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Westlake Legal Group > Posts tagged "elections"

“An experiment that has failed”. Jon Moynihan of Vote Leave’s full submission about the Electoral Commission.

SUMMARY

The Electoral Commission is a recent innovation in our democratic system; an experiment that has failed. Originally conceived as filling a circumscribed functionary role (of dubious need in the first place), it was when set up by the Blair Government given a large, intrusive, poorly framed and undemocratic remit, which allows it to sit as policeman, judge, jury, and executioner on those public spirited and blameless citizens who decide to participate actively in elections and referenda. The Commission has a Head of Regulation with no legal degree, and officials who were widely perceived as biased or political. The Commission passed judgement on, and fined, citizen participants without due process or, it appears, without proper understanding of very basic legal concepts such as “beyond reasonable doubt”; it flouted its own procedural rules without there being any outside body or ombudsman that could be asked to rein it in. If citizens choosing to be engaged in elections or referenda break the law, the Crown Prosecution Service and the police are there to deal with that, without any need for the Commission. On the other hand, when the police and the CPS decline to prosecute any such incident, it is unconscionable that despite that, unqualified officials at the Electoral Commission can fine those citizens, and post reports on the Commission’s website, that remain posted forever, asserting that the citizens broke the law: all in such a way (as described in detail below) that it can prove almost impossible for the citizens to vindicate themselves. The police and the CPS are – have to be – well equipped to deal with any infractions of electoral or referendum law; at the end of the day they do, anyway, review any allegations of serious infractions – as they did in the case of Vote Leave.

The Electoral Commission is therefore not just, as discussed above, dangerous; it is also redundant. The Commission should be abolished forthwith, and its functions (but not its extraordinary powers) transferred to the various competent authorities who traditionally ran these matters, some of them for decades and centuries prior to the EC’s existence. It follows that the Commission’s current proposal, that its powers be enlarged, must be rejected out of hand.

Quis Custodiet Ipsos Custodes?

Who will guard us from the guardians?

The Electoral Commission, initiated only in the year 2000, has been a disaster; it represents the worst excesses of the creeping ‘Administrative State’. Inevitably, the response of this quango to the clear evidence of its malfeasance has been to double down, demanding that its budget and sanctioning powers actually be increased. But a look at the record, reviewed on the following pages, shows that the only proper action to take is to close it down:

A. The Electoral Commission was created as a solution to a perceived problem that all agreed was at worst only a small one –and which in reality didn’t exist at all

B. Those advocating a Commission be set up had proposed it have only a limited role

C. As set up, however, by the Blair government in 2000, the Commission was given considerable scope and powers, part of an ongoing expansion of the Administrative State

D. The matters placed under the Commission’s purview had all been well managed over the preceding centuries without need for a regulator. Existing institutions could have continued managing them perfectly well, as before

E. Setting up the Electoral Commission for this role, sidelining both Parliament and the Courts/Judiciary/Police, was undemocratic. Honest citizens voluntarily engaging in the democratic process were exposed to captious and arbitrary persecution

F. In the 2016 EU referendum, such persecution fell hard, in an entirely unwarranted way, on Vote Leave and other campaigners for Brexit. The Commission should be required to answer some hard questions on its attitude and actions since 2016

G. The Commission’s recent actions have created a situation where honest citizens will now understandably fear to engage in the democratic process for elections or referenda, especially if the EC is allowed to continue. Who, having behaved blamelessly, will want to expose themselves to having years of their life taken away, having to defend themselves against financial sanctions and worse, their reputations attemptedly brought into disrepute?

H. The Commission should be abolished entirely. Reverting to how these matters were managed pre-Commission, its remit should be shared among existing competent authorities.

I. I offer suggestions as to how the Select Committee should investigate and act on the Electoral Commission’s malfeasances over the past four years.

A. The Electoral Commission was created as a solution to a perceived problem that all agreed was at worst a small one –and which in reality didn’t exist at all.

Here I rely on advice and anecdote, having not been involved in these matters in the 1990s. Members of the Select Committee will have good experience of the points I mention here. What is seen as the original precipitating event for calls to set up an Electoral Commission (which was eventually brought into action in 2001) occurred in the 1994 European Elections. Richard Huggett stood as a “Literal Democrat” candidate for the Devon and East Plymouth seat, taking more votes than the Conservative Party margin over the Liberal Democrats, leading to a legal challenge by the Liberal Democrat candidate. That legal challenge, as I understand it, lost: the Literals argued in Court that the robust good sense of the British electorate was enough to ensure fairness in these matters, and so the Court found. Nonetheless, Parliament in its wisdom, under Tony Blair, later decided that a controlled register of political parties was needed. It at first decided –as so often in events that later developing into oppressive regulation—a light-touch way of doing that: it ordered (1998 act) that “The register shall be maintained by the registrar or other officer who performs the duty of registration of companies in England and Wales under the Companies Act 1985”. Control of the register was then, however, in 2000 transferred to the Electoral Commission, in the legislation setting up that body.

B. Even those who advocated setting up the Commission had proposed it have only a limited role

Setting up an Electoral Commission was proposed by the Committee on Standards in Public Life (CSPL), in its 1998 “Fifth Report”, on funding of political parties, that was “presented to Parliament by the Prime Minister by Command of her Majesty”. Thus we have the telling sight of an unelected quango suggesting that another unelected quango be set up, to control elections and referenda. The Labour party had, in its manifesto, committed to ‘reform’ of financing of parties. (Others can opine on whether or not this advantaged Labour by creating limitations on individual donors, which was the clear intent of the Blair government’s ‘reforms’. Labour did, and does, derive much of its funding from Unions; such funding was not affected by the new law.) Thus, in the 2000 legislation there was much about Campaign Finance reform, as well as setting up the EC both to hold the register of parties, and to invigilate party funding. What I cannot understand at this stage is why the EC was given considerable fining and other sanction powers.

The CSPL clearly said the following, on p.148 of its 1998 report:

“11.6 We ought perhaps to state explicitly that there is one role which we do not envisage the Election Commission playing. A number of our recommendations involve the creation of new criminal and civil penalties, and there already exists, in any case, a substantial body of justiciable electoral law; but we do not envisage the Election Commission in any way functioning as, or substituting itself for, the ordinary courts. The Election Commission should not be, or be thought to be, a judicial body”

This was a clear and pretty much unarguable point: it would be undemocratic to give the Electoral Commission (which the CSPL had dubbed the ‘Election Commission’) powers that properly belonged to our renowned and in the main respected system of policing and courts. It is possibly a reflection of the times we live in that CSPL is this month consulting further; not on whether its original recommendation, above, should not be brought back for reconsideration, but on whether or not to recommende the EC’s recent demands, for even larger fining and sanctioning powers.

C. As set up by Tony Blair’s government in 2000, the Commission was given considerable scope and powers, as part of an ongoing expansion of the Administrative state

As discussed above, the scope of the electoral commission morphed, as the legislation was created, from the original idea of holding a register of parties, to overseeing party finances. Almost inevitably, and despite that clear recommendation of CSPL mentioned on the preceding page, fining and sanctioning powers for the EC were then added in.

The creation of this enlarged and powerful regulator was bound to create major problems. (To enlarge its powers even further would be even worse).

To point out a few aspects:

  • The EC does not regulate elections and has no experience of doing so. Elections have always been administered by Returning Officers, locally and efficiently. This has led to an inexperienced EC overreaching itself when it comes to regulating Referenda
  • Returning Officers recognise they have no discretion, and are happy with that. This allows elections to be run cleanly and quickly and to be got over with swiftly. Contrary to that approach, the EC restlessly seeks to expand ever-more greatly its discretionary powers, so that it can interfere more. This among other problems creates potential for a longer period of uncertainty after the event. The Returning Officers’ lack of discretion is vital because when you introduce choice (discretion), you introduce the possibility of, and possible perception that there has been, bias. Think of a candidate who registers at one minute past midnight. Discretion could allow that candidate to be accepted. But what then of the candidate who is 5 or 50 or 500 minutes late? And what if you refuse that second candidate, and then are accused of having exercised a bias in favour of the first? This is not in the least a conceptual point. Scrutiny of the EC’s registrations by campaigners for the 2016 referendum shows a last-minute Remain campaigner putting in a botched application a couple of days before the vote; being told by the EC that it was not a proper registration; and the individual then submitting the proper application many days after the referendum had been and gone, having spent money prior to the vote despite having been told it had botched its application. The EC nevertheless allowed the registration of the campaigner as of the date of the original submission, thus making the campaigner’s expenditure legal. This was because the Commission felt they had the discretion to do so. This Remain campaigner had spent considerable amounts of money in the final day or two of the referendum, ie before they had been properly registered. (All registration applications that I have seen, including this one, were signed off by Bob Posner, now CEO of the EC.)
  • The EC allowed themselves full discretion even when the legislation clearly forbade it. This point was at the heart of the BeLeave/Darren Grimes case. The EC tied themselves into knots attempting to show Grimes had done something wrong, and asserting that they had the right to put special (retrospectively made up!) conditions on an individual’s ability to be registered as a campaigner. (See eg para 72 of the judgement of His Honour Judge Dight CBE showing how the EC, in this case Louise Edwards, played fast and loose with retrospective decisions.) If we as a nation want the fullest possible participation in our democratic processes, we should be against having a regulator who can come up with capricious and potentially biased ways of excluding some would-be participants – especially any who cannot afford, or have difficulty with access to, legal help whether in registering themselves, or defending themselves against later arbitrary proceedings.
  • The self-aggrandizing EC sought to widen its role and the time it took to investigate and pursue, going way beyond electoral law. It is an accepted feature of electoral law, indeed of our democracy, that an election needs to be fought and over, quickly, with the new regime in place in an unobstructed way as soon as possible, and campaigners able to go back to their lives. Electoral law has tight time limits on when (only up to one year) and how (never more than once on the same point) petitions or prosecutions can be brought. But the EC investigated Vote Leave three acknowledged times on the same point, and secretly, we believe, a fourth time, over a period of three years. None of this would have been possible if referendum law had more explicitly been given the same non-discretionary strictures as electoral law, or if the law had been properly clarificatory, so as to prevent the Electoral Commission from taking liberties with ‘discretion’.
  • The EC indulged complainants, way beyond what the law allowed. The law gave 6 weeks only for a challenge. The EC neither drew attention to that, nor enforced it. Only one investigation of any matter was allowed, unless new evidence emerged, yet the EC investigated Vote Leave three times on the same point, with (despite their false and, even now wholly unsubstantiated, claim) no new evidence. Again, awarding themselves discretion opened the Commission to accusations, it seems to me deserved, of bias in the actions they then took.
  • Given that the only two issues are registration of party names, and overview of finances, why is the EC needed for that? The finance of a candidate in elections is declared locally, which has worked for over 150 years. Why not the same with referenda? As this is controlled by Returning Officers in elections (650 winning candidates), why not have a committee of senior Returning Officers to oversee these matters for referenda (1 winning candidate)? Why not make registrations, as before, the purview of Companies House? Remember – if there is no discretion, then registration is not a complicated matter requiring detailed knowledge or investigation. If that were done, it would still be possible for rival parties/campaigners to check and take appropriate steps when they uncovered any matter of concern; there is no reason to introduce an ambitious Regulator into the mix, one who might hanker, as it has become clear the EC did, to use discretion to go after certain campaigners (and not others).

D. The matters placed under the EC’s purview had all been well managed over the preceding centuries without need for a regulator. Existing institutions could have continued managing them perfectly well, as before

The UK has a carefully constructed and highly developed democracy and legal system. These have evolved over centuries and are the envy of the world. They have always had checks and balances to prevent abuse. Moving to a system where a regulator –made exempt, as this paper shows, from many of those checks and balances– has had severe consequences. This regulator is run by professional career administrators. They don’t have expertise in policing or even, it transpires as regards key enforcement officials, the law. When they have legal qualifications, they flunk elementary tests in their knowledge (Dight Judgement, para 56). Why would they be given powers that not only flout all our careful democratic checks and balances, but that inevitably, on Parkinsonian principles, they seek aggressively to expand over time?

The creation of the EC was a perfect example of “If it weren’t broke, why did you change it?” The EC should be closed down.

Its various powers should be returned, reverting to what used to be:

  • To Companies House to keep a register of candidates or campaigners •
  • To Returning Officers, as is the case now with elections, but to a committee of senior ROs for referenda, for declarations of donations and expenses •
  • To police and courts for investigating and prosecuting infractions.

Above all, the legislation could and should be made tighter, specifically forbidding discretion on most points, so that any self-important regulator, should any such still exist, is prevented from stepping in and making up the rules both to give itself a role and, intentionally or otherwise, allowing bias to creep in under pretext of concern. The regulator under no circumstances should be allowed to retain its existing powers of fining and sanction or, even worse, be given enlarged powers.

An additional problem with regulators, as further discussed in the next section, is that if the regulator has views on the topic – as, it appears from what we know, the EC indeed had —then interventions from those who hold similar views, congenial to the regulator, will be entertained more favourably than will be interventions from those who hold more uncongenial views. This is clear when we look at the EC’s refusal even to speak with Vote Leave on many occasions over many months, whereas (to take but one of many examples) all it took was an expression of (true or faux) concern by Gordon Brown to result in the EC raiding the Brexit Party’s offices (a raid that was, unsurprisingly, entirely fruitless – although not without sending a signal to the electorate who were about to vote).

A politicised regulator – a very easy place for an ambitious regulator to find itself in —is prey to the worst kinds of pressure. The moment it becomes clear that the regulator will buckle under pressure – as the EC appears to have done early on (starting in 2016) when challenged by the Good Law Project – then going forward, every loser in every election or referendum has the incentive first to create a hoo-ha (on social media and elsewhere), and then to put pressure on the regulator to investigate and find against the winner. The result can be chaos, and misery for those caught up in such shenanigans.

The conclusion has to be that having a regulator for this crucial aspect of democracy has been a grave mistake; an entirely unnecessary action; one that should be reversed as soon as possible.

E. Setting the Electoral Commission up in this way, usurping both Parliament and the Courts/Judiciary/Police, was undemocratic. It exposed honest citizens voluntarily engaging in the electoral process were exposed to captious and arbitrary persecution

There are many general issues with regulators:

  • What kind of costs are borne by society when regulation, heavy-handed or otherwise, prevents innovation; or the free expression of ideas; or the free implementation of plans that could be useful for society?
  • What is the cost-benefit trade off of unleashing regulators on multiple societal activities?
  • What biases are introduced into society when the regulatory mentality is allowed to run riot?

Properly regulating the regulator is important not just for electoral law, but also for how the polity in this country is run in general. There has been for some time a general level of disquiet among many in the UK that Parliament and Government have too often sloughed off their responsibilities to govern, by deputing many of these responsibilities to regulators. Infamously, former UK governments also conceded, over decades, a large percentage of their law-making to the European Commission in Brussels. That last problem will, by the end of 2020 we hope, be comprehensively addressed. However, and with regard specifically to regulators, it should be observed that using regulators to govern society goes against the United Kingdom’s tradition, in large part because regulators are naturally driven toward a “Napoleonic Code” approach in how they govern: “Everything that is not specifically allowed is forbidden”.

The British tradition, contrary to this, is of Common Law, where “Everything that is not specifically forbidden is allowed”. When the ‘Napoleonic’ approach is taken by the regulator, there is enormous scope, compared with that in Common Law, for the regulator to interpret creatively what is and is not allowed – and as a result, for the individual and the populace in general to be oppressed. This is precisely what happened to Vote Leave (VL).

It is against the tradition of British freedoms to have a proliferation of regulators across large swathes of our society. The trend raises significant issues. Just one of these issues is: what kind of person is attracted to having a career in regulation – that is, a career where you can tell other people what they can and can’t do? Where you are given the power to come down on them, quite often disproportionately, when they don’t do what you (who happens to be the regulator) personally would prefer them to do? What kind of supervision over, and governance of, our regulators should we have, in order to ensure that any latent biases or bullying instincts in such regulators, separate from the intent of any legislation, are not allowed to flourish? Quis custodiet ipsos custodes?

The Electoral Commission does contain a Board, with an appointed Chairman, and representatives of three major political parties (though not the SNP) – presumably (at least in theory) to prevent this sort of thing. But the fact is that all three of these political parties were formally on the other side of the referendum campaign; they all campaigned for “Remain”, while the EC’s Chairman, a former ambassador to Paris, publicly bemoaned the result of the referendum. (It is a fascinating detail of the past four years as to how so little shame or embarrassment was exhibited in such naked and unpunished displays of Remain sentiment among those who were supposed to be above the fray.) The Chairman, and three other Commissioners, are alleged to have failed in their duty of impartiality (Article in The Telegraph). Had the Commission’s Board contained, let us say, a member of UKIP (which after all had many MEPs at the time, and so held a set of views that was representative of a large slice of the electorate’s views), one can imagine that Board discussions regarding the Commission’s proposed actions and investigations would have been very different – and more searching.

When the Electoral Commission makes ‘findings’ against any campaigning body, that is a serious matter. Deciding to go ahead with the findings against Vote Leave and BeLeave should not have been left to the Executive of the Electoral Commission. The political opinions of at least one senior member of that Executive, as well as of the Chairman – whether as regards the referendum or as regards the Conservative Party – have been publicised sufficiently (article in the Sun) that it should be clear that those individuals might have difficulty in clearing their minds sufficiently as to be impartial.

If a certain type of person is attracted to be a regulator of this sort, then it follows that a certain degree of political bias absolutely has to enter the frame. Not surprisingly, public perception, not to mention the evidence, is that the Civil Servant class, from which the majority of officials for Regulators and Quangos are drawn, is massively pro-Remain. The Electoral Committee seems to have been no exception. Thus, we are justified in suspecting an instinctive bias there against  Leave campaigners, and an overeager willingness to believe that the Leave campaign somehow, some way, broke the law.

F. In the 2016 EU referendum, such persecution fell hard, in an entirely unwarranted way, on Vote Leave and other campaigners for Brexit. The Commission should be required to answer some hard questions on its attitude and actions since 2016

These theoretical points took all-too-concrete form in Vote Leave’s experiences at the hands of the Electoral Commission in the four years since the referendum. Post June 2016, there were three remaining Directors of Vote Leave who had volunteered to stay behind to wrap the organisation up, in line with the requirements of PPERA. Each of the three Directors had successful and irreproachable business credentials, achieved over many previous decades, each Director having a multi-decade history of successfully dealing with regulators of many stripes. Each of the three were there because they had, originally, responded to the PPERA legislation’s call for volunteers to come forward to fight on each side of the EU referendum question.

Each of the three had willingly given up several years of their business career, from 2014-2016, in order to prepare for, and to fight, the referendum. As they had believed would be the case, their side –Leave– won. Those three Directors, and Vote Leave’s CEO, Matthew Elliott, turned conscientiously, in July 2016, to the task of closing down Vote Leave – an organisation that had been formed solely to fight the ten-week referendum campaign in 2016. All were unpaid. Each had the expectation that soon, within a few weeks or months, they could go back to their previous lives and productive business activities. However, to their astonishment and woe, it eventuated that they then spent a further four years fighting off various spurious and unwarranted allegations; in conflict (much against their will) with their regulator; having to raise (with great difficulty) over £1 million merely to defend against the various lawsuits and regulatory attacks that were made on Vote Leave over the four-year period. Because of the highly political nature of the referendum, the clamour made by those who campaigned for the other side of the referendum was acute (this clamour still, of course, continues, with calls even now for an extension of the interim period, and other such attempted delaying/blocking tactics to the result of the referendum).

Another Parliamentary Select Committee added greatly to the confusion by, for a while, giving what seemed faux-naïve credence to baseless allegations that tied Vote Leave to Cambridge Analytica, Russian interference in the referendum, etc; using the Committee process to present information in a slanted way that, again for a while until VL fought it off, seemed to imply malfeasance on Vote Leave’s part. The allegations were shown to be groundless or trivial, but there has been no apology for the original baseless allegations, and there has been far less publicity for the exoneration than there was for the original claims.

The main area where Vote Leave has been –through no fault of its own– unable to exonerate itself fully in court against the EC is in the claim that during the referendum period it conducted a ‘Common Plan’ with another campaign, BeLeave. The reason why VL has not been able to clear itself of this claim is instructive: it is because of the disproportionate power of the regulator, and the enormous cost in time and money –beyond VL’s and the three Directors’ resources– that it would have taken to acquit VL. Current legislation has it (astonishingly for a country that loves its liberties) that the EC acts as investigator; prosecutor; judge; jury; executioner. The EC does not, it appears, have to show its evidence, so that if there is further evidence the EC possesses that exonerates Vote Leave, we may not have been shown it, and likely will never see it. (We certainly were not shown, at the time, evidence that was –we now find– already in the hands of the regulator – the withholding of which evidence raises the question of a possible attempt at, or contemplation of, entrapment.)

I offer here an example of the almost inevitable abuse of this unwarrantedly concentrated power. On November 27th, 2017, VL was told, having been cleared in two earlier investigations on the claim that Vote Leave had a ‘Common Plan’ with Beleave, that the EC was nevertheless commencing a third investigation on exactly the same point. Such an investigation could not legally be opened without new information. The EC asserted it did have new information, but would not say what it was. There was prolonged correspondence between the EC and VL on the nature of this claimed new information; Vote Leave believed that the EC did not have any. We were eventually proved right; the EC subsequently finally admitted, on 17th July 2018, once the investigation was concluded and it was too late, that their fresh investigation was not opened on new information – the EC had possessed the information since 2016; this information anyway was only deriving from a minor and irrelevant anomaly in a third party campaign’s (Veterans for Britain’s) reporting of the timing of an expense. (Based on His Honour Judge Dight CBE’s judgement in the Grimes case, it seems clear that this anomaly should not have resulted in any sanction on VfB – see paras 92(3) and 93 of that Judgement – and it was anyway not related at all to the alleged offences they proposed to re-investigate.)

Another of many examples of the EC’s abuse of power: the EC fined Vote Leave on three matters: first, that VL had a Common Plan with BeLeave. This was their main claim, discussed extensively in this submission and comprehensively refuted in our various responses to the Commission (as well as in various remarks by presiding judges in related cases). The other two represent extraordinary petty dictatorial behaviour by the Commission: in the first incident, VL had been given, with only a few days’ notice, a deadline of 1pm on a Tuesday to respond to a letter from the Commission demanding various information. VL (staffed, remember, with four unpaid, parttime legacy individuals with no other resource apart from legal) scrambled to respond, and sent its reply in by 3.50pm that Tuesday. The deadline missed by just 2 hours 50 minutes. For this lateness (which is unlikely to have caused the EC any inconvenience whatsoever), Vote Leave were fined £20,000.

Compare that with the Commission routinely taking weeks or months to respond to Vote Leave’s enquiries – often, as with Vote Leave’s offer to meet with them, not replying at all.

In the second incident, Vote Leave was fined £1,000 for failing to provide invoices for eight payments. A single statement was originally provided by Vote Leave to the EC for the eight (relatively small) payments lumped together, along with an explanation that we had been unable to get the supplier to give us separate invoices. The Commission stated (and still claim) that Vote Leave “fail(ed), without reasonable excuse, to include required invoices and receipts for eight payments.” If failure by the supplier to provide individual invoices is not a reasonable excuse, what is? If providing an overall statement of the eight items does not represent a legal return, what does?

Above all, the Electoral Commission was able to utilise enormous, disproportionate legal resource to defend itself when we appealed their finding; they hired one of the most expensive QCs in the land and surrounded him with a bevy of barristers and high-priced solicitors. At one stage, the EC claimed – well before the matter had even come to court – that their costs already incurred, which they would seek to claim from us in the event we lost, had risen to £400,000. This implied that their claimed costs all the way through the court hearing could easily have risen to double that amount. (At different times, the Commission’s solicitors, confusingly, came up with several different estimates; it was impossible for Vote Leave to know which estimate would be the one they should expect, if and as the Commission to find itself in a position to come after Vote Leave for costs at some future date.)

We applied to the courts for a cost cap, so that Vote Leave could be in a position of knowing what our overall costs would be – thus, we hoped, allowing us to be sure that we could cover them. To our dismay, the courts flatly refused that cost cap, so that Vote Leave was exposed to the possibility of having to pay, as well as its own costs, all the Electoral Commission’s costs – however high they came to, whatever stage of appeal the EC took the matter to, and however unwarranted their vast splurge of public money might be. It cannot be right that there is such inequality of arms. If the regulator is allowed to spend incontinently, then Parliament must improve access to legal aid for the accused to respond to regulators, or otherwise introduce cost control measures on the regulator, to enable those who are accused to have a cost proportionate ability to defend themselves.

All in all, Vote Leave calculated that if it proceeded with all its appeals against the Electoral Commission (as well as against the Information Commissioner – the latter, prompted quite possibly by inappropriate informal communications between the two regulators, had merrily jumped in with an equally spurious claim against Vote Leave), we would have been, had we lost, in a position of having to find a further £1.3 million overall to pay all of our legal costs, over and above the £1 million already previously spent since the end of the referendum. And of course, if Vote Leave won, the Electoral Commission could then have doubled down by appealing the judgement – unilaterally increasing Vote Leave’s exposure to way more than £1.3 million. Had we gone ahead, in circumstances where our donors had declined to commit to this very large additional amount, then any such cost, in the case of a loss, would have fallen upon the three Directors – two of whom had already each contributed hundreds of thousands to the legal fund, the third not having deep pockets. None of the three felt that they could, or indeed should, commit to such enormous, uncapped cost.

Vote Leave went back one last time to its always-generous donors, to see if they were prepared to cover this enormous estimate of £1.3 million. The donors saw no point in spending even further large amounts in what they had always seen as a biased and unpredictable process. Their refusal was not surprising given that since the referendum, they had already donated £1 million, which had already been spent (not to mention the much larger monies donated by them during the referendum itself), with seemingly endless litigation in prospect.

Accordingly, Vote Leave had to throw its hand in, and was never able to have its day in court.

So, the structure of the legislation, where in the case of an appeal the regulator can pile on unlimited costs, with a threat of eventually hitting the campaigner (in this case, Vote Leave) with all of those costs, and with the courts refusing to protect the campaigner with a costs order, means that a regulator, years after the event, can make – as we strongly believe to have been the case in this instance – a false and entirely unjustified finding against the campaigner (Vote Leave); pile on the costs; push hard to ensure the campaigner gets no costs protection from the courts; and thus ensure that the campaigner is, as a result of all this, financially precluded from appealing the finding from the regulator – a regulator who, as I pointed out above, is acting as policeman, prosecutor, judge, jury and executioner.

All this, furthermore, ties up a group of volunteers, who have other careers and obligations to attend to, for some four years after the referendum date, subjecting them to significant costs, anxiety, lost opportunities and loss of life choices. This surely cannot be right, and casts a dark shadow over any willingness of future volunteers to participate in such notional events. It needs to be addressed urgently.

If you establish a regulator that might have an institutional ideological bias (as it almost inevitably will, given what is well known of the political leanings of the public sector, civil-service class that provides most of a regulator’s officials, and its boards), it is essential that the regulator not be emboldened to introduce that bias into their (inappropriate) interpretation of the law. The issue with Vote Leave revolved around whether or not we had a “Common Plan” with another campaigner, BeLeave (BL). On the face of it, the allegation was ludicrous. BeLeave was run by a young fashion designer, living in Brighton (where he was at university), running a campaign aimed at the youth vote. His campaign was featured during the referendum in an article by the BBC, who singled the campaign out as showing a fresh approach to the issue. BL took an entirely different approach to the referendum than did VL. Aimed at young people, focusing on a narrow range of issues, BL could not have been more different from the Vote Leave campaign. Yet somehow, and informed by meretricious allegations from a disaffected individual who had worked briefly at Vote Leave (and whose allegations were firmly rebutted in what we submitted to the Electoral Commission; the EC, however, gave no evidence of having even read our rebuttals, let alone did it acknowledge them), the EC claimed that Vote Leave and BeLeave had a “Common Plan”.

The only even slightly credible reason making it possible in any way for the Electoral Commission to make an allegation against Grimes was because the wording in the relevant forms (forms created by the Commission) was unclear (His Honour Judge Dight judgement, para 11). The Commission, up to and including its head of enforcement, Louise Edwards, and its now-CEO Bob Posner, were castigated by Judge Dight for failing to understand even how to apply the concept of “Beyond Reasonable Doubt” (paras 56, 62, 102, 105, 106, 107, 109). The Electoral Commission apparently considered itself able to use any argument they wished to (or, indeed, no argument at all – the Commission’s finding does not actually contain an argument, rather it is just a listing of a few random points of evidence, and an assertion that these amount to proof of a Common Plan), to state that ‘beyond reasonable doubt’, the two campaigns were joined in a Common Plan. (It is noticeable that there’s considerably more evidence of a Common Plan among various Remain campaigns, but the Electoral Commission dismissively refused to consider this as a possibility, despite the Rt Hon Priti Patel MP’s various lengthy representations to them on that matter.)

Vote Leave wished to test the Electoral Commission’s allegations in court. We believe that the Electoral Commission was extremely concerned about the possibility of that happening, with the likelihood of the Commission being shown to have been partial and illogical (as indeed it was shown to be by the Darren Grimes judgement). I have described above how it became impossible for us to pursue that path, in large part because of the Commission’s own actions that made it difficult for us to do so. Appendix 1, written by a current Vote Leave director, demonstrates both the extreme complexity of the rules surrounding the definition of a Common Plan, and the very confusing and varied way in which those rules were communicated by the Electoral Commission (Parliament having fallen into the trap of failing to hobble sufficiently the Regulator’s discretion), as well as demonstrating the very considerable and detailed efforts that Vote Leave took to try to ensure that it stayed within a very difficult regulatory framework. It underlines the importance of clarity of communication and procedural consistency, clearly not present in the Electoral Commission’s approach to this – as it turns out central – issue.

The Commission’s attacks against the Leave result were of course not confined to Vote Leave. For example, as mentioned earlier in this submission, in last year’s EU elections the EC raided the Brexit Party’s office just two days before the vote in the UK. This action was clearly likely to have an effect in deterring voters from voting BP (although who knows: such was the EC’s poor reputation by then that it might even have had the opposite effect). It seemed clear that the EC’s intent, if anything, was to cast doubt on the BP’s integrity. Even worse: not only did the EC make sure that its action was highly publicised ahead of time; it even seemed that the decision to raid the BP came after pressure from one of the BP’s leading opponents. Here from the Guardian:

“The Electoral Commission has said it will attend the offices of Nigel Farage’s Brexit party to “review its systems” after Gordon Brown urged them to investigate concerns over the legality of the party’s funding”

What price impartiality? What price fairness? How much did this action by the EC put people off from participating in the nation’s democracy? One does not have to like the Brexit Party to see that episode as deeply sinister.

G. The Commission’s recent actions have created a situation where honest citizens will understandably fear to engage in the democratic process for elections or referenda, especially if the EC is allowed to continue. Who will want to expose themselves to having years of their life taken away, having to defend themselves against financial sanctions and worse, while their hardwon personal reputations are brought into disrepute, despite their having behaved blamelessly?

As things stand, there is a complete mismatch between the cumbersome, bureaucratic and often misconceived approach of the EC, and the desire of the British Public to participate freely in the democratic process. The EC wishes to be the decider as to whether or not you can register as a campaigner; wishes to fine you (more and more!) if you do or are suspected of doing something the EC don’t like; wishes to have the right to decide who can be a political party or not. Until now, political parties in this country can hold almost any view. It’s a truism that some political views formerly considered ridiculous are now seen as mainstream; such views should be allowed free rein in a proper democracy. But if the EC view of the world, and how it should run an important part of that world, is allowed to stand (aided and abetted perhaps by the CSPL), then you have the threat of a drift toward what some other, deeply undemocratic countries have: only state certified parties, the public being given only their views, with little or no scope for freedom of individual political action. The chance of advancing good ideas, novel or otherwise, and allowing the country to make up its mind about those ideas in a democratic fashion, recedes alarmingly.

H. The Commission should be abolished entirely. Reverting to how these matters were managed pre-Commission, its remit should be shared among existing competent authorities.

I have elsewhere in this paper already made these points, but to be clear, the EC should be closed down, and its various powers should be returned, to what used to be:

  • To Companies House to keep a register of candidates or campaigners
  • To Returning Officers, as is the case now with elections, but to a committee of senior ROs for referenda, for declarations of donations and expenses
  • To police and courts for investigating and prosecuting infractions.

In addition, it should be made clear that there can be no discretion; the rules should be the rules. We hope this outcome can be achieved. Purely to avoid “falling between two stools”, I offer, in Appendix 2, a number of further suggestions (for curtailing the EC’s undemocratic behaviour) should PACAC decide not to recommend abolition.

I. I offer suggestions as to how the Select Committee should investigate and act on the Electoral Commission’s malfeasances over the past four years.

I believe that Vote Leave’s experiences with the Electoral Commission, during and since the 2016 EU referendum, justify a call for a major internal investigation into the EC, so as to uncover and publicise its discreditable behaviour post the referendum.

Vote Leave were never shown, at any time between November 27th 2017 and June 5th 2018 when the EC issued its initial ‘Notification’, the actual evidence that was claimed as the basis of the ‘notice’, nor have we (in any case) ever seen any argument that shows how the evidence, later listed in the EC’s ‘findings’, stacked up to proving, or even indicating, the ‘Common Plan’ transgression that the EC alleges. VL ultimately established that whatever evidence the EC possessed had been in the hands of the EC since 22nd February 2018 at the very latest, yet the EC never interviewed anyone from VL regarding this evidence, despite an explicit offer of an interview on 6th March 2018, and numerous earlier offers that were conditional only on VL being given an understanding of the evidential basis for the reopening of the investigation.

The withholding of evidence by the EC raises the question of the EC’s procedural and documentary competence, and even a possible attempt at, or contemplation of, entrapment. At the end of para 39 of his Judgement, Judge Dight CBE makes a comment that can be interpreted as alluding to a similar possibility in the Darren Grimes case.

The EC, it appears, believes it was entitled to re-open an investigation, for the third (or even fourth) time, on no new evidence, more than two years after the referendum, on a matter where it had already cleared Vote Leave twice. In doing so, it seemed directly to be bowing to inappropriate pressure from enraged opponents of the referendum result. Throughout this saga, the EC acted as if it believed it has no duty of candour, no duty to show the accused all the material relied upon (nor the material reviewed but not relied upon), so that the accused could fairly meet any allegation against them.

The evidence for my saying this is laid out, in great detail, in Appendix 3, a letter written in July 2018 to the Electoral Commission. A read of that document shows the Electoral Commission breaking its remit over and again, even going so far as the CEO of the EC publicly, on a Radio 4 Today Show interview, stating damaging untruths about Vote Leave– statements that to this day have never been withdrawn, with no sanction or reprimand ever made on the EC’s then-CEO, despite our protests to the EC. (The CEO serenely  moved on to head yet another Quango, the Trade Remedies Authority.) The EC apparently believed it could – and it did – ignore written offers made by Vote Leave to meet with them so as to give evidence. The EC believed it could proceed to judgement – and did – without bothering to take us up on our offer to meet with them, even falsely claiming that to the contrary, VL had refused to talk with them. The EC believes it can, apparently – and it did – ignore VL’s painfullyput-together, many-hundred-page, evidence folder, a folder that clearly demonstrated that the EC had got it wrong and that it had abused its powers. The EC can then, only 9 working days after we submitted that folder (so that it is inconceivable that they reviewed our folder properly or tested its evidence), proceed to fine VL, unjustifiably, in the early hours of the morning; and then less than half an hour after telling Vote Leave it had done this, their CEO went onto the Today Show to publicly excoriate VL and make (as clearly detailed in Appendix 3) untrue claims about VL.

The EC also believes, apparently, that it is entitled to take it upon itself to make selfserving judgements about what it should say publicly. It issued press statements without opportunity for Vote Leave to comment; it issued biased reports, which have been left to stay forever on its website even when (as is most obviously the case with Darren Grimes) its claims have clearly and comprehensively been refuted. The legislation does not – but should – explicitly ban such activity and insist on full redress being made when the accused individual has been cleared.

These reports, in the way they were written, also led many to assert that Vote Leave had, by paying its fine, acknowledged its guilt. This is far from the case; indeed, in various court judgements, it has become increasingly apparent that Vote Leave would likely have won its appeal against the EC’s fines, had it been able to afford to continue. For the EC to crow about its ‘win’ is galling in the extreme – and wrong.

This outcome was a direct result of what we believe was the Electoral Commission’s deliberate ploy of creating an enormous cost base (our own legal costs, on our side, were significantly less than theirs). Given the refusal of the courts to grant us a costs cap, we could, had we lost, have become, as shown above, liable for that. Shamefully, the Electoral Commission had already nakedly showed its hand by applying to court that Vote Leave’s appeal be dismissed, because – they claimed – we would not be able to afford to pay the Electoral Commission’s large costs in the event that we lost. In other words, the Commission were highly aware of, and very keen to exploit, the fact that their costs were so very high that it would be a stretch for Vote Leave to pay them, should Vote Leave lose the appeal. (The Select Committee may wish to ponder whether such tactics are desirable in a supposedly even-handed public body.)

But more importantly, although we sought that Judicial Review during 2018, soon after the Electoral Commission finally alleged (some two years after the event) that we had broken the law on the “Common Plan” issue, it took over a year for our complaint to be heard: we were initially refused permission for that Judicial Review; we then had to appeal that; and only when the appeal court got to review the evidence did they finally agree with our view that the Commission’s behaviour needed to be reviewed.

All of this cost considerable money and further drained our resources (Vote Leave again applied for a cost cap on this matter and, again, was refused). The Rt. Hon. Lord Justice Hickinbottom stated: “the case raises important issues in relation to the powers of the Commission”. The matter was, indeed, considered important enough that it was then taken up by the Lord Chief Justice who decided to chair the appeal panel himself. And yet, the Electoral Commission was allowed to obfuscate and delay yet again, insisting that they did not have time for the matter to be heard early (they had had many months to prepare for this already), so that the case was not heard until October 3rd 2019. The court at that point decided that the law indeed permitted the Commission to publish its untruthful reports on us and on Darren Grimes (even though Darren had won his case), regardless of the facts to the contrary that had since emerged; and to leave them posted on their web site forever. At the least, therefore, the law needs to be changed.

And, whether or not PACAC recommends abolition of the EC, some hard questions need to be answered. In particular, I suggest three actions by PACAC:

First: Require the Electoral Commission to respond to this submission. Give the EC a comprehensive list of questions to reply to in full. Six points are made in section C, earlier, of this submission, which I suggest you pursue with the EC. Further, a starter list of suggested procedural questions is provided in Appendix 4. In addition, I recommend you:

  • Require the EC to disgorge all internal documents in which they discuss the allegations against VL by the self-styled ‘whistleblowers’; and the EC’s internal reaction to them. (We believe such documents will reveal EC bias against VL.)
  • Get the EC to respond to His Honour Judge Dight’s criticism implying that the EC seem to have had zero understanding of that most fundamental of legal concepts, “Beyond Reasonable Doubt”. Ask them what that criticism does to their finding against Vote Leave.
  • Require the EC to disgorge all formal and informal communications, on Vote Leave and other Leave campaigners, between the EC and the Information Commissioner.
  • Require the EC (duty of candour, as in normal legal proceedings) to reveal in full what their submission to the MPS contained.

Second: Make any future legislation much clearer. In particular, ensure that there is perfect clarification as to what is meant by “Common Plan” (including ensuring that the matters raised by the GLP, see next, are dealt with beyond argument). The regulator has been able to make merry hay with Vote Leave because of the utter imprecision of this phrase, “Common Plan”, as it is defined in the legislation. Also remove discretion wherever possible.

Third: Prevent frivolous, politically-motivated and costly law suits. An entity styling itself “The Good Law Project”, clearly made up of individuals who wished the result of the referendum had been the opposite, commenced in 2016/17 what we believed at the time to be, and was indeed eventually shown to be, an utterly (and very possibly purposively) frivolous lawsuit demanding that the law be interpreted so that a “donation” would also mean an “expense”. The implication of such a finding, if upheld, would have been that Vote Leave had broken the law in any event (as would have many other campaigners, on both sides of the referendum – the whole thing would have descended into farce). Bizarrely, Vote Leave found itself on the same side as the Electoral Commission in fighting this allegation. Vote Leave was put to considerable legal expense to try to help the Electoral Commission to try to defend this matter. (The court derogated the Electoral Commission’s approach and preferred Vote Leave’s approach.)

Realising the futility and unaffordable expense of all this, Vote Leave ultimately withdrew from those proceedings in their later stages. This was in large part first, because the court refused to hear any oral argument from Vote Leave (yet considered, and referred favourably to, our written argument – so the court was inconsistent); and secondly, because the Electoral Commission had, it seemed petulantly, instructed its lawyers not to receive from Vote Leave, or discuss with us, our work product – which we had offered to them, as we believed it would help them (their own arguments were rejected by the court). The Commission, however, instructed its lawyers not to communicate with us in any way on this matter. In such circumstances, we saw no point in, nor indeed any possibility of, helping the EC further on this.

Even more bizarrely, Lord Justice Leggatt and his co-judge found in favour of the Good Law Project. The result of this finding, if sustained, would have been to throw all electoral law, not just referendum law, into chaos. Expenses would have had to be double-counted (defying the principles of double entry book keeping); donors would be thrown into the position of inadvertently becoming campaigners; statutory limits on the amount that could be expensed on one side of an electoral campaign would have been halved because expenses would have been double-counted; and so forth. If anything could have been better designed than this judgement to show the ludicrous state of electoral and referendum law, I cannot think what.

The appeal court, chaired in this instance by the Lord Chief Justice, heard the Electoral Commission’s appeal on the Leggatt Judgement last year. As I wrote to Sir Bernard Jenkin’s PACAC at the time: it is not clear how the court will opine, although I cannot see but that they must reject Lord Justice Leggatt’s peculiar finding and thus reject the Good Law Project’s claim. My predictions proved correct. I had added: Thus yet another massive waste of state and private resources will come to an end, but not before a total abuse of the system has, in my opinion, occurred. Whatever the outcome, what is absolutely clear is that the law is impossible to interpret with confidence; either Lord Justice Leggatt, or both the Electoral Commission and Vote Leave, were wrong in their interpretation of the law, ie in thinking that a donation is not an expense. And if Vote Leave and the Electoral Commission are wrong, then so are all campaigns who also donated (the implication would probably be, for example, that certain private individuals, who contributed seven-figure sums to various Remain campaigns, themselves became campaigners, which means that they too, as well as other Remain campaigns, broke electoral law).” (And they broke it in a much bigger way, note, than Vote Leave was accused of doing).

The Appeal Court found as I predicted they would have to, and ruled against Leggatt. Chaos would have resulted had it not. My words above give but one illustration that the electoral law is not fit for purpose; but it is very noticeable that all of this led to considerable grief for, and only for, Vote Leave over the past four years – not for anybody else on the other side of the referendum. The GLP JR used up (as quite possibly had been intended by GLP’s mysterious anonymous donors) considerable amounts of VL’s cash and time, that could, as it transpired (but we couldn’t know that at the time), have been better used by Vote Leave in its appeal of the EC’s fine. Thus the bizarre, incoherent GLP lawsuit contributed to VL having to throw its hand in.

Were Leggatt to have been upheld, with the Electoral Commission losing the case, would the EC have immediately opened up investigations into, resulting in fines of, all those Remain campaigns? I suggest that anyone holding their breath while awaiting such an outcome would have been unwise. But I do, in any event, point out that all this shows that the law is not fit for purpose, in this as in many other ways, and needs amending to clarity and certainty for those who have to operate under it – particularly when there is a regulator who seems willing to use that law against one side, the side officials in the regulator were opposed to, and not against the side whose position they favoured.

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We at Vote Leave hope that this submission will help the Select Committee in its deliberations. PACAC may conclude – I hope it does – that the Electoral Commission should be wound up. The temptation for partiality and false findings proved, in my view, just too great for the EC. They should not be provided such an opportunity again. June 2020

APPENDIX 1

Avoiding a “Common Plan” Based on advice and discussions with the Electoral Commission

Background

1 – This memo summarises advice given by the EC to VL, and discussions between the EC and VL, before and during the referendum period, as it bore upon the issue of how VL could (and we believe did) avoid being in a Common Plan with other Leave campaigners and its Honest Assessment in relation to that matter

EC advice summary

2 – The EC has stated (to the Digital, Culture, Media and Sport Select Committee) that the law on common plans/concert parties is not clear, but nonetheless offered guidelines, to both Remain and Leave campaigns as to what is permitted. The following paragraphs summarise that guidance which has been offered by the Commission, guidance which (possibly unfortunately) employed everyday language rather than the precise terminology in the regulations in order to assist campaigns to determine, in controlling their regulated expenditure, whether or not their working together with other campaigns constituted what was described as a “Concert Party”, but which they have subsequently tended to describe as a “Common Plan”.

3 – The EC itself explicitly recognised, in testimony to the House of Commons’ Digital Cultural Media and Sport Committee on 15th May 2018, that the legislation was set at a “broad high level”and was therefore “not clear” for dealing with what they described as the “middle ground”: www.data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/digitalculture-media-and-sport-committee/disinformation-and-fake-news/oral/82877.html

4 – The EC has provided four sources of clarification

  • Its public guidance
  • Its private guidance to Vote Leave
  • Documents associated with Vote Leave’s designation
  • Its recent rulings EC public guidance

5 – In its Guidance on the 2016 Referendum, the EC asserted that ‘working together’ – that is acting in concert, in pursuance of a “a plan or other arrangement” – means “spending money as a result of a coordinated plan or arrangement between two or more campaigners during the referendum period that is intended to, or is otherwise in connection with, promoting or bringing about a particular outcome in the referendum.” http://www.electoralcommission.org.uk/__data/assets/pdf_file/0005/194621/Working-togetherfor-EU-referendum-campaigners.pdf

6 – The EC adds that “when considering if you are ‘working together’ you should apply the “guiding principle … that, in all cases, you should make an honest assessment, based on the facts, whether you or another campaigner are spending money as part of a coordinated plan or arrangement.”

7 – The Guidance goes on to indicate that “you are highly likely to be working together if, for example:

  • “You spend money on joint advertising campaigns, leaflets or events
  • “You coordinate your spending with another campaigner – for example, if you agree that you should each cover particular areas, arguments or voters
  • “Another campaigner can approve or has significant influence over your spending including leaflets, websites, telephone scripts or other campaign materials”.

8 – It adds: “In our view, you are not working together if, for example:

  • “You have discussions with other campaigners that do not involve decision making or coordinating your plans
  • “You speak at an event organised by another campaigner, but do not participate in any other way
  • “You do not consult other campaigners about what you should say in your campaign or how you should organise it”

9 – It should be noted that the Commission’s guidance, in discussing spending money together (paragraphs 5, 6 and 7 above), follows the wording of the law. It is when the Commission   extends its ruling and guidance beyond the idea of joint spending that, it would seem, it goes beyond what the law described. EC private guidance to VL

10 – On 21st September 2015 William Norton (“WN”) of VL, nonpracticing solicitor with wide experience of electoral law, and Secretary to the Responsible Person Committee, met with the EC, with two representatives of other campaign groups, Conservatives for Britain and Labour Leave, to clarify issues surrounding common or coordinated plans/concert parties. The EC’s minutes for that meeting state that the EC representative said that “as a point of principle” they “are encouraging groups to work with the designated campaigner, as this is likely to lead to a better-conducted referendum for voters”. [Page 203 and 204 of VL’s 3rd July 2018 Response to EC notices of 5th June 2018]

11 – The minutes also state that in addition to an honest assessment, the campaign should “provide an audit trail to support their conclusion” Documents associated with VL’s designation

12 – Consequently the Vote Leave Further Evidence document https://www.electoralcommission.org.uk/__data/assets/pdf_file/0004/200659/Vote-Leave-LtdFurther-evidence.pdf , part of VL’s application for designation in March 2016 to the Electoral Commission, specifically refers to “other advisory groups”, stressing that “these groups are not accountable to Vote Leave, nor is Vote Leave responsible for their actions. They are external groups”. The group included, inter alia, BeLeave (specifically identified as “youth campaigners”), Muslims for Britain and Veterans for Britain. The document comments further: “These groups ‘appointed’ themselves when they decided to campaign for a ‘Leave’ outcome in the referendum, and to contact us in response to our way of campaigning on that issue. They do not report to Vote Leave, but there is a designated point of contact within our organisation for each group, from within the Outreach team. Either side may relay views and advice to the other.” Clearly, there had to be cooperation between VL and these groups, because VL, in applying for lead campaign designation, was expected by the EC to demonstrate that it had the support of other independent campaigns on the Leave side, and it would be perverse to expect VL to do that without any cooperation.

13 – The Electoral Commission Board Paper 27/16 entitled “EU Referendum: Designation of Lead Campaigners” and dated 13th April 2016 https://www.electoralcommission.org.uk/__data/assets/pdf_file/0015/200904/2016-04-13-EC27-16-EU-Referendum-Designation-of-Lead-Campaigners.pdf , states (pp71 and 72) that the VL application has “Substantial evidence, over and above that which would be sufficient to demonstrate the intended extent of future engagement with other campaigners not supporting the application”. It goes on to note that the “Head of Outreach, Cleo Watson, heads a unit responsible for developing links with these less experienced informal campaigning groups and providing them with advice, assistance and encouragement”. It adds that the application “does demonstrate an intention to actively engage with other campaigners for the ‘Leave’ outcome.” This formal EC guidance provided encouragement for Vote Leave in its stated intention to work closely with (advise, assist, encourage) these separate campaigns and itself provided guidance to VL that engagement with other campaigners did not constitute a “Common Plan”, “Concert Party” or “working together” such as to require a joint expenditure return. As stated in para 11 above, VL had made it clear that these organisations were independent, which should clearly be taken as meaning that they were not in a Concert Party or Common Plan with VL. Based on VL’s interactions at the time with the Commission, the EC had very much appeared to accept this and had raised no queries.

14 – It is also clear that VL’s indicated support for independent campaigns was the key factor in its designation as the lead Leave campaign. The EC’s Board minutes of 13th April 2016 are explicit https://www.electoralcommission.org.uk/__data/assets/pdf_file/0012/200910/2016-04- 13-Board-minutes-EU-Ref-designation.pdf The full conclusion in relation to VL is that it is agreed that “Vote Leave appears to represent to the greatest extent those campaigning for the ‘Leave’ outcome and be designated for that outcome”. This put a great responsibility on VL to ensure that it did indeed “represent” all Leave campaigns to the fullest extent possible within electoral law. Recent EC rulings

15 – The EC letter dated 28th March 2017 to Vote Leave closed down its second investigation into Vote Leave donations to BeLeave and therefore implicitly accepted the framework and rationale for the honest assessment made by the Responsible Person for Vote Leave, Alan Halsall (“AH”), in his letter of 9th September 2016 as part of the first investigation. The latter specifically sets out the following: • The making of a donation does not of itself constitute joint campaigning • There was no collaboration or agreement between Vote Leave and BeLeave in 2017 in relation to any spending related to the donation • Whilst there was an implicit expectation that funds would be used to promote a vote to leave the EU, no conditions were imposed as to the use of the donations; • There was no, nor had there ever been at that point any collaboration or agreement between BeLeave and VL in relation to targeting voters, messaging, content, strategy other than the making of the donation itself. It was not a joint advertising campaign • Vote Leave had no influence, knowledge, consultation or agreement with BeLeave as to the content, channels used or other aspect of its campaign; the timing and the amount of the donation were irrelevant to the question, being factors solely of the availability of funds.

16 – The acceptance of these points is clearly set out in paragraphs 27 to 31 and 45 of the EC’s letter of 12th October 2017 to Deighton Pierce Glyn acting for the Good Law Project in their Judicial Review claim against the EC:

27. Further, campaigners on the same side of the argument can liaise and discuss campaigning approaches without meeting the threshold of joint spending within the meaning of the legislation. Campaigners can use the same suppliers. Campaigners can gift donations to another campaigner by paying for something on their behalf. 28. Again, there is nothing inconsistent with the law in Vote Leave making a donation to Mr Grimes by way of payment to a supplier. While a degree of communication would clearly be necessary to implement such an arrangement, this does not in and of itself mean the joint spending controls are engaged.

29. Whilst some of these activities may be suggestive of joint spending, whether such activities count as joint spending in terms of the rules will depend on the specific circumstances. The facts must be looked at on a case by case basis.

30. The Commission’s assessment addressed whether there was evidence to suggest that Vote Leave and/or Mr Grimes had delivered an incorrect spending return in respect of these donations. This included consideration of whether the joint spending controls had applied, and if so if they had been applied correctly. Any implications for the referendum spending limit would follow from these initial issues.

31. In this case, the assessment considered information from a complainant and other sources, as well as documentary material and explanations obtained from Vote Leave, Mr Grimes and Aggregate IQ. All the evidence was subject to analysis by the Commission. We concluded that this information was consistent with the money paid by Vote Leave to Aggregate IQ for services provided to Mr Grimes being donations, and with the services provided by Aggregate IQ to Mr Grimes not being in pursuance of a common plan with Vote Leave. We therefore did not have reasonable grounds to suspect an offence under PPERA or the EURA.

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45. There will only be a “plan or other arrangement” if there is some agreement reached as to how expenses incurred will be used.

17 – The final paragraph 45 in the above quote is important to parse: it explicitly states that for there to be a Common Plan there must be agreement as to how the relevant expenses “will be used”.

18 – The EC had already in its email of 20th May 2016 confirmed that the supplying of material to other campaigners without having a coordinated plan or agreement was likely to be a donation. In its letter to Darren Grimes (as per the evidential file of documents passed to Vote Leave on June 5th 2018 – Facebook message of September 9th 2016, the EC absolutely confirmed that the donations by Vote Leave to BeLeave were legitimate. The existence of the 20th May 2016 email was drawn to the Electoral Commission’s attention in Alan Halsall’s letter of 19th August 2016. However it is clear from an EC internal email chain ending 19.10.17 disclosed as part of a Freedom of Information (“FOI”) response, that the 20th May 2016 email had not been taken into account by the EC in reaching its conclusions in the two investigations which it closed on 4th October 2016 and 28th March 2017, even though it provided additional support for those conclusions. Nor did the EC acknowledge, or at the time reveal, to VL that it had confirmed to BeLeave the legitimacy of those donations.

19 – By indicating in its letter of 15th January 2018 to Priti Patel MP that it had concluded that there was no “reasonable suspicion” that an electoral offence had been committed by Britain Stronger in Europe and associated campaigns, the EC also gave a clear indication of more of its criteria, and the level of evidence needed, which it had used in establishing whether there had been a “Common Plan” on the Remain side – by in effect absolving a designated campaign with the following characteristics:

  • Eight campaigns linked by three donors providing £5m in donations out of £9m in total declared expenditure
  • Daily campaign (early morning) meetings between all campaigns on the Remain side • Five suppliers in common between the eight, including three advertising agencies (a connection that clearly has an uncannily direct bearing on the other allegations regarding VL, BeLeave and the advertising intermediary AIQ)
  • Each campaign with similar messages and no clear understanding or claim of any distinction of approach or message across the campaigns
  • Extensive cross-use of advertising material (eg distribution of the Remainers’ “don’t fuck my future” videos across these campaigns)
  • Four of the eight campaigns, set up less than one month before the referendum, one of them 13 days before, and all set up quickly with no evidence that any of these new groupings had any separate existence or campaign activities before their last-minute setup, and with no evidence that they had any independent purpose save to spend money from donors (who were also the major donors to the lead Remain campaign, Stronger In), • Money given to these new campaigns at a time when Stronger In, the designated Remain campaign, had reached a ceiling in its authorised referendum expenditure.

CONCLUSION: Framework for an honest assessment of donations in the context of avoiding a “Common Plan”

20 – All Leave campaigns were working for the “particular outcome of a vote to Leave”, just as all Remain campaigns were working for the “particular outcome of a vote to Remain”. Thus, seeking to ensure that “two campaigns are not working together to promote or bring about a particular outcome” is not as easy to establish as saying both were campaigning to Leave – as the EC has straightforwardly admitted to the Digital, Culture, Media and Sports Committee. The Electoral Commission’s guidance on these matters is therefore, and not surprisingly, hard to decipher, once analysis focuses on assessment, regulation and legislation.

21– Based exclusively on all this EC guidance and clarification, VL concluded, from the advice it had received, that the following framework was appropriate for its Honest Assessment of its donations to BeLeave:

21.1 – To avoid a Common Plan or Concert Party on a particular activity, two campaigns must have

  • Independent leadership
  • Separate decision making
  • Separate messages
  • An audit trail relating to relevant decisions

21.2 – A designated campaign has an obligation to advise, assist and encourage other campaigns. Doing so does not result in the two campaigns having a ‘Common Plan.’

21.3 – Two campaigns will not be adjudged to have a Common Plan/Concert Party just because:

  • They have donors in common
  • They interact with each other during the campaign
  • They have common suppliers
  • Their messages occasionally overlap
  • No joint expenditure on the particular ‘Common Plan’ or activity which particular expenditure (and only that expenditure) could then be stated to be part of a ‘Common Plan’

Daniel Hodson Director, Vote Leave 4th June 2020

APPENDIX 2

Proposals as to how the Commission’s overweening and undemocratic behaviour should be hobbled, through future clarifying legislation, in the event that the Select Committee declines to recommend the EC’s abolition.

Should PACAC opine that the Electoral Commission should not be abolished, then based on the above discussion, I make the following four recommendations to the Select Committee:

  • First: Strictly limit the powers of the Electoral Commission
  • Second: Provide more robust oversight of the Electoral Commission and get more diversity of views into its composition
  • Third: Make the financial dice less loaded on the side of the regulator
  • Fourth: Ensure the EC’s behaviour is better subject to Judicial Review.

First: Strictly limit the powers of the Electoral Commission.

The Commission is seeking to have its powers expanded, and its fining powers increased. We believe that in doing this, they give their ideological bias away. The EC claimed, on entirely unclear evidence, that Vote Leave had behaved illegally, while declining even to consider the actually egregious, and substantially documented, behaviour of the Remain campaign. This implies the existence of ideological bias, and a conscious or subconscious willingness to allow this ideological bias to have full play upon the political process in this country. Now, asking for increased fining powers raises the truly Orwellian prospect of scaring public-spirited volunteers away forever, in any electoral or referendum matter where such volunteers have reason to suspect the Commission is ideologically on the other side of the argument. This must not be allowed to happen. The current situation is bad. It needs amelioration, not worsening. In recommending that the EC’s powers be curtailed through changes in the law, we in particular suggest that:

  • Evidence and argumentation that the “beyond reasonable doubt” standard has been met must be explicitly laid out for all findings, with evidential disclosure at the same standard as in any court proceeding. This is not made clear in the legislation. It became possible for the Electoral Commission to state, as they did (I don’t know how they were able to say it with a straight face), that they found against VL “beyond reasonable doubt”, without their ever stating what their specific evidence and arugment was that allowed them to allege that. Judge Dight, in the Grimes case, stated, in essence, that the EC lacked understanding of how to apply the “beyond reasonable doubt” standard. They appeared to be making their BRD ruling in this way: ‘here’s a theory; here’s a piece of evidence that indicatively, but in no way dispositively, could be said to support that theory; we give no consideration to other evidence that implies the opposite of that theory; we find “beyond reasonable doubt” that the theory is correct.’ If the Electoral Commission had been required to show how the evidence they offered met the BRD standard, and had been required to justify their position by stating why they believed the evidence proved (BRD) that an offence had been committed, we believe they would have found it impossible to go ahead and make the findings they did against Vote Leave.
  • Referrals to the police should only be allowed on strictly defined parameters: when referring to the police, the Commission should be required to provide, to both police and accused, its full dossier and entire rationale for claiming that its finding is “beyond reasonable doubt”. This BRD standard was asserted by the Commission in Vote Leave’s case, but without any logical presentation as to how or why they felt they could say they believed that. Any accused party should by statute be provided with a full file of the allegations made by the Commission: neither the Responsible Person for, nor any member of, Vote Leave, has ever seen whatever it was that the Electoral Commission provided to the police on this matter – despite the police eventually declaring there was no case to prosecute. Certainly, the police complained to Vote Leave’s Responsible Person about the Electoral Commission’s documentary failings in providing evidence to substantiate their accusations against him (Appendix 5).
  • It should be made absolutely clear in the legislation that there can only be one investigation on any given topic unless there is truly new evidence: the Electoral Commission conducted three (we believe possibly four – the fourth remaining, however, never officially declared) investigations on the same matter over three years. On opening their third investigation, the EC claimed they had new evidence justifying that re-opening; but it later became clear (in evidence the EC were required to provide in another case) that there was in fact no new evidence1 . Further, it is essential that once elections or referendums have been run, the polity is allowed to get back to business as usual as soon as possible, without persistent and 1 The EC eventually made it clear that the ‘new’ evidence, that they used to open up the third investigation, was in fact evidence (about the campaigner Veterans for Britain) that they had possessed since 2016, and that had been considered already, in both the first and the second investigations ongoing efforts to prevent that, to subvert the result, and to prevent business as usual through attempts to litigate and re-litigate past results. If the regulator wishes to claim that new evidence is available, they need to say what that new evidence is, rather than hiding behind “confidentiality”, or indeed (as was the case in this instance) a blank refusal even to answer the complaint. Vote Leave was not even allowed to judicially review the fact that the Commission reopened the same investigation, with the same evidence, for a second and third time, without in fact there being any new evidence (and, apparently, would not have been allowed to raise that fact in its appeal, had we continued with it). The overwhelming conclusion has to be that the Electoral Commission reopened its investigation as a combination of its own political proclivities, and of kowtowing to politically-motivated group that was seeking to relitigate the result of the referendum; but unless your Committee forces the EC to disgorge all evidence on this point, we will never be able to show that.
  • Stricter time limits should be imposed on the EC: this matter is, currently, better dealt with in electoral law than in referendum law, but in both, it is essential that the nation be allowed quickly to get back to a normal situation after epochal events such as general elections or referenda. The legislation needs to make it far more clear that the regulator should not be allowed to carry on pursuing individuals or organisations more than one year after the end of the referendum or election, except in truly exceptional circumstances (ie through, and only through, criminal referrals). The current law massively encourages politically motivated campaigners, aided by an apparently partial regulator, to create a multi-year hoo-hah –as was done here– in order to shackle the freedom of action and the finances of their opponents; and by spinning and twisting, to seek to gain political advantage.
  • Parliament must address the inequality of arms: there needs to be cost control so that the accused can afford to challenge the regulator. This can be achieved with cost capping, fixed levels of recoverable costs, and/or access to legal aid.

Second: Provide more robust oversight of the Electoral Commission and get more diversity of views into its composition.

Vote Leave was particularly at a disadvantage because it could find no independent person or body associated with the Electoral Commission to complain to – other than the Speaker’s Committee itself, which (under the circumstances pertaining at the time, which will be well known to you) was unlikely to pay any heed to any such complaint from VL. As stated earlier, the Board of the Electoral Commission does contain representatives of three major political parties (though not the SNP). But as I pointed out, all three of these political parties were formally on the other side of the referendum campaign; they all campaigned for “Remain”. The EC’s Chairman, a former ambassador to Paris, publicly bemoaned the result of the referendum. He, and three other Commissioners, are alleged to have failed in their duty of impartiality (Article in The Telegraph). Further evidence exists of Board members speaking, and tweeting, against the result of the referendum. Had there been, let us say, a member of UKIP (which after all had many MEPs at the time, and so held a set of views that was representative of a large slice of the electorate’s views) on the Board, one can imagine that the discussions regarding the Commission’s proposed actions would have been very different. As I said further above, deciding to go ahead with the ‘findings’ against Vote Leave, as in this case it did, should not be left to the Executive, or even the Board as currently constituted, of the Electoral Commission. The political opinions of at least one senior member of that Executive, as well as of the Chairman and the Board –whether as regards the referendum or as regards the Conservative Party– have been publicised sufficiently (article in the Sun) that it should be clear that those individuals might have difficulty in clearing their minds sufficiently so as to indeed be impartial. At the very least, legislation should provide, as regards the Electoral Commission, that:

  • A proposal to find any entity in serious breach must be reviewed, and formally approved, by the Board. The proposal to make that finding must be provably in accordance with a true “Beyond Reasonable Doubt” standard, with argumentation put forward as to how it would be generally accepted that that standard had been met.
  • That Board must contain clearly impartial individuals, with representatives from both sides of the relevant election or referendum.
  • The Board must follow normal governance procedures, commencing every formal meeting with declarations of interest, including public statements of personal views where appropriate, and providing for removal of voting rights on issues where a conflict of interest occurs.
  • The Commission must be required to follow very specified procedures before referring to the police: the Electoral Commission referred the Responsible Person of Vote Leave to the police without even interviewing him –this at a time when, as has been clearly established and despite the EC’s false claims on that point, Vote Leave had written unreservedly volunteering an interview, and the EC had interviewed VL’s accusers at least once (we believe, but are not sure because of the EC’s secretiveness, twice). There should be specified procedures that the Electoral Commission is required to follow, to ensure that it does not subject those it regulates to odious, onerous, unjustified situations. These should include face to face discussions on any claim that the law has been broken to a degree that police involvement is believed necessary.
  • An Ombudsman should be created to receive complaints about the regulator behaving badly: numerous times over the past three years, Vote Leave has had cause for complaint regarding the Electoral Commission’s behaviour. We had nowhere to make that complaint, except to the regulator themselves. When we did that, our complaints were brushed aside, ignored. This proposed Ombudsman should not cost money to access.

Third: Make the financial dice less loaded on the side of the regulator.

The Electoral Commission is the creature of the Speaker’s Committee in the House of Commons. Apparently, it has no constraint (other than that Speaker’s Committee, which seems to have made no attempt to intervene on this point) on the legal costs it chooses to run up. Thus, it can resist every step of the way, as though it were some large FTSE or other corporation engaging in commercial litigation, using every device it can find to defeat the other side. This is just unfair and unBritish. Organisations such as Vote Leave have no independent existence outside their purpose of fighting the referendum – an event that ended four years ago. Its Directors were not of unlimited wealth, and did not in any event volunteer for service in the referendum in order to risk, unfairly, their financial position as well as years of their life on a whim of the regulator. They have other lives. Their contest against the regulator was, financially, entirely unequal.

At the very least, therefore:

  • Proposed legal expenditures by the regulator should be more stringently reviewed by the Speaker’s Committee, prior to them being committed. If they are considered excessive, they should be denied. Using one of the most expensive QCs in the land, the Treasury Devil, and running up enormous bills, for example, is something that, had it been proposed, I believe any prudent Speaker’s Committee should have rejected.
  • An equal playing field should be created for any entity wishing to appeal the Electoral Commission’s behaviour. For example, including in the legislation some guidance to the courts that costs should be capped, and legal aid provided to entities who are shown to have a good cause for appeal, who do not have the financial wherewithal to make that appeal. Include in this the right for that financial aid to go as high as whatever level the regulator has itself gone to in defending itself – why should the state allow unlimited free finance to its regulator yet deny that to the entity defending itself against the regulator’s depredations?
  • Disclosure of Evidence rules should be brought in line with those in mainstream courts of law. This would provide judicial fairness to those accused; help them form a proper response to any accusation; and avoid any possibility or suggestion of entrapment. The Commission should be required to observe a duty of candour

Fourth: Ensure that the Commission’s behaviour is better subject to Judicial Review.

There are further issues with the PPERA legislation. After we were forced to abandon our main appeal, Vote Leave had one last chance of at least partly exonerating itself from the false findings of the regulator; it had appealed for a Judicial Review of the Electoral Commission’s behaviour. Here, the problem VL faced was partly the tortuous costly meandering timing of the court process, and partly that the legislation only allowed Vote Leave to challenge very limited parameters of the Electoral Commission’s behaviour. Indeed, His Honour Judge Dight made it clear in his judgement that even in our appeal, he would not have allowed us to ask for a ruling on a number of the Electoral commission’s tactics with us –not because our complaints were unjustified or not, but because, he said (as I understand it), that the law was not written in a way that entitled him to consider them. This is yet another major issue with the law –there were quite a few aspects of how the EC behaved which, by Dight, we could never have had scrutinised by a court, whether in this JR or in our main appeal. VL would never, as it turns out, have been allowed to challenge, as I understand it, the EC’s opening and reopening of the same investigation into us three (or perhaps four) times over three years, despite the Electoral Commission previously exonerating VL (driven, it seems, by wild allegations from frustrated Remainers, and with no new facts given to justify the third investigation). VL was not allowed to challenge the EC’s peremptory and arrogant behaviour towards VL in refusing us even remotely reasonable time to answer their questions (they themselves taking many weeks and months to respond to us on much easier questions from us). VL could not challenge the EC’s declining to meet with VL to discuss our situation; nor their withholding of evidence. Only the EC’s publication of a report about us, and thereby making wrongful claims about us in public, were allowed to be the subject of the Judicial Review. This is wrong, and if PACAC recommend the EC should continue (I hope you don’t), you should at least also recommend changes in legislation to allow better review of its behaviour.

 Appendix 3 is available here.

 

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Amid Pandemic and Upheaval, New Cyber Risks to the Presidential Election

With the general election less than 150 days away, there are rising concerns that the push for remote voting prompted by the pandemic could open new opportunities to hack the vote — for President Vladimir V. Putin of Russia, but also others hoping to disrupt, influence or profit from the election.

President Trump has repeatedly said that mail-in ballots invite voter fraud and would benefit Democrats. It is a baseless claim: Mail-in voting has resulted in little fraud in the five states that have used it for years, and a recent study at Stanford University found that voting by mail did not advantage either party and might increase voter turnout for both parties.

But there are different worries. The rush to accommodate remote voting is leading a small number of states to experiment with or expand online voting, an approach the Department of Homeland Security deemed “high risk” in a report last month. It has also put renewed focus on the assortment of online state voter registration systems, which were among the chief targets of Russian hackers in 2016. Their security is central to ensuring that, come November, voters actually receive their mail-in ballots or can gain access to online voting.

While Russian hackers stopped short of manipulating voter data in 2016, American officials determined the effort was likely a dry run for future interference. To head off that threat, last summer the Department of Homeland Security hired the RAND Corporation to re-evaluate the nation’s election vulnerabilities, from poll booths to the voter registration systems. RAND’s findings only heightened the longstanding fears of government officials: State and local registration databases could be locked by hackers demanding ransomware or manipulated by outside actors.

ImageWestlake Legal Group 07cybervote2-articleLarge Amid Pandemic and Upheaval, New Cyber Risks to the Presidential Election Voter Registration and Requirements Voter Fraud (Election Fraud) Russian Interference in 2016 US Elections and Ties to Trump Associates Presidential Election of 2020 elections Cyberwarfare and Defense Coronavirus (2019-nCoV) Computers and the Internet absentee voting
Credit…Pool photo by Tom Williams

Homeland Security officials have been focusing “intensely on hardening registration systems,” said Christopher C. Krebs, who leads the department’s Cybersecurity and Infrastructure Security Agency. He said his teams had been working to make sure that towns, counties and states patch software vulnerabilities, back up their systems and also have paper printouts of poll books — the registration lists used on Election Day — should criminals or adversary nations render the digital versions inaccessible.

Now the problem has grown more complex as states around the country race to accommodate mail-in voting even for those who are not away from home. And courts are intervening with contradictory rulings, many of which are being appealed, adding to the sense of chaos and uncertainty about what procedures will be used on Nov. 3.

Mr. Krebs’s agency is also concerned about vulnerabilities surrounding internet voting that Delaware, West Virginia and other states are using. In May, it issued a confidential report to voting vendors and election officials in all 50 states opposing online voting, warning that ballots “could be manipulated at scale,” meaning hackers could change large volumes of votes undetected.

Separately, researchers at the University of Michigan and M.I.T. released a study on Sunday concluding that one platform already facilitating internet and remote voting could, in certain cases, be manipulated to alter votes — without being detected by the voter, election officials or the company that owns it.

The platform, called OmniBallot, was used for internet voting in Delaware’s primary last week and will be used to a smaller extent in West Virginia’s this week. Both states also plan to use it in some form come November, as does Colorado. (New Jersey quietly used it experimentally last month in local elections.)

Various jurisdictions in Colorado, Florida, Oregon, Ohio and Washington also use the platform as a way for voters to mark ballots remotely and submit them by email, fax or mail.

The researchers discovered that both uses of the system presented opportunities for hackers or nation states to compromise an election.

“Online voting raises such severe risks that, even in a time of unrest and pandemic, these jurisdictions are taking a major risk of undermining the legitimacy of their election results,” said one of the researchers, J. Alex Halderman, a computer science professor at Michigan.

Bryan Finney, chief executive of Democracy Live, which offers OmniBallot, defended the platform, saying that before the pandemic it primarily served voters with disabilities and American service members overseas. “No technology is bulletproof,” he said. “But we need to be able to enfranchise the disenfranchised.”

Mail-in ballots, like the one President Trump used to vote in Florida’s primary in March, also depend on the safety and security of state and federal registration systems. Before the pandemic, officials were mainly focused on securing voting machines and databases, and putting new audit controls in place.

But now the virus has forced states to overhaul their plans to accommodate an expected deluge of the ballots, and nearly every state not blocked by a legal or legislative challenge is racing to expand vote-by-mail for November.

In Texas, the state Supreme Court blocked the expansion of mail-in ballots last month. On Thursday, Ohio lawmakers approved a Republican bill that makes voting by mail more difficult, removing prepaid postage and cutting in half the time to request an absentee ballot. And in Tennessee, the Republican secretary of state pledged to fight a court ruling Thursday that would allow voting by mail across the state.

Credit…Matt Slocum/Associated Press

Many election officials are now struggling to ensure ballots are mailed and returned securely. In 31 states, voter signatures must be verified. In the past, this task was performed by trained specialists, but larger counties are increasingly relying on signature-verification software that security experts fear could be exploited to disenfranchise voters.

The threat of foreign interference remains real. American officials have repeatedly warned that Russia is once again meddling in the presidential election. Last month, the National Security Agency warned that Russian state hackers had targeted an email program used by dozens of congressional candidates to steal emails, as Russian hackers also did four years ago.

On Thursday, Google said Chinese hackers were targeting the personal email accounts of campaign staff members working for former Vice President Joseph R. Biden Jr. It also confirmed reports that Iran had targeted Mr. Trump’s campaign.

But the White House, where Mr. Trump continues to dismiss the hacking accusations against Russia in the last election, has directed little attention to the problems beyond the president’s unfounded claims that mail-in ballots favor Democrats and “will lead to massive fraud and abuse.” (In fact, mail-in ballots create a paper trail that helps prevent abuse.)

Even the perception of vulnerabilities could have a profound impact on the actual vote, security specialists warn. It could raise doubts about the election’s integrity, at a moment when Mr. Trump’s critics allege he is already preparing the ground to challenge the result if he loses.

In a reference last month to a California congressional election, the president warned without offering any evidence that “it’s all rigged out there,” an assertion he also made when campaigning in 2016.

Mr. Biden, who advocates remote voting because of the virus’s health risks, has suggested Mr. Trump is sowing uncertainty because he may try to delay the election. And other Democrats have raised the possibility that Mr. Trump would not accept the results if he were to lose in November.

Credit…Al Drago for The New York Times

Robert O’Brien, the president’s national security adviser, dismissed those concerns last week on CBS’s “Face the Nation.” “Elections are going to take place on Election Day, there is no question,” he said, insisting that “we have a very strong infrastructure” at the White House on election security, including “the ballots, the voting machines, the secretary of state websites,” where registration data is held.

Harri Hursti, an election security expert who consults with states and counties across the country, said, “Elections are not really about the winners.” He added, “They are about conducting elections in such a way that the losers accept that the result is fair.”

It was four years ago this month when officials in Arizona discovered that election officials’ passwords had been stolen, one of the first indications that the 2016 election was under cyberattack.

Studies led by the Department of Homeland Security and the F.B.I. later said that Russia had most likely conducted research and reconnaissance against election networks in all 50 states.

The integrity of the November election hinges on the same registration systems, which are “public-facing” — connected to the internet and accessible to a wide variety of state and county officials and often the companies they hire to run their election systems. But that access also leaves them open to potential attack.

A well-known threat comes from ransomware, when an invasion of a computer system locks up records, making them inaccessible. Atlanta and Baltimore have been hit by devastating attacks that made it impossible to pay parking tickets or record deeds, and towns from Florida to Texas have also been paralyzed with ransomware.

For elections, there is a separate concern that hackers, short of shutting down a system, could undermine the integrity of voter information.

If hackers slip into voter registration lists and modify addresses, or falsely indicate that voters moved out of state, the result could be digital disenfranchisement. Even just getting into the lists — without manipulating them — hackers could seed doubts of tampering. That may explain why Russian hackers made a show of stealing Illinois voter data in 2016, according to D.H.S. officials, even though they didn’t tamper with it.

“As we looked out across the country and saw ransomware running wild across state and local government agencies, it was reasonable to conclude that voter registration databases, highly networked and highly centralized, could be next,” said Mr. Krebs, the Homeland Security cyber chief. States have “stepped up” over the past year, he added.

Indeed, security is now better across the country, but voter registration data is still vulnerable and accessible to the outside world.

Credit…Jonathan Ernst/Reuters

Some states and counties manage their registration systems internally, but many rely on a maze of private contractors that can be ripe targets. The firms retrieve the data over the internet and keep it in the cloud, often with limited security. In 2016, one contractor, VR Systems, was targeted by Russian hackers, according to aclassified assessment by the National Security Agency. The company, which has long maintained that any attacks were unsuccessful, had access to registration data in swing states like North Carolina, Florida and Virginia.

“Most people don’t realize how many times registration systems are accessed by vendors and parties with little security,” said Mr. Hursti, the security consultant. “The justification for this is that it is public data, so nobody can steal it, but that ignores how dangerous it would be if someone modifies it.”

The problem was illustrated in two states in recent weeks.

Two thousand voters in Pennsylvania received the wrong ballots for the state’s June 2 primary because of an error at a company that mails ballots for Montgomery County. And in New Jersey, a software malfunction delayed ballots to military and overseas voters for that state’s primary in July.

Election officials and vendors in both states caught the glitches, but security experts warn that malicious hackers could exploit such lapses in November.

The transparency of the information helps authorities catch bad actors, but “the vulnerabilities are real,” said Eric Rosenbach, who runs Harvard’s Defending Digital Democracy project, which is working with election officials to secure voting.

Before the coronavirus outbreak, the advantages of online voting were obvious for Americans with disabilities, those living abroad, military personnel posted to remote locations — even Alaskans living in the wilderness.

But the risks were made vivid a decade ago in Washington. An online voting experiment was called off after researchers hacked the system to elect HAL 9000 — the computer from the movie “2001: A Space Odyssey” — and played the University of Michigan fight song every time a ballot was cast.

The experimenting is back, but once again it is not going well. New Jersey is a case in point.

In April, with the virus sweeping the state, officials moved quickly to expand mail-in voting. But they also decided to explore online voting by hiring Democracy Live, whose OmniBallot system was identified by Michigan and M.I.T. researchers as vulnerable to undetected hacking.

New Jersey officials made the online voting available to county clerks for municipal and school board elections last month, but did not publicize it widely for fear of inviting trouble.

“We didn’t want to put out an explanation for potential bad guys to decide that this was something they wanted to exploit,” said Alicia D’Alessandro, spokeswoman for New Jersey’s secretary of state.

The result: Just one voter used the online system. The cost to the state: $89,000, and still no real test of whether it works or not.

New Jersey will not repeat the experiment for its July primary, and has not yet decided what it will do in November, officials said. A lawsuit is attempting to block further online voting in the state, claiming it is susceptible to hackers.

Delaware, also citing the pandemic, recently announced it would make online voting available to voters who were sick or in quarantine. And West Virginia said it would allow online voting by some residents with disabilities, military personnel and overseas residents, as it has since 2018. And in emergency cases, Colorado will allow some voters to submit ballots electronically, it announced last week.

Like New Jersey, Delaware, West Virginia and Colorado have contracted with Democracy Live.

Mr. Halderman of Michigan and Michael A. Specter, a researcher at M.I.T., determined that Democracy Live’s online voting and ballot-marking systems could not withstand concerted hacking attempts, and also presented privacy concerns.

The researchers reported that ballots could be manipulated to change votes and that, in some cases, the company’s servers received voters’ identifying information.

“Democracy Live is getting a database of how every single voter voted,” Mr. Specter said. “What if that ends up in bad hands?”

The report concluded that while OmniBallot’s mail-in option was reasonably secure, the online options represented “a high risk to election integrity and could allow attackers to alter election results without detection.”

Mr. Finney, the Democracy Live executive, said the company never shares or sells voter data. He also said voters concerned with online security always have the option to print and mail their ballots, something Mr. Halderman recommended as prudent.

Mr. Finney said Democracy Live’s security had been previously vetted in two reviews he could not share publicly and noted that OmniBallot had been used in over 1,000 elections over the past decade, without security issues.

Earlier this year, a team of researchers from M.I.T., including Mr. Specter, found similar problems with Voatz, another app-based voting platform. Voatz insists its system is secure.

Warnings about turning to online voting too quickly have also come from countries that use it successfully. Kersti Kaljulaid, Estonia’s president, noted last month that her country had moved to electronic ballots only after an ambitious project — known as E-Estonia — to secure 1.3 million Estonians’ digital identities.

“You need to make sure you have perfect understanding of everyone’s identity first,” she said.

No such system exists in any American state. So election officials, faced with the pandemic and an immutable general election date, are trying to make do.

In New Jersey, before the pandemic, “we ran drills on all different kinds of scenarios that could disrupt our election,” said Ms. D’Alessandro.

“We even had a scenario that dealt with a public health crisis,” she continued. “But I can tell you that simulating a measles outbreak in two towns does not prepare you for a global pandemic.”

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Democrats’ Vote-By-Mail Effort Won in Wisconsin: Will It Work Elsewhere?

Westlake Legal Group 13wisconsin-results2-facebookJumbo Democrats’ Vote-By-Mail Effort Won in Wisconsin: Will It Work Elsewhere? Wisconsin Republican Party Kelly, Daniel (1964- ) Karofsky, Jill elections Democratic Party Coronavirus (2019-nCoV) absentee voting

It was a shocking margin of victory in what was expected to be a close race: an 11-point blowout by a liberal judge over a conservative incumbent for a seat on the Wisconsin Supreme Court.

Now Wisconsin Democrats are working to export their template for success — intense digital outreach and a well-coordinated vote-by-mail operation — to other states in the hope that it will improve the party’s chances in local and statewide elections and in the quest to unseat President Trump in November.

Their top officials have gone on a virtual nationwide tour, extolling the virtues of their digital campaign efforts in hopes Democrats and liberal activists elsewhere can replicate their victory, when Jill Karofsky, a liberal judge, ousted State Supreme Court Justice Daniel Kelly.

The first chance comes Tuesday in a special election for a Republican-heavy House district that covers the northern third of the state. It is the nation’s first partisan contest since Wisconsin’s April 7 election, and it will provide more evidence as to whether Democratic vote-by-mail success in that race is repeatable.

State party officials have spoken regularly with counterparts in other states, addressed a national virtual gathering of union activists and wrote a public memo with Stacey Abrams’s Fair Fight Action detailing lessons learned that can be applied elsewhere.

“You do get to learn from these things,” said Ramsey Reid, the battleground states director for the Democratic National Committee, who has facilitated calls between Wisconsin officials and their counterparts in other states. “You get to train more volunteers, you get to build habits around voters and apply lessons learned to states that have challenges.”

While officials are publicly bragging about tactics like video calls with voters who need hand-holding to navigate often-cumbersome absentee ballot request forms, they’ve been more circumspect about efforts they’ve employed in the event of a narrow defeat.

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In Wisconsin, Georgia, Pennsylvania and other states with upcoming June primary elections, state parties, along with Ms. Abrams’s organization, are collecting hundreds of legal affidavits from Democratic voters who have trouble acquiring and casting a ballot. The documents are intended to be used for court battles ahead of the November general election — and in Wisconsin that tactic would have been employed to challenge the results of the Supreme Court race had the conservative candidate prevailed.

Like in Wisconsin, Democrats in other battleground states with virtually no history of mail voting have for now shifted overnight to an all-mail get-out-the-vote effort. President Trump, on the other hand, has repeatedly attacked mail voting, and Republicans have said they would push ahead with plans to limit its expansion in Michigan, Minnesota and other key states.

In Georgia, more than 1.2 million people have requested absentee ballots for the state’s June 9 primary — compared to just 36,200 requests for the 2016 presidential primary. Nearly as many Georgians have applied to vote by mail in the Democratic primary as cast ballots in the party’s 2016 contest, when there were still competitive races for both parties’ nominations.

New Hampshire has no history of significant numbers of voting by mail. The state has no online portal to request an absentee ballot — some municipal clerks accept requests via email while others do not. Democratic Party officials have been warned by their Wisconsin counterparts that, if hundreds of thousands of voters seek to vote by mail, local clerks will quickly become overwhelmed by the volume.

“The New Hampshire Democratic Party has always run a voter protection hotline on Election Day and the few days before, but we are going to need to have that running for a much longer period of time,” said Liz Wester, the director of the New Hampshire Democrats’ coordinated campaign, who has spoken extensively with officials in Wisconsin since April 7. “It will be for months.”

And Pennsylvania Democrats have found themselves struggling to convince wary voters that sending ballots through the mail is safe.

“There is something about voting on Election Day,” said Sinceré Harris, the executive director of the Pennsylvania Democratic Party. “It’s something they’ve known, they’re comfortable doing it, especially in the African-American community, you can count on it. There’s a little hesitancy when it comes to the mail system.”

Last month in Wisconsin, a New York Times analysis found that Ms. Karofsky, the liberal candidate in the state’s nonpartisan Supreme Court race, performed about 10 percentage points better in mail voting than she did at the polls, suggesting Democratic voters were more likely than Republicans to request and return absentee ballots.

Republicans who control the state legislature have refused to allow all-mail elections, despite the pandemic. Health officials in Milwaukee said this week that 26 voters may have contracted the coronavirus while voting in April though the study said it was unclear precisely how they became infected.

The first test of whether Wisconsin Democrats’ April 7 methods can be repeated comes Tuesday, in the special House election that pits the Democrat Tricia Zunker, a school board president from Wausau who is an associate justice on the Ho-Chunk Nation Supreme Court, against Tom Tiffany, a two-term Republican state senator who has campaigned as a supporter of President Trump.

Officials say the contest is less about which candidate will hold the seat for eight months — the two candidates are expected to face off again in November for a full two-year term — than it is an exercise in training volunteers and voters in how to vote by mail. Each of the 110,000 voters who requested an absentee ballot for the Tuesday election had the chance to opt in to receive a mail ballot for the November general election. It’s not known how many Wisconsin voters have already requested ballots for November, a spokesman for the Wisconsin Elections Commission said.

“Our county only had four cases of Covid-19 and I think they are recovered by now,” said Jim Kurz, the Democratic Party chairman in Rusk County. “Most other counties in this district also had few cases, so I don’t think fear of disease will keep voter turnout down.”

Neither party considers the Wisconsin congressional election to be one Democrats have much chance of winning — both Democratic and Republican internal polling shows Mr. Tiffany with a double-digit advantage — but the margin between the two candidates could serve as an indicator of the state of the two parties’ enthusiasm.

In 2016, President Trump carried the district by 20 percentage points. But in last month’s Supreme Court race, the conservative candidate won the district by just 6 points while losing statewide by 11, according to an analysis by the University of Virginia’s Center for Politics.

Like the April 7 election, Tuesday’s special election will take place with polling places open across the district’s 700 municipalities in 26 counties. The Wisconsin National Guard will once again dispatch its members to help communities staff poll sites.

Mr. Tiffany, a two-term state senator who works as a dam tender on the Willow Flowage in northern Wisconsin, served as a poll worker during the April 7 election and said voters across the congressional district are less afraid of contracting and spreading the coronavirus than their counterparts in the state’s urban centers to the south.

“People in the cities and suburban areas tend to vote more absentee,” he said. “With this being a more rural district, you’ll probably see fewer absentees than you did in the April 7 election.”

Ms. Zunker had put thousands of miles on her car driving across the 26-county district before travel and public gatherings were restricted. Her campaign manager only moved to Wausau three days before Gov. Tony Evers of Wisconsin implemented the state’s Safer at Home ordinance that effectively ended all in-person campaigning.

She painted her race Tuesday as the first step toward former Vice President Joseph R. Biden Jr. carrying Wisconsin in November.

“When we put this seat back to blue, the state is blue again. The pathway to winning the presidential race starts on May 12,” Ms. Zunker said in an interview last week.

Anything less than a double-digit victory for Mr. Tiffany will be seen as yet another indicator of Democratic momentum in what is certain to be among the most contested states on the presidential map.

“The district is loaded with people who became tired of being looked down upon by urban people and so that has been exploitable by the Republican candidates in the past three elections or so,” said David R. Obey, a Democrat who represented northern Wisconsin in Congress for 42 years before retiring after the 2010 election. “Trump, he turns the dial a little bit, and I just don’t know how much.”

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Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots

Westlake Legal Group 09wisconsin-facebookJumbo Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots Wisconsin Presidential Election of 2020 Postal Service and Post Offices elections Coronavirus (2019-nCoV) absentee voting

Three tubs of absentee ballots that never reached voters were discovered in a postal center outside Milwaukee. At least 9,000 absentee ballots requested by voters were never sent, and others recorded as sent were never received. Even when voters did return their completed ballots in the mail, thousands were postmarked too late to count — or not at all.

Cracks in Wisconsin’s vote-by-mail operation are now emerging after the state’s scramble to expand that effort on the fly for voters who feared going to the polls in Tuesday’s elections. The takeaways — that the election network and the Postal Service were pushed to the brink of their capabilities, and that mistakes were clearly made — are instructive for other states if they choose to broaden vote-by-mail methods without sufficient time, money and planning.

More than 860,000 completed absentee ballots had been returned by Tuesday, already a record for Wisconsin spring elections. But for thousands of other voters, who never received their ballots, there was only one recourse: putting their health at risk and defying a stay-at-home order to vote in person during the coronavirus pandemic. Many chose not to show up.

Federal health officials have suggested that expanding voting by mail could help reduce crowds at polling places and therefore make elections safer amid the outbreak. The issues that have arisen in Wisconsin offer a warning for other states of the potential pitfalls of a rapid, last-minute expansion of absentee balloting, particularly one marred by a flurry of court challenges and 11th-hour rulings that created confusion and chaos.

The mix of missing and mismarked ballots suggests that thousands of Wisconsin voters were effectively disenfranchised, an issue that Justice Ruth Bader Ginsburg warned of in her dissent to a Supreme Court decision on Monday that blocked extended absentee balloting in the state. Tens of thousands of people who did not receive their ballots in time, Justice Ginsburg wrote, “will be left quite literally without a vote.”

But many Republicans, and even some Democrats, have continued to cast concerns on the security and veracity of vote-by-mail systems, especially ones expanded so rapidly.

“It’s a harder system to administer, and obviously it’s a harder system to police writ large,” Gov. Andrew M. Cuomo, Democrat of New York, said in a radio interview on Thursday, when asked about the downsides to expanding voting by mail. “People showing up, people actually showing ID, is still the easiest system to assure total integrity.”

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In Wisconsin, the missing votes could also portend a long legal battle over the results; one race on Tuesday’s ballot was a hotly contested State Supreme Court seat that, in a normal election, was expected to be extremely close. The margin in the state’s 2019 Supreme Court race was about 6,000 votes.

“This has all the makings of a Florida 2000 if we have a close race,” said Gordon Hintz, the Democratic minority leader in the Wisconsin State Assembly. Mr. Hintz, who lives in Oshkosh, was one of the voters who never received his absentee ballot — even though the state’s website said it had been mailed to him. He chose not to vote in person.

Others in Mr. Hintz’s district may have encountered the same problem. On Tuesday, calls began flooding the office of Dan Feyen, the state senator whose district includes Oshkosh, from voters saying they never received their ballots, even though they were told their ballots had been sent out. Nearly every one of those voters had requested their ballots on one of three dates: March 18, March 22 and March 23, more than two weeks before the election.

Mr. Feyen, a Republican, filed a complaint with the Wisconsin Elections Commission, asking it to investigate. He also wants those voters to be given a chance to fill out and return ballots.

On Wednesday, the commission received a phone call from a postal worker in Milwaukee who said three bins of absentee ballots had been located that had never reached their destinations, mostly in Oshkosh and nearby Appleton. The number of ballots in the bins was not clear.

A spokeswoman for the Postal Service, Martha Johnson, said Thursday that officials were “aware of potential issues with absentee ballots in Wisconsin and are currently conducting an investigation into the claims.”

Meagan Wolfe, the elections commission’s administrator, said she did not think the U.S. Supreme Court decision left any room for ballots to be counted if they were not postmarked by Tuesday’s deadline. “There really isn’t any additional things for this election that a voter could do if their ballot didn’t make it by the deadline,” she said in a news conference on Wednesday.

Many of the complaints from voters came from the Oshkosh and Appleton areas, but voters from all over the state said they had not received the absentee ballots they requested.

Dianne Ostrowski of Waukesha, about 20 miles west of Milwaukee, said she had filed an online request for an absentee ballot but never received one.

“I’m talking via Facebook with my family in Madison. Same thing. They never got their ballot either,” said Ms. Ostrowski, who is retired from the financial services industry. Madison, the capital, is more than an hour west of Waukesha.

Tamera Goodwin and her husband, who live in Madison, also said they hadn’t received ballots. “I was looking all over the place, I was looking on the news, Facebook, my state assemblyman’s page, talking to neighbors at a distance, but everyone was confused,” Ms. Goodwin said. “None of us has gotten our ballots and none of us had clarity of where to go.”

Lacking other options, Ms. Goodwin and her husband went to vote in person on Tuesday.

In Racine, about 40 minutes south of Milwaukee, Dawn and Jeff Loken, also retired, complained that they did not receive their ballots. The two Democrats finally trudged to the polls Tuesday night, not to be deterred by what Mr. Loken, who describes himself as a “die-hard Democrat” viewed as an intentional effort by Republicans to suppress his vote. (State Republican lawmakers rebuffed the Democratic governor’s request to postpone the election.)

Some absentee voters who received their ballots and mailed them back in time are running into a separate issue: postmarking.

After much legal wrangling over this year’s absentee ballot deadlines, the Supreme Court’s decision held that ballots must be postmarked by Election Day to count. But in at least one city, Madison, a number of ballots received by the clerk were never even postmarked to begin with.

“We are still receiving mail now from the post office, and about half of it is postmarked,” said Maribeth Witzel-Behl, the city clerk. “It’s probably by now a couple thousand that we’ve received from the post office with no postmark.”

She said her office is dating the ballots with its own stamp as soon as they arrive, and is working with the city attorney to determine what to do with them.

Even when postmarks are applied, they can prove problematic, particularly for some rural voters. Michelle Schwenneker, who lives in rural Jackson County, said that the mail truck in her town comes once a day, at 7:30 a.m., so if she put her ballot in the mailbox on Election Day it wouldn’t be postmarked in time.

“For me, basically, mailing your ballot and having it postmarked are basically two different things,” said Ms. Schwenneker.

With ballots still trickling in and results yet to be released, there has been no major legal challenge to Tuesday’s election. But activist groups and election lawyers in Wisconsin are still reviewing their options and monitoring reports of missing ballots.

Even in states that already vote entirely by mail, lost ballots can plague a system. In Colorado, Secretary of State Jena Griswold excoriated the Postal Service last November after 828 ballots arrived in Denver-area mailboxes on the afternoon of a tight mayoral race in suburban Aurora — too late for many people to vote.

But perhaps nothing presented as great a challenge for Wisconsin as the vast expansion of the absentee system in such a short period of time. More than 1.2 million ballots were requested this year; only about 250,000 were issued in Wisconsin’s 2016 spring election.

Kim Wyman, the secretary of state in Washington, a mail-voting state, said it is important for elections officials to work with local postal systems to make sure they can handle the sudden increase in volume.

“These states are going from 0 to 100,” she said.

Isabella Grullón Paz contributed reporting.

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Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots

Westlake Legal Group 09wisconsin-facebookJumbo Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots Wisconsin Presidential Election of 2020 Postal Service and Post Offices elections Coronavirus (2019-nCoV) absentee voting

Three tubs of absentee ballots that never reached voters were discovered in a postal center outside Milwaukee. At least 9,000 absentee ballots requested by voters were never sent, and others recorded as sent were never received. Even when voters did return their completed ballots in the mail, thousands were postmarked too late to count — or not at all.

Cracks in Wisconsin’s vote-by-mail operation are now emerging after the state’s scramble to expand that effort on the fly for voters who feared going to the polls in Tuesday’s elections. The takeaways — that the election network and the Postal Service were pushed to the brink of their capabilities, and that mistakes were clearly made — are instructive for other states if they choose to broaden vote-by-mail methods without sufficient time, money and planning.

More than 860,000 completed absentee ballots had been returned by Tuesday, already a record for Wisconsin spring elections. But for thousands of other voters, who never received their ballots, there was only one recourse: putting their health at risk and defying a stay-at-home order to vote in person during the coronavirus pandemic. Many chose not to show up.

Federal health officials have suggested that expanding voting by mail could help reduce crowds at polling places and therefore make elections safer amid the outbreak. The issues that have arisen in Wisconsin offer a warning for other states of the potential pitfalls of a rapid, last-minute expansion of absentee balloting, particularly one marred by a flurry of court challenges and 11th-hour rulings that created confusion and chaos.

The mix of missing and mismarked ballots suggests that thousands of Wisconsin voters were effectively disenfranchised, an issue that Justice Ruth Bader Ginsburg warned of in her dissent to a Supreme Court decision on Monday that blocked extended absentee balloting in the state. Tens of thousands of people who did not receive their ballots in time, Justice Ginsburg wrote, “will be left quite literally without a vote.”

But many Republicans, and even some Democrats, have continued to cast concerns on the security and veracity of vote-by-mail systems, especially ones expanded so rapidly.

“It’s a harder system to administer, and obviously it’s a harder system to police writ large,” Gov. Andrew M. Cuomo, Democrat of New York, said in a radio interview on Thursday, when asked about the downsides to expanding voting by mail. “People showing up, people actually showing ID, is still the easiest system to assure total integrity.”

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In Wisconsin, the missing votes could also portend a long legal battle over the results; one race on Tuesday’s ballot was a hotly contested State Supreme Court seat that, in a normal election, was expected to be extremely close. The margin in the state’s 2019 Supreme Court race was about 6,000 votes.

“This has all the makings of a Florida 2000 if we have a close race,” said Gordon Hintz, the Democratic minority leader in the Wisconsin State Assembly. Mr. Hintz, who lives in Oshkosh, was one of the voters who never received his absentee ballot — even though the state’s website said it had been mailed to him. He chose not to vote in person.

Others in Mr. Hintz’s district may have encountered the same problem. On Tuesday, calls began flooding the office of Dan Feyen, the state senator whose district includes Oshkosh, from voters saying they never received their ballots, even though they were told their ballots had been sent out. Nearly every one of those voters had requested their ballots on one of three dates: March 18, March 22 and March 23, more than two weeks before the election.

Mr. Feyen, a Republican, filed a complaint with the Wisconsin Elections Commission, asking it to investigate. He also wants those voters to be given a chance to fill out and return ballots.

On Wednesday, the commission received a phone call from a postal worker in Milwaukee who said three bins of absentee ballots had been located that had never reached their destinations, mostly in Oshkosh and nearby Appleton. The number of ballots in the bins was not clear.

A spokeswoman for the Postal Service, Martha Johnson, said Thursday that officials were “aware of potential issues with absentee ballots in Wisconsin and are currently conducting an investigation into the claims.”

Meagan Wolfe, the elections commission’s administrator, said she did not think the U.S. Supreme Court decision left any room for ballots to be counted if they were not postmarked by Tuesday’s deadline. “There really isn’t any additional things for this election that a voter could do if their ballot didn’t make it by the deadline,” she said in a news conference on Wednesday.

Many of the complaints from voters came from the Oshkosh and Appleton areas, but voters from all over the state said they had not received the absentee ballots they requested.

Dianne Ostrowski of Waukesha, about 20 miles west of Milwaukee, said she had filed an online request for an absentee ballot but never received one.

“I’m talking via Facebook with my family in Madison. Same thing. They never got their ballot either,” said Ms. Ostrowski, who is retired from the financial services industry. Madison, the capital, is more than an hour west of Waukesha.

Tamera Goodwin and her husband, who live in Madison, also said they hadn’t received ballots. “I was looking all over the place, I was looking on the news, Facebook, my state assemblyman’s page, talking to neighbors at a distance, but everyone was confused,” Ms. Goodwin said. “None of us has gotten our ballots and none of us had clarity of where to go.”

Lacking other options, Ms. Goodwin and her husband went to vote in person on Tuesday.

In Racine, about 40 minutes south of Milwaukee, Dawn and Jeff Loken, also retired, complained that they did not receive their ballots. The two Democrats finally trudged to the polls Tuesday night, not to be deterred by what Mr. Loken, who describes himself as a “die-hard Democrat” viewed as an intentional effort by Republicans to suppress his vote. (State Republican lawmakers rebuffed the Democratic governor’s request to postpone the election.)

Some absentee voters who received their ballots and mailed them back in time are running into a separate issue: postmarking.

After much legal wrangling over this year’s absentee ballot deadlines, the Supreme Court’s decision held that ballots must be postmarked by Election Day to count. But in at least one city, Madison, a number of ballots received by the clerk were never even postmarked to begin with.

“We are still receiving mail now from the post office, and about half of it is postmarked,” said Maribeth Witzel-Behl, the city clerk. “It’s probably by now a couple thousand that we’ve received from the post office with no postmark.”

She said her office is dating the ballots with its own stamp as soon as they arrive, and is working with the city attorney to determine what to do with them.

Even when postmarks are applied, they can prove problematic, particularly for some rural voters. Michelle Schwenneker, who lives in rural Jackson County, said that the mail truck in her town comes once a day, at 7:30 a.m., so if she put her ballot in the mailbox on Election Day it wouldn’t be postmarked in time.

“For me, basically, mailing your ballot and having it postmarked are basically two different things,” said Ms. Schwenneker.

With ballots still trickling in and results yet to be released, there has been no major legal challenge to Tuesday’s election. But activist groups and election lawyers in Wisconsin are still reviewing their options and monitoring reports of missing ballots.

Even in states that already vote entirely by mail, lost ballots can plague a system. In Colorado, Secretary of State Jena Griswold excoriated the Postal Service last November after 828 ballots arrived in Denver-area mailboxes on the afternoon of a tight mayoral race in suburban Aurora — too late for many people to vote.

But perhaps nothing presented as great a challenge for Wisconsin as the vast expansion of the absentee system in such a short period of time. More than 1.2 million ballots were requested this year; only about 250,000 were issued in Wisconsin’s 2016 spring election.

Kim Wyman, the secretary of state in Washington, a mail-voting state, said it is important for elections officials to work with local postal systems to make sure they can handle the sudden increase in volume.

“These states are going from 0 to 100,” she said.

Isabella Grullón Paz contributed reporting.

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Facebook, Google and Twitter Struggle to Handle November’s Election

Westlake Legal Group 12election-tech-facebookJumbo Facebook, Google and Twitter Struggle to Handle November’s Election Zuckerberg, Mark E YouTube.com United States Politics and Government twitter Social Media Russian Interference in 2016 US Elections and Ties to Trump Associates Rumors and Misinformation Primaries and Caucuses Presidential Election of 2020 Presidential Election of 2016 Political Advertising Online Advertising Google Inc Facebook Inc elections Cyberwarfare and Defense

SAN FRANCISCO — The day after the New Hampshire primary last month, Facebook’s security team removed a network of fake accounts that originated in Iran, which had posted divisive partisan messages about the U.S. election inside private Facebook groups.

Hours later, the social network learned the campaign of Michael R. Bloomberg, the billionaire former New York mayor, had sidestepped its political ad process by directly paying Instagram meme accounts to post in support of his presidential bid.

That same day, a pro-Trump group called the Committee to Defend the President, which had previously run misleading Facebook ads, was found to be promoting a photo that falsely claimed to show Bernie Sanders supporters holding signs with divisive slogans such as “Illegal Aliens Deserve the Same as Our Veterans.”

Facebook, Twitter, Google and other big tech companies have spent the past three years working to avoid a repeat of 2016, when their platforms were overrun by Russian trolls and used to amplify America’s partisan divide. The internet giants have since collectively spent billions of dollars hiring staff, fortifying their systems and developing new policies to prevent election meddling.

But as the events of just one day — Feb. 12 — at Facebook showed, although the companies are better equipped to deal with the types of interference they faced in 2016, they are struggling to handle the new challenges of 2020.

Their difficulties reflect how much online threats have evolved since the 2016 election. Russia and other foreign governments once conducted online influence operations in plain sight, buying Facebook ads in rubles and tweeting in broken English, but they are now using more sophisticated tactics such as bots that are nearly impossible to distinguish from hyperpartisan Americans.

More problematic, partisan groups in the United States have borrowed Russia’s 2016 playbook to create their own propaganda and disinformation campaigns, forcing the tech companies to make tough calls about restricting the speech of American citizens. Even well-funded presidential campaigns have pushed the limits of what the platforms will allow.

“They’ve built defenses for past battles, but are they prepared for the next front in the war?” Laura Rosenberger, the director of the Alliance for Securing Democracy, a think tank that works to counter foreign interference campaigns, said of the tech companies. “Anytime you’re dealing with a sophisticated actor, they’re going to evolve their tactics as you evolve your defenses.”

By most accounts, the big tech companies have gotten better at stopping certain types of election meddling, such as foreign trolling operations and posts containing inaccurate voting information. But they are reluctant to referee other kinds of social media electioneering for fear of appearing to tip the scales. And their policies, often created hastily while under pressure, have proved confusing and inadequate.

Adding to the companies’ troubles is the coronavirus pandemic, which is straining their technical infrastructure, unleashing a new misinformation wave and forcing their employees to coordinate a vast election effort spanning multiple teams and government agencies from their homes.

In interviews with two dozen executives and employees at Facebook, Google and Twitter over the past few months, many described a tense atmosphere of careening from crisis to crisis to handle the newest tactics being used to sow discord and influence votes. Many spoke on the condition of anonymity because they were not authorized to publicly discuss sensitive internal issues.

Some Facebook and Google employees said they feared being blamed by Democrats for a Trump re-election, while others said they did not want to be seen as acting in Democrats’ favor. Privately, some said, the best-case scenario for them in November would be a landslide victory by either party, with a margin too large to be pinned on any one tech platform.

Google declined to speak publicly for this article. Nathaniel Gleicher, Facebook’s head of cybersecurity policy, said the threats of 2016 were less effective now but “we’ve seen threat actors evolving and getting better.” Twitter also said the threats were a game of “cat and mouse.”

“We’re constantly trying to stay one step ahead,” said Carlos Monje Jr., Twitter’s director of public policy.

Mark Zuckerberg, Facebook’s chief executive, ordered a “lockdown” for hundreds of employees late last year.

A lockdown is Facebook-speak for a period of intense, focused effort on a high-priority project. The workers, who included engineers and policy employees, were ordered to drop other projects and build tools to prevent interference in the 2020 election, said two people with knowledge of the instructions.

For Mr. Zuckerberg, who once delegated the messy business of politics to his lieutenants, November’s election has become a personal fixation. In 2017, after the extent of Russia’s manipulation of the social network became clear, he vowed to prevent it from happening again.

“We won’t catch everyone immediately, but we can make it harder to try to interfere,” he said.

Facebook has since required anyone running U.S. political ads to submit proof of an American mailing address, and included their ads in a publicly searchable database. It has invested billions to moderate content, drawn up new policies against misinformation and manipulated media, and hired tens of thousands of safety and security workers.

In the 2018 midterm elections, those efforts resulted in a relatively scandal-free Election Day. But 2020 is presenting different challenges.

Last year, lawmakers blasted Mr. Zuckerberg for refusing to fact-check Facebook posts or take down false ads placed by political candidates; he said it would be an affront to free speech. The laissez-faire approach has been embraced by some Republicans, including President Trump, but has made Facebook unpopular among Democrats and civil rights groups.

Still, Facebook’s rank-and-file workers are cautiously optimistic. In late January, just before the Iowa caucuses, a group of employees gathered at the company’s headquarters for a party to celebrate the end of the lockdown.

For hours, they ate, drank, and watched a talent show featuring employee-led musical acts and improv comedy sketches. An Iowa state flag hung on the wall.

At one point, said two people who attended, a surprise guest entered: Mr. Zuckerberg, who stopped by to thank the team for its work.

Just after noon last Oct. 30, Jack Dorsey, Twitter’s chief executive, posted a string of 11 tweets to announce he was banning all political ads from the service.

“Paying to increase the reach of political speech has significant ramifications that today’s democratic infrastructure may not be prepared to handle,” he wrote.

His zero-tolerance move was one action that Twitter and companies like Google have taken to stave off another election crisis — or at least to distance themselves from the partisan fray.

Over the past year, Twitter has introduced automated systems to detect bot activity and has taken down Russian, Chinese, Venezuelan and Saudi bots. The company also prohibited users from posting information illegally obtained through a security breach.

And this month, Twitter enforced new guidelines to label or remove deceptively edited videos from its site.

“We’re moving away from a model of waiting for a report to spotting patterns of behavior that can spot stuff before it catches fire,” Mr. Monje said.

Google, which owns YouTube, also altered its policies to prevent foreign-backed disinformation campaigns and introduced transparency measures for political ads.

The changes are evident in how the Infowars conspiracy theorist Alex Jones and the Kremlin-linked news outlet RT — two of YouTube’s most popular political newscasters in 2016 — no longer wield outsize influence on the site. Once YouTube tightened its hate speech policies, it banned Mr. Jones and other repeat offenders, and tweaked its recommendation algorithm to promote more authoritative news and fewer conspiracy theories.

Google security engineers said they were embedded in every corner of the company to look for Russian-style influence campaigns. They deliver daily threat briefings to executives and are conducting “red-team” drills to practice responding to hypothetical election-meddling scenarios, like hackers potentially manipulating the Google Maps locations of polling places on voting day.

Yet gaps remain in the tech platforms’ armor.

Government officials and former employees said Twitter’s algorithms were not reliably distinguishing between bots and humans who simply tweet like bots. Its efforts to label manipulated media have been underwhelming, said election campaigns. And some Twitter employees tracking election threats have been pulled away to triage misinformation about the coronavirus, such as false claims about miracle cures.

Threats have also emerged in unexpected places. In December, The New York Times revealed foreign spies were hiding in plain sight inside app stores from Google and Apple. Millions of users worldwide had downloaded a popular app, ToTok, which was leaking audio, photos, texts, and contacts to United Arab Emirates intelligence officials through a network of Emirati contractors.

Apple removed ToTok, but Google reinstated the app two weeks later. For six more weeks, Emirati spies continued siphoning off Google users’ data, said security experts and intelligence officials.

Google, which declined to comment on ToTok, eventually removed it from its app store last month.

Tracing interference attempts to Russia, or any other country, has become increasingly difficult.

For Facebook, Google and Twitter, the complications were clear through the evolving tactics of Russia’s Internet Research Agency, the troll farm that meddled online in 2016. Its trolls once barely made any attempt to hide themselves online, with misspelled posts riddled with poor grammar.

Now the Russian group has better disguised itself, posting divisive messages stolen from American sites or publications. The trolls may now also be paying Americans to post information on their behalf, to better hide their digital tracks.

In one Facebook influence campaign in Africa last year, the Russian group appeared to pay locals to attend rallies and write favorable articles about its preferred candidates.

“Figuring out who is behind these campaigns can take months, years even,” said Yoel Roth, Twitter’s head of site integrity.

To connect the dots, security executives from Twitter, Google, Facebook, Yahoo and other companies said they were meeting regularly with the Department of Homeland Security, the F.B.I. and the Office of the Director of National Intelligence. They were also trading intelligence and discussing threats over encrypted chat messages with one another.

“I talk to them more than I talk to my husband,” Mr. Roth said of his counterparts at Facebook, Google and other companies.

The most divisive content this year may not come from Russian trolls or Macedonian teenagers peddling fake news for clicks, but from American politicians using many of the same tactics to push their own agendas.

One chief perpetrator? The White House.

Last month, Mr. Trump and other Republicans shared a video of Nancy Pelosi, the House speaker, during the president’s State of the Union address. Ms. Pelosi had ripped up a copy of Mr. Trump’s speech at the end of the address. But the video was edited so it appeared as if she had torn up the speech while he honored a Tuskegee airman and military families.

A spokesman for Ms. Pelosi called for the video to be removed from Facebook and Twitter, saying it was “deliberately designed to mislead and lie to the American people.” But the companies said the video did not violate their policies on manipulated media.

This month, Dan Scavino, the White House social media director, shared another selectively edited video. It showed former Vice President Joseph R. Biden Jr. appearing to say, “We can only re-elect Donald Trump.” In fact, the full video showed Mr. Biden saying Mr. Trump would only get re-elected if Democrats resorted to negative campaigning.

Facebook did not remove the video. By the time Twitter labeled it as manipulated, it had been viewed more than five million times. Because of a glitch, some Twitter users did not see the label at all.

“The Biden video wasn’t manipulated, and if Nancy Pelosi didn’t want to see video of herself ripping up the speech, she shouldn’t have ripped up the speech,” said Tim Murtaugh, a spokesman for the Trump re-election campaign. He suggested that Twitter’s efforts to label the video were evidence of bias.

Democrats have also pushed the envelope to get messages out on social media. Mr. Bloomberg’s presidential campaign, which he suspended this month, caused headaches for the tech platforms, even as they took in millions of dollars to run his ads.

Among his campaign’s innovations was buying sponsored posts from influential Instagram meme accounts and paying “digital organizers” $2,500 a month to post pro-Bloomberg messages on their social media accounts. The campaign also posted a video of Mr. Bloomberg’s presidential debate performance, which had been edited to create the impression of long, awkward silences by his opponents.

Some of the tactics seemed perilously close to violating the tech companies’ rules on undisclosed political ads, manipulated media and “coordinated inauthentic behavior,” a term for networks of fake or suspicious accounts acting in concert.

Facebook and Twitter scrambled to react, hastily patching together solutions, including requiring more disclosure — or taking no action at all.

By then, the Bloomberg campaign, which declined to comment, had set a new playbook for other campaigns to follow.

“We can’t blame Russia for all our troubles,” said Alex Stamos, Facebook’s former chief security officer who now researches disinformation at Stanford University. “The future of disinformation is going to be domestic.”

Inside the tech companies, people charged with protecting the election have at times clashed with those whose job is to keep lawmakers happy, partly by avoiding the appearance of partisan bias.

At Facebook, those tensions spilled out last year.

In November and December, members of Facebook’s security team clashed with the policy team, whose Washington-based leadership includes several former Republican operatives, over a network of Facebook accounts, groups and pages run by The Daily Wire, a right-wing media company started by the conservative pundit Ben Shapiro.

Facebook’s security team had found The Daily Wire and other similar networks used tactics commonly associated with disinformation networks, including coordinating messaging and posts without indicating they were centrally administered, said people with knowledge of the findings.

Some security team members wanted an expanded mandate to investigate hyperpartisan networks based in the United States, the people said. But the policy team discouraged them and made it clear that foreign influence operations took priority over domestic ones, they said.

Part of the policy team’s concern, said one employee who participated in the discussions, was that taking action against a prominent right-wing network could set off a Republican backlash.

Mr. Gleicher, of Facebook, said he did not recall tensions over The Daily Wire, adding that the investigation found the site did not meet the threshold for enforcement. He also disputed that Facebook had discouraged investigations into domestic influence operations because of possible political fallout.

“We make decisions based on behavior,” he said. “Whether it’s foreign or domestic, the question is, are they engaged in these consistent behaviors?”

The specter of partisan backlash surfaced again this month, when Mr. Trump’s re-election campaign ran Facebook ads asking people to take an “Official 2020 Congressional District Census.” In fact, the ads linked to a Trump campaign survey.

That prompted an uproar. Civil rights groups said the ads could mislead voters by suggesting they were connected to the official U.S. census.

Over a frenetic 48 hours, Facebook went into damage control. Although the social network has said it would not fact-check political ads, it also prohibits misinformation about the census.

The policy team initially decided the Trump census ads did not violate Facebook’s rules. But a day later, under fire for inaction, a senior Facebook executive reversed the call.

The ads came down, after all.

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Garvan Walshe: Coronavirus shows the decline of Western democratic culture. Rebuilding it will take hard work.

Garvan Walshe is a former national and international security policy adviser to the Conservative Party. He runs TRD Policy.

ConHome readers will remember the grammar schools row of 2007. David Willetts had persuaded the Conservatives to oppose new grammar schools, on the grounds that they were bad for social mobility. Many Tory members and MPs disagreed, however. I remember heated arguments at the Conservative Research Department, where I then worked, and getting incensed when told that “evidence-based policy” meant that a Conservative government should abandon its long-held principle of being in favour of academic selection.

In the grammar schools case, the evidence indeed was that they reduced social mobility – according to a definition created and popularised by opponents of grammar schools. The first response is to criticise the definition, and say it concealed matters of value behind matters of fact. Social mobility can be thought of in two ways. If it is derived by measuring the average collective attainment of children from different social backgrounds, then grammar schools work against it. If, instead, it is derived by considering the attainment of pupils who, thanks to academic selection, can get an education they would not otherwise have been able to afford, grammar schools boost social mobility.

Neither of these claims are actually pure fact (like the speed of light in a vacuum being 299,792,458 metres per second) or pure value (adultery is morally wrong). They’re conditional propositions: if you define social mobility in this way, grammar schools are bad for it; if you define it in the other way, they’re good for it. Most claims in public debate are like these, but seldom presented as such, because a policy’s advocates understandably prefer clarity over complexity.

This use of social science to reach firm policy conclusions, and shut down further debate by appealing to the authority of the “evidence”, as though political life were a form of mathematics, perhaps had its golden age between the collapse of the Soviet Union and 2016. Its exhaustion was evident in the Remain and Hillary Clinton campaigns. Clear messaging, it turned out, does’t need to be based on social scientific facts to be effective.

Vote Leave and Trump and also – very relevantly for the coronavirus – both Matteo Salvini and the Five Star movement in Italy understood how to defeat the tactic of presenting policy conclusions as evidence-based. Expose the sleight of hand, pump out clarity of your own and play to emotions. This is what Michael Gove was doing when he said the British people have had enough of experts.

Raising the tempo and heightening emotions, while disregarding evidence as tainted, is now mainstream across the political spectrum. Witness the speed with which edited footage of the Prime Minister which purports to have him say the coronavirus should be taken on the chin, whereas the full clip has him making the opposite point.

Salvini, unsurprisingly began by blaming “migrants”, and is now demanding the entirety of Europe subject itself to Italian-style lockdown measures. In reality, Italy’s outbreak occurred because there was insufficient testing and isolation in the early stages of the epidemic. Social distancing measures were applied in a manner that was both draconian and haphazard. Hospitals in the prosperous north of the country, where the outbreak is concentrated, are now under extreme pressure.

This contrasts sharply with South Korea’s high tech testing-focused strategy that stresses focused intervention, the use of technology to understand people’s movements and therefore trace potential infection routes, as well as aggressive testing. Early reports suggested Italy’s numbers were due to similarly high testing levels. This turns out to have been false. Italy has the same (low) testing level as the UK. Seoul also benefited from higher readiness because of their exposure to several epidemics originating in China, including SARS and bird flu, and so it was able to plan a modern response. Public health not being my expertise, it is better for me to focus on the politics. What’s been effective is South Korea’s approach to communication (as exemplified by this briefing to the foreign media), which is calm, sober, serious and detailed. It is designed to build up the trust necessary to limit an epidemic in an open society.

Unlike “evidence-based” arguments from authority, the South Korean approach explains not only the results, but how they were arrived at. And unlike Salvini, it is not looking to gain attention for itself by attributing blame (and though Beijing deserves blame, now is not the time to pin it on them). The contrast with Trump, who’s putting his own supporters in danger by minimising the risk, couldn’t be starker.

This should give us pause for thought about the importance not specifically of facts in political debate but of empiricism. An epidemic sits at the boundary between the physical science of the virus and the social science of the epidemics. Social science doesn’t produce the “results” that physical sciences can, only pieces of evidence that have to be assessed in the round.

How we assess evidence and governments communicate their assessment – in a way that both builds and deserves public confidence – is a matter of culture. Aided by social media that prioritises the quantity of engagement over its quality, the empiricism of our political culture has been declining sharply. News programme producers prefer famous commentators to those who know what they’re talking about (but who nobody’s heard of). Headline writers want attention, so they spread panic. It applies to politicians and communications directors across the entire spectrum. Centrist Matteo Renzi immediately echoed Salvini’s call for a Europe-wide shutdown. Rory Stewart has got himself into the headlines by calling for the same in the UK. This is part of our comms-dominated political culture: focus on getting your message out, and winning, and if mistrust needs to be stirred up in this process so be it.

This a much bigger deal than this epidemic. It affects our whole political culture in Western democracies.

Politicians and their advisers need to understand that this isn’t House of Cards; people can die because of this culture.

Journalists need to think before accepting Twitter narratives, which encourage polarisation, as the only sort of politics. But most people are firmly pragmatic and middle of the road.

Finally, voters: being a citizen isn’t like buying washing powder. Take steps to inform yourself properly about the decisions you want your elected representatives to make. That’s going to take work. You’ll have to read stuff you’ll find boring, concentrate it and understand perspectives you’re uncomfortable with.

From the time Berlusconi was first elected, Italians thought the answers were easy, now they’re learning they are not. It’s a warning the rest of us need to heed. Democracy is hard work. This epidemic will give us an idea of whether we’re up to it.

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He Combs the Web for Russian Bots. That Makes Him a Target.

Westlake Legal Group 00disinfo-nimmo-facebookJumbo He Combs the Web for Russian Bots. That Makes Him a Target. YouTube.com twitter Social Media Russian Interference in 2016 US Elections and Ties to Trump Associates Rumors and Misinformation Presidential Election of 2016 Politics and Government Facebook Inc elections Cyberwarfare and Defense Computers and the Internet Ben Nimmo

HADDINGTON, Scotland — In August 2017, Ben Nimmo was declared dead by 13,000 Russian bots on Twitter.

“Our beloved friend and colleague Ben Nimmo passed away this morning,” read the epitaph, which was manipulated to look as if it were from a co-worker’s Twitter account. “Ben, we will never forget you.”

The message was immediately shared thousands of times by the network of automated accounts. Notes began pouring in from worried friends and colleagues — even though Mr. Nimmo was very much alive.

It didn’t take long for Mr. Nimmo, who helped pioneer investigations into online disinformation, to figure out what was going on: He had been targeted by a shadowy group after reporting, along with others, that American far-right groups had adopted pro-Kremlin messages on social media about Ukraine. His fake death notice was a sinister attempt at disinformation, which is the spreading of falsehoods with the deliberate intent to mislead.

“That made it personal,” said Mr. Nimmo, 47, whose home address in a town near Edinburgh and other personal data, like bank details, have also been posted online.

For the last five years, Mr. Nimmo, a founder of the Atlantic Council’s Digital Forensic Research Lab, has been a leader of a small but growing community of online sleuths. These researchers serve as an informal internet police force that combats malicious attempts to use false information to sway public opinion, sow political discord and foment distrust in traditional institutions like the news media and the government.

Mr. Nimmo’s work came to the fore after the 2016 American presidential election, when intelligence agencies concluded that Russia had used Facebook and other internet platforms to influence voters. His research has since caused Facebook and other companies to ban thousands of disinformation-related accounts; he has also been tapped as an expert by governments studying foreign interference.

Now his skills are needed more than ever, as the 2020 presidential election approaches and the tactics of internet trickery have been adopted by governments, activist groups and clickbait farms in at least 70 countries. In tandem, a disinformation-for-hire industry has emerged. And domestic disinformation efforts in the United States are also on the rise.

“It doesn’t matter how much money you throw at the problem, or how many technological advances you have,” said Jenni Sargent, managing director of First Draft, a London group that tracks disinformation and trains journalists. “Without the human layer of someone like Ben dissecting the way that people use the internet, then we wouldn’t be as far ahead as we are in terms of understanding the problem and the scale.”

Mr. Nimmo’s goal is to spot disinformation early — essentially, to stamp out the fire before it spreads.

His techniques have changed as his adversaries have become more cunning. Because Facebook, Twitter and YouTube are now policing their platforms more aggressively, he is less able to rely on obvious clues like masses of automated Twitter posts and fake Facebook accounts.

So Mr. Nimmo has started looking for clues in obscure areas of the internet, like German news sites that accept unverified user-generated content and Iranian video-sharing services. Websites like Reddit, Medium and Quora are becoming popular places to create fake accounts and plant disinformation and leaks.

“Every time we catch a threat actor, you can bet that the other ones will change their tactics to try and keep ahead,” he said.

More interference is coming in the 2020 campaigns, Mr. Nimmo said. He said he was particularly worried about a “hack-and-leak” operation like the one in 2016 when Russian operatives took information from the Democratic National Committee’s servers and got it published online. Loaded with juicy and accurate information, such leaks go viral on social media and can be irresistible to the news media.

Mr. Nimmo’s path to disinformation research was not an obvious one. An Englishman who studied literature at Cambridge University, he worked as a scuba diving instructor in Egypt, as well as a travel writer and journalist in Europe. In 2007, while reporting on violent demonstrations in Estonia for Deutsche Presse-Agentur, he was head-butted by a protester, breaking his nose and leaving it off center still today.

In 2011, he began working at the North Atlantic Treaty Organization as a press officer. While there in 2014, he saw how Russia had worked to muddy perceptions of its invasion of Crimea that year, including misrepresenting Russian soldiers as “local self-defense forces.”

“There was this constant drumbeat of Russian disinformation,” he said.

Inspired to dig deeper, he became an independent researcher that same year. He moved to Scotland to be closer to family and began doing contract work on Russia for pro-democracy think tanks like the Institute for Statecraft.

During the 2016 American election campaign, Mr. Nimmo helped found the Atlantic Council’s Digital Forensic Research Lab, a Washington-based group that studies online disinformation. Facebook made him and the lab among the first outsiders allowed to study disinformation networks on its site before the company shut the networks down.

Last year, Mr. Nimmo became the head of investigations for the social-media monitoring company Graphika.

“He was there well before this was a trendy thing to do,” said Alex Stamos, who is conducting similar disinformation research work at Stanford University and was previously Facebook’s chief security officer. Both Graphika and the Digital Forensic Research Lab have received funding from Facebook.

Mr. Nimmo works from his home atop a hill and next to a grain farm in the small Scottish town of Haddington. To ferret out disinformation networks, he relies on open-source digital tools: the Wayback Machine to find internet pages that have been deleted; Amnesty International’s Citizen Evidence Lab, which provides information about YouTube videos; and Sysomos for spotting social media trends.

What is hard, he said, is determining when material is coming from regular people expressing a point of view or from a coordinated system linked to a government. One giveaway is when the same material is posted at the same time, or when it can be traced to an original post — “patient zero,” he said — known to be a website or social media account used by a government.

“The magic of the internet is there is always another clue to find,” he said.

Mr. Nimmo speaks fluent Russian, French, German and Latvian — and is conversant in several other languages — teaching himself by buying books in the “Lord of the Rings” trilogy in languages he is trying to learn. That makes it easier for him to spot clues like mistakes a native Russian speaker makes when writing in English in disinformation posts.

The amount of disinformation has increased recently. In October, Mr. Nimmo’s team at Graphika explained how pro-China propaganda accounts targeted Hong Kong demonstrators. In November, he helped expose an operation that used fringe platforms to leak a sensitive British trade document before Britain’s general election. And in December, he analyzed Facebook’s first big takedown of fake accounts with profile pictures generated by artificial intelligence.

Most recently, he has investigated Iranian disinformation after the United States killed the head of Iran’s security machinery, Maj. Gen. Qassim Suleimani, last month. Mr. Nimmo is also tracing Russia-linked campaigns, including an effort to blame the United States for the downing of Ukraine International Airlines Flight 752, which Iran said it mistakenly shot down last month, killing 176 people.

This past week, after technical problems delayed the reporting of results from the Iowa caucuses, Mr. Nimmo was on alert for disinformation. There was little, he said, and he mainly found gleeful trolling from Republican supporters and right-wing groups.

Mr. Nimmo has sometimes made mistakes in identifying culprits. In 2018, he pinpointed a number of Twitter accounts as “Russian trolls,” when one of them was a British citizen sympathetic to Russia.

One recent evening, he started work at 7, chasing leads on Iranian disinformation related to the killing of General Suleimani. One suspicious Twitter account provided clues that led to various YouTube videos. From there, Mr. Nimmo found links to Facebook and Instagram pages. After a few hours, he had traced how memes from a suspicious pro-government Iranian website had traveled elsewhere on the web.

By the time Mr. Nimmo went to bed after 2 a.m., he had more than 50 tabs open on his browser, but no definitive evidence of an Iranian government campaign.

“He’s very careful,” said Camille François, the chief innovation officer at Graphika, who hired Mr. Nimmo. “It’s important to detect them, and to study them, but it’s also important not to overreact to the threat.”

That’s especially true now that foundations, universities and companies have poured money into efforts to examine disinformation, luring new researchers eager to spot such activity. Mr. Nimmo said he was concerned that investigators could have an incentive to sensationalize material that cannot be accurately attributed and argued that new standards were needed.

“When we look back on 2020, I hope we’ll see it as the year when disinformation research passed the tipping point and really started becoming a mainstream discipline,” he said. “We need to make that happen, because the threat actors aren’t going away.”

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Trump’s 2020 Re-Election Challenges and Strategy to Win

WASHINGTON — Buoyed by his impeachment acquittal and the muddled Democratic primary race, President Trump and his campaign are turning to address his re-election bid’s greatest weaknesses with an aggressive, well-funded but uncertain effort to win back suburban voters turned off by his policies and behavior.

His campaign is aiming to regain these voters in battleground states like Pennsylvania and Michigan, after losing many of them to Democrats in the 2018 midterms. Advisers hope to expand the electoral map for November by winning moderate-leaning states like Minnesota and New Hampshire. And the White House is gearing up to help with policy issues directed at swing states, such as the new trade deal with Mexico and Canada and paid family leave for federal workers.

Trump campaign officials are also stockpiling cash to help with these efforts, with $200 million in the bank now and fund-raising continuing at a brisk pace. They have put up television ads relatively early in the race, allocating $6 million for the final three months of 2019 to highlight a booming economy and the low unemployment numbers.

Among the goals is trying to appeal to black voters and suburban and upper-income white voters with ads such as a spot focusing on criminal justice reform that first aired during the Super Bowl and is continuing on cable channels with large female audiences, like Bravo and Lifetime.

Yet Mr. Trump’s messaging, like so much else about his approach to politics, is contradictory. For all the focus on appealing to moderates, the campaign is also engaging the president’s hard-core supporters with Facebook ads warning of the danger of undocumented “aliens” and their “invasion” of the U.S., and decrying “the impeachment hoax,” while also promoting polarizing policies like curtailing immigration.

Those inflammatory, targeted ads are ones that suburban voters may never see, a reflection of the campaign’s broad strategy: Keep his conservative base energized and chip away at his problems in the suburbs and communities of color.

The challenge facing Mr. Trump’s advisers remains the same as it has been since 2017: The president is among the most deeply divisive leaders in the nation’s history, whose conduct has helped accelerate a realignment of moderate suburban voters toward Democrats. These voters have been the cornerstone of Democrats’ electoral revival since 2016, helping them flip governorships and propelling their capture of the House.

Mr. Trump cannot win a second term without attracting more suburban voters and independents in a handful of states he carried in 2016, but he is highly averse to staying on script and delivering a consistent message aimed at moderate voters rather than his hard-core admirers, or his own need to get things off his chest. Mr. Trump’s advisers argue that the suburban voters who eschewed Republicans in the 2018 midterms will vote differently when the president’s name is on the ballot.

“Suburban women is where he has a challenge,” said Senator Kevin Cramer, Republican from North Dakota.

“I think the biggest problem that he has with suburban women is the part that so many in his base like about him,” Mr. Cramer said. “His rhetoric, his punching down at his opponents. It’s so different than anything they’ve seen.”

Scott Reed, the top political adviser to the U.S. Chamber of Commerce, nodded to the fleeting nature of Trump-era politics as he assessed the electoral landscape for the president.

“Politics in Trumpville are great right now, but these days, a week feels like three months and we have a long way to go,” Mr. Reed said.

Republican National Committee officials are tracking the suburban problem. In 2016, about 100,000 Michigan residents who voted in state legislative races left the box for president empty. Many of those voters were men in the suburbs, R.N.C. officials said, and were people who didn’t believe Mr. Trump was truly a conservative, but who have come back after seeing him deliver on conservative judicial appointments and a tax-cut bill.

But suburban women remain difficult to sway, Trump advisers acknowledge. Some messages have moved the dial, if only temporarily: When Mr. Trump talks about Democrats wanting to provide government health care benefits to undocumented immigrants, for instance, Republican officials have seen an uptick of support in their own surveys of the suburbs of Pennsylvania. When Mr. Trump paints the entire Democratic field, falsely, as supporting ending private health insurance, his advisers see room for him to grow. But they admit that it’s a difficult line to walk.

The G.O.P. strategy ultimately depends on who his Democratic opponent turns out to be. And Mr. Trump faces an unknown in Michael R. Bloomberg, a billionaire former New York City mayor running a general election strategy, who is spending so much money that Mr. Trump’s advisers acknowledged that he cannot be ignored even if Mr. Bloomberg loses the Democratic nomination.

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With the Democrats enmeshed in the start of their primary season, Mr. Trump is beginning his own new phase: He has reasons to feel reassured about his prospects as he turns more fully to his re-election effort, and the apparatus of the White House and the Republican Party are more able to focus on winning him a second term.

Mr. Trump’s approval ratings have inched up and he’s now around where the last three incumbent presidents were at the start of their own, successful, re-elections. And the economy shows no signs of slowing.

“The White House and the campaign should focus 100 percent on the economic growth and opportunity society Trump is creating for America,” Mr. Reed said, somewhat hopefully.

But greater confidence and a freer hand can lead Mr. Trump to take risks: His phone call with the Ukrainian president on July 25, 2019, which ultimately helped lead to his impeachment in the House, came after he had seen the end of the two-year investigation by the special counsel, Robert S. Mueller III. Just this past week, Mr. Trump fired from the White House two witnesses and an ambassador who testified in the House impeachment inquiry, including Lt. Col. Alexander Vindman, a decorated war veteran, prompting outrage from Democrats and private concern among some Republican lawmakers. On Saturday, he tweeted that Colonel Vindman had earned his dismissal.

As Mr. Trump has repeatedly shown, he can show a measure of discipline in one moment — like his teleprompter-ready speech at the State of the Union that was sprinkled with appeals to different demographic groups — and then do or say something that alienates swing voters.

His 62-minute stemwinder of retribution in the East Room of the White House the day after the acquittal was the type of ventilating performance Mr. Trump had been craving, but which some advisers acknowledge undermines the carefully-crafted efforts at broadening his appeal.

“Many people are evaluating the president based on his conduct and behavior in office rather than the state of the economy,” said Whit Ayres, a longtime Republican pollster. “It’s his conduct and behavior in office that have kept a foot on his job approval rating. Any other president would be in the upper 50s or even low 60s with this economy.”

Most of the president’s aides concede that his base of supporters is not enough to re-elect him, and that he must attract the voters who were repelled by his behavior and voted against Republicans in the 2018 midterms — particularly upscale whites, suburban women and self-described independent voters who polls repeatedly show think the president is racist, or has a troubling temperament, or both.

To that end, the president’s campaign aired a Super Bowl ad featuring Alice Johnson, a black woman convicted on charges related to drug trafficking whose sentence the president commuted. The president also awarded an “Opportunity Zone” scholarship to a young African-American girl during his State of the Union address, and tailored other moments during the speech to appeal to members of the military.

Trump advisers are focused not just on the three states that elected Mr. Trump in 2016 — Wisconsin, Michigan and Pennsylvania — but also the forever battleground of Florida, and battleground states with competitive Senate races that could help the Democratic nominee in Georgia, Arizona and North Carolina.

The campaign also sees opportunities for pickups in New Hampshire and especially in Minnesota, states that have voted for Democrats in recent presidential races but where the margins were close in 2016. But while the campaign manager Brad Parscale has insisted New Mexico is within reach, other Trump advisers say there’s been little movement, in part because of the president’s disinterest in taking the day trips he favors to the western part of the country.

In an interview, Ronna McDaniel, the chairwoman of the R.N.C., said they have the resources to appeal to multiple groups of voters. “That gives us an advantage to focus on the rural vote that we need to turn out, but then also go after places where we’ve lost voters to bring them back in,” she said. And Tim Murtaugh, a campaign spokesman, said they had always planned to woo various demographics, “regardless of what Democrats in Congress were trying to do to him.”

The administration is pulling out the policy stops. Vice President Mike Pence has recently made stops and bus tours in Wisconsin and Pennsylvania, highlighting Trump administration efforts like the “school choice” initiative to help low-income students enter private schools.

On Thursday, Mr. Trump tweeted that he was looking to move away from a proposal pushed by his former energy secretary, Rick Perry: storing nuclear waste in Nevada’s Yucca Mountain, an effort his two top political advisers, Bill Stepien and Justin Clark, opposed for years. And officials are expected to hold events in the Midwest highlighting provisions aimed at helping domestic automakers that were included in the U.S.M.C.A. trade deal.

“We’ve been chopping wood for a while, and it feels like everyone else is seeing what we’ve been seeing for a long time,” said Jared Kushner, the president’s son-in-law who is overseeing his campaign. “Everyone else has been distracted, but it’s not like we invented these policies for the State of the Union.”

What’s unclear, and what could prove decisive, is whether the country is exhausted by Mr. Trump and is ready for a so-called return to normalcy, or if voters have grown inured to his eruptions and have effectively priced in his behavior.

A key factor will be the candidate the Democrats eventually nominate. Interviews with more than a dozen Republican strategists, lawmakers and state chairs reveal a consensus that Senator Bernie Sanders would be the easiest Democrat for them to beat because they believe his avowed socialism would help them reclaim suburbanites and better frame the election as a choice.

“It’s easy to call him a socialist because he admits it,” said Tim Pawlenty, the former Minnesota governor. “At least Warren tries to deny it.”

Mr. Sanders’s aides, of course, see it very differently and believe that they would tear up Mr. Trump’s 2016 electoral map by reclaiming working-class white voters in states like Michigan and Wisconsin, something some Trump advisers agree with. And Trump advisers have been caught by surprise by the success of Pete Buttigieg, the former mayor of South Bend, Ind.

“We don’t have a Democratic opponent yet,” said Mr. Cramer. “It’s always harder to run against the unnamed opponent. Once you have the opponent, you get to draw the distinctions.”

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Assured of Impeachment Acquittal, Trump Makes Case for Second Term in State of the Union

Westlake Legal Group merlin_168403086_918c010d-991d-4138-8391-3da16a0fa979-facebookJumbo Assured of Impeachment Acquittal, Trump Makes Case for Second Term in State of the Union Trump, Donald J Trump-Ukraine Whistle-Blower Complaint and Impeachment Inquiry State of the Union Message (US) Iowa impeachment elections

WASHINGTON — The defendant finally showed up to have his say. President Trump never uttered the word impeachment, but in a 78-minute speech to the nation that combined a celebration of the American economy, hard-edge policy pronouncements and reality show-style surprises for the audience, he made the case for his presidency as only he could.

It was not a case that persuaded Democrats, who remained seated stonily during the applause lines, shaking their heads and rolling their eyes, but it was not meant to. Assured of acquittal in the Senate trial on Wednesday, Mr. Trump moved past preserving his first term and focused on securing a second with an argument aimed at both his political base and dubious suburban voters.

It had a surreal quality, a president on trial for high crimes and misdemeanors addressing lawmakers in the same House chamber where he was impeached just seven weeks ago. While Mr. Trump resisted the impulse to show up at the Senate trial to reject the charges against him over the last couple of weeks, he used his State of the Union address to present a different sort of defense without the burden of cross-examination, in effect arguing that the “great American comeback” he claimed credit for outweighed the allegations against him.

If Democrats were unmoved, and Speaker Nancy Pelosi ostentatiously ripped up her copy of his speech once it was done, making sure the cameras would catch the moment, Republicans embraced the president many of them once scorned. They welcomed him with hearty applause and even chanted, “Four more years! Four more years!” as if it were a campaign rally rather than an affair of state.

On its surface, the speech presented an optimistic assessment of the country and its progress, perhaps reflecting his sense of his own. “America’s enemies are on the run, America’s fortunes are on the rise, and America’s future is blazing bright,” Mr. Trump said.

But he also laid out a darker view of an America still plagued by “criminal aliens,” terrorized by Islamic radicals and threatened by budding socialists eager to take over the health care system.

Throughout his time in the chamber, the president seemed sullen, even gloomy, barely cracking a smile and making no attempts at humor. He refused to shake Ms. Pelosi’s hand when he handed her his speech and she refused to say it was a “distinct honor” to present him when she announced him, both abandoning custom.

All around Mr. Trump were reminders of his ordeal over the last several months. One of the members of the escort committee that brought him in, Representative Hakeem Jeffries of New York, is part of the team of House Democrats prosecuting him. The president encountered Chief Justice John G. Roberts Jr., who is presiding over the Senate trial and seemed intent on maintaining a studious neutral expression during their brief exchange.

While he made no mention of impeachment, Mr. Trump did single out Senator Mitch McConnell of Kentucky, the Republican leader who has single-handedly ensured he would survive the trial without witnesses testifying against him. “Thank you, Mitch,” Mr. Trump said at one point, referring to the senator’s help confirming judges, but it would not be surprising if he were grateful for other reasons.

The president’s grim mood belied what was otherwise a good day for him. Aside from his coming acquittal and the chance to address the largest television audience of the year uninterrupted, Mr. Trump earlier in the day reveled in the Democratic dysfunction in the Iowa caucus and avidly sought to exploit it to promote suspicion among his rivals.

He and his sons and allies pumped out Twitter messages suggesting the botched Iowa count was an effort to rig the election for former Vice President Joseph R. Biden Jr., and against Senator Bernie Sanders, the candidate the president would rather face in the fall.

“It’s a fiasco that just plays right into us,” the president told television network anchors during an off-the-record lunch earlier in the day, according to people in the room.

“What other people would look at as a moment of completely political meltdown for this president, it all appears to accrue to his benefit,” said Matt Schlapp, the chairman of the American Conservative Union. “He actually looks like the adult in the room.”

Democrats acknowledged that the Iowa breakdown played to Mr. Trump’s advantage, at least in the short term.

“A fractious, divisive, and chaotic process inevitably takes focus away from Trump’s own failures, at least in the short term, and Trump obviously believes he has the opportunity to stir the pot against the Democrats in these circumstances,” said Geoff Garin, a prominent Democratic pollster. “All of this heightens the importance for Democrats to have a confident and united front as soon as possible.”

The Iowa debacle played out even as Gallup reported that Mr. Trump’s approval rating had climbed to 49 percent, its highest in that survey since his presidency began. While not a strong number historically, it is higher than either Barack Obama or Bill Clinton had going into their State of the Union speeches in the years they ultimately won re-election, though not as high as George W. Bush or Ronald Reagan had in theirs.

Not that he can necessarily count on any of this to last. The economy, while healthy, has slowed its growth and could take a hit from the China travel restrictions imposed to fight the coronavirus outbreak. At some point, the Democrats will anoint a nominee who could unify the party against Mr. Trump. And John R. Bolton, the former national security adviser, plans to publish a book next month that is expected to offer revelations about the president’s use of his office to further his own political interests.

Mr. Trump has shown a remarkable capacity for crossing lines and creating political problems for himself just when things appear to be better for him. Indeed, he placed the phone call to Ukraine’s president that got him impeached the day after testimony by the special counsel Robert S. Mueller III made clear that he was out of political jeopardy as a result of the Russia investigation.

But for one night, at least, the president had the stage to himself and he made the most of it. With a mix of schmaltz and showmanship, he pulled one surprise after another on the audience.

At one point, he introduced Rush Limbaugh, the conservative radio host who just announced that he has advanced lung cancer, and seemed to stun the broadcaster by announcing that he would bestow on him the Presidential Medal of Freedom. Rather than wait, the president then had Melania Trump pull the medal out and drape it around Mr. Limbaugh’s neck right there in the first lady’s box, surely the first time that has happened at a State of the Union address.

In another uplifting moment, he gave a scholarship to a fourth-grade girl also sitting in the box. At the same time, he introduced a variety of figures with tragic stories, the parents of a woman killed by the Islamic State, the widow and son of a soldier killed in Iraq, the brother of a man shot by an undocumented immigrant.

But he saved the most tear-jerking moment for the end, when he thanked the wife of an Army soldier deployed to Afghanistan — then announced that her husband in fact had returned to the country, as the soldier suddenly appeared in the box to her great surprise.

The president’s address took place just across the Capitol and hours after senators took to the floor to announce their vote in his trial — Republicans steadfastly pledging to acquit, Democrats resolutely vowing to convict, the two-thirds required by the Constitution for removal clearly nowhere in sight.

Chief Justice Roberts, Mr. McConnell, Mr. Jeffries and the rest will return to the Senate chamber at 4 p.m. on Wednesday to tally those votes, inevitable as they now seem, and to wrap up the third presidential impeachment trial in American history.

Mr. Trump presumably will not show up in person. But he told the anchors in their lunch that he wanted to make a speech after the vote, another kind of speech, not so much a state of the union but a valedictory after months of battle — in his view, a comeback of a different sort.

Maggie Haberman and Annie Karni contributed reporting from Washington, and Michael M. Grynbaum from New York.

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