“Falsehoods and the First Amendment”

Cass Sunstein has posted this draft on SSRN. Here is the abstract:

What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.


A “Call Mitch McConnell” Ad That Really Does Seem to Want You to Call Mitch McConnell (About Election Security)

Bill Kristol:

(h/t The Hill)


“ICYMI: Tammy Patrick On A Potential U.S. Universal Postal Union Withdrawal”

Doug Chapin:

Last Thursday, Democracy Fund senior advisor and “postal whisperer” Tammy Patrick had a crucially important piece in electionlineWeekly about an issue many in the election community may have missed – but should be watching closely: a potential U.S. withdrawal from the Universal Postal Union. Take a look:

Since 1874 the majority of nations around the world  have been in an established compact under the Universal Postal Union (UPU) to receive and deliver each other’s mail. The UPU is one of the oldest international organizations, monitoring disputes and governing the rates that countries charge for mail receipt and delivery. In October 2018, the current administration announced that the U.S. was initiating the one-year withdrawal process from the UPU due to a dispute over the discounted postal rates charged on Chinese packages shipped to the United States.

Current Status
In February and April, UPU working committees met, but were ultimately unable to advance the U.S. proposal, and media coverage suggest that the administration is fully preparing for a withdrawal in October. If the U.S. proceeds with its withdrawal from the union, we will need to seek bilateral agreements with countries to maintain the 192 relationships and negotiate individual mail rates—causing an unnecessary drain on taxpayer dollars and government resources. This situation has largely been off of the radar for many Americans, including election administrators and voters. 

Impact on Military and Overseas Voters
UOCAVA voters have the right to receive their ballot 45 days before Election Day, and they may request to have that ballot sent electronically or by the mail. Connectivity varies globally for our voters as does their proximity to, and frequency of mail delivery—even under the agreements set forth with the UPU. Disruption to the already fragile and tenuous services available to this voting population could have dramatic implications. One of our most vulnerable voting populations are those Americans who find themselves out of the country during election time. Time and distance, access to information and infrastructure, can impede their ability to vote. Indeed, there have been numerous studies – including the oft-cited Pew study “No Time to Vote” – that highlight the challenges voters face. Federal law, under the Uniformed and Overseas Civilian Absentee Voting Act (UOCAVA), seeks to mitigate the barriers these voters encounter—but it never contemplated that there would be a potential halt to the physical delivery of the mail.


“The Predominance Test: A Judicially Manageable Compactness Standard for Redistricting”

Michael McDonald has written this article for the Yale Law Journal Forum. Here is the abstract:

Scholars have proposed more than one hundred measures of district compactness to analyze legislative maps, but each of these measures lacks a critical threshold at which a district becomes suspect. To address this deficiency, this Essay proposes an analytical framework, the “Predominance Test,” that compares district compactness in a given legislative map against a near-maximally compact redistricting plan. The test has three virtues: (1) it provides a judicially manageable standard to identify when a compactness violation occurs, in a legal framework familiar to courts; (2) it can be used with any compactness measure; and (3) it evaluates compactness with respect to what is possible in a district’s geographic region. This Essay describes an application of the Predominance Test in a challenge to Virginia’s state legislative districts, where a judge accepted the test and found the evidence it produced compelling. While the Predominance Test is not a cure for gerrymandering, it can help constrain the most egregious gerrymanders.


Top Recent Downloads in Election Law on SSRN


Top Downloads For:

LSN: Election Law & Voting Rights (Topic)

Recent Top Papers (60 days)

As of: 08 Jun 2019 – 07 Aug 2019

1.Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World
Richard L. Hasen
University of California, Irvine School of LawDate Posted: 11 Jul 2019 
Last Revised: 03 Aug 2019
2.Election Integrity and Electronic Voting Machines in 2018 Georgia, USA
Kellie Ottoboni and Philip Stark
University of California, Berkeley – Department of Statistics and University of California, BerkeleyDate Posted: 26 Jul 2019 
Last Revised: 05 Aug 2019
3.Framing Trans Rights
Marie-Amelie George
Wake Forest University – School of LawDate Posted: 10 Jul 2019 
Last Revised: 10 Jul 2019
4.Hyperpartisan Gerrymandering
Michael S. Kang
Northwestern Pritzker School of LawDate Posted: 13 Jun 2019 
Last Revised: 13 Jun 2019
5.The Historical Development of the U.S. Presidential Nominations Process
Richard H. Pildes
New York University School of LawDate Posted: 11 Jun 2019 
Last Revised: 11 Jun 2019
6.The Oxford Handbook of Public Choice: A Masterful Compendium (Book Review)
Richard E. Wagner
George Mason University – Department of EconomicsDate Posted: 01 Jul 2019 
Last Revised: 01 Jul 2019
7.Criminal Convictions, Incarceration, and the Right to Vote in South Carolina
Elizabeth G. PattersonJulia BradshawChelsea EvansRyan NashWilliam NeinastLouei NmairEvan Phillips and Kaitlin Diaz
University of South Carolina School of Law, affiliation not provided to SSRNaffiliation not provided to SSRNaffiliation not provided to SSRNaffiliation not provided to SSRNaffiliation not provided to SSRNaffiliation not provided to SSRN and affiliation not provided to SSRNDate Posted: 06 Jul 2019 
Last Revised: 06 Jul 2019
8.Defining Nonviolence as a Matter of Law and PoliticsT
abatha Abu El-Haj
Drexel University Thomas R. Kline School of LawDate Posted: 18 Jul 2019 
Last Revised: 20 Jul 2019
9.Statement of Commissioners Gail Heriot and Peter N. Kirsanow in the U.S. Commission on Civil Rights: Report on Collateral Consequences of Felony Convictions.
Gail L. Heriot and Peter Kirsanow
University of San Diego School of Law and IndependentDate Posted: 18 Jun 2019 
Last Revised: 18 Jun 2019
10.Subverting Democracy to Save Democracy: Canada’s Extra-Constitutional Approaches to Battling ‘Fake News’
Michael Karanicolas
Yale University – Yale Information Society ProjectDate Posted: 22 Jul 2019 
Last Revised: 22 Jul 2019


“Joaquin Castro doubles down amid backlash over tweeting names of Trump donors”


Joaquin Castro, a Democratic congressman from Texas and chairman of the presidential campaign of his twin brother, Julián, fired back on Tuesday after being castigated on social media for tweeting the names and occupations of his constituents who’d maxed out their donations to President Donald Trump.

His tweet contained a graphic titled “Who’s funding Trump?” and listed the names of 44 people who purportedly contributed the maximum amount allowed by campaign finance laws. Their occupations, which, like donor names, are public record, were also listed. Close to a dozen of the donors shown are retirees.

“Sad to see so many San Antonians as 2019 maximum donors to Donald Trump,” Castro wrote, naming local businesses whose owners were on the list. “Their contributions are fueling a campaign of hate that labels Hispanic immigrants as ‘invaders.’”…

Sen. John Cornyn of Texas, whom Castro had once been rumored to challenge for his seat, called the tweet “grossly inappropriate” and assailed what he called a dangerous “win-at-all-costs mentality.” The move is “not what Texans have a right to expect from their members of Congress,” he wrote.
Castro responded with a flurry of defensive tweets to Murtaugh and journalists who had criticized him.
The graphic didn’t contain “private or personal info — no addresses or phone #, etc,” he wrote. “It’s publicly reported info printed in newspapers routinely from the @nyt to the @dcexaminer. You know that.”


“Tiffany Cabán Concedes Queens D.A. Race, Dashing Progressives’ Hopes”


The pitched six-week battle for the Democratic nomination for Queens district attorney finally ended on Tuesday, when Tiffany Cabán, whose bid galvanized progressive activists nationwide and exposed deep rifts within the left, conceded to Melinda Katz, the favorite of the state party’s establishment….

That reversal spawned immediate recriminations from Ms. Cabán’s supporters. Prominent progressive activists and some elected officials used Twitter to accuse the county party of leveraging voter suppression and even voter fraud to help Ms. Katz, though there was no evidence of illegal behavior. Ms. Katz’s supporters, in turn, called Ms. Cabán’s backers liars, interlopers and extremists.

The slim vote margin triggered an automatic manual recount by the New York City Board of Elections, the first boroughwide recount in recent history. For two weeks, elections officials pored over every single ballot at an office in a strip mall in Queens. By the end, Ms. Katz had widened her lead to 60 votes.

But still Ms. Cabán refused to concede, her campaign filing a lawsuit to challenge dozens of ballots that the Board of Elections had invalidated for technical reasons. She said the suit would ensure that every valid vote was counted.

On Tuesday, it became clear that her pathway to victory via the courts had all but vanished, too. A judge, John G. Ingram, refused to reinstate most of the contested ballots, effectively ending any hope that Ms. Cabán could erase Ms. Katz’s lead.


“How the Trump Campaign Used Facebook Ads to Amplify His ‘Invasion’ Claim”


President Trump’s re-election campaign has harnessed Facebook advertising to push the idea of an “invasion” at the southern border, amplifying the fear-inducing language about immigrants that he has also voiced at campaign rallies and on Twitter.

Since January, Mr. Trump’s re-election campaign has posted more than 2,000 ads on Facebook that include the word “invasion” — part of a barrage of advertising focused on immigration, a dominant theme of his re-election messaging. A review of Mr. Trump’s tweets also found repeated references to an “invasion,” while his 2016 campaign advertising heavily featured dark warnings about immigrants breaching America’s borders.

Mr. Trump’s language on immigration — particularly his use of the word “invasion” — is under scrutiny after the mass shooting in El Paso on Saturday. The suspect in that shooting, which left 22 people dead, appeared to be the author of a manifesto declaring that “this attack is a response to the Hispanic invasion of Texas.”


“Kobach Campaign Can’t Get Its Story Straight on Allegedly Illegal Fundraising Tactic”

Daily Beast:

Legal experts said the email appeared to violate laws barring corporations from contributing to political campaigns and requiring campaigns to include “paid for by” disclaimers on their official communications.

In an emailed statement late Thursday night, the Kobach campaign’s field director, Kerrick Kuder, denied any knowledge of the email. “That email did not come from the Kobach campaign or any association there of,” he wrote.

But the following day, the campaign released a statement implying that the email was in fact the work of a Kobach campaign vendor. “If any mistake was made with respect to the vendor’s failure to include a ‘Paid for by’ notice on any campaign email, that was immediately addressed by the sending of a correction email to all recipients of the original email,” the statement said.

As of Sunday afternoon, no such email had gone out to subscribers of the We Build The Wall list that Kobach used to solicit campaign contributions and the Kobach campaign had not provided a copy of the email they claimed was sent to The Daily Beast.

“I see no way to reconcile the statement that the ‘email did not come from the Kobach campaign or any association there of’ and the reference to whoever sent the email as a ‘vendor,’ presumably a vendor of the Kobach campaign,” said Paul S. Ryan, vice president of policy and litigation at the group Common Cause.


Oct. 18-19 Conference at Harvard Law on the Electoral College

Looking forward to participating in this conference coming at a key time:

The Electoral College
Open Questions, Paths Forward
Panel Chairs
Keynote Speakers

Conference Overview
Few institutions are as important to shaping the future of the United States as the electoral college. Please join Professor Lawrence Lessig and the Harvard Law & Policy Review on Friday, October 18 and Saturday, October 19 for a series of conversations and presentations at Harvard Law School regarding the historical and philosophical foundations of the electoral college, as well as potential avenues to amend the institution in the current political climate. Through the conference, we hope to bring together scholars, policymakers, and advocates.
The conference will begin on the evening of Friday, October 18th with a welcome reception and a preview of the discussions to come. The programming on Saturday, October 19th will include four panels. The two morning panels—chaired by Harvard Kennedy School Professor Alex Keyssar and Ohio State Law Professor Edward Foley—will focus on forthcoming books regarding the development of the electoral college over time and the foundations of this institution. The afternoon panels—chaired by University of California-Irvine School of Law Professor Rick Hasen and New York University Law Professor Sam Issacharoff—will address the National Popular Vote compact and the role, as well as the allocation, of electors. Lunch will be served and keynote presentations will be made in the middle of the day by political consultant Stuart Stevens and Professor Lessig.
Please note that this event is open to the public. Registration is, however, required.


New Politico Project Tracking Jurisdictions Still Using Paperless Voting Systems

Eric Geller:


“Rep. Kenny Marchant joins parade of Texas House retirements, opening up competitive Dallas-area seat”

Roll Call:

Rep. Kenny Marchant is the latest Texas Republican to decide to retire rather than seek another term in 2020, opening up a competitive seat in the Dallas area.

Marchant’s decision was first reported Sunday night by The New York Times, and a GOP source with knowledge of his decision confirmed it. As recently as Friday, Marchant’s campaign asserted that the eight-term Republican was running for reelection to the 24th District. His campaign confirmed the news Sunday, and he is expected to make a statement Monday morning.

Marchant won reelection by just 3 points last fall, while President Donald Trump carried his district, which is near the Dallas-Fort Worth airport, by 6 points. Inside Elections with Nathan L. Gonzales rated the 24th District race Leans Republican.


“Why a Race-Baiting Trump Is Courting Black Voters”


President Trump’s entire approach to people of color — his attacks on political leaders, his campaign’s social media strategy targeting the black electorate, his ability to fuel black opposition but also demoralize some black voters — is one of the most extraordinary political dynamics of the Trump era. No modern president has ever vilified black Americans or sought to divide people along racial lines like Mr. Trump, while also claiming to be a champion of their economic interests….

The online ad that Mr. Greer saw illustrates the audacious nature of Mr. Trump’s strategy. Even as the president sows racial disharmony, telling four Democratic congresswomen of color to “go back,” and saying “no human being” would want to live in the “rat and rodent infested” city of Baltimore, his re-election campaign is spending money on social media to put Mr. Trump before the eyes of black voters.
The objectives are twofold: First, to try to win over a handful of black voters. The campaign intends to highlight low rates of African-American unemployment and the criminal justice overhaul the president signed, a measure that is already a subject of his campaign’s Facebook advertising.
But the more clandestine hope, and one privately acknowledged by Trump allies, is that the president can make black voters think twice about turning out for Democrats or expending energy on trying to change a system some African-Americans believe is unalterably stacked against them.


“How small-dollar donors are reshaping the Democratic primary”


About a fifth of donors have given to more than one Democratic presidential nominee in the first six months of this year, pointing to the difficulty candidates face distinguishing themselves among those giving small amounts at a time.

That revelation comes according to an analysis of ActBlue data, released by the Federal Election Commission this week. ActBlue is an online fundraising platform used by all major Democratic presidential candidates. The data released Thursday offers an in-depth look at how small-dollar, grass-roots donors are shaping the Democratic primary.


Groups Seek Preliminary Injunction Against Florida Law Undermining Felon Reenfranchisement Amendment


The American Civil Liberties Union, ACLU of Florida, NAACP Legal Defense and Educational Fund, and Brennan Center for Justice at NYU Law filed a motion for preliminary injunction to block Senate Bill (“SB”) 7066, a bill signed by Gov. Ron DeSantis in June that undermines Amendment 4 and prevents hundreds of thousands of newly re-enfranchised voters from voting in Florida. The organizations filed the initial federal lawsuit immediately after the bill was signed by Gov. DeSantis. SB7066 unconstitutionally denies the right to vote to returning citizens with past felony convictions based solely on their inability to pay all fines, fees, and other monetary penalties associated with their convictions. 

“Politicians cannot legally place a price tag on a person’s right to vote. It’s past time for over a million Floridians to reclaim their place in democracy,” said Orion Danjuma, staff attorney with the ACLU’s Racial Justice Program, which, along with the ACLU’s Voting Rights Project, is challenging the law.

A preliminary analysis of outstanding legal financial obligations in Florida by Daniel A. Smith, professor and chair of the Political Science Department at the University of Florida, shows that in the 48 counties for which data has so far been analyzed, fewer than one in five—or just 66,108 of the 375,256 individuals with a felony conviction other than murder or a felony sexual offense who have been released from county or Florida Department of Corrections supervision—are likely to be eligible to register to vote under SB7066. This means that, across Florida’s 67 counties, SB7066 effectively disenfranchises hundreds of thousands of voters who would have been eligible to vote in Florida under Amendment 4 had the legislature not stepped in to dismantle it. …


Today’s Must-Read About Mississippi Voting Rights Lawsuits at Bloomberg


Mississippi has the highest percentage of African Americans of any state in the U.S. It hasn’t elected a black official statewide in more than 130 years. Jennifer Riley Collins wants to break that streak.

To become Mississippi’s first black attorney general, Collins, a decorated U.S. Army colonel and civil rights lawyer, is getting help from the country’s first black attorney general, Eric Holder. He’s leading a lawsuit aimed at the state’s 1890 constitution, which more than a century later still has provisions expressly crafted to stop African Americans from getting elected.

If successful, the federal suit would scrap rules requiring candidates for statewide office to win both more than 50% of the popular vote and more than half the state’s 122 state legislative districts — two-thirds of which are majority white. If a candidate doesn’t meet both conditions, the state House of Representatives chooses the winner regardless of who got the most votes.


“Judge refuses to dismiss challenge to N.H. voter law”


A federal judge allowed a challenge Tuesday to New Hampshire’s new voter residency law to continue, though he expressed some doubts about the strength of the case.
The new law, which took effect July 1, ends the state’s distinction between “domicile” and “residency” for voting purposes. That means out-of-state college students who vote in New Hampshire are now subject to residency requirements, such as getting New Hampshire driver’s licenses or registering their cars.
After a two-hour hearing, U.S. District Court Judge Joseph Laplante refused to dismiss a lawsuit filed by the American Civil Liberties Union on behalf of two Dartmouth College students who argue the law burdens their right to vote. The state had argued the students lacked standing to sue, in part because neither of them owns cars.


4 Pinocchios: “Booker’s claim that Democrats lost Michigan because of Russian and GOP suppression”

WaPo fact checker:

We lost the state of Michigan because everybody from Republicans to Russians were targeting the suppression of African American voters.”
— Sen. Cory Booker (D-N.J.), in remarks during the second Democratic primary debate, July 31
These remarks jumped out at us during the second night of the debate, but we wanted to spend a little time digging into this before rendering a verdict on Booker’s accuracy.
There is substantial evidence that Russia tried to discourage African Americans from going to polls in 2016 via social media. In some states, Republicans arguably have tried to use tactics such as voter identification laws to prevent or discourage people from voting — especially those who already are marginalized and less likely to vote, such as minority communities.
But what’s the evidence that this perfect storm happened in Michigan in 2016 and denied the state’s electoral college votes to the Democrats?…

“There is certainly credibility to the idea that Russians targeted African Americans to suppress their vote. There’s lots of evidence of that from the reports on Russian use of social media (such as in reports submitted to the Senate Intelligence Committee). It is also true that Republican legislatures and election officials in some states have passed laws and enacted procedures that appear aimed at making it harder for likely Democrats to vote, and African Americans are the most reliable Democratic voters,” said Richard L. Hasen, professor of law and political science at the University of California at Irvine. “But I have seen no evidence that the extent of these activities in the state of Michigan were responsible for the depression of turnout in the African American community such that it swung the vote in Michigan to Trump.”

The Booker campaign supplied us with a number of links about Russian and GOP activities, but none demonstrated that the purported suppression activities delivered Michigan to Trump.


TX-23, Rare Competitive Congressional District in Texas, Becomes More Competitive as Will Hurd Announces Retirement

Texas Tribune:

Nationally, Hurd’s retirement is a massive blow to the morale of Republicans who care about winning back the U.S. House.
Since the last redistricting process, several congressional seats have become competitive amid changing demographics and backlash against Trump. But the 23rd District was the only seat in the current congressional map that was actually configured to be competitive.

That distinction came only after it was modified by federal judges who found that the Republican-held Texas Legislature intentionally discriminated against Latino voters when they originally drew up the district in 2011.

The 23rd district had been considered a district where Latino voters could overcome racially polarized voting to elect their preferred candidate. But seeing trouble ahead, Republicans in 2011 worked to manipulate Latinos’ political clout to keep the district in their column, the court found.

State lawmakers eventually adopted modifications ordered by the court. Pointing to Hurd’s consecutive wins in recent years, some have argued those changes did not go far enough in restoring the 23rd district as an “opportunity district” for Latinos.


“Manhattan D.A. Subpoenas Trump Organization Over Stormy Daniels Hush Money”


State prosecutors in Manhattan subpoenaed President Trump’s family business on Thursday, reviving an investigation into the company’s role in hush-money payments made during the 2016 presidential campaign, according to people briefed on the matter.

The subpoena, issued by the Manhattan district attorney’s office, demanded the Trump Organization provide documents related to money that had been used to buy the silence of Stormy Daniels, a pornographic film actress who said she had an affair with Mr. Trump.

The inquiry from the district attorney’s office, which is in early stages, is examining whether any senior executives at the company filed false business records about the hush money, which would be a state crime, the people said….

Even if the new investigation ultimately leads to charges, state law would limit the severity of the punishment. A charge of filing false business records could amount to a misdemeanor. It becomes a felony only if prosecutors can prove that the filing was done to commit or conceal another crime.

It is unclear whether, under the law, the state prosecutors can cite the federal campaign finance violations as the other crime.


“Kris Kobach Uses Border Wall Group to Fund Senate Bid, Likely Illegally”

Daily Beast:

Former Kansas Secretary of State Kris Kobach is using a nonprofit group he advises to raise money for his U.S. Senate campaign, and legal experts say one recent fundraising push likely ran afoul of federal campaign finance laws.

On Thursday, Kobach sent a fundraising appeal to an email list maintained by We Build The Wall, a 501(c)(4) advocacy group currently attempting to build a wall on the southern border using private funds. Kobach is on the group’s advisory board and serves as its general counsel.

“As a donor to WeBuildTheWall, I humbly ask you to support my run for the Senate,” Kobach’s email pleaded. The email provided links to the campaign’s official fundraising page and asked for “a financial contribution of $50, $100, $250, $500, or any amount up to the maximum of $2,800 per individual.”

The solicitation likely violated federal campaign finance laws, according to Paul S. Ryan, the vice president for policy and litigation at the group Common Cause. 

“At a minimum, this Kobach for Senate fundraising solicitation email appears to violate the ‘paid for by’ disclaimer requirement” for official campaign communications, Ryan said in an email, referencing the requirement that campaigns clearly disclose the financial sponsors–generally the campaigns themselves–behind official political communications….

“If the Kobach committee did not pay fair market value for the cost of disseminating this email,” Ryan explained, “then the Kobach committee has arguably committed the more serious campaign finance law violation of receiving a corporate contribution in the form of a coordinated expenditure.”


Fifth Circuit, on 2-1 Vote, Affirms District Court Finding of Voting Rights Violation by Mississippi; Opinions to Follow

Brief order:


Steve Mazie on Michigan Redistricting Case

Mazie in the Economist:

A closer look at the lawsuit suggests the plaintiffs may face an uphill battle. The main Supreme Court case the challengers cite in their favour—a 1990 decision called Rutan v Republican Party of Illinois—doesn’t quite match up. The question in Rutan was whether the state government in Illinois could base its hiring and promotion decisions on baldly partisan considerations: how much applicants had contributed to the Republican Party, for example, or whether local party officials supported them. By a 5-4 vote, the Supreme Court said this kind of official discrimination against individuals based on political party was a violation of the First Amendment. Patronage systems in which hiring and promotion decisions are a function of “political affiliation or support” are “an impermissible infringement on the First Amendment rights of public employees”.

But here is the problem with relying on Rutan to strike down Michigan’s independent redistricting effort: the eligibility rules for commissioners under attack in Daunt v Benson are not based on viewpoint. They are based on activity: recent Democratic candidates and party insiders are barred from participation just as their Republican counterparts are. The disqualification is even-handed and not based on a failure to swear loyalty to any particular political party. The rules are based on the rather reasonable idea that party insiders are probably not the most impartial people to draw fair electoral lines.

Rick Hasen, an election-law expert at the University of California-Irvine, says “it would take a big change in First Amendment doctrine” for the plaintiffs in Daunt to succeed. Mr Hasen says an individual judge might buy the argument, but he is “sceptical the position will ultimately prevail”. One strong piece of evidence for this view comes in section 5 of Rucho v Common Cause, the recent decision in which the Supreme Court said federal judges are unsuited to police partisan gerrymandering.

Don’t despair, Chief Justice John Roberts wrote, as “the states…are actively addressing the issue on a number of fronts”, and “in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.


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

This new draft has a much more extensive discussion of First Amendment issues related to the regulation of deep fakes:

Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World

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.


“Voter Purge Rates Remain High, Analysis Finds”

Brennan Center:

Using data released by the federal Election Assistance Commission (EAC) in June, a new Brennan Center analysis has found that between 2016 and 2018, counties with a history of voter discrimination have continued purging people from the rolls at much higher rates than other counties.
This phenomenon began after the Supreme Court’s 2013 ruling in Shelby County v. Holder, a decision that severely weakened the protections of the Voting Rights Act of 1965. The Brennan Center first identified this troubling voter purge trend in a major report released in July 2018.
Before the Shelby County decision, Section 5 of the Voting Rights Act required jurisdictions with a history of discrimination to submit proposed changes in voting procedures to the Department of Justice or a federal court for approval, a process known as “preclearance.”

After analyzing the 2019 EAC data, we found:

At least 17 million voters were purged nationwide between 2016 and 2018, similar to the number we saw between 2014 and 2016, but considerably higher than we saw between 2006 and 2008;

The median purge rate over the 2016–2018 period in jurisdictions previously subject to preclearance was 40 percent higher than the purge rate in jurisdictions that were not covered by Section 5 of the Voting Rights Act;

If purge rates in the counties that were covered by Section 5 were the same as the rates in non-Section 5 counties, as many as 1.1 million fewer individuals would have been removed from voter rolls between 2016 and 2018…