Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?

The Republican National Committee sued Nevada last month in federal court in Nevada in RNC v. Burgess. The complaint alleges, among other things, that Nevada accepts mail ballots received up to three days after Election Day, even without a postmark, and these ballots are presumed to have been postmarked on or before Election Day. The RNC is challenging that this law violates, among other things, 3 U.S.C. § 1, “The electors of President and Vice President shall be appointed, in each State, on election day,” which is “the Tuesday next after the first Monday in November.” (It is also raising related challenges for congressional elections.)

There is a question of the merits of this argument, but I am not going to write about that.

Instead, this is a very long Fed Courts-y post, so please bear with me. But the core question at issue in some recent and interesting briefing is, who, if anyone, can enforce this provision in the federal courts? And, perhaps more broadly, under what circumstances could someone enforce this and other provisions of the Electoral Count Reform Act?

Continue reading Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?
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I’ll Be Moderating: “Under the Gavel: The U.S. Supreme Court’s Most Recent Term in Review” July 10 at the UCLA Hammer Museum

Really looking forward to moderating this all-star panel at the UCLA Hammer Museum, co-sponsored by the Safeguarding Democracy Project (video of the event will be posted shortly after the event):

With rulings on major issues expected by the start of summer 2024, the United States Supreme Court is once again at the center of key legal and policy debates. An all-star panel of legal scholars analyzes the meaning and implications of the latest Supreme Court cases, including United States v. Rahimi on gun rights, FDA v. Alliance for Hippocratic Medicine and Moyle v. United States on reproductive rights, the Netchoice cases on regulating social media companies under the First Amendment, Trump v. United States on presidential immunity for criminal acts, and Loper Bright Enterprises v. Raimondo on the power of the administrative state. The panelists will also consider the implications of these rulings for the presidential election season.

Panelists include: Cary Franklin, the McDonald/Wright Chair of Law Faculty Director of the Center on Reproductive Health, Law, and Policy and Faculty Director of the Williams Institute at the University of California, Los Angeles; Justin Levitt, the White House’s first Senior Policy Advisor for Democracy and Voting Rights (2021-22) and Professor of Law at Loyola Marymount University; Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at the University of California, Los Angeles and Senior Fellow at Stanford University’s Hoover Institution; and Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Marymount University. Moderated by Rick Hasen, Professor of Law and Political Science and Director, Safeguarding Democracy Project at the University of California, Los Angeles.

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“The Biden admin has no firm plan to call out domestic disinformation in the 2024 election”

NBC News:

The Biden administration has no firm plans to alert the public about deepfakes or other false information during the 2024 election unless it is clearly coming from a foreign actor and poses a sufficiently grave threat, according to current and former officials.

Although cyber experts in and outside of government expect an onslaught of disinformation and deepfakes during this year’s election campaign, officials in the FBI and the Department of Homeland Security remain worried that if they weigh in, they will face accusations that they are attempting to tilt the election in favor of President Joe Biden’s re-election.

Lawmakers from both parties have urged the Biden administration to take a more assertive stance.

“I’m worried that you may be overly concerned with appearing partisan and that that will freeze you in terms of taking the actions that are necessary,” Sen. Angus King, a Maine independent who caucuses with the Democrats, told cybersecurity and intelligence officials at a hearing last month.

Sen. Marco Rubio, R-Fla., asked how the government would react to a deepfake video. “If this happens, who’s in charge of responding to it? Have we thought through the process of what do we do when one of these scenarios occurs?” he asked. “‘We just want you to know that video is not real.’ Who would be in charge of that?”

A senior U.S. official familiar with government deliberations said federal law enforcement agencies, particularly the FBI, are reluctant to call out disinformation with a domestic origin.

The FBI will investigate possible election law violations, the official said, but does not feel equipped to make public statements about disinformation or deepfakes generated by Americans.

“The FBI is not in the truth detection business,” the official said.

In interagency meetings about the issue, the official said, it’s clear that the Biden administration does not have a specific plan for how to deal with domestic election disinformation, whether it’s a deepfake impersonating a candidate or a false report about violence or voting locations being closed that could dissuade people from going to the polls…

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“Va. 5th District vote count continues in closer-than-expected contest”

WaPo:

One rare area of agreement among observers chewing over the race: Almost everyone expects allies of 2020 election-deniers Good and McGuire to watch the counting and recounting like hawks.

“It’s not lost on us that these are two candidates who were highly critical of the administration of the 2020 election who are now locked in a much tighter overtime situation,” Wasserman said. “It could turn into a ‘Stop the Steal’ situation where Democrats are sitting back with popcorn, even if they don’t have a chance of winning this district.”

Bannon was already raising alarms in an interview with The Post on Wednesday.

“People have to be all over every one of these ballots, and we have to make sure chain of custody [is observed],” he said.

Those predictions were playing out Wednesday, with both campaigns dispatching observers to local elections offices around the district that were beginning the canvass process.

Unofficial figures so far indicate a margin of victory well within the threshold required to request a recount and just inside of what’s required for the state to cover the cost.

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“Recommendations for Improving Election Data Transparency”

Gordon-Rogers, Liza, Michael Latner, and Christopher Williams. 2024. Recommendations for Improving Election Data Transparency. Cambridge, MA: Union of Concerned Scientists:

Many in the United States currently lack access to electoral information that could improve our ability to vote, increase trust in elections, and help communities better organize under-represented groups.

The report reviews current policies across multiple states, including Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin, and offers recommendations for best practices in maintaining voter lists and files, processing ballots, “curing” and certifying ballots, and increasing access to election information in order to spot potential problems and boost public trust in election results.

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“The deceptive Biden G7 video was quickly debunked, but it kept going viral anyway”

David Ingram for NBC News:

Misleading videos and false claims that President Joe Biden wandered off aimlessly from the G7 conference last week continued to go viral despite debunkings and fact-checks that tried to correct the record. 

Google recommended false versions of the story as “top stories.” Deceptive video clips continued to accumulate millions of views on X. Copies of the videos were replayed on TikTok and YouTube with little context. Meta, the parent company of Instagram and Facebook, applied fact-checking labels to some posts but not to all. 

The persistent nature of the misleading videos illustrates how major tech platforms and partisan media are playing off each other in the 2024 election cycle, keeping viral stories in people’s feeds after they’ve been proven to be misleading or even false. 

In a familiar playbook, hyperpartisan outlets will continually push a piece of misleading information on their platforms and on social media, causing motivated followers who are primed to believe the outlets to amplify it further. That inundates tech platforms, which are unwilling or unable to correct the record quickly enough. The bad information then continues to outpace efforts to fact-check it. …

Laura Edelson, an assistant professor of computer sciences at Northeastern University, said that the people behind the misleading claims are benefiting from tech companies’ cost-cutting. In the past two years, companies such as Google, Meta and X laid off large numbers of employees who worked on trust and safety teams, the core of the companies’ efforts to limit the spread of misinformation. “They eliminated the staffers who were enforcing those policies,” she said. 

That puts the platforms in a relatively defenseless position against a partisan media outlet that decides to push a misleading claim, Edelson said. In this case, the conservative outlets were savvy about the topic, continuing to hammer the narrative that Biden is too old to be president. 

“The reason this can be so successful is that it’s not trying to create a new narrative. It’s trying to reinforce a narrative that both people in the campaign and disinformation spreaders have been talking about for years,” she said. Biden is 81, and former President Donald Trump is 78. 

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