Roy Moore’s End Game in the Alabama Senate Race

Roy Moore has not conceded in a race where he is down by about 1.5 percent, and today he has announced an election “integrity” fund for a possible recount.

There’s an automatic recount for a difference less than 0.5%, and he’s very unlikely to reach that threshold with the remaining provisional ballots.

A recount could cost up to a million dollars according to some estimates I’ve seen, and my reading of Alabama law is that he is not entitled to pay for one as a federal candidate (though the Secretary of State of Alabama seems to think otherwise).  Any recount would be exceedingly unlikely to change results.

So what is Moore up to?

One possibility is that he believes a recount would make a difference.

The other, more likely possibility, is that he will use it as a way to raise funds for himself, which he could use in a future federal race or for some other purposes. He wouldn’t be the first candidate to use a recount in this way. Some say that’s just what Jill Stein did in the 2016 presidential election.

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Should FEC Commissioner Matt Petersen’s Performance at Senate Judiciary Hearing Be Disqualifying for Federal Bench? That’s Not an Easy Question

Earlier this week I linked to an NLJ story about FEC Commissioner Petersen’s performance at a Senate Judiciary Committee hearing on whether he should be confirmed to a position as a federal district judge in DC.

Since that time, the following video has gone viral:

 

It is a devastating watch and I think it could well sink his nomination.  But should it?

I think that answer is far from easy.

On the one hand, most of these questions were pretty basic questions about trial practice, especially the Daubert and motion in limine questions related to evidence. (I don’t think people need to have Younger and Pullman abstention at their fingertips when they become district judges). Anyone with a decent amount of trial experience should know that, and it is clear from his answers that he didn’t know that.

On the other hand, it is not clear that we want all of our federal judges to be cut from the same cloth. Commissioner Petersen has extensive experience on the FEC, and I have no doubt he could read legal cases and resolve difficult statutory questions in his capacity as a judge. Not every trial judge needs to be a former litigator.

The real problem for me is that it appears that Petersen had not done his homework.  In preparing for a hearing like this, he really should have spent some time learning (or relearning) the kinds of basic things that trial court judges do. This is the only chance to really question someone before a lifetime appointment, and it is fair to expect them to be extra prepared.

I’m not saying I support Commissioner Petersen for a judgeship. He has always been nice in my interactions with him. But he has voted in doctrinaire lockstep fashion on the FEC, first following Don McGahn’s lead to tear down as much campaign finance law as the Republican commissioners could. I don’t like what he’s done on the FEC, and I don’t know how fair he’d be as a judge.

But I’m not sure that a gotcha performance is a reason to disqualify someone. Maybe lack of preparation is.

Not an easy case, as I said.

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After DNC Takes Sean Spicer Deposition About Violation of Consent Decree in RNC v. DNC Case, DNC Wants More Discovery and RNC Wants Court to Acknowledge Consent Decree Over

We can’t see or read the Spicer deposition, because it is under seal, but see these two post-deposition letters from the RNC.  In the second, the RNC writes:

The RNC believes that a mere reading of the deposition transcript will refute the DNC’s assertions, which range from wholly speculative to wishfully inaccurate. In particular, the hearsay from anonymous sources in the Politico article is not probative and cannot rebut Mr. Spicer’s sworn testimony under cross-examination. Further, as to the DNC’s previously-denied request for a deposition of Mr. Priebus (ECF No. 182), the DNC still has no evidence that Mr. Priebus was involved in ballot security activities. As to its new request for depositions of Messrs. Roman and Parscale, the DNC concedes that they were not RNC personnel at all, and thus were not subject to the Decree. Finally, the request flies in the face of this Court’s instruction on November 29, 2017: “[A]sk for [discovery] on any basis you want, but I just want to let you know that I anticipate that unless you have other evidence that what [Mr. Spicer] said is not accurate and it’s material, I’m not going to be inclined to go any further.” Tr. at 50 (emphasis added).

This may all be over very soon.

I wrote here at Slate on what that means.

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Alabama SOS Office Still Saying, Apparently Contrary to Alabama Law, that Roy Moore Can Pay for a Recount If He Wants One

Al.com:

Alabama’s election handbook spells out several offices that are not included in state laws for contesting elections: lieutenant governor, U.S. senator, and U.S. representative.

There are other provisions, however, that indicate a candidate or political party could request a recount,

“It’s our contention the votes can be recounted,” John Bennett, Deputy Chief of Staff for the Secretary of State’s office told AL.com. “We contend that authority is there.”

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“Facebook Political Ads Get Bare-Bones Guidance From FEC”

Bloomberg BNA:

Candidates and political groups may be heading into another congressional election cycle without guidance about what their ads should reveal about who’s paying to influence Facebook’s almost 160 million U.S. users.
The Federal Election Commission deadlocked along party lines in a Dec. 14 meeting, unable to agree on an advisory opinion on Facebook ads that contain pictures or videos.
Democrats on the commission wanted each ad to show a sponsor’s name and address, similar to current rules for broadcast and print campaign ads. Republican commissioners backed requiring disclaimers without providing specifics about what information should be displayed.
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“Did Alabama Just Violate Federal Voting Law? Assessing the state’s ‘inactive’ voter scheme.”

Slate:

Theoretically, voters who received the first postcard and did nothing (as instructed) remained active and received no further correspondence. Stuart Naifeh, a voting rights attorney at Demos, told me that, under the federal National Voter Registration Act, states cannot begin to remove voters from the rolls without some initial indication—such as bounced mail—that they have changed addresses. To put it another way: If Alabama is listing voters as inactive because they didn’t respond to one or both postcards—but neither was returned to sender—it is probably breaking federal law.

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“Proposal to Let Churches and Other Nonprofits Get Political Blocked from Tax Bill”

WSJ:

Sen. Ron Wyden (D., Ore.) says the chamber’s parliamentarian has blocked a proposal to let churches and charities engage in partisan politics, keeping it out of the final tax bill set to be unveiled Friday.

The repeal of the Johnson Amendment was in the House tax bill but not in the Senate’s version, and it was a priority for President Donald Trump during the 2016 campaign.

Republicans are advancing the tax bill under procedures known as reconciliation. That lets them pass the measure with a simple majority in the Senate and thus no Democratic votes. But it also comes with constraints, namely the Byrd rule. That law, named for the late Sen. Robert Byrd (D., W. Va.), prevents reconciliation bills from containing provisions that aren’t primarily fiscal in nature on a simple-majority vote.

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Alabama SOS Deputy Chief of Staff Says Alabama Rules May Allow Moore to Request Recount, Despite Plain Language in the Alabama Code to the Contrary

Interview with Business Insider:

Beyond that, Moore might not have a recourse.

“However, several offices are not included in Alabama’s law for contesting elections: lieutenant governor, U.S. senator, and U.S. representative,” Alabama’s election handbook reads. “The omission of U.S. senators and representatives is probably due to the fact that each house of Congress is the final judge of its own members’ qualifications.”

John Bennett, Merrill’s deputy chief of staff, told Business Insider on Wednesday that the handbook is not the law, but rather an interpretation of the law, and that it is too soon to discuss the possibility of a recount.

But he also said that Sections 17-16-20 and 17-16-21 of Alabama’s election law “probably” allow political parties or the candidates themselves to request a recount in elections for both state-level and federal positions.

“We’re just not at that point,” he said. “We should get to verifying the vote first.”

Earlier: Breaking: Under Alabama Law, Roy Moore May Not Be Able to Request a Recount If The Margin is More than 0.5%

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Alabama SOS Responds to Why He Blocked Me, Saying I Should Have Called Him Privately, But Still Doesn’t Respond on Merits of Recount Law

 

Amazing.

I think a private call from me would have been totally inappropriate.

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Rachel Maddow: “Roy Moore Mistaken in Alabama Recount Claim”

Rachel Maddow discussing issue (and my blog post) starting around the 8 minute mark.

Earlier:

Alabama SOS Merrill Still Won’t Engage on the Merits Over Whether Roy Moore Can Get a Recount If He Pays for It, But Disparages Attorneys and Judges from California

Still no response on the merits from Moore:

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“Protect Democracy Releases Legal Memo on Constitutional Prohibition Against Delay of Elections for Partisan Purposes”

Memo.

More at Take Care:

In all of the discussion about the political ramifications of yesterday’s special election in Alabama, let’s not lose sight of the most important point: there was an election.  That shouldn’t be taken for granted.  We were dangerously close to a situation in which one party orchestrated the delay of an election to avoid losing—a situation that would have endangered the very foundation of our democracy.  Because such an idea was even considered at a high level—Senate Majority Leader Mitch McConnell reportedly sent a secret memo to the White House Counsel’s Office floating theories for how to do this—we must take seriously the threat that such a plan could be deployed in another election in the future. We must also be clear now on why that would never be permissible (or constitutional).

To recap: In the weeks leading up to the special election, as accusations of misconduct appeared to weaken Roy Moore’s standing in the polls and it seemed he might leave the race, Republican leaders explored options for delaying the election—presumably to reduce their party’s chances of losing.  To her credit, Governor Ivey never gave any public indication that she was considering a delay.  But the next governor placed in her shoes may not be so principled.  Troublingly, one study earlier this year found that half of the Republican respondents said that they would support postponing an election if President Trump called for it.

Postponing or canceling an election to shore up one party’s chances of victory would be dangerous and antithetical to American democracy.  It would also be unconstitutional.

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“Money Is Flowing Into State Supreme Court Races, Study Says”

Carrie Johnson of NPR on this new Brennan Center report. From the summary of the report:

For the first time, we undertook an in-depth analysis of donor transparency among interest groups and found that “dark money” spending, by groups whose funding sources are concealed from the public, is booming in state supreme court elections. Outside spending by interest groups also broke records again, while there were more high-cost races than ever before. Recognizing that expensive and politicized supreme court elections are now a fixture in many states, this year we also changed the report’s title, dropping the word “New” from The New Politics of Judicial Elections.

* Outside spending by interest groups shattered records. Rather than contributing to candidates or political parties, wealthy interests are increasingly relying on outside spending by groups as a way to influence state supreme court elections, mirroring the trend in elections for political offices since the Supreme Court’s 2010 decision in Citizens United v. FEC. During the 2015-16 supreme court election cycle, political action committees, social welfare organizations, and other non-party groups engaged in a record $27.8 million outside spending spree, making up an unprecedented 40 percent of overall supreme court election spending (as compared with only 29 percent in 2013-14). Funneling spending through outside groups may be attractive to donors because it often allows them to avoid campaign contribution limits and disclosure requirements.

* Supreme court elections saw an influx of secret money. The growth of outside spending by interest groups has brought with it a stunning lack of transparency. For the first time, this report quantified the amount of money in state supreme court elections coming from sources concealed from the public. We found that only 18 percent of interest groups’ outside expenditures during 2015-16 could be easily traced to transparent donors. With respect to the remaining expenditures, donors were either undisclosed (54 percent), a type of spending known as “dark money,” or buried behind donations from one group to another (28 percent), making it difficult or impossible to discern the ultimate funding source, a type of spending known as “gray money.” Such secrecy risks leaving voters uninformed about who is seeking to shape state high courts, and leaves litigants (and often even judges) without the tools to identify potential conflicts of interest.

* There were more million-dollar supreme court races than ever before. Twenty-seven justices were elected in $1 million-plus races in 2015-16, compared with the previous high of 19 justices in 2007-08. Pennsylvania also set an all-time national record for its 2015 election, attracting a total of $21.4 million in spending for three open seats. A greater number of justices elected in high-dollar races means more potential conflicts of interest and heightened pressure on all judges to curry favor with wealthy interests who can subsidize the increasingly high cost of a future election

* More than half of all states with elected high courts are now impacted by big-money elections. By the start of 2017, 20 states had at least one sitting justice who had been involved in a $1 million race during his or her tenure. By contrast, in 1999, the number was only seven. As of January 2017, one-third of all elected justices sitting on the bench had run in at least one $1 million-plus election. These figures highlight that across the country, politicized state supreme court elections are no longer the exception, but the rule.

* Campaign ads targeted judicial decisions, often in misleading ways. More than half of all negative television ads aired during the 2015-16 election cycle criticized judges for their rulings on the bench, often in a misleading way designed to stoke emotion and anger. Targeting judicial decisions poses worrying threats to judicial independence, and there is both anecdotal and empirical evidence that such election pressures impact how judges rule in cases.

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“Doubting the intelligence, Trump pursues Putin and leaves a Russian threat unchecked”

Extensive WaPo report:

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.

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Convergence and Divergence of Gerrymandering Theories

I noted a couple days ago that Maryland’s Sixth Congressional District is unconstitutional under the Benisek plaintiffs’ district-specific test, while Maryland’s congressional map is also (probably) unlawful under the Whitford plaintiffs’ statewide test. (The Benisek test requires discriminatory intent with respect to a particular district, as well as a discriminatory effect in the form of that district flipping from the opposing party to the line-drawing party. The Whitford test requires discriminatory intent with respect to a plan as a whole, a discriminatory effect in the form of a large and durable partisan asymmetry, and a lack of a legitimate justification for this asymmetry.)

Generalizing a bit, the Benisek and Whitford theories can be expected to point in the same direction when (1) the previous plan was symmetric (or favored the opposing party); (2) the current plan is asymmetric in the direction of the line-drawing party; and (3) the current plan’s asymmetry was achieved exclusively by flipping districts from the opposing party to the line-drawing party. In these circumstances, there is both discriminatory intent (the aim to flip at least one district) and a discriminatory effect (the actual flipping of at least one district) under the Benisek test. All of the elements of the Whitford test are satisfied as well: a partisan asymmetry that is deliberate, severe, persistent, and unjustified.

However, when these criteria are not satisfied, the Benisek and Whitford approaches can be expected to diverge. Start with the symmetry of the previous plan. What if it was already highly skewed in favor of the line-drawing party? What if, for example, Maryland Democrats already controlled seven out of eight congressional seats throughout the 2000s? Then there would be no liability under the Benisek test, because Maryland Democrats could design a highly asymmetric map without flipping any districts from Republican to Democratic control. All they would have to do is maintain their hold on their seven existing districts. Conversely, there would be liability under the Whitford test, because the new map would be intentionally, significantly, durably, and unjustifiably asymmetric. That it happened to be as asymmetric as its predecessor would be legally irrelevant.

Next, consider the asymmetry of the current plan. What if it’s not skewed in favor of the line-drawing party? What if, say, Maryland Democrats previously controlled three out of eight congressional seats, and then designed a new map that would enable them to win four seats? That Maryland Democrats are going from three to four seats (not from six to seven) would make no difference under the Benisek test. There would still be the intent to flip a seat, as well as a seat actually flipped, and hence liability. On the other hand, the current map’s overall fairness would make a dispositive difference under the Whitford test. A plaintiff would not be able to show that the plan is skewed toward the line-drawing party if it actually treats the major parties symmetrically.

Lastly, take scenarios where the current plan’s asymmetry was achieved in more complicated ways. Assume, for instance, that Maryland Democrats went from six to seven congressional seats not just by flipping the Sixth District from R to D, but also by flipping the First District in the same direction and by enabling Republicans to win a seat that was previously held by Democrats. Then there would be three viable claims under the Benisek test: one by Republicans in the Sixth District, another by Republicans in the First District, and yet another by Democrats in the seat that was deliberately flipped from Democratic to Republican control. Under the Whitford test, in contrast, there would be just one claim and by just one party’s supporters. Republican voters throughout Maryland could contend that the map as a whole is biased against them.

The point of these examples (which could be multiplied many times over) is that the Benisek and Whitford theories are not equivalent in their scope. Sometimes (as in Benisek itself) the two tests do converge. But in several other situations—whenever flipped districts are not tantamount to an asymmetric map—the two approaches yield different conclusions.

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FEC Commissioner Petersen Gets Tough Questioning at Hearing to Become Federal District Court Judge

NLJ:

A nominee for a District of Columbia judgeship took a beating at his Senate confirmation hearing Wednesday when he could not define motion in limine.

U.S. district court nominee Matthew Petersen, a member of the Federal Election Commission, has never tried a case, has taken fewer than 10 depositions, and demurred when asked—twice—if he knew what a motion in limine is.

“My background is not in litigation … I understand the path that many successful district court judges have taken has been a different one than I have taken,” Petersen said at first.

When asked a second time, he said point-blank: “I would probably not be able to give you a good definition right here at the table.”

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“Native Americans Again Seek to Protect their Right to Vote”

Release:

On December 13, 2017, the Native American Rights Fund again brought action against the state of North Dakota seeking to overturn North Dakota’s newest discriminatory voter ID law. NARF filed an amended complaint on behalf of Native American Plaintiffs impacted by the discriminatory law. Last year, NARF fought on behalf of Native American Plaintiffs to enjoin enforcement of North Dakota’s voter ID law, which disproportionately prevented Native Americans from exercising their right to vote.  In that action, Judge Daniel L. Hovland of the U.S. District Court for the District of North Dakota found “[i]t is undisputed that the more severe conditions in which Native Americans live translates to disproportionate burdens when it comes to complying with the new voter ID laws.” Judge Hovland, therefore, held the law likely violated the U.S. Constitution because it disproportionately kept Native Americans from voting and required the state to provide a fail-safe mechanism for those without IDs in the 2016 general election. Judge Hovland wrote, “it is clear that a safety net is needed for those voters who simply cannot obtain a qualifying voter ID with reasonable effort.”Video looks at NARF’s 2016 ND voting case.

In light of this defeat, the legislature amended their law earlier this year, but the new law failed to include meaningful protections for voters’ rights.

See also this flyer about a January hearing in Phoenix by the Native American Voting Rights Coaltion.

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Alabama SOS Merrill Still Won’t Engage on the Merits Over Whether Roy Moore Can Get a Recount If He Pays for It, But Disparages Attorneys and Judges from California

Montgomery Advertiser:

It was not immediately clear Wednesday if Moore could request a recount at the current margins. State law allows candidates to challenge recounts outside the automatic trigger if they are willing to pay the costs. Merrill suggested in interviews that that could be an option — albeit an expensive one — for Moore. But election law expert Rick Hasen noted in a post late Tuesday that the law only appears to cover statewide offices, not federal ones.

Asked about this Wednesday, Merrill said “if we need advice or counsel on this matter, we’ll be seeking it from attorneys and judges in the state of Alabama, not attorneys and judges in the state of California.”

Earlier: Crazy in Alabama: Why Isn’t Alabama Secretary of State John Merrill Correcting His Error About Recounts Made Last Night on CNN?

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“AL Sec. of State still sowing confusion over Jones win”

Zachary Roth:

Alabama Sec. of State John Merrill is claiming Roy Moore can request a recount in Tuesday’s U.S. Senate race, which Moore lost by 21,000 votes. But state law appears to say otherwise.

Merrill’s stance could help the GOP delay seating Democrat Doug Jones in the U.S. Senate. It’s just the latest example of the secretary of state, a Republican and Moore backer, creating serious doubts about his ability to administer the crucial race fairly….

But Rick Hasen, a respected election law expert at the University go California, Irvine, wrote online that Merrill got it wrong. Citing state law, Hasen wrote that only candidates for state-level positions, not federal ones, are entitled to a recount whatever the margin.

The Alabama Law Institute’s Election Handbook appears to support Hasen.

“I understand that Merrill may have made an error in the heat of the election (but truly, this is something he should have known going into such a high profile and closely watched election),” Hasen wrote Wednesday morning. “But what explains his failure to correct things now? We are moving from a mistake to possibly something else.”

Merrill’s response? He blocked Hasen on Twitter. (It’s not the first time that Alabama’s chief elections official has blocked an election expert who dared criticize him. One was even blocked after saying Merrill shouldn’t block people on Twitter).

Asked by The Daily Democracy whether Merrill stood by his interpretation of the recount law, a spokesman didn’t respond.

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Crazy in Alabama: Why Isn’t Alabama Secretary of State John Merrill Correcting His Error About Recounts Made Last Night on CNN?

As I explained in this post, it looks like Roy Moore cannot request a recount in the Alabama Senate race if the margin is greater than 0.5% (there’s an automatic recount for the 0.5% range). Last night on CNN, Alabama SOS John Merrill got it wrong, saying that Moore could pay for a recount in the larger range.  The statute does not allow this for federal offices.

I understand that Merrill may have made an error in the heat of the election (but truly, this is something he should have known going into such a high profile and closely watched election).

But what explains his failure to correct things now? We are moving from a mistake to possibly something else.

More: WKRG reports: “Election Law Expert Argues Moore Cannot Request Recount”

WaPo: Why Roy Moore’s hope for a recount is a very long long shot

UPDATE: SOS Merrill has now blocked me on twitter.

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Breaking: Under Alabama Law, Roy Moore May Not Be Able to Request a Recount If The Margin is More than 0.5%

In a prior post, I noted that under Alabama law, if the margin between the candidates is within 0.5% there is an automatic recount at state expense. That statute is Section 17-16-20.

But AL SOS Merrill, pointing on CNN to a recent governor’s race that was close, said that any candidate can get a recount at his or her own expense if the margin is greater. The statute allowing that is Section 17-16-21.

But that statute only allows people seeking recounts to be those “with standing to contest the election under Sections 17-16-40 and 17-16-47.”

And if you look at those sections, they do not allow candidates for federal office to request such a recount or to contest the election (presumably because these would be done in the U.S. House or Senate.)

Under 40, the ones who can contest are: “The election of any person declared elected to the office of Governor, Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture and Industries, Public Service Commissioner, senator or representative in the Legislature, justices of the Supreme Court, judges of the courts of appeals, judge of the circuit court or district court, or any office which is filled by the vote of a single county, or to the office of constable.”

Section 47 only allows a contest “of any person declared to be elected to the office of senator or representative in the Legislature, judge of the circuit court or district court, any office which is filled by the vote of a single county, or constable.”

Moore is not those.  I think unless there’s another provision I’m not seeing he cannot get a recount if it is outside the 0.5% margin.

He can ask for the U.S. Senate to conduct some kind of contest but good luck with that.

Happy to be corrected if I’m wrong.

UPDATE.

 

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Doug Jones Apparent Winner in Alabama Senate Race, But Moore Not Conceding, Awaiting Possible Automatic Recount

[See this updated post instead of what is below.]

Roy Moore just said he is not conceding and will wait to see if there is a recount. An automatic recount is triggered if the race is within 0.5%.  Right now, as I write, Jones is ahead by 1.6%. Moore can still pay for a recount if the margin is beyond the 0.5% threshold.

Alabama Secretary of State John Merrill on CNN says there are an unknown number of military  as well as provisional ballots, but does not say how many are outstanding.  Merrill says it is possible that these ballots could shrink the margin.  Write-in votes cast for non-eligible candidates could also shrink the margin.

This seems like quite a tough road ahead for Moore.

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“If He Wins, Could the Senate Exclude Roy Moore? Under an 1844 Senate Precedent, Perhaps.”

Fascinating Hugh Brady:

The Powell Court held that the constitutional grant of power extends “to judg[ing] only the qualifications expressly set forth in the Constitution” and that “the [Senate is] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed by the Constitution.” 395 U.S. at 521-522, 548.

The Powell Court was focused exclusively on the Article I qualifications, sidestepping any discussion of additional qualification imposed by Article VI, Clause 3: “The Senators … shall be bound by oath or affirmation, to support this Constitution[.]” The Court explained that it did not consider whether this provision, or the other provisions concerning dual office-holding or disqualification because of impeachment or rebellion, was a qualification because the parties agreed that “Powell was not ineligible under any of these provisions.” Id. at 520 n.41.

So, what if the individual does not have the capacity to take the oath? Could the Senate exclude that individual? Consider the case of John M. Niles, elected to the Senate in 1843….

What should Senator Collins do? It seems that she should offer a resolution delaying the administration of the oath to Moore pending an inquiry into his capacity to take the oath; such a resolution is privileged and prevents the Presiding Officer from administering the oath. Riddick’s Senate Procedure, S. Doc. 101-28 at 704 (1992). This is certainly the procedure used by Jarnagin in the Niles precedent. While “orderly procedure” first outlined in 1903 suggests that a Senator-elect should be sworn first and then his qualifications should be reviewed, that procedure seems to relate primarily to cases of election contests and not to cases where the Senator lacks capacity to take the oath. See id. at 704-705. Moore can then take his case to a Federal district court and thence on appeal, eventually to the Supreme Court. Poetic, I think.

Senator Collins, if you feel as you say, it’s worth a try. Good luck.

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“Facebook and the New Red Scare”

David Keating and Paul Jossey in The Hill:

Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum.

Egging on lawmakers in this endeavor is the usual cadre of nonprofits and opinion shapers. Oft-quoted progressive professor Richard Hasen direly warns, “It is a matter of national security and sovereignty to assure that only Americans should be able to influence who American leaders should be.” This is absurd and impractical.

Good to know I’m both absurd AND impractical.

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Disturbing News from Alabama Senate Race: “Alabama Supreme Court Blocks Digital Ballot Preservation in Eleventh Hour”

Steven Rosenfeld:

The Alabama Supreme Court stepped into Tuesday’s U.S. Senate race between Republican Roy Moore and Democrat Doug Jones on Monday night by blocking a lower state court’s ruling earlier in the day that ordered election officials to take steps to preserve digital images of every ballot cast Tuesday.

In effect, the Alabama Supreme Court’s stay—or freezing—of an earlier court order to preserve the digital ballot images undermines the best-case scenario for ensuring that an accurate vote count can be verified in the controversial Senate race.

Alabama’s Supreme Court, where Moore served as chief justice, did not issue an explanation with its stay. However, a lengthy brief filed at the close of business Monday by the state on behalf of Alabama Secretary of State John Merrill contained a list of eyebrow-raising assertions, such as Merrill had no authority to tell local election officials how to operate their voting machines. The state also said only private vendors holding contracts to program the machines could do so—and that it was too late for that.

Update: Here is the order. It provides for further proceedings. But it grants an emergency stay in the interim, which for all practical purposes allows the ballot images to be destroyed before the case could be heard.

 

Second update: It appears that the court issued its order within minutes after the stay request, without giving the other side a chance for briefing. How could they have had a chance to fairly consider the issue?

But at 4:32 p.m. Monday, attorneys for Alabama Secretary of State John Merrill and Ed Packard, the state administrator of elections, filed an “emergency motion to stay” that order, which the state Supreme Court granted minutes after Merrill and Packard’s motion was filed.

It is very disturbing because the AL Supreme Court’s order effectively decides the case. The ballot images will be destroyed, even if plaintiffs ultimately win on the merits weeks later. Goes against principles of preserving the status quo.

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“Civil Rights Division Lawyers And Staff Gave Low Marks To Justice Department Leadership In A Workplace Survey”

Zoe Tillman:

Fewer than a third of attorneys and staff in the Justice Department’s Civil Rights Division who participated in a workplace survey this year reported feeling “satisfied” with the policies and practices of senior DOJ leadership, according to a report obtained by BuzzFeed News.

A high percentage of Civil Rights Division employees reported feeling satisfied with their work, their immediate supervisors, and their colleagues, but the positive responses dropped when it came to senior leadership. Under Attorney General Jeff Sessions, the Justice Department has changed course on a number of civil rights issues, including arguing againstfederal protections for gay workers and scaling back oversight of local police departments.

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“Judge orders Alabama not to destroy voting records in Tuesday’s Senate election” (with link to court order)

AL.com:

A judge directed Alabama election officials Monday afternoon to preserve all digital ballot images in Tuesday’s hotly contested U.S. Senate special election.

An order granting a preliminary injunction was filed at 1:36 p.m. Monday – less than 24 hours before voting is to begin. The order came in response to a lawsuit filed Thursday on behalf of four Alabama voters who argued that the state is required to maintain the images under state and federal law.

“All counties employing digital ballot scanners in the Dec. 12, 2017 election are hereby ordered to set their voting machines to save all processed images in order to preserve all digital ballot images,” Montgomery County Circuit Judge Roman Ashley Shaul wrote in the order.

You can find the two-page order here.

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“Secret super PAC backing Jones in Alabama exposed”

Politico:

A mystery super PAC backing Democrat Doug Jones in Alabama is controlled by a pair of groups closely aligned with the national Democratic Party, even as the candidate strives to dissociate himself from Washington interests.

Highway 31, which has dropped more than $4.1 million in support of Jones and against Roy Moore ahead of Tuesday’s Senate special election, is a joint project of two of the largest national Democratic super PACs — Senate Majority PAC and Priorities USA Action — along with a group of Alabama Democrats, multiple senior officials familiar with the arrangement told POLITICO.

Highway 31 was created in November, Federal Election Commission filings show. Though Birmingham lawyer Edward Still is listed as the group’s treasurer, it was, in fact, founded jointly with Senate Majority PAC, the outside group closely tied to Democratic leadership in the Senate. Highway 31 has been funded jointly by Senate Majority PAC and Priorities USA Action, the Democratic super PAC that backed Barack Obama in 2012 and Hillary Clinton in 2016, the Democrats briefed on the arrangement told POLITICO.

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Analyzing the Maryland Case on a Statewide Basis

The Supreme Court’s new partisan gerrymandering case features a district-specific (rather than a statewide) claim, as the plaintiffs challenge only Maryland’s Sixth Congressional District. It’s worth noting, though, that had the plaintiffs attacked Maryland’s entire congressional map, they (likely) would have been entitled to prevail under the test adopted by the Whitford trial court:

  1. Discriminatory intent: Democrats had unified control of the Maryland state government in 2011, and it’s evident from the Benisek record that they sought to benefit themselves, and disadvantage Republican candidates and voters, when they redrew Maryland’s congressional districts.
  2. Discriminatory effect: Maryland’s congressional plan had an average pro-Democratic efficiency gap of about 13% in the 2012, 2014, and 2016 elections. Only eight plans over the last half-century have been more skewed, on net, and five of those are currently in effect. It would also take a nine-point pro-Republican swing for Republicans to capture even a single additional seat. The Maryland map’s tilt is thus impervious to most electoral shifts.
  3. Justification: Compared to hundreds of maps simulated by Jowei Chen and David Cottrell, Maryland’s congressional plan is much more skewed in a Democratic direction. It’s therefore improbable that Maryland’s political geography or legitimate redistricting objectives can explain the plan’s tilt. (To prove this point, however, more detailed simulations incorporating Maryland’s specific line-drawing goals would be necessary.)

To be clear, district-specific and statewide theories of partisan gerrymandering don’t always point in the same direction. In a subsequent post, I’ll explore where the theories converge and where they diverge. At least in Benisek, though, both types of claims support the invalidation of Maryland’s congressional plan.

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Mobilizing Black Voters in Alabama: Who Does it and Why It’s Become Harder

For many decades the most significant organization in Alabama for mobilizing black turnout has been the Alabama Democratic Conference (ADC).  The ADC goes back deep into Alabama’s history, even pre-dating the Voting Rights Act.  It was founded after the successful 1960 challenge, in the Supreme Court case of Gomillion v. Lightfoot, to Tuskegee’s attempt to re-draw its municipal boundaries into a 28-sided “uncouth” figure that put virtually every black resident outside the city’s boundaries.

Having won that case, Dr. Gomillion then helped found the ADC to help mobilize and organize black political participation.  The unusually long existence of the ADC has given it a recognition and stature built up over years, particularly among black voters, that has made it a central player in get-out-the-vote (GOTV) efforts.

Successful organizations for GOTV drives are less likely to be pop-up vehicles  created overnight for a particular election, because they rely on the credibility that comes from years of having developed personal relationships and the infrastructure to get black voters to the polls, particularly in rural areas.

But  the ADC’s capacity to do that in tomorrow’s election and going forward has been dramatically undermined by a recent Alabama law that bans any political group from contributing financially to support any other political group for any purpose.  Given the economic position of many blacks in Alabama, the ADC charges membership dues of only $15/year, and less than half its financial resources traditionally came from these dues.  More than half its financing for things like GOTV efforts came from organizations representing teachers and trial lawyers, which shared ADC’s political aims.

When Alabama banned political groups from providing financial support to other political groups, it cut off nearly half the money ADC received for its GOTV efforts.  To the extent Alabama had any genuine problems with its campaign-finance laws, there were less sweepingly overbroad ways of dealing with them, rather than a complete bar on the ability of any group to contribute financially to any other group. The much more comprehensive federal campaign laws do not contain anything like this kind of flat prohibition on political groups working together on matters like GOTV efforts.

I thought Alabama’s law was an unconstitutional infringement on political association and political speech, and I represented ADC (along with John Tanner, Ed Still, and Perkins Coie) in its effort to get the Supreme Court to address these issues.  But the Court declined to hear the case.  (Only one other State, Missouri, has a similar bar to Alabama’s on political groups supporting each other with financial contributions, and a federal district court held Missouri’s law unconstitutional after the Supreme Court declined to hear the Alabama case).

Tomorrow’s election is the first major one under the law that bans ADC from receiving money from other political groups to fund its GOTV efforts.  The question of how many black voters turn out for the Democratic candidate, Doug Jones, is of course one of the factors that will be most critical to the outcome.

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“Is the Supreme Court finally ready to tackle partisan gerrymandering? Signs suggest yes”

I have written this oped for the LA Times.  A snippet:

Maybe there is some technical problem with the Gill case — such as a lack of standing for the plaintiffs — that would prevent the court from deciding it on the merits. Maybe the court will rule that these cases must be decided on a district-by-district basis (as in Benisek) rather than on a statewide basis (as in Gill). Maybe the court does not like the efficiency-gap theory, and prefers the 1st Amendment argument offered in Benisek. (In brief, the theory is that when a legislature draws lines to minimize a political party’s voting strength, it interferes with the associational rights of the party’s voters, discriminating against them simply because they are Republicans or Democrats.)

The tweet reminded me of what Chief Justice John G. Roberts Jr. said during the Gill oral arguments about being forced into the business of choosing Democrats or Republicans. He said that if the “intelligent man on the street” sees the court siding with Democrats in one of these disputes, “it must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

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The Maryland Gerrymandering Case: Four Significant Aspects to the Court Deciding to Hear the Case

1. The significance for the justiciability issue.  Deciding to hear the Maryland case is a significant signal that a majority of the Court is not going to hold partisan gerrymandering claims to be non-justiciable (that is, inappropriate for judicial resolution).  If the Court were moving in the Wisconsin case toward holding partisan gerrymandering to be non-justiciable, it would make little sense for the Court to do anything with the Maryland case except hold it, then send it back to the lower courts to dismiss on the grounds that the entire cause of action was non-justiciable.  Hearing the Maryland case means the Court is quite unlikely to rule in WI that partisan gerrymandering claims should not be addressed by the courts.

In the Court’s last major confrontation with these issues, the 2004 Vieth   case, four Justices would indeed have held partisan gerrymandering non-justiciable (C.J. Rehnquist and J. O’Connor, of those four, are no longer on the Court). Justice Kennedy had kept the cause of action alive, but just barely, based on his hope that effective, judicially manageable standards would emerge.  In Gill, the possibility always existed that, if Justice Kennedy were  not satisfied that plaintiffs had indeed come up with an effective standard 13 years later, he too might conclude the courts should give up the search as well.  But the Maryland grant signals that, whatever else the Court might do in Gill, it is unlikely to conclude partisan gerrymandering is non-justiciable.

2. The significance for the issue of partisan gerrymandering.  The Wisconsin and Maryland cases take completely different approaches, which means the Court will now have a more comprehensive menu of options before it in deciding how to address partisan gerrymandering.  At the time the Court agreed to hear the Wisconsin case, I wrote that it was unfortunate this case was coming to the Court in isolation, as (1) the first case in which a lower federal court had struck down as unconstitutional a legislative redistricting plan and (2) the first case that had made use of the new metric, the Efficiency Gap, as part of its decision.  In the normal world of Supreme Court practice, the Court might have left the lower court decision alone (by denying cert.) and giving the lower courts more of an opportunity to test both this approach and others that were being pursued under different theories in other states.  But the unique nature of the Court’s mandatory appellate jurisdiction meant that it essentially had to agree to hear the Gill case, rather than waiting and then being able to benefit from numerous lower court decisions.

By granting the Maryland case now, the Court has thus put itself back in the better position of having an at least somewhat broader perspective on the theories and approaches being developed in the lower courts.  The approach in the Maryland case is a more conventional one than in Gil because it focuses on the design of a single district; the Maryland case implies that districts would have to be challenged one by one, with plaintiffs having to prove that any specific district was itself a partisan gerrymander; for that reason, the approach in Maryland, if adopted, would make future litigation more burdensome than in Gill, since Gill attacks state-wide plans as a whole, on a state-wide basis, rather than requiring proof about each district one-by-one.  Of course, the approaches in Gill and the Maryland case could turn out to be complementary, rather than alternatives; the Court could decide that a plan is unconstitutional if it violates the plaintiffs’ approach in Gil or that individual districts could be unconstitutional under the plaintiffs’ theory in Maryland.  But in any event, the Court is going to have a much better overall perspective on how to think about legal theories concerning partisan gerrymandering by virtue of having both cases before it.

3.  The significance for the signal the Court’s decision sends.  When the Court was considering only the Gill case in isolation, the case had been built up into the climatic moment for this issue.  That meant that, if the Court ends up rejecting the plaintiffs’ claims in Gill, the decision would have sent a powerful message to many other key actors — lower court judges, lawyers and plaintiffs considering bringing these cases, and those involved in redistricting — that the Court was unlikely ever to find an instance of unconstitutional partisan gerrymandering.

That would have been true even if the Court had qualified its decision in various ways, and even though there are several unique features of the WI litigation that would not apply to other approaches to litigating partisan gerrymandering.  After years of not holding any plan unconstitutional, if the Court reached that same conclusion in Gil, the undoubted take-away would have been these cases are simply not winnable.

But now, with two options before it, the Court’s signal will depend on how it handles both cases (and the two decisions might  be handed down at the same time).  The Court might affirm in Gill, of course. But if it rejects the plaintiffs’ claims there, and yet affirms the plaintiffs’ claims in the Maryland case, the message from the Court will be dramatically different than if it were deciding Gill alone.

4.  The significance for the (perceived) politics of partisan gerrymandering.  Because many more legislatures were under unified Republican than Democratic control in the 2010 round of redistricting, most of the attacks on partisan gerrymandering — both in the courts and in the media — have tended to be attacks on Republican-drawn plans. To the extent the legal challenge to partisan gerrymandering comes to be perceived as a purely partisan matter, that is not good for the legal issue.

Judges realize, of course, that Democrats often gerrymander when they get the chance.  But it makes a difference to have a vivid example and reminder of that fact before the Court at the same time the initial challenge before it was to a Republican plan.  That’s another reason I consider this recent Maryland grant good for the Court’s consideration of partisan gerrymandering.

 

 

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“The Republican Overseeing the Alabama Election Doesn’t Think Voting Should Be Easy”

Pema Levy:

This time last year, Alabama’s chief elections official landed in the national spotlight for delivering a screed against nonvoters that many people interpreted as an attack on African Americans in the state, who have long faced barriers to voting. “If you’re too sorry or lazy to get up off of your rear and to go register to vote, or to register electronically, and then to go vote, then you don’t deserve that privilege,” Republican John Merrill said in an interview with documentary filmmaker Brian Jenkins. Jenkins had asked why he opposed automatically registering Alabamians when they reach voting age, and his response sizzled with anger toward people who “think they deserve the right because they’ve turned 18.” So he made a pledge: “As long as I’m secretary of state of Alabama, you’re going to have to show some initiative to become a registered voter in this state.”

In the year since he made those comments, Merrill has in many ways made good on his promise. When Alabamians go to the polls on Tuesday to elect Republican Roy Moore or Democrat Doug Jones as their new senator, an untold number will not participate due to the decisions made by Merrill’s office—which is in charge of ensuring a fair voting process—and by the Republicans who run the state. These laws and policies overwhelmingly make it harder for minorities to vote.

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“The Alabama Senate Race May Have Already Been Decided”

Scott Douglas NYT oped:

The Senate election in Alabama on Tuesday is not just about the choice between Doug Jones and Roy Moore. It’s also about a voter suppression campaign that may well sway the result of a close race.

In 2011, Alabama lawmakers passed a photo ID law, ostensibly to combat voter fraud. But “voter impersonation” at polling places virtually never happens. The truth is that the lawmakers wanted to keep black and Latino voters from the ballot box. We know this because they’ve always been clear about their intentions.

A state senator who had tried for over a decade to get the bill into law, told The Huntsville Times that a photo ID law would undermine Alabama’s “black power structure.” In The Montgomery Advertiser, he said that the absence of an ID law “benefits black elected leaders.”

The bill’s sponsors were even caught on tape devising a plan to depress the turnout of black voters — whom they called “aborigines” and “illiterates” who would ride “H.U.D.-financed buses” to the polls — in the 2010 midterm election by keeping a gambling referendum off the ballot. Gambling is popular among black voters in Alabama, so they thought if it had remained on the ballot, black voters would show up to vote in droves….

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