“Make America Great Again” Shirt on Poll Worker and the Ban on Electioneering

From Newsday’s report of New York voting:

One of the issues made a splash in social media. Some voters complained that a poll worker in Remsenburg wore a blue shirt with the slogan “Make America Great Again” emblazoned on the front. State law prohibits “electioneering” within 100 feet of a polling place, but the shirt didn’t mention a candidate or the slogan’s promoter, Republican President Donald Trump.


“I did get some calls on that and I got some emails about that as well,” LaLota said. He said the slogan didn’t seem to violate the law against electioneering for a candidate.


“I would say that whatever the slogan is, whether it’s left or right, that people show a little more tolerance,” LaLota said. “There is no rule to enforce to make this 77-year-old gentleman remove his shirt.”


Anita Katz, Democratic elections commissioner in Suffolk County, acknowledges wearing the slogan wasn’t illegal, but she said it made many voters uncomfortable.

From the Lowenstein et al. election law casebook 2019 supplement:

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Kentucky: “Senate president says Bevin should concede election if recanvass doesn’t alter vote totals”

Courier-Journal:

Republican Senate President Robert Stivers believes Gov. Matt Bevin should concede his loss to Democrat Andy Beshear if next week’s recanvass doesn’t significantly change the vote totals.


“It’s time to call it quits and go home, say he had a good four years and congratulate Gov.-elect Beshear,” Stivers said in a brief Friday interview at the Capitol.


Bevin finished 5,189 votes behind Democrat Andy Beshear in Tuesday’s gubernatorial election but has refused to concede the race, requesting a recanvass of the vote that will take place Nov. 14.


The governor has also made allegations of widespread voting irregularities and fraud on Election Day, but hasn’t provided any evidence to back up those claims.


Stivers said if Bevin chooses to contest the election by calling a special session of the General Assembly and making a case that there was illegal activity, lawmakers would have to hear the dispute under the state constitution…

Stivers also said he has received numerous angry calls and messages from people accusing him of somehow trying to steal the election should Bevin contest the outcome to the state legislature.


These calls followed Stivers’ response to a reporter’s question on election night about the procedure for a gubernatorial candidate to contest the outcome, he said.


Stivers said lawmakers don’t have a choice once a candidate seeks to contest the election, as “it’s a constitutional mandate.”

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Bevin Supporter Fishing for Voter Fraud Evidence They Don’t Have Through Robocalls That May Mislead Voters Into Thinking They Are Coming from Kentucky Board of Elections

Courier Journal:

Conservative political activist Frank Simon, a longtime supporter of Gov. Matt Bevin, is sending robocalls asking Kentuckians to report suspicious activity or voter fraud to the State Board of Elections before Nov. 14 — the day of Bevin’s requested recanvass.


Bevin finished 5,189 votes behind Democrat Andy Beshear in Tuesday’s gubernatorial election but has refused to concede the race, requesting a recanvass of the vote, which is essentially a review of the vote totals in each county.


The governor has also made allegations of widespread voting irregularities and fraud on Election Day, but he hasn’t provided any evidence to back up those claims.


According to a voicemail of the robocall sent to a Republican in Western Kentucky, Simon says, “If you or anyone you know has information regarding suspicious activity at polling locations, please report suspected voter fraud to the state department of elections by calling 502-573-7100.”

He also asked that those calls to the State Board of Elections phone number take place by Nov. 13 — the day before each county board of elections conducts the recanvass.


There is no disclaimer on the call indicating who paid for it, nor is it explained that the call is not coming from the State Board of Elections.

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Trump, Bevin, and the Voter Fraud Dog That Didn’t Bark

Yesterday at Slate I wrote about how Kentucky governor Matt Bevin has so far made unsubstantiated claims that voter fraud and other irregularities cost him the election against his Democratic opponent Andy Beshear, and that the Kentucky Senate President made noises suggesting that the state legislature could rely on a little-used procedure to take the election result away from Beshear, who currently leads by 5,000 votes, and hand it to Bevin. I suggested this would be a real instance of stealing an election, and it was exceedingly dangerous to our democracy.

Today brings good news that Republican members of the Kentucky legislature are speaking out against this idea. Either Bevin needs to come up with actual evidence putting Beshear’s lead in doubt or he needs to shut up.

That’s very reassuring. And there’s something else that is worth mentioning. President Donald Trump, who has often made unsubstantiated claims of voter fraud (as chronicled in my upcoming book, Election Meltdown), has not jumped on Bevin’s voter fraud bandwagon. He’s barely Bevin by name on Twitter since before the election. He wrote: “Won 5 out of 6 elections in Kentucky, including 5 great candidates that I spoke for and introduced last night. @MattBevin picked up at least 15 points in last days, but perhaps not enough (Fake News will blame Trump!). ” His other tweet on Kentucky since the election mentioned the other state races Republicans won, listing the governor’s race as “tbd.”

It is great news that Trump has not fanned the flames here as he has in other elections. Now this may be because Republicans in the Kentucky legislature don’t like Bevin and won’t go to bat for him in a way that would have serious political costs. But whatever the reason, we should be thankful for this development.

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“Congressional Democrats to Revive Equal Rights Amendment Push”

NYT:

Democrats, buoyed by their party’s electoral sweep in Virginia this week, plan on Friday to revive the Equal Rights Amendment in Congress, embarking on what they hope is a final push to add the nearly century-old measure to enshrine equality of the sexes into the Constitution.
Representative Jerrold Nadler, the New York Democrat who is chairman of the House Judiciary Committee, will announce that his panel intends to mark up a bill eliminating the deadline for states to adopt the amendment, known as the E.R.A., which was one state short of the 38 needed for ratification when the deadline passed in 1982.


The aim is to clear the way for Virginia — where Democrats have just won control of the Legislature and are eager to approve the amendment — to become that final state. Although legal experts debate whether Congress’s deadline was ever constitutionally valid, and whether it can now remove that deadline, doing so would seem to help carve a legal path for the amendment to be written into the Constitution. But both the House and the Republican-led Senate would have to vote to do so.

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“The Cybersecurity 202: Swing state election websites aren’t secure against Russian hacking, McAfee says”

WaPo:

County election websites in two battleground states are highly vulnerable to hacking by Russia or another adversary that might seek to disrupt the 2020 vote by misleading voters about polling locations or spreading other false information. 


About 55 percent of county election websites in Wisconsin and about 45 percent in Michigan, both states that President Trump flipped from Democratic to Republican in 2016 lack a key and fairly standard security protection, according to data provided exclusively to me by the cybersecurity firm McAfee.


Without this protection, called HTTPS, it’s far easier for an adversary to hijack those sites to deliver false information, divert voters to phony sites that mimic the real ones or steal voters’ information, per McAfee. (You can often tell if a site has HTTPS protection if there’s a small lock icon to the left of a Web address.) 

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Mississippi: “Black Democrat Wins in Redrawn District After Racial Gerrymander Case”

Jackson Free Press:

Even as Republicans swept statewide offices in Mississippi on Tuesday night, Joseph Thomas, an African American Democrat in a district that stretches across six counties, narrowly flipped a GOP-held Senate seat. Earlier this year, a federal court forced the GOP-led Legislature to redraw the boundaries for that district, Senate District 22, after finding that they had drawn it in a way that was intended to dilute black voting power.

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“The Anti-Carolene Court”

Here’s the abstract for a new article of mine arguing that Rucho — along with much of the Court’s other election law jurisprudence — should be understood as the product of the Court’s aversion to Carolene Products-style pro-democratic judicial review. The piece is forthcoming in the Supreme Court Review.

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v. Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable.

Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis—originalism, judicial restraint, respect for precedent, and so on—all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review precisely because, at this historical juncture, it often happens to be pro-Democratic.

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“The Law of Electoral Democracy: Theory and Purpose”

Looking forward to reading this from Graeme Orr:

This chapter explores the question of ‘theory’ within the law of electoral democracy, by considering what it would mean for such a theory to exist given the contested nature of democracy itself.

It begins with a brief survey of the terms in question, including the emergence of electoral law as a field of study and its under-theorised state. It is quickly shown that, outside of a narrow and minimalist conception of a free election as one where votes are cast and counted, there is little agreement on the norms that should determine the law in this area, even on some fundamental concrete questions.

Normative coherence however can be demonstrated within competing approaches to the law. A social democratic theory of law is seen to provide salutary reminders. Reminders that democratic politics is collective more than individualist and that electoral democracy is not the whole of democracy. Within that tradition, the distinctive contribution of Keith Ewing to political finance – which he configures as party finance – is discussed.

Ultimately a four-sided functionalist account of the purposes of electoral law is offered. The four categories are: Structural Integrity, Democratic Values, Ritual Experience (all insider perspectives) and the cynical/outsider perspective of elections as a Game/Mask. The aim of the functionalist account is to show that whilst normative approaches may be sharply contested, we are not lost at sea: theory can help set the parameters of the ongoing debate over the shape of the law.

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Revised Version of My Paper, Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World, Now Available

I’ve posted this revised version of my Childress Lecture at this link. The main difference is that I contrast my proposal for regulating deep fakes with recent California legislation. The final version will be published in a special symposium issue of the St. Louis U. Law Review with commentaries and other election law papers.

Here is the abstract:

This Essay forms the basis for the 2019 Richard J. Childress Memorial Lecture, to be delivered at St. Louis University in October 2019.

About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity.

These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence?

This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.

Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

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Ghost of Tom Hofeller: Republican Legislator Keeps Leaving North Carolina Legislative Meeting for Secret Consultations in Redrawing the State’s Congressional Districts Under Threat of Court Order

Daniel Jacobson:

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Kentucky: “Republican lawmakers: Bevin can’t turn election dispute into ‘fishing expedition'”

Courier-Journal:

Republicans in Kentucky’s legislature have expressed skepticism about Gov. Matt Bevin’s dispute with Tuesday night’s election results, saying the governor should back up his claims of “irregularities” and not drag the outcome beyond next week’s recanvass.


“If there is evidence of fraud or illegalities, as was alluded to last night, Governor Bevin should state his claim immediately and let the evidence be reviewed,” Rep. Jason Nemes, R-Louisville, wrote in a Facebook post on Wednesday. “But this is not an opportunity for a fishing expedition or a chance to overturn the election result.”

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“AP Exclusive: Steyer aide offered money for endorsements”

AP:

A top aide to Democratic presidential candidate Tom Steyer in Iowa privately offered campaign contributions to local politicians in exchange for endorsing his White House bid, according to multiple people with direct knowledge of the conversations.

The overtures from Pat Murphy, a former state House speaker who is serving as a top adviser on Steyer’s Iowa campaign, aren’t illegal — though payments for endorsements would violate campaign finance laws if not disclosed. There’s no evidence that any Iowans accepted the offer or received contributions from Steyer’s campaign as compensation for their backing….

Experts say a campaign could violate campaign finance laws if they don’t disclose payments for endorsements.


“It’s legal if you disclose a payment for an endorsement on your campaign finance report,” said Adav Noti, a former Federal Election Commission attorney who now works for the nonpartisan Campaign Legal Center in Washington. But, he added, “It would be unlawful if you don’t disclose it, or you disclose it but try to hide who the recipient is, or try to hide what that purpose was.”


A trio of former Ron Paul aides faced legal trouble in 2016 over similar issues during the 2012 Iowa Republican caucus campaign. Campaign chairman Jesse Benton, campaign manager John Tate and deputy campaign manager Dimitri Kesari were convicted in 2016 of charges related to arranging and concealing payments for then-Iowa state Sen. Kent Sorenson, who switched his support from Michele Bachmann to Paul just six days before the Iowa caucuses. Sorenson served 15 months in jail for his role in the scheme.

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“Could Matt Bevin Steal the Kentucky Governor’s Election?”

I have written this piece for Slate. It begins:

Will the Kentucky Legislature assist Matt Bevin in stealing the governor’s race from Democrat Andy Beshear, who appeared to have won Tuesday’s election by about 5,000 votes? Ordinarily, I would consider the possibility preposterous. We do not live in ordinary times, though, and on Wednesday Kentucky Senate President Robert Stivers raised the prospect that his institution, not the voters, could determine the outcome of the race. If Stivers and Republican Kentucky legislators were to make such a hardball move without good evidence that there were major problems with the vote count, the election would likely end up in federal court, where it is anyone’s guess what would happen. Either way, that we’re even discussing this potentiality one year before Donald Trump—who has repeatedly challenged the vote totals in his 2016 election victory—is set to face reelection is a wrenching sign for our already-damaged democracy….

But Bevin may be doing more than that, and here’s where things can get weird. Kentucky has a set of rules to resolve contested elections, but those rules do not apply to a governor’s race. Instead, the state constitution provides that “Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.” According to the Louisville Courier-Journal, the last time the Legislature resolved a governor’s race under this procedure was 1899.
Suppose, as seems most likely, that Bevin cannot come up with evidence of voter fraud or other problems that could plausibly swing a 5,000-vote margin. Would the Republican-dominated Legislature still attempt to hand the governorship back to Bevin? If it did hand Bevin the victory—even without evidence of fraud or major error—could federal courts refuse to review the decision as an action committed by the state legislature in accordance with the state constitution?

But there’s some question about whether the normal rules apply anymore. We have already seen Republican state legislatures in places like Wisconsin and North Carolina go so far as to strip powers from incoming Democratic governors. We’ve reached the point where it is conceivable that the Kentucky Legislature could go even further and make the election loser the winner. Stivers himself expressed support for Bevin, noting that the Libertarian gubernatorial candidate got 2 percent of the vote, more than the difference between Bevin and Beshear. Stivers remarked that “most of those votes … [w]ould have gone to Bevin.”
Stivers point would be an excellent one in arguing for the adoption of ranked choice voting, which would have allocated the Libertarian Party candidate’s votes to the voters’ second choice. But it is emphatically not an argument to overturn the results of a fair election run under rules giving the plurality winner the right to the seat. I am very wary—and often critical—of claims of “stolen” elections, but if Stivers does what he is hinting at it would be a case where such a label would be justified….

It is not certain that federal courts would get involved, perhaps preferring to leave matters in the hands of political branches granted the power to resolve disputes under the state constitution. Still, Beshear would be able to raise arguments under the 14th Amendment’s equal protection and due process clauses. He could also point to the part of Bush v. Gore—the decision ending the 2000 presidential contest—that held “having once granted the right to vote on equal terms,” a state “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” A system that declares the election loser the winner on arbitrary grounds would certainly value the votes for the loser over those of the winner.

Such an effort would also violate due process, which protects against arbitrary government treatment in elections. It calls to mind an important 1995 11th Circuit case, Roe v. Alabama, which found a due process violation when a state appeared to change the rules for conducting recounts for a state supreme court race after the election was held. If the Kentucky Legislature adopts new contest rules that deprive Beshear of fundamental fairness, that could violate due process under Roe.

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“New York Law School seeks to boost Census participation”

Politico Pro:

The New York Law School is launching a new institute that seeks to ensure that all communities are counted equitably in the upcoming 2020 Census as the decennial count faces roadblocks from the federal government.


The New York Census and Redistricting Institute will work with and inform public institutions, nonprofits and the public about laws and policies pertaining to the upcoming Census as well as city and state redistricting. Students will also be able to take advantage of research opportunities….

The school is partnering with Jeffrey Wice — a national census expert who has worked with state legislative leaders as well as congressional lawmakers — who will lead the institute, focusing on legal and policy efforts.

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“Our Campaign Finance Nationalism”

Gene Mazo has posted this draft on SSRN (forthcoming, Pepperdine Law Review). Here is the abstract:

This Article chronicles the history, structure, and contours of our “campaign finance nationalism.” I use this term to describe a system in which the funding of campaigns at the federal, state, and local levels is national in scope, despite the fact that voting is not. It is a system in which everyone is free to donate to a candidate across state lines, although only a resident of the candidate’s district can vote for him.

Part I contrasts our campaign finance nationalism with our voting rights federalism. The law views voting and campaigning as distinct activities, and each is governed by its own body of law. For the most part, voting is governed by state law. Since state law regulates voting differently in each state, the law of voting is emblematic of America’s voting rights federalism. The law of campaigning, by contrast, is national in scope. A major portion of it involves the doctrine of free speech. Since the First Amendment applies equally to all citizens, our campaign finance system largely ignores the federalism of voting. The only participation limits that our campaign finance system sets are based on national citizenship, as “foreign nationals” are precluded from making contributions or expenditures to influence any federal, state, or local election.

In Part II, I chronicle the history of our campaign finance nationalism. Concern with the influence that foreigners had over U.S. policymaking led Congress to enact the Foreign Agent Registration Act (FARA) in 1938. This law prohibited the agents of foreign principals from making contributions to political candidates. However, FARA’s statutory scheme contained loopholes. In 1974, when Congress was debating its amendments to the Foreign Election Campaign Act of 1971 (FECA), it adopted Senator Lloyd Bentsen’s proposal to ban foreign nationals from influencing U.S. electoral campaigns directly. After Citizens United was decided, this prohibition on foreign nationals was challenged in Bluman v. FEC, but the Bluman court upheld the ban on the grounds that foreigners are not members of the American political community.

As Part III explains, our campaign finance nationalism has several consequences. One is that it prevents individual states from restricting nonresident campaign contributions. Over the years, several states have tried to place limits on nonresident contributions, only to have their efforts be struck down. A second consequence is that the system readily encourages political candidates to seek campaign contributions from all across the country. As a result, candidates develop two distinct groups of people to whom they owe allegiance: voters and donors. I marshal evidence to show how, over time, members of Congress have become increasingly dependent on nonresident donors. Many academic authors, including Richard Briffault, Jessica Bulman-Pozen, Anthony Johnstone, Todd Pettys, and John Paul Stevens, have undertaken efforts to understand the effects of nonresident contributions and the justifications for them.

Part IV examines the difficulties of regulating our campaign finance nationalism. The provisions of the law prohibiting foreign spending in American elections have many loopholes, and policing them also turns out to be very hard to do in practice. If Russia’s aggressive actions during the 2016 election taught us anything, it is that our campaign finance system is vulnerable. I conclude by examining various efforts now being undertaken in Congress to prevent foreign influence from infiltrating American electoral campaigns.

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“A Bevin-Beshear recount? Here’s what could happen in the Kentucky governor’s race”

USA Today:

To cap off one of the wildest finishes to a gubernatorial election in Kentucky history, Democratic candidate Andy Beshear declared victory to supporters Tuesday night, moments after Republican incumbent Matt Bevin told supporters that he will not concede the race.
“This is a close, close race,” said Bevin, who trailed Beshear by 5,189 votes with 100% of precincts reporting across the state. “We are not conceding this race by any stretch.”
Later that night, Kentucky Secretary of State Alison Lundergan Grimes told CNN her office had called the race for Beshear, as they do not believe the difference in the vote can be made up by Bevin.
As if matters couldn’t get more complicated, Republican Senate President Robert Stivers then told reporters that a joint session of the Kentucky General Assembly may eventually decide the winner, citing a provision in the state constitution that hasn’t been used in 120 years.
So … what now?

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With Democrat Beshear Ahead By About 4,700 Votes in Kentucky Governor’s Race, Republican Matt Bevin Won’t Concede, Citing Unspecified “Irregularities”

Josh Douglas is going to be busy.

Bevin claim:

And now this:

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As Democrats Take Unified Control of Virginia State Government, Will They Kill Redistricting Reform?

Michael Li:

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“Dissonant Referendum Design and Turmoil in Representation”

Jacob Eisler has posted this draft on SSRN. Here is the abstract:

The fruit of a referendum should be political clarity. The people have spoken; the state will act in accordance with their wishes. Yet the Brexit referendum had the opposite effect. After a majority of the UK electorate who voted in the referendum indicated a preference to leave rather than remain in the European Union, the representative government fell into divisive conflict over what policy should be adopted as a response to the expression of popular will. This is the antithesis of the clarity that a referendum should produce. Why has this happened? This Essay argues that, beyond the political and social complexities of Brexit, the subsequent instability can be traced to the humble realities of referendum question design. The referendum pitted a concrete proposal with clear legal consequences (Remain) against a question of principle with no explicit indication of subsequent government action (Leave). In doing so, the Brexit referendum deviated from well-established principles of referendum design by presenting voters with two non-comparable alternatives. Damningly for post-referendum governance, the result of the referendum offered the government little clear legal guidance, but rather simply constrained its policy-making flexibility. Such a referendum outcome forces representative government to exercise general policy-making discretion, but with a constrained palette of policy options which specifically exclude the first-choice preference of many voters. This Essay uses classical tools of political science to interpret this confusion in democratic governance, and draw forth general lessons regarding the interaction between referendum design and representative politics. Specifically, it applies spatial modelling of political competition to identify how flawed referendum design upsets the relationship between representatives and voters.

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UK: “Johnson delay on Russia dossier helps Putin, says Litvinenko widow”

Guardian:

The widow of Alexander Litvinenko has said Boris Johnson should not have suppressed the parliamentary report on Russian interference in British politics, saying the delay helps the Kremlin and feeds suspicions of a cynical government “cover-up”.
Marina Litvinenko said the prime minister was in danger of making the same “mistake” as Theresa May, who as home secretary refused to hold a public inquiry into her husband’s murder in 2006 by polonium poisoning in central London.
“I’m very disappointed. We saw the same thing in my husband’s case,” she said, as the deadline passed for clearing the keenly awaited intelligence and security committee (ISC) report on Russia for publication before the general election.

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“Problem with new election equipment delays voting in Georgia counties”

AJC:


A glitch with Georgia’s new voter check-in computers caused delays in most of the six counties testing it, causing some precincts to stay open late to accommodate voters who left without casting their ballots.

The problem occurred in at least four of the six counties where the new voting system was being tested Tuesday before it’s rolled out statewide to 7.4 million registered voters during the March 24 presidential primary. Most Georgia voters were still using the state’s 17-year-old voting technology Tuesday.
Poll workers weren’t able to create voter access cards on new voting check-in computers manufactured by KnowInk. Those cards activate touchscreen voting machines so that they display the ballot associated with the jurisdictions where voters are registered.

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“Georgia bets on new voting system amid high-stakes election”

AJC:

With a presidential election on the line in 2020, Georgia is switching to a new voting company, Dominion Voting Systems, that state evaluators ranked second-best and that critics said will leave elections vulnerable.

Dominion, based in Denver, must rush to install 30,000 voting machines for 7 million Georgia voters before the March 24 presidential primary, the largest rollout of elections equipment in U.S. history. Most voters in Tuesday’s local elections will cast ballots on Georgia’s 17-year-old machines, and voters in six counties are testing Dominion’s machines.

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“New report: Digital Disaster — The failures of Facebook, Google, and Twitter’s political ad transparency policies”

Issue One:

Issue One’s latest report, “Digital Disaster: The failures of Facebook, Google, and Twitter’s political ad transparency policies,” reveals how piecemeal, voluntary approaches by the largest social media platforms to stop disinformation campaigns fail to protect our political system from foreign interference. 


As the report shows clearly, the companies’ political ad transparency policies are a mess, and they do not measure up to the existing standards governing political ads on broadcast television and radio or the guidelines set by the bipartisan Honest Ads Act. The databases of political ads that they’ve created to help the public monitor digital ad spending in U.S. elections are also deeply flawed. 

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“‘Deep fake’ videos could upend an election — but Silicon Valley may have a way to combat them”

LAT: 

Election officials and social media firms already flummoxed by hackers, trolls and bots are bracing for a potentially more potent weapon of disinformation as the 2020 election approaches — doctored videos, known as “deep fakes,” that can be nearly impossible to detect as inauthentic.
In tech company board rooms, university labs and Pentagon briefings, technologists on the front lines of cybersecurity have sounded alarms over the threat, which they say has increased markedly as the technology to make convincing fakes has become increasingly available.
On Tuesday, leaders in artificial intelligence plan to unveil a tool to push back — it includes scanning software that UC Berkeley has been developing in partnership with the U.S. military, which the industry will start providing to journalists and political operatives. The goal is to give the media and campaigns a chance to screen possible fake videos before they could throw an election into chaos.
The software is among the first significant efforts to arm reporters and campaigns with tools to combat deep fakes. It faces formidable hurdles — both technical and political — and the developers say there’s no time to waste.

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“Marsy’s Law ballot question will appear in Pa., but state Supreme Court says votes won’t be counted for now”; Odd Decision of Pa. Supreme Court

Philly Inquirer:

If you’ve turned on network television in Pennsylvania in the last several weeks, you’ve probably been treated to political advertising in the form of the actor Kelsey Grammer telling the story of how, after his father was shot and killed, he found out about the killer’s release through a tabloid.
The actor and other advocates have been drumming up support for Marsy’s Law, a proposed constitutional amendment that Pennsylvania voters will see on election ballots on Tuesday — but those votes won’t be counted or certified until state courts decide whether Marsy’s Law is constitutional.

A divided state Supreme Court on Monday upheld a lower court ruling by Commonwealth Court Judge Ellen Ceisler, who last week ruled partially in favor of the League of Women Voters and others who challenged the proposed amendment. Ceisler concluded Marsy’s Law would, if passed, have “immediate, profound, and in some instances, irreversible, consequences on the constitutional rights of the accused and in the criminal justice system.”

This seems to me to be quite odd, and will potentially affect the votes in the election. Seems the better course would have been to simply stay the effect of the law if it passes, rather than stop the votes from being counted.

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“NC’s congressional district redraw starts Tuesday”

WRAL:

The nuts and bolts of yet another North Carolina redistricting will start getting laid out Tuesday when legislative leaders huddle on the state’s court-challenged congressional maps.
House and Senate leadership announced the committee late Monday, appointing the usual suspects to oversee the process. The interim committee on redistricting plans to meet at 1 p.m. Tuesday in Room 544 of the Legislative Office Building.
The meeting is open to the public.
A three-judge panel last week ordered the state not to proceed with the 2020 elections under the current congressional map, saying it may soon be declared an illegal partisan gerrymander under the North Carolina constitution. The judges didn’t order the General Assembly to redraw the map yet, but lawmakers expect that’s coming and are taking preemptive steps, as the court said they could.

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“New BPC Report on Polling Place Lines: Minority Precincts Have Much Longer Wait Times”

Release:

Using data from the 2018 midterm elections, the Bipartisan Policy Center today released the largest-ever observational study on wait times in polling places. The research, conducted with the Massachusetts Institute of Technology, found that the overall average wait time to vote in the United States was 8.9 minutes. However, precincts with a high percentage of minority voters, renters, and lower incomes saw significantly longer wait times.


“In precincts with 10% or fewer voters, the average wait time was only 5.1 minutes,” says BPC Elections Project Director Matthew Weil, a co-author of the study. “But in precincts with 90% or more minority voters, the average wait time climbed to an astounding 32.4 minutes.”


The study, called The 2018 Voting Experience: Polling Place Lines, also found that lines are far more common at the beginning of the day, with 69% of precincts experiencing their longest lines within the first hour of voting. The data shows that if long lines are not resolved within the first two hours, long wait times at the polls are likely to occur for the rest of the day.


The study spanned 3,119 precincts, 211 jurisdictions, and 11 states, accounting for 10.5 million votes cast9% of nationwide turnout. Jurisdiction size ranged from Metz Township, MI, with 230 registered voters, to San Diego County, CA, with nearly 3 million registered voters.

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“Court Lifts Confidentiality on Hofeller Files in Several Key States”

Common Cause:

Today Wake County Superior Court Judge Vince Rozier lifted a confidentiality designation on more than one hundred thousand documents created by the late Thomas Hofeller, the Republican operative responsible for many of the most controversial GOP gerrymanders of the last decade. 


The order lifts a confidentiality designation on documents pertaining to Arizona, Maryland, Mississippi, Missouri, North Carolina, Tennessee, Virginia, and Nassau County, Nueces County and Galveston in Texas. The court gave Hofeller’s former company, Geographic Strategies, more time to substantiate a claim on other files that it has said are proprietary.

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“First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK”

Lori Ringhand has posted this draft on SSRN (forthcoming, Ohio State L.J.). Here is the abstract:

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides of the Atlantic. This is especially true in regard to the regulation of political campaigns.

This article challenges that assumption, and argues that America’s more libertarian approach to the legal regulation of political speech does not pose a barrier to fruitful comparative work in this area. It does so by comparing the law of the US to that of the UK. Specifically, it organizes reform proposals being considered in the US and UK into a common taxonomy, and sets out the legal standard governing each type of proposal in each country. Considering each country’s law through this organizational structure allows us to see that the legal differences between the US and UK, while significant, rarely bar the types of changes being considered in either nation. Indeed, the two countries have much to learn from each other’s efforts in this area, and lawmakers, regulators, and scholars should not hesitate to engage with the experiences of their transatlantic peers.

In reaching this conclusion, the paper makes three distinct contributions. First, by clustering reform proposals into a taxonomy, it provides a structure for comparative work that will be useful not just in the US and UK, but in all countries working to bring their election laws fully into the internet era. Second, by providing an in-depth yet accessible guide to the legal structures undergirding election law in the US and UK, it provides a useful tool for scholars attempting to understand these systems. The US system in particular is often quickly dismissed by other nations, but without a deeper understanding of how and why US law has ended up as it has those nations risk inadvertently following in its footsteps. Finally, it identifies several concrete areas where the US and UK can benefit from each other’s expertise, thereby providing a roadmap for regulators, lawmakers, and reform advocates in both countries.

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