“Supreme Court Will Hear Fast-Track Arguments in Census Case”

Bloomberg:

The justices will consider the Trump administration’s bid to limit the evidence that can be used in the challenge, which has been the subject of a trial in federal court in New York. The court will hear arguments Feb. 19.

Court order:

18-557 IN RE DEPARTMENT OF COMMERCE, ET AL. The petition for a writ of mandamus is treated as a petition for a writ of certiorari. The petition for certiorari is granted. Petitioners’ brief on the merits is to be filed on or before Monday, December 17, 2018. Respondents’ brief on the merits is to be filed on or before Thursday, January 17, 2019. The reply brief is to be filed on or before Monday, February 4, 2019. The case is set for oral argument on Tuesday, February 19, 2019.

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Can’t Make this Up Dept: “Ex-chief investigator of Mercer County elections charged with voter fraud, witness tampering”

Trentonian:

A former chief investigator of Mercer County elections has been charged with voter fraud after officials learned she resides in Pennsylvania, yet has voted in New Jersey since at least 2012.

Andrea Palmucci-McGillicuddy, 52, is charged with fraudulent voting, interference with elections and other related offenses, according to court records.

The charges were filed in Princeton Municipal Court and the case has been referred to the Ocean County Prosecutor’s Office due to conflicts of interest in Mercer.

Palmucci-McGillicuddy, a registered Democrat, gained employment with Mercer County in October 2011 as a seasonal assistant, according to records obtained by this newspaper. A year later, she started working full-time with the Superintendent of Elections Office to the Mercer County Board of Elections as a registration clerk. She was promoted to Chief Investigator of Elections in 2014, starting with a yearly salary of $46,000.

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“GOP megadonor Miriam Adelson is winning a medal. But are Republicans losing the political money war?”

CPI:

But Adelson’s Presidential Medal of Freedom — which liberals are mocking as an award for the $113 million Adelson and her billionaire casino mogul husband, Sheldon Adelson, contributed to conservative candidates, super PACs and other political committees during the 2018 midterm elections — comes as some Republicans are  fretting about the party’s reliance on a handful of aging billionaires.

Several prominent Republican fundraisers and major donors  confirmed the GOP is both concerned about keeping current megadonors giving and cultivating a new crop of major bankrollers.

“There’s no next generation of financial leadership on the bench,” said one Republican strategist involved in raising large contributions, who requested anonymity in order to speak candidly.

And some donors and party fundraisers say it’s time for the Republican Party to broaden its donor base beyond the super-rich and move away from a fundraising model that requires a lot of personal contact. Many point to the success Democrats have had raising money online.

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Manheim: Shifting the Burden and Striking a Balance

In collaboration with Take CareTake Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from LIsa Manheim

There are the laws on the books, and the laws in practice. Democratic leaders have promised that their first legislative vote will come on a bill that, among other reforms, resuscitates the Voting Rights Act. For this legislation to be effective rather than symbolic, it will need to include powerful enforcement mechanisms. Among the most powerful of mechanisms is a legal framework that shifts burdens—evidentiary and otherwise—onto the states. This intrusive approach will garner few fans across the aisle. Yet political gridlock is not its only obstacle. Proponents also will need to convince the Supreme Court that Congress has the constitutional authority to intrude so aggressively on the states.

A review of the century after the Reconstruction Amendments helps to explain why burden-shifting is so critical for voting-rights legislation to be effective. During this time, minority voters enjoyed the impartial administration of elections, but only in name. In practice, the discrimination against minority voters was aggressive, widespread, and brazen. The lessons of this period confirm what any plaintiff-side attorney already knows. Namely, it’s not enough to have a legal theory. You have to be able to prove it up. And you need to be able to do so before your case no longer matters.

The ingenuity of the Voting Rights Act of 1965—the brilliance of its crown jewel, Section 5—was its recognition of this reality. Through the adoption of a unique legal structure, Section 5 accomplished what prior reforms could not: the rapid and meaningful enfranchisement of minority voters. Section 5 operated by freezing in place the election laws and practices of covered jurisdictions (primarily in the South) and requiring those jurisdictions to establish the lawfulness of any changes before they could go into effect. This preclearance regime implied more than a shifting of the burden; it turned the voting-rights framework on its head. No longer were voters forced to investigate the government, initiate complicated legal claims, and, often, endure multiple election cycles tainted by unlawful suppression before they could begin the lengthy and expensive process of seeking relief. Instead, the jurisdiction was the one forced to raise the issue, develop the record, and wait.

The effects were striking—both after Section 5’s enactment, when minority registration rates increased dramatically, and after its 2013 collapse, when the U.S. Supreme Court functionally invalidated Section 5. Since that latter development, formerly covered jurisdictions have been passing restrictive measures for which it would have been difficult, or impossible, to achieve Section 5 preclearance. This wave of suppressive measures continued through the 2018 elections, with the trend showing little sign of abating. In the absence of the Voting Rights Act’s preclearance regime, these restrictive measures go into effect immediately, with voters left to scramble.

These voters have turned to fallback claims—claims that do not have the prophylactic protections of Section 5. This legal strategy has been predictably lacking. Plaintiffs relying on Section 2 of the Voting Rights Act, for example, have found it to be an “inadequate, costly, and often slow method for protecting voting rights.” These fallback claims rely on a much more traditional structure than does Section 5. They do not shift the burden, and they otherwise were not designed to even the playing field between voters and the jurisdictions seeking to suppress those voters. As a result, they cannot accomplish what Section 5 did.

Instead, the limitations of these claims allow recalcitrant jurisdictions to evade effective review by exploiting the control they have over the entire election process. Without their procedures frozen in place, jurisdictions can wear down challengers through a flood of different tactics, push through changes whose suppressive effects are hard to quantify, make questionable decisions at the last minute, bury relevant evidence, and drag outlegal challenges—all while elections occur at regular intervals. The results of these elections allow officials to serve out their terms regardless of whether expensive and time-consuming lawsuits later reveal that unlawful conduct had tainted the process.

In light of these realities, in a parallel universe, where members of both parties took seriously their obligation to preserve citizens’ voting rights (and reforms of the 116th Congress therefore had a chance of success), it would be imperative for the House’s legislation to feature prominently the burden-shifting framework of Section 5. Without this framework, voting-rights plaintiffs necessarily are forced to play catch up—in regularly scheduled races where the winners never retroactively lose their titles.

Of course, in this parallel world, Congress also might need a different Supreme Court: one prepared to accept Congress’s constitutional authority to impose such a deeply intrusive framework on the states. This reflects the reality that the burden-shifting framework of Section 5 is indeed an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”

This leads to a broader observation. For congressional voting-related reforms—of any variety—to have real teeth, Congress will need to be very careful about designing its legislation in a way that comports with the Supreme Court’s narrowing view of congressional authority. To that end, perhaps it can take advantage of the Court’s recent acknowledgement that the Elections Clause empowers Congress broadly (and, accordingly, be prepared to push back on arguments, which may be gaining traction, that it empowers Congress only on the margins). Or maybe it can convince a majority of the Supreme Court to rethink the assumptions underlying its 2013 decision—to recognize that, amid the “largest wave of franchise restrictions since the dark days of Jim Crow,” the United States may not in fact have “changed” so much that Congress can’t justify a decision to renew protections similar to those imposed by the original Voting Rights Act.

To be clear, there is a real tension here: between imposing effective reforms, on the one hand, and ensuring they are insulated against constitutional challenge, on the other. Striking the appropriate balance is not for the faint of heart; it requires dispassionate assessment of enforcement challenges and uncertain predictions about what a changing Supreme Court will tolerate. But, ultimately, conducting this analysis—and relying on those assessments to push the legal limits—may be critical. Otherwise, Congress may find itself unable to protect the concept of “one person, one vote” as a practical reality, rather than as mere words on a page.

 

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“Miami-Dade launches hand recount of 10,000 uncounted ballots in Scott vs. Nelson”

Miami Herald:

A room full of Miami-Dade election workers began a hand recount Thursday night of more than 10,000 problematic ballots cast in the U.S. Senate race, joined by a room full of lawyers and volunteers from both campaigns eager to contest votes for the other side.

The county that still hasn’t lived down its chaotic role in the 2000 presidential recount returned to the grueling manual reckoning required under Florida law for a pair of exceptionally close statewide races.

Gov. Rick Scott, a Republican, leads incumbent Bill Nelson by about 12,000 votes statewide in the Senate contest, and Democrat Nikki Fried is ahead by about 5,000 over Republican Matt Caldwell in the race for agriculture commissioner. Miami-Dade plans to start the mandated hand recount of more than 30,000 problematic ballots in the agriculture race after it concludes the review of the Senate ballots.

The Senate recount officially began at 7:31 p.m., when the three-person canvassing board voted to launch the process. But the tedious inspection of 10,039 ballots would need to wait until election workers could re-calibrate ballot scanning machines and then isolate ballots with undervotes or overvotes for the Senate contest.

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“A rush for uncounted votes scrambles unsettled Georgia governor’s race”

AJC:

Georgia elections officials scrambled Thursday to count a cache of hundreds of ballots that were previously rejected as they raced to comply with the latest federal ruling in the too-close-to-call contest for governor.

Democrat Stacey Abrams called the judge’s order a major victory to extend her quest to become the nation’s first black female governor, but Republican Brian Kemp said it would hardly dent his “insurmountable lead” in the race for Georgia’s top job.

The latest tally showed Abrams is roughly 55,000 votes behind Kemp — and in need of more than 17,000 votes to force a Dec. 4 runoff. Georgia law requires a runoff if no candidate gets a majority of the vote, which is only a possibility because a third-party contender netted about 1 percent.

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“Democrat prevails in Maine congressional race that used ranked-choice voting system”

WaPo:

Democratic challenger Jared Golden prevailed Thursday in a Maine congressional contest, defeating a Republican incumbent in the first federal race in the country in which a ranked-choice voting system was used to determine the winner.

After Election Day, Golden, a state representative, narrowly trailed Rep. Bruce Poliquin (R) in a four-way race in which no candidate received 50 percent of the vote.

The result flipped Thursday after the rules of the ranked-choice system were applied. The system allows voters to cast ballots for their candidate but also rank other contenders in order of preference. If no one wins more than 50 percent of the vote outright, those choices are factored in.

At noon Thursday, Maine Secretary of State Matthew Dunlap and his office powered up “instant runoff” software while streaming on Facebook Live to announce the results: Golden won with 50.5 percent of the vote to Poliquin’s 49.5 percent.

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Tonight’s Must-Read from Ron Klain: “What’s the Matter with Florida?”

WaPo column:

As the general counsel of Al Gore’s 2000 recount effort in Florida, I’m often asked this question about the Senate and gubernatorial recounts now going on there: Why does “this” keep happening in Florida?

Part of what we are seeing now in Florida, as we did in 2000, is the product of factors specific to the state: persistently weak election administration in key counties, perennially close and hard-fought elections, and a colorful group of political players that seems ripped from the pages of a Carl Hiaasen novel. But the most important thing to know about what’s happening in Florida is that it has little to do specifically with Florida at all.

Take a step back and look at the big issues playing out in Florida, and what you’ll see, instead of Florida’s foibles, are three critical challenges to American democracy as a whole.

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Mississippi U.S. Senator Hyde-Smith Suggests Making Voting “Just a Little More Difficult” for “Liberal Folks in Those Other Schools”

Video:

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Florida Senate Race Going to Hand Recount; Appears that Nelson’s Best Hope is That Broward Ballot-Counting Machines, Rather Than Ballot Design, Responsible for Large Undervote in Senate Race

Tampa Bay Times:

With the 3 p.m. deadline for elections supervisors to submit new vote tallies to the state having now passed in Florida’s Panhandle, new totals show that Gov. Scott leads U.S. Sen. Nelson by 12,603 votes out of more than 8.1 million cast. That margin — of 0.15 percent — falls within the margins that trigger an automatic hand recount under Florida law. Secretary of State Ken Detzner, Florida’s top elections officials, ordered a hand recount this afternoon.

Dan Smith:

Sam Levine:

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11th Circuit Panel 2-1 Denies Motion To Stay Court Order Giving Florida Signature Mismatch Residents a Few Extra Days to Try to Cure [Corrected Headline]

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“Ohio Democrats nearly match Republicans in Statehouse votes, but will remain in the deep minority; what’s ahead for gerrymandering”

Plain Dealer:

As Ohio Republicans won the race for every statewide executive job from the governor on down this year, something different happened in lower-profile races.

The Democrats ran much more competitive in total votes for the 116 Ohio House and Senate elections across the state, cleveland.com found in tabulating the unofficial returns.

It’s a takeaway from Election 2018 that isn’t the usual headline grabber.  More importantly, in terms of controlling Ohio’s government, the GOP won 73 of the 116 Statehouse races.

But the Republicans scored their wins for 63 percent of the seats while collecting just over 50 percent of the total vote.

This is a lot like what happened in Ohio’s 16 congressional districts, where Republicans won 75 percent of the seats with just 52 percent of the overall vote.

These are two fresh examples of how skillfully gerrymandered legislative districts can sway the balance of power – especially when one party is in full control of drawing the maps as was the case for the current districts.

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Federal Court Declines to Extend Florida Recount Deadlines Due to Lack of Evidence Before It, But Suggests Bush v. Gore Would Bar Recounts Included in Vote Totals from Only Selected Counties

From the Court’s opinion:

By cosmic coincidence (or curse), it is Bush v. Gore that is most instructive in this Florida recount dispute. It is a foundational tenet of our democracy that “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000). The Supreme Court emphasized the necessity of a “minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” to vote. Id. at 105. The Florida Supreme Court’s recount ruling—which created a patchwork quilt of recount standards—was “inconsistent with the minimum procedures necessary” to avoid an equal protection violation. Id. at 109.

The inverse is at issue here. The state’s recount provision will lead to votes and election results in one county being “ignored” while other counties’ vote and results will not be. § 102.112(3), Fla. Stat. This disparate treatment arguably runs afoul of the Equal Protection Clause because it is an arbitrary distinction based on a voter’s location. See Reynolds v. Sims, 377 U.S. 533, 563 (1964) (“Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside hardly seems justifiable.”); seealso Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1185– 86 (11th Cir. 2008) (Barkett, J., concurring in part, dissenting in part) (explaining equal protection violation when “Florida’s matching scheme results in the arbitrary and disparate treatment of its citizens based on their county of residence”).

“When a state adopts an electoral system, the Equal Protection Clause of the Fourteenth Amendment guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process.” Id. at 1185 (emphasis in original) (citing Reynolds, 377 U.S. at 566 and Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966)). “Having granted its citizens the right to vote, Florida must not only allow qualified voters to participate equally in elections, it must also ensure that qualified voters are given an equal opportunity to participate in elections.” Id. (emphasis in original). This same logic likely extends to post-election processes. Florida grants its citizens the right to vote and have their votes recounted under certain circumstances—but it also permits certain votes from being “ignored” when arbitrary deadlines pass. § 102.112(3), Fla. Stat. This statutory authorization to “ignore” certain results, despite mandatory recounts, arguably denies voters an equal opportunity to participate in the full electoral process due to unknowable vagaries like, for example, faulty machines.

In short, the Florida recount deadline seemingly “value[s] one person’s vote over that of another,” Bush, 531 U.S. at 104, because it arbitrarily and disparately treats some voters differently because of their location and without taking into account the unpredictable circumstances of each election cycle.

But this Court does not need to reach this constitutional analysis because, as noted on the record during this morning’s hearing, there is a complete dearth of evidence before this Court concerning the status, progress, or expected completion of the ordered recounts in Palm Beach County. In considering whether to grant the extraordinary relief of a preliminary injunction, the Court is required to balance the equities. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (detailing the four elements required for a preliminary injunction). This balancing is effectively impossible without an understanding of the state and limitations of the current ongoing process. This Court must be able to craft a remedy with knowledge that it will not prove futile. It cannot do so on this record. This Court does not and will not fashion a remedy in the dark.

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“Florida Dems planned to use altered forms to fix mail ballots across state after deadline”

Naples Daily News:

A day after Florida’s election left top state races too close to call, a Democratic party leader directed staffers and volunteers to share altered election forms with voters to fix signature problems on absentee ballots after the state’s deadline.

The altered forms surfaced in Broward, Santa Rosa, Citrus and Okaloosa counties and were reported to federal prosecutors to review for possible election fraud as Florida counties complete a required recount in three top races.

But an email obtained by the USA TODAY NETWORK-Florida shows that Florida Democrats were organizing a broader statewide effort beyond those counties to give voters the altered forms to fix improper absentee ballots after the Nov. 5 deadline. Democratic party leaders provided staffers with copies of a form, known as a “cure affidavit,” that had been modified to include an inaccurate Nov. 8 deadline….

Keith told the USA TODAY NETWORK-Florida that she was aware the deadline to submit those forms had expired even though she was telling them there was still time to fix their absentee ballots. She then directed people to email Katharine Priegues, a field organizer with the Florida Democratic Party, with the subject line “I want to help” for instructions on what to do.

“I was trying to show that if given notice, voters would try to fix their ballots,” Keith said. “I was putting the word out because I was anticipating a challenge of that deadline (in court).”

Keith knew that because the deadline had passed, it was almost guaranteed forms submitted by voters on Nov. 8 would be rejected by election supervisors, who were under “no obligation to accept the affidavits.”

“But better to have evidence in hand,” Keith said.

That evidence would be a record of emails sent by voters who wanted to fix their absentee ballots but couldn’t do so because they couldn’t meet the state-imposed deadline.

She said she doesn’t consider what she was doing election fraud.

“It is not fraud to try and correct something. There’s nothing fraudulent about that,” she said.

After Walker’s ruling to allow voters more time to fix signature problems on absentee ballots, Keith said the actions that she and other Democrats took to help voters with the altered forms was justified.

“The deadline wasn’t ‘wrong,’ per se. It was functionally meaningless and arbitrary,” Keith said. “Most people never get notice, and many ballots weren’t even looked at until the deadline had passed.”

The Department of State, which oversees elections, raised concerns about the altered forms, arguing that making changes to state forms is a criminal offense in Florida. The forms were forwarded on Friday to federal prosecutors.

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“Georgia 7th: More court action as Bourdeaux pushes additional absentees”

AJC: 

Democrat Carolyn Bourdeaux headed back to federal court on Thursday morning, filing an emergency motion aimed at forcing Gwinnett County to count a trove of previously rejected absentee ballots in the razor-thin 7th Congressional District race.

The Democrat wants U.S. District Judge Leigh Martin May to reconsider her Tuesday ruling that compelled the county to count absentee ballots that had missing or incorrect voter birthdates but rejected Bourdeaux’s call to tally ballots with address and signature issues.

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“Bill Nelson sues to block fax, email votes in Bay County from being counted”

Miami Herald:

Less than 24 hours since his last suit was filed, Bill Nelson is suing Bay County again.

The incumbent candidate for U.S. Senate, who has filed three other lawsuits in the past week, is suing Bay County Supervisor of Elections Mark Andersen to stop any ballots received via email or fax from being counted.

The second round of unofficial returns is due from the counties at 3 p.m. Thursday

The supervisor told the Herald/Times Monday that 11 ballots were accepted by email and 147 ballots were domestically faxed in, though state statute does not allow emailed ballots, and faxing in ballots is only permitted for military and voters overseas.

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“Florida recount: Palm Beach County says it will probably miss deadline as judge gives voters time to fix ballots with signature issues”

WaPo:

“We were very close to the end, and our machines went down,” she said. Bucher estimated the county now only had a “slim chance” of completing its count for the Senate race on time and would not have recounted ballots in other races.

It was not clear how the missed deadline or the judge’s decision would affect the timing of recount, which was expected to move to a manual canvass Friday in the too-close-to-call Senate race, in which Gov. Rick Scott (R) leads Sen. Bill Nelson (D) by fewer than 13,000 votes.

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“Democrats are now going there on ‘stolen’ elections”

Aaron Blake for The Fix:

For more than two years, President Trump has baselessly alleged rampant electoral fraud. He pre-blamed voter fraud for his expected 2016 loss, and then he cited it again even after he shockingly won. (Something needed to explain his popular-vote shortfall.) He’s now at it again in 2018; he has accused Democrats of foul play in their efforts to win the still-unresolved Florida Senate and governor’s races, and on Wednesday he alleged that people vote, go back to their cars to change clothes, and then vote again.

But Trump isn’t the only one going down this road right now. Republicans have increasingly warned that Democrats will “steal” Florida. Sen. Marco Rubio (R-Fla.) has tweeted that “democrat lawyers plan to steal [the] #Florida election.” Florida Republican Gov. Rick Scott’s adviser has said Scott won’t lose to Sen. Bill Nelson (D-Fla.) “unless they steal it from him in court.”

And now even some big-name Democrats are using similar language, alleging that the Georgia governor’s race will be “stolen” from them, too. Sen. Cory Booker (D-N.J.) has said the “election is being stolen from” Democrat Stacey Abrams. Hillary Clinton has said Abrams would have won “if she’d had a fair election.” And on Wednesday, Sen. Sherrod Brown (D-Ohio) went so far as to say, “If Stacey Abrams doesn’t win in Georgia, they stole it.”

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“Republicans Walters and Kim adopt Trump tactic of charging vote fraud with no evidence of wrongdoing”

LAT:

Two Orange County Republicans facing the prospect of defeat in the Nov. 6 congressional election as final ballots are counted have adopted President Trump’s tactic of making baseless allegations of vote fraud.

Neither GOP Rep. Mimi Walters nor Republican candidate Young Kim has produced evidence to back up their charges that Democrats are trying to steal the election. County registrars of voters supervising the ballot counts said they knew of no one doing anything that would compromise the election’s integrity.

Both Republicans leveled the accusations after they steadily lost ground in the continuing tabulation of tens of thousands of ballots. Walters finished ahead on election night, but has fallen 3,797 votes behind Democrat Katie Porter. Kim is clinging to a 122-vote lead over Democrat Gil Cisneros.

Walters and Kim have joined a growing number of Republicans in Florida and elsewhere who, like Trump, challenge the legitimacy of vote counts when Democrats gain in late tallies. Nonpartisan election watchdogs are appalled….

On Sunday, when she was still slightly ahead, Walters told supporters in an email that she needed donations to stop Democrats “from overturning the will of the voters.”

“I’m currently up by 1 point, but the Democrats are already preparing for a recount to try and steal this Republican seat after the fact,” Walters wrote.

In another fundraising email, Walters said she needed “to make sure vote tallies aren’t tampered with.”

Neal Kelley, Orange County’s registrar of voters, responded “emphatically no” when asked whether anyone had tried to tamper with any of the ballots.

“We take this responsibility very seriously,” he said. “I certainly do. I have seen no evidence of it.”

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Crum: The House Should Pass an Effects-Test Bail-in Provision

In collaboration with Take CareTake Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from Travis Crum:

Things have changed in the South since Shelby County. And not for the better. After the Supreme Court struck down the Voting Rights Act’s coverage formula in June 2013, several previously covered jurisdictions passed discriminatory election laws. Perhaps most prominently, North Carolina enacted a voter-suppression law that the Fourth Circuit invalidated on intentional discrimination grounds. More recently, the 2018 midterm elections were marred by voter-suppression tactics in GeorgiaTexas, and elsewhere.

In response to these problems, Democratic leaders have pledged to pass a revised VRAwhen the next House of Representatives convenes in January. As I have argued before, Congress should revise Section 3(c)’s bail-in provision to authorize courts to impose preclearance based on a violation of Section 2 of the VRA and any other federal law that prohibits discrimination in voting based on race, color, or language minority status. Currently, Section 3(c) authorizes bail-in only for violations of the Fourteenth or Fifteenth Amendments. It is well established that the Fourteenth Amendment prohibits intentional racial discrimination in voting. The Fifteenth Amendment standard is less settled, though a plurality of the Court concluded in 1980 that the Amendment requires a showing of discriminatory intent. If Congress amends Section 3(c) to authorize bail-in based on a statutory violation, courts could impose preclearance based on a finding of discriminatory effect—not just intent.

Why should Congress make this change? With an effects-test Section 3(c), it would be far easier, cheaper, and quicker to bail-in jurisdictions. Indeed, the small number of bail-ins is partly attributable to Section 3(c)’s constitutional trigger. Following Shelby County, civil rights groups and the Obama Administration’s Department of Justice requested Section 3(c) relief in several cases across the country. As I have written previously, the results of these suits have been mixed, though there is still the possibility of bailing-in Texas for its intentionally discriminatory post-2010 redistricting plans. A common thread running through these decisions is the difficulty of proving intentional discrimination and the time- and fact-intensive discovery necessary to make that showing. By contrast, it is often far easier for plaintiffs—and less intrusive on States and political subdivisions—to show that a law has a discriminatory effect. An effects-test Section 3(c) would therefore expedite litigation and increase plaintiffs’ leverage in Section 2 cases.

An effects-test bail-in mechanism also sidesteps the constitutional issues inherent in any new coverage formula, which will have to satisfy Shelby County’s equal-sovereignty standard. By its own terms, Shelby County applies only when Congress differentiates between the States—an intrinsic part of any coverage formula. Section 3(c), by contrast, establishes a nationwide rule that applies to all States equally. Thus, unlike a revised coverage formula, Section 3(c) can be defended under the far more deferential standard articulated in South Carolina v. Katzenbach for Congress’s Fifteenth Amendment enforcement authority.

To be sure, an effects-test Section 3(c) raises more constitutional questions than the current version. In decoupling bail-in from a constitutional violation, Congress would have to rely on its Reconstruction Amendment enforcement authority not only for the remedy but also for the underlying violation that triggers coverage. But that is true for all the proposed coverage formulas. Indeed, some proposals rely on persistently low minority voter turnout—a proxy for unconstitutional conduct that is not even a statutory violation. In addition, under Section 3(c), courts make the initial liability finding and subsequent bail-in determination and then fashion relief to the particular case. These distinctions are likely more persuasive to the Roberts Court than a reverse-engineered coverage formula passed by Congress.

All of the post-Shelby County bills to amend the VRA have incorporated an effects-test bail-in provision. But Congress should do more. Congress should also provide guidance on what type of voting rights violations require bail-in, the appropriate time period for bail-in, and the types of changes that ought to be precleared.

In providing this guidance, Congress should identify the most problematic voting rights violations and require the imposition of preclearance in certain circumstances. In my view, if a jurisdiction adopts a racially discriminatory redistricting plan, it should be automatically bailed-in for the next redistricting cycle. Redistricting is a problem that calls out for congressional action given its importance and many States’ histories as serial gerrymanderers.

Congress should further specify time limits for Section 3(c) relief. It is often assumed that a jurisdiction can be bailed-in for a maximum of ten years. Although this is a reasonable and constitutionally prudent time period, that outer limit is not found in the statute’s plain text, and some bail-ins have lasted longer than ten years or had no definitive end point. Setting an outer limit of ten to twelve years—i.e., long enough to capture the next redistricting cycle and its immediate aftermath—would make both practical and strategic sense.

In a similar vein, Congress should make explicit that courts are permitted to impose “targeted” preclearance, that is, require jurisdictions to preclear only certain types of voting changes rather than all voting changes. Courts have often relied on their equitable authority or consent decrees to fashion preclearance regimes that target the same type of changes that prompted the bail-in. This revision—as well as my time-limit suggestion—would further bolster Section 3(c)’s constitutionality.

There is a general consensus that an effects-test Section 3(c) will be included in a revised VRA; the coverage formula’s future is less certain.Voting rights advocates and members of Congress should be wary of investing precious time, resources, and political capital into resurrecting the coverage formula. Notwithstanding numerous warning signs in the 1990s and early 2000s that the coverage formula was constitutionally suspect, there was no agreed-upon alternative in 2006 and Congress simply re-enacted the same coverage formula that had been in place since 1975. Even five years after Shelby County, there is still not agreement.

This lack of consensus is apparent from pending bills in the current Congress: the Houseand Senate versions of the coverage formula contain disparate time horizons and different numbers of “voting rights violations” for triggering preclearance. For example, the House bill would cover a State that had five voting rights violations in the past fifteen years and one of those violations was committed by the State itself; the Senate bill would not. Moreover, the types of violations that count toward coverage differ. The House bill expressly excludes cases striking down voter ID laws on statutory grounds from the coverage formula. The Senate bill lacks this exemption. Furthermore, the House bill does not count consent decrees and settlements in the coverage formula; the Senate bill does.

Of course, these differences are the result of political deals in the lame-duck Congress. The incoming Democratic House’s coverage formula will probably look somewhat different. But the general point still stands that any revised coverage formula will be the product of compromise.

And here, in setting priorities, it is important to ask what these proposed coverage formulas will accomplish that cannot be done with an effects-test Section 3(c). Many of the proposed coverage formulas use specified “voting rights violations” as triggers for coverage: constitutional violations, statutory violations, denials of preclearance, and (in the Senate) consent decrees. Some proposals incorporate factors like persistently low minority voter turnout, but, as noted above, these proxies raise their own constitutional concerns. The proposed coverage formulas are also “rolling” in that they keep track of “voting rights violations” over time and trigger coverage if the number of violations reaches a certain point in a specified time period.

As I see things, a revised bail-in mechanism can accomplish most of this work—and without raising equal-sovereignty concerns. Section 3(c) already covers constitutional violations, and an effects-test Section 3(c) will encompass statutory violations. The vast majority of bail-ins have been accomplished via consent decrees, so that category is not mutually exclusive of bail-in. And although an effects-test Section 3(c) does not capture recent Section 2 cases or pre-Shelby County denials of preclearance, the rolling nature of the proposed coverage formulas means that the relevance of these violations will fade in the rearview mirror. Because it is unlikely that any revised coverage formula passed by the Democratic House would survive the Republican Senate and be signed into law by President Trump, the clock for a new coverage formula starts in 2021 at the earliest.

And looking ahead to a world where a revised coverage formula is actually enacted, there is the inevitable constitutional challenge. Although Chief Justice Roberts’ opinion in Shelby County left the door open for a new coverage formula, this dicta should be taken with a grain—nay, a tablespoon—of salt. Voting rights advocates and members of Congress must recognize that they are negotiating in the shadow of a hostile judiciary and should not trade away too much to pass a coverage formula that may not survive the Supreme Court.

In short, an effects-test Section 3(c) is a straightforward and pragmatic option for strengthening the VRA. It is also on firmer constitutional ground than any proposed coverage formula. And if it is robustly enforced, it can do much of the work of a resurrected coverage formula.

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“The Inexplicable Absence of the Voters in the Campaign Finance Debate”

Elizabeth Reese has posted this draft on SSRN (forthcoming, Houston Law Review). Here is the abstract:

The rich are getting richer, and money talks. Since Citizens United, there has been widespread outrage about the role of money in politics. Advocates for campaign finance reform claim that our democracy is broken—that our election system is unequal, corrupt, and that representatives no longer represent the peoples’ interests. The campaign finance debate provokes important questions about the role of class, speech, power, and discourse in our democracy. However, many critics of money in politics inexplicably ignore that ultimately money doesn’t decide elections—voters do. Actual voter behavior is inexplicably ignored or discretely dismissed. In election after election, year after year, voters go to the polls and exercise their power of self-governance to choose representatives that—according to these scholars and advocates—don’t represent them. How do the critics of big money in politics explain what the voters are doing? Are purported populists implicitly dismissing the legitimacy of voters’ choices? Unless we are prepared to dismiss voter autonomy, it is very difficult to criticize our current system without criticizing democracy itself.

This Article discusses the need to refocus on the people in the campaign finance debate and argues that reformers risk becoming surreptitiously elitist without sufficient confrontation with certain paternalistic assumptions about voter preferences and behavior. It further suggests that unless the campaign finance debate reckons with the more complex realities of voter behavior, we will at best limit the creativity and effectiveness of our potential policy solutions and at worst inadvertently enshrine anti-populist values into policy reforms or constitutional doctrine.

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“In Florida Recount, Sloppy Signatures May Disqualify Thousands of Votes”

NYT:

The issue of faulty signatures, especially on mail-in ballots, has emerged as a central point of contention in the county-by-county recounts taking place in Florida, with lawsuits spinning off the 2018 election like tornadoes off a hurricane.

On Thursday, Judge Mark Walker of the Federal District Court in Tallahassee ruled that voters whose ballots were invalidated by mismatches would have until 5 p.m. Saturday to resolve the problem. The new deadline would apply to just over 4,000 rejected ballots that could now be counted.

“This should give sufficient time, within the state’s and counties’ current administrative constraints, for Florida’s voters to ensure their votes will be counted,” he wrote.

Ruling the state law unconstitutional, he wrote that the county election officials could reject the ballots “with no standards, an illusory process to cure, and no process to challenge the rejection.”

Many of the ballots given a second chance probably belong to traditionally Democratic voters, especially young people. Still, they would not be enough for Senator Bill Nelson, a Democrat seeking re-election, to overcome a 12,562-vote lead by Gov. Rick Scott, his Republican challenger, without further gains.

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“What Happens When Politicians Who Oversee Elections Are Also the Candidates?”

NYT:

It was only a week ago that Rick Scott, the Republican governor of Florida and candidate for the United States Senate, claimed on television that “rampant fraud” was perhaps imperiling his election to Congress, and that he was asking the state Department of Law Enforcement to investigate.

Earlier in the day, at the Georgia State Capitol, Secretary of State Brian Kemp defended his decision to oversee an acrimonious election in which he was a candidate for governor and, by his own preliminary assessment, a victorious one.

The elections in the Southeast’s two most populous states remained undecided Wednesday, more than a week after the balloting, embroiled in lawsuits and accusations. Much of the turmoil is attributable to the high-profile political prizes at stake. But some can be traced to decisions by Mr. Scott and Mr. Kemp to mix, by design or duty, their public roles with their political lives.

That two powerful Republicans helped to oversee elections in which they had overwhelming personal interests prompted bipartisan misgivings, fueled some of the sparring that has spilled into the courts and intensified the most stinging criticisms of their campaigns. Their approaches to navigating the thicket of runoffs and recounts, litigation and delayed certifications, show that there is no set playbook for candidates whose political fates are up for grabs.

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“In Florida Recount Fight, Democratic Lawyer Draws Plaudits and Fire”

NYT profile of Marc Elias:

Mr. Elias is perhaps best known for his role in helping to deliver a handful of previous recounts to Democrats, including in the bitterly fought two-month battle over a Minnesota Senate election in 2008 that brought victory to Al Franken. But he has also worked mostly behind the scenes for the past decade shaping the laws and regulations governing American politics, from voting access to redistricting to campaign fund-raising and spending.

The work has yielded tens of millions of dollars in legal fees for his firm, Perkins Coie, from corporations, campaigns and political committees. In the process, Mr. Elias has earned a reputation as one of the most formidable election lawyers in the country, and arguably one of the most influential of unelected Democrats in Washington.

He has been a trusted adviser to the party’s most senior leaders in Congress, and is admired by its campaign operatives for his knowledge of the way campaigns work and his willingness to use aggressive, pioneering tactics to help them win elections.

hat approach, however, has earned him the ire of activists who support increased transparency and decreased money in politics. They say he has been among the biggest impediments to both causes, and has often put the short-term interests of the Democratic Party ahead of the interests of the party’s base, and even of American democracy more broadly.

“He’s doing really important work for voting rights that benefits all voters, but he’s also pushed for a deregulation of money in politics that serves the interests of the wealthy,” said Paul S. Ryan, the vice president of policy and litigation for the nonpartisan government watchdog group Common Cause.

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“Federal prosecutors reviewing altered election documents tied to Florida Democrats”

Politico:

 The Florida Department of State last week asked federal prosecutors to investigate dates that were changed on official state election documents, the first voting “irregularities” it has flagged in the wake of the 2018 elections.

The concerns, which the department says can be tied to the Florida Democratic Party, center around date changes on forms used to fix vote-by-mail ballots sent with incorrect or missing information. Known as “cure affidavits,” those documents used to fix mail ballots were due no later than 5 p.m. on Nov. 5 — the day before the election. But affidavits released on Tuesday by the DOS show that documents from four different counties said the ballots could be returned by 5 p.m. on Thursday, which is not accurate.

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Amanda Frost Comments on My Forthcoming “Polarization and the Judiciary” Paper

Amanda Frost at SCOTUSBlog:

Common sense tells us that increased political polarization affects the U.S. Supreme Court as well as the political branches, and now legal scholars have the data to prove it. In a forthcoming paper, “Polarization and the Judiciary,” Richard Hasen surveys the academic literature on the subject, and then draws some conclusions of his own. As Hasen explains, the research shows that polarization influences the appointment and confirmation process, along with the cases the court accepts and how it decides them, as well as the public’s perception of the court and its decisions. Although polarization has many negative consequences for the courts, it also empowers them: When the political branches are gridlocked, the courts, and ultimately the Supreme Court, have the last word on contentious policy questions such as immigration, limits on executive power and access to abortion.

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Stephanopoulos: The Validity of Stopping Voter Suppression

In collaboration with Take CareTake Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from Nick Stephanopoulos:

Unusually for a Western democracy, the United States allows subfederal bodies—the fifty states—to regulate most aspects of elections. Over the last decade, many states have used (in fact, abused) this authority to make it more difficult for eligible citizens to vote. States have imposed photo ID requirements for voting. They have slashed the periods in which people may vote early. They have hindered (in some cases, virtually prohibited) efforts to register people. They have erroneously purged people from the voter rolls. And so on.

It’s no mystery why all this voter suppression has taken place. To be blunt, Republican politicians have realized that certain facially neutral restrictions disproportionately prevent Democrats from voting. They have therefore enacted these restrictions for the sake of partisan advantage—to make the electorate more Republican than the eligible citizenry. Why do some neutral policies have a disparate partisan impact? Because they make voting more burdensome, and it’s Democratic-leaning constituencies like racial minorities and the poor who have more trouble jumping through the extra hoops. And how do we know the motivation for the voter suppression is partisan? The giveaway is who has passed the restrictions. Almost all of them have been ratified by states under unified Republican control. States run by Democrats have tended to make voting easierin recent years.

To date, most of the resistance to voter suppression has taken the form of litigation. Plaintiffs have argued that restrictive policies unjustifiably abridge the right to vote, or violate the Voting Rights Act because of their disparate racial effects, or breach various state law provisions. But now that Democrats have taken the House, it’s time to start thinking about stopping voter suppression through legislation—via laws instead of lawsuits. Of course, such bills will be neither passed by the Republican Senate nor signed by President Trump. Still, they can send a powerful message that a majority of the House now wants to expand, not contract, political participation. Failed bills may also soon become enacted legislation, in the event that Democrats win unified control of the federal government in 2020.

What sorts of measures, then, should the House consider? Here are a few options, which could be passed separately or combined into an omnibus package. The House could require states automatically to register citizens when they turn eighteen—and then to keep them on the voter rolls as long as they remain eligible to vote and haven’t moved to another state. The House could prohibit the disenfranchisement of ex-felons who have completed their prison sentences. The House could mandate that states offer alternatives to in-person voting on Election Day, like early voting and mail-in voting. For those who prefer to vote on Election Day, the House could make it a federal holiday or move it to a weekend. The House could ban photo ID requirements for voting, or permit them only if they’re paired with exemptions for people lacking IDs. And because none of these steps would eliminate the incentive to engage in voter suppression, the House could authorize a federal agency to promulgate further regulations. These additional rules could block creative new means that states devise for limiting the franchise.

Most of these suggestions go beyond anything Congress has previously done. (The closest analogues are the Voting Rights Act and the National Voter Registration Act. But the VRA dealt only with racial discrimination in voting, while the NVRA merely made it easier for people to register to vote.) An obvious question about the ideas is thus whether they’re constitutional. Does Congress actually have the power to preempt and override state electoral regulations to this extent?

The answer would seem to be yes to the extent the measures apply to federal elections. Under the Elections Clause, Congress may “make or alter” regulations that relate to “the Times, Places and Manner of holding Elections for Senators and Representatives.” This power, Justice Scalia explained in the 2013 case, Arizona v. Inter Tribal Council, is near-plenary. Its “substantive scope is broad.” It “embrace[s] authority to provide a complete code for congressional elections.” And it is “paramount, and may be exercised at any time” to “supersede those [policies] of the States which are inconsistent therewith.”

There may be a catch, though. The Constitution appears to distinguish between the time, place, and manner of elections, as to which Congress may legislate as it pleases, and the conditions for voting, which are up to the states. According to Article I, Section 2, the “Electors” in U.S. House races “shall have the Qualifications requisite for Electors” in state house races. The Seventeenth Amendment uses identical language with respect to voters in U.S. Senate elections. Thus, if any of the suggested policies pertain to voter qualifications, they may exceed Congress’s authority under the Elections Clause. That provision arguably extends to how elections are conducted but not to who may vote in them.

This exception, fortunately, is unlikely to swallow the rule. Of the various proposals I mentioned, only the one seeking to enfranchise ex-felons involves voter qualifications. And even on that front, very few state constitutions actually declare that not having committed a felony, or having completed one’s prison sentence, is an official qualification for voting. (Felon disenfranchisement is more often accomplished by statute and without reference to whether a clean record is a voter qualification.) Accordingly, in most circumstances, a federal law enfranchising ex-felons wouldn’t conflict with any judgments that states have made about who should be an elector in their elections. Only a handful of states have bit the bullet and formally held that ex-felons are not members of their political communities.

All of this analysis only addresses federal elections. Could Congress also make it easier to vote in state elections? To do so, interestingly, Congress may not have to regulate them directly. Say an omnibus package along the lines sketched above was enacted, but only with respect to federal elections. States would then have to decide whether to maintain two electoral regimes, one for federal races and another for state races, or a unitary electoral system. If history is any guide, most of them would pick a single system. The NVRA, notably, applies only to federal elections. Yet within a few years of its 1993 passage, every state had chosen to abide by its terms in state as well as in federal races. The same result—driven by the same state disincentive to operate two distinct electoral regimes—is quite conceivable here.

If Congress nevertheless extended its new measures to state elections, two constitutional provisions would likely empower it to do so. The first is the Commerce Clause. State elections themselves substantially affect interstate commerce because they cost large amounts of money, much of which is raised from out-of-state donors or disbursed to out-of-state consultants, advertisers, and the like. The results of state elections have an even bigger impact on interstate commerce. These outcomes determine who holds state elected offices—and thus who has control over about two trillion dollars of annual state revenue and spending.

The Fourteenth Amendment is the other relevant constitutional provision. According to cases like Anderson v. Celebrezze and Burdick v. Takushi, it prohibits electoral policies that unjustifiably burden the right to vote, with the intensity of judicial scrutiny varying in tandem with the severity of the burden. Importantly, under this doctrine, discriminatory intent does not have to be shown to establish liability. The key issue is therefore whether the proposals outlined earlier are a congruent and proportional response to underlying constitutional violations whose crux is a needless abridgement of the franchise—not purposeful discrimination. Framed this way, I think the answer is yes. All of the pieces of the omnibus package try to stop forms of voter suppression that either have been found unconstitutional (by certain courts) or at least have been subjected to serious legal challenges. All of the pieces, that is, prevent or remedy unconstitutional activity, and so are appropriate legislation enforcing the Fourteenth Amendment.

To be sure, as we saw in the Obamacare litigation a few years ago, an argument that initially seems implausible can quickly become more compelling as it’s repeated by litigants, commentators, and ideologically receptive judges. Consequently, I wouldn’t wager much that the reforms I described would ultimately be upheld by a conservative Supreme Court. Nevertheless, at least based on current precedent, Congress does have the power to enact sweeping changes to federal and state elections. Like all legal judgments, this is a contingent conclusion, but for the present, it still holds.

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Joint Symposium with Take Care Blog: Reforming Elections Through Legislation

Joshua Matz:

It’s no great secret that we could do a better job of running elections in the United States. Debates over voter suppression, cybersecurity, conflicts of interest, partisan gerrymanders, ballot design, and many other issues remain standard fare during election season. Often, those disputes are resolved through emergency litigation or ad hoc political negotiation. The result is a frantic, stressful, and litigation-heavy approach to elections—one that largely fails to produce systemic reform or to address well-known structural flaws.

This would be an unwelcome state of affairs at any historical moment. But it is especially unnerving today. Since Bush v. Gore, conflicts between the political parties have expanded to encompass the very democratic process through which “We the People” choose our representatives. Coupled with trends favoring polarization and hyper-partisanship, this development risks weakening the integrity and legitimacy of our electoral system, as well as public confidence in its integrity and legitimacy.

In recent weeks, senior Democrats have indicated that they intend to pass election reform legislation. In light of that possibility, Take Care and Election Law Blog have invited several leading election law scholars to offer thoughts on what smart election reform legislation should look like, whether proposed by Democrats, Republicans, or anyone else. Over the coming weeks, we will publish their analyses. It is our hope that these articles helpfully inform public debate.

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