Facebook tightens rules on political advertising. But only in the USA

Facebook are acting to further tighten their rules on political advertising via their platform. According to a New York Times article, they will check the authenticity of those organisations running political adverts. The question is, how will this change affect countries other than the USA?

Facebook first took action last year in the wake of the revelations about Cambridge Analytica and the Russian interference in the 2014 and 2016 US elections. They maintain a political advert archive, require political adverts to carry the name and details of those who have placed them and release details of who has spent what money on such advertising. The latest changes come after accusations were made that some adverts were being labelled with the names of fake companies, thus hiding the real advertisers. In future, Facebook says, organisations will need to prove who they are before being allowed to advertise.

Whilst acknowledging that Facebook have taken positive action to try to limit disinformation, it’s impossible to ignore the multitude of problems that remain in the system. In particular, Facebook have seemed intent on rolling out a single regulatory framework for their platform across the entire world. This ignores that each country has its own unique electoral laws. Imposing (US-centric) rules does not help authorities in other countries ensure that their local laws are being obeyed.

This latest strengthening might indicate a departure from that ‘one-size-fits-all’ approach as it is difficult to imagine that the company will have the ability to check the bona fides of organisations advertising in, for example, Montenegro, Tunisia or Sri Lanka. So the question is, will this be an approach that only applies to the USA or does it indicate a willingness to address the specific needs of each country, starting with the US?

Doppelgängers

Whether it be jumping on a bandwagon or seeking to mislead the electorate, Ukraine has taken the lead in doppelgänger candidates causing confusion. But this year’s elections were not the first use of such underhand tactics and India, Russia, the UK and USA have all seen variations of this phenomenon.

Jumping on the Bandwagon

At the recent parliamentary elections in Ukraine, the Servant of the People (Sluha Narodu) party of new president Volodymyr Zelensky won an overall majority with 254 out of 424 seats contested. It was the first time in the history of the country since independence that a single party had got a majority in parliament, but this was hardly the most unexpected outcome. Zelensky had won more than 73% of the vote in the second round of the presidential poll four months earlier and, whilst a lot of that vote might have been against his opponent rather than for him, there was no doubt that Zelensky and his party were massively popular. So it came as no surprise when a lot of people sought to jump on the bandwagon to gain an advantage.

Servant of the People was a political party formed by Zelensky and named after his TV show. In that production he plays a history teacher who unwittingly becomes president after a rant about corruption is illicitly videoed by his students and goes viral. The naif as president concept became hugely popular and Zelensky rode it into office with a campaign based on TV and online campaigns. In his inauguration speech he called for early parliamentary elections (as well as fundamental changes to remove immunity for elected politicians and changes to the voting system). Despite a court challenge, these snap elections happened and Servant of the People was in prime position.

Servant of the People was not the only new party. The Voice (Holos) party also appeared on the ballot paper. This was the creation of popular musician Svyatoslav Vakarchuk. He had talked about standing in the presidential election but chose not to in a move widely seen to be co-ordinated with Zelensky. In the event of a hung parliament it was expected that The Voice Party would be likely to align with Servant of the People. As with Servant of the People, The Voice fielded a slate comprised entirely of political newcomers. No sitting or former MP was running as a candidate for either party.

 

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A polling station in Kherson district set up for the 2019 Parliamentary elections

 

Ukraine has a mixed voting system for Parliamentary polls (although this is the subject of one of the changes proposed by the President). Around half of all MPs are elected from party lists. The remainder are elected from single mandate districts using first past the post. It was in these districts that closer contests and electoral malpractice were expected as they pitched incumbents against representatives of the new parties.

Servant of the People and The Voice were so popular that many people sought to imply their candidacies were part of these movements even when they were not. This was impossible to achieve on the national vote where lists were submitted by registered parties only. However in the single mandate districts OSCE/ODIHR found 79 candidates in 55 districts who used the name Servant of the People to run against the candidate officially nominated by that party. (In addition, other candidates campaigned with colours, logos and slogans similar to Servant of the People.) The way these candidates got the name Servant of the People onto the ballot paper was usually by claiming to be employed by an organisation of that name, of which there are currently 44 according to Ukraine’s registry of legal entities. In addition, the name Holos was used by five independent candidates in single mandate districts and in one case each the names of Opposition Platform for Life, Opposition Bloc and European Solidarity were used.

Servant of the People complained to the Central Electoral Commission who decided that the reference to employment places which coincided with the name of the party would be removed from ballot papers in some cases. However it is not clear how many cases this applied to and whether or not ballot papers were re-printed.

One candidate who was particularly put out by the decision by Servant of the People to run entirely new candidates was a sitting MP from the Bloc Petro Poroshenko (which re-named itself European Solidarity for the elections) faction who, when Volodymyr Zelensky announced his intention to run for President, left his faction and became a cheerleader for the man who would become the new President. But he was declined the opportunity to run as an official Servant of the People candidate. This did not stop him trying to imply he represented the President’s party however. His campaign literature made frequent references to the party and president and even featured (genuine) photographs of him standing alongside Zelensky. Voters, however, were not to be fooled and he lost his seat to the official Servant of the People candidate.

It is impossible to say whether these cases were all bandwagon jumpers seeking to cash in on the popularity of Servant of the People or whether some were in fact attempts at spoiler candidates initiated by electoral opponents. The suspicion is that they were mostly the former, but Ukraine has a history of another form of doppelgänger, the ‘clone candidate’.

Clone Candidates

The most well known of these clone candidates is Yuriy Tymoshenko. Mr Tymoshenko stood in the presidential contest in March as a self-nominated (independent) candidate. He revelled in the attention he received because he happened to share a name with the long-established candidate (and former Prime Minister) Yulia Tymoshenko. The similarity was not confined to their family name and first name. Both of their fathers had the name Volodymyr and so, in the Ukrainian fashion, they had similar patronymics – Volodymyrovitch for Yuriy and Volodymyrivna for Yulia. When asked about this apparent coincidence, Yuriy Tymoshenko claimed that he had announced his candidacy long before his near namesake and claimed to be a serious runner. No one believed this statement and his limited campaign material appeared in the same colours and style as his more popular namesake and used the name Y.V. Tymoshenko (Ю́ В Тимоше́нко in cyrillic script). Yuriy Tymoshenko was a spoiler, or technical, candidate aiming to draw some votes away from Yulia Tymoshenko. This was helped by the ballot papers listing candidates in alphabetical order, something unchanged despite a court challenge from Yulia Tymoshenko. In the event, Yuriy Tymoshenko won some 0.62% of the vote. This was not enough to make a difference to the outcome of the contest – Yulia Tymoshenko came third with 13.4% and was 2.55% behind the second placed candidate – but was almost certainly far more than he would have gained on his own merits. Of the 39 candidates on the ballot paper, 26 who did little or no campaigning (like Yuriy Tymoshenko) won between 0.01% and 0.17% of the vote.

 

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Ballot paper for the 2019 Ukraine Presidential election showing both Yuriy Tymoshenko and Yulia Tymoshenko

 

It is impossible to be certain whether Yuriy Tymoshenko’s candidacy was his own idea or whether he was inspired or funded by other electoral opponents of Yulia Tymoshenko. In limited interviews he claimed to be standing entirely on his own initiative. However in the paperwork required for candidacy he declared an annual income of the equivalent of $10,000 against a deposit required for candidacy of $92,000.

Clone candidates existed in Ukraine before Yuriy Tymoshenko. In 2016 UKROP candidate Oksana Valentynivna Tomchuk was opposed in the 27th constituency in the city of Dnipro by near namesakes Oksana Ivanivna Tomchuk (who also claimed to be a member of UKROP in her biography), Oksana Valeriivna Tomchuk and Oksana Hrygorivn Tomchuk.

The concept continued into the parliamentary elections. OSCE/ODIHR found 152 candidates with 69 similar or identical names standing in 42 single mandate districts. Police opened 46 investigations and the observation mission estimated that nine of the contests could have been affected by the phenomenon in that a clone candidate gained more votes than a similarly named candidate lost by.

In constituency number 25 Andriy Valeriyovych Bohdan was standing and his biography mentioned a connection to Servant of the People. Coincidentally, President Zelensky’s chief of staff is called Andriy Bohdan. Except he wasn’t running for Parliament anywhere and his patronymic is Yosypovych, not Valeriyovych. The official Servant of the People candidate, Maksym Buzhansky won the seat.

In constituency 92 in Uzhyn there were four candidates called Guzdenko with the first name of either Viktor or Vitaliy. Two had the same patronymic of Ivanovych. There are also three Oleksandr Ferenets.

In constituency 33 in Kryviy Rih, there were two Olha Volodymyrivna Babenkos. One was standing on behalf of Yulia Tymoshenko’s Batkivshchyna party and the other was self-nominated. In the same constituency there was also a Mykola Yuriyovich Kolesnik and a Mykola Yuriyovich Kolesnyk.

In constituency 38 in Novomoskovsk, Dnipropetrovsk region, there was Vladislav Borodin from Servant of the People and Volodymyr Borodin, a self-nominated candidate, as well as two Vadym Nesterenkos.

Finally, in constituency 133 in Odesa, there were four people named Baranskiy — Viktor, Vitaliy, Vitaliy, and Ihor. The first two were candidates from the ideologically similar but politically separate Opposition Platform and Opposition Bloc, respectively. There were also Gontaruk and Goncharuk (both self-nominated), and two Artem Dmytruks, including one representing the Servant of the People party.

 

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Voter information posters on display at a polling station in Kherson district during the 2019 Ukraine parliamentary elections

 

Doppelgängers are not limited to Ukraine. In the UK there was a problem with candidates standing with party names designed to mimic other parties. One persistent candidate was Richard Huggett who stood in the 1994 European Parliamentary elections in the Devon and East Plymouth single member seat under the label of ‘Literal Democrat’. Mr Huggett eventually polled 10,203 votes, far more than the 700 vote majority of the Conservative candidate over the genuine Liberal Democrat. In the 1997 general election, Mr Huggett sought to stand under the name ‘Gerald Maclone’ in the Winchester constituency against sitting MP Gerald Malone. He was prevented from doing so but then stood with the label ‘Liberal Democrat – Top Choice for Parliament’. In an ensuing by-election in the seat he stood again under the ‘Literal Democrat’ label. Throughout, Huggett claimed that he was not acting on behalf of anyone other than himself and his antics, and similar undertaken by others, were only prevented by the 1998 Registration of Political Parties Act which stops candidates standing under labels which may confuse voters.

 

The Indian elections of 2014 present probably the largest single gathering of clone candidates. In one seat in Bilaspur district in the central state of Chhattisgarh no fewer than five of the 35 candidates were named Lakhan Sahu. In another, ten candidates shared the same name. The use of clone candidates might have less of an impact in a country where there are low levels of literacy and where many voters rely on party symbols to locate their chosen candidate. However there can even be similarity between symbols of candidates with the same name. In the seat of Maval in Maharashtra there were two candidates called Shrirang Barne and three named Laxman Jagtap with suspicions that each ‘real’ candidate had recruited at least one clone of their main opponent to confuse matters. The genuine Barne had the electoral symbol of a bow and arrow whilst his namesake was represented by an arrow only. The three Jagtaps were represented by a teacup, a cap and a helmet.

 

Shadow Parties

In Russia the concept of ‘shadow parties’ developed in 2003 and have been in existence ever since. The State Duma (Parliamentary) elections of that year were held at a time when Vladimir Putin was in his first term and the parliamentary elections were the first big test of his leadership. He was the head of the United Russia party but he faced genuine callanges from both the right and left, from the Communist Party and from the Liberal Democrats (now re-branded as LDPR but still led by firebrand nationalist Vladimir Zhirinovsky). And so Rodina was created, allegedly at the instigation of the Kremlin, to leach votes away from these two threats. They used the same symbolism and imagery as the Communists and many of the nationalist policies of the Liberal Democrats, and eventually gained 37 seats in the legislature.

It is worth repeating how shaky Putin’s grasp on power could have been in those days if he had not overseen the triumphant return of an overwhelming United Russia bloc. Russia demands a strong leader and strong leaders control parliament. In the event, United Russia won 37.6% of the votes in the national list element of the elections and just 24% in the cosntituencies, but this was enough for 223 seats overall due to the splitting of the vote. The Communists won 52 seats and the Liberal Democrats 36 seats. Had Rodina not stood, it is highly likely that the Duma result would have been far more balanced and United Russia may not have held an overal majority.

That was more than 15 years ago. But the practice of shadow parties continues. Even in the 2018 presidential election – one which Putin was certain from the outset to win and where turnout was seen as the big concern – there was a field of eight allowed. As well as the real Communist Party of the Russian Federation (KPRF), the Communists of Russia (KR) were on the ballot – a party with much of the same imagery, the same idolatry of historic figures (maybe a little more Stalin than Lenin) and the same policy proposals. Every vote for KR was a vote that might otherwise go to KPRF. And this time Vladimir Zhirinovsky and the LDPR had to contend with Sergey Baburin, an eccentrically coiffured former MP with the wonderful ability to conjure nomination signatures from every district and region despite never actually having any activists in place to gather them.

At the same time, Putin’s campaign material looked strikingly similar to a lot of other posters on display on billboards around the country. But far from being mirrored by another candidate or party, the incumbent president had the same colour scheme and design as the official central election commission and so every one of their millions of posters could be taken at first glance to be one for the sitting president.

 

Spoiler candidates

In the USA it might not have been shadow parties that were used, but many elections have been swung by the existence of third party candidates with similar policies to one of the main players who have been given a mysterious boost by supporters of the other.

In ‘Gaming the Vote’, William Poundstone relates the story that John Dendahl, chairman of the New Mexico Republican Party, quietly offered “more than $100,000” to the Green Party if they would run candidates in NM’s first and second Congressional Districts. The Greens were relatively strong in New Mexico and had already been spoilers in local races. The difference was that the Republicans were now willing to pay cash for services that had previously been free.

Poundstone also cites the June 2006 special election for the Congressman from California’s 15th district, where Republican Brian Bilbray was a ‘foaming-at-the-mouth anti-immigration hawk who supported building a fence clear from the Pacific Ocean to the Gulf of Mexico’. William Griffith, a running as an independent using $2000 of his own money, claimed to be even more anti-immigrant than Bilbray. Then something odd happened. Phone calls started urging voters to vote for Griffith. Radio ads too. Griffith didn’t know who was behind them. Both later turned out to have been funded by Democratic candidate Francine Busby.

 

Legal changes in the UK have shown that it is legislatively possible to prevent parties with similar names or candidates standing under labels designed to confuse. However courts and electoral commissions across the world have proved reluctant to interfere in cases where candidates with similar names choose to stand against each other, regardless of their motivation or provenance. Party names and symbols can help to lessen the confusion, as can active campaigning by the ‘real’ candidate. But even in obvious cases, it is still possible for enough voters to be confused that they cast their vote for the spoof candidate and, in tight contests, this can be enough to make the difference.

US Supreme Court denies ability to intervene in gerrymandering cases

The US Supreme Court has ruled that they cannot decide in cases of alleged partisan gerrymandering. That gives the green light to politicians to draw electoral boundaries in such a way as to favour their party.

Although different rules apply in the different states, in simple terms electoral boundaries in the US, particularly congressional districts, are drawn by state legislators based on the most recent census. The numbers in each district have to be roughly equal but the boundaries are up to local decision making.

Why does it matter how the boundaries are drawn? Because each community is different and people of like mind tend to be more likely to live near each other. So you have areas which are more Republican and areas which are more Democratic. Drawing the boundaries in a different way can skew the results of an election. The Electoral Reform Society has produced a graphic which neatly illustrates this problem.

The US has long had a history of politically partisan boundary delimitation. The term gerrymandering was created there. The team at FiveThirtyEight have come up with a number of different examples of how the extent of gerrymandering could affect the US House of Representatives.

There are five states which have put in place rules to (largely) protect against partisan boundary drawing. But others leave it up to their legislators. Two such are North Carolina and Maryland and these were the cases before the Supreme Court whose decision was made public today.

This is not the end of the matter. First state courts might choose to get involved in the issue and have the right to do so even though the Supreme Court has spoken. The Pennsylvania Supreme Court ruled last year that the congressional map drawn by the Republican legislature in 2011 ran foul of the state constitution, saying that the map violated the state’s guarantee of “free and equal” elections. They chose to redraw the map themselves. As many as a dozen other states have similar provisions in their constitution. In addition, states can pass their own laws that would require boundaries to be drawn in a non-partisan manner, either through their own legislature or through a referendum.

But in the short term this (non) decision by the Supreme Court could open the floodgates for more state legislatures to take a radical view of boundary drawing.

Oregon legislators on the run from police in an effort to block climate change bill

A group of state senators in Oregon have gone on the run to try to block climate change legislation in the state. And now the Governor has tasked the police to track them down.

The rules of the Oregon State Senate require that 20 members are present to vote on legislation. The Democrats currently hold a majority – 18 of 30 seats – but are still at risk from a lack of voting quorum. And that is what has happened in the case of legislation aimed at combatting climate change, which the Republicans oppose.

With the annual session due to expire on June 30th and any bill not passed by then automatically falling, the missing legislators have vowed to stay away. Police don’t have the power to follow them to Idaho where they are believed to be staying.

However, there is more to the story than this. There are several other key votes – including funding for key state agencies – which also have to be taken before the session runs out.

So the President of the State Senate – a Democrat – has announced that he believes the climate change bill is dead in the water and has urged Republicans to return to vote on other measures. Some Democrats have also indicated they might not fully support the proposed cap and trade measures and so there may be a chance for Republicans to vote down the bill. Republicans, however, smell a trap and are still in hiding.

Sorry Nick, but there is more that Facebook can and should be doing.

Nick Clegg was on the Today Programme this morning to talk about his job with Facebook and its role in facilitating interference with elections and referendums in the UK and around the world. 

Clegg says there is no evidence that Russia influenced the result of the Brexit vote using Facebook. 

To quote Mandy Rice Davies – Well he would say that, wouldn’t he.

Clegg appears to blame deep-rooted Euroscepticism for the outcome. He also argues for greater regulation of social media and tech firms saying there should be new rules of the road on privacy, election rules, use of personal data and what constitutes hate speech.

Clearly there is no single reason why the UK voted to leave. Pinning all the blame on Facebook, Russia, Cambridge Analytica or anyone else is misleading. However, there does appear to be significant evidence that the last of these had access to a huge amount of personal data, harvested via Facbook, and sought to use it via campaigns to influence people’s voting. The evidence of Russian involvement is not quite so strong as that Russia sought to influence the 2016 US Presidential Election (where it is undeniable), but it is clear that Facebook was used as a platform for illegal campaigning, even if unwittingly.

And it is also clear that whatever happened in the UK referendum, there have been many cases of outside forces seeking to affect national elections via Facebook and other online activity. The Macedonian name referendum and recent Ukrainian Presidential election are just two examples.

Clegg is right that the should be better regulation that reflects the modern world. But he is wrong to imply that there are no rules in existence at the moment. The UK, as most countries, has a vast amount of electoral law that codifies who can campaign and how much they can spend. That these laws were written before the advent of the public internet doesn’t matter. If the law can apply to paper leaflets then, broadly, it can also apply to internet communications.

Difficult though it may be for Facebook, a company that operates in 150+ countries and therefore with 150+ sets of different election laws, it is the responsibility of everyone to obey the applicable law in the countries in which you operate. Facebook’s reaction until now, however, has been to place itself above the law. It has proposed (and is gradually implementing) two significant changes, requiring election related advertising on its site to be clearly labelled as such and reporting on who is paying for political advertising. Both of these changes are to be welcomed, but they are not yet universally applied. And, crucially, they do not accord with the detail of election law in each country. In seeking to apply its own solution, Facebook is thumbing its nose at elections around the world.

It is not just the main Facebook site that is doing so. WhatsApp, YouTube, Instagram and many other social media platforms also have their problems. Some of these will need new legislation to solve, but most simply require the company behind them to read and adapt to local laws.

Why we should be careful about using the word ‘stolen’ about elections

Richard Hasen has written an excellent opinion piece in The Slate about why people should be wary of using the term ‘stolen election’ in reference to contests like the Georgia Governor contest earlier this month.

Hasen’s argument is that over using the word ‘stolen’ risks undermining trust in elections generally and that we don’t know whether the actions of the winner, Brian Kemp, as Secretary of State (the person in charge of the elections) were enough to change the outcome.

Instead of talking about an election being stolen, we should be looking at the suppression efforts and general incompetence that affect the rights of voters. Any suppression and any incompetence is bad and should be campaigned against. -not just if it is sufficient to change the outcome of an election.