa election officials have stopped using a long-flawed database of felons who are ineligible to vote as they rebuild it from scratch.

Iowa Secretary of State Paul Pate’s office removed the database, which contained more than 100,000 entries, from the statewide voter registration system on Jan. 3.

Workers are recreating the list by reviewing each entry and adding back those that are verified felony convictions. They hope to complete the review before the November election.

More from the Des Moines Register, which notes the challenge of verifying eligibility for participating in the February 3 Iowa caucus.

In related news, KCAU-TV reports “a backlog of over 300 [restoration] applications sitting on the … desk” of Republican Governor Kim Reynolds, which she reportedly plans to get through before the caucus.

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Yesterday’s Voting Equipment Hearing: Vendors Ask for More Regulation

Bloomberg Law:

The infiltration by foreign countries like China into election voting equipment is emerging as a growing concern among vendors, who are actually asking for more federal regulation as they grapple with a lack of domestic suppliers producing critical technologies .

Top executives of the three largest voting machine vendors—Hart InterCivic, Dominion Voting Systems and Election Systems & Software—told the House Administration Committee Thursday they are hoping for guidance and support from the Department of Homeland Security on how to secure their subcontractors.

The Hill offers a similar take, characterizing this as a “major step for an industry that has come under close scrutiny in recent years due to election security concerns.” Is a bipartisan bill updating HAVA to deal with these concerns a genuine possibility?

Rep. Rodney Davis (R-Ill.), the top Republican on the committee, told The Hill that he “certainly hoped” the hearing would help move legislation forward, while noting the opposition by Republicans to previous Democratic-backed bills that the House has passed. 

“There is a lot of agreement between Republicans and Democrats on the committee about what needs to be addressed, we want all machines that are manufactured to be safe and what we all consider un-hackable, but there were some clear differences in opinion on how we get there,” Davis said.

Update: More coverage of the hearing from ABC, highlighting potential cybersecurity threats from Iran and other countries.

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Yesterday’s Census Hearing: Lingering Effects of the Citizenship Question

Roll Call:

Although the Trump administration dropped a citizenship question from this year’s census, minority groups told the House Oversight and Reform Committee on Thursday that the question’s specter has haunted preparations for a national count that could miss millions of residents.

More from NBC:

There also are concerns of undercounts in rural areas of the country since the census is allowing responses online this year and many rural areas have no access to the internet.

“Hard-to-count communities are in every state and district, from large urban areas to rural and remote communities, including American Indian tribal lands and reservations,” said Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights.

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DSCC and DCCC Spending on Voting Litigation

From their press release and memo: ” The Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee have made an eight-figure investment in a legal strategy across key battleground states, including Arizona, Florida, Georgia, North Carolina, South Carolina, and Texas that will take on Republicans’ decades-long voter suppression crusade and increase access to the ballot for young people, communities of color, and rural voters.”

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