“On ‘Hamilton Electors’ and the Lessig/Hasen Debate”

Mike Parsons blogs at Modern Democracy:

Professors Lawrence Lessig and Rick Hasen–two titans of the political law world–recently got into a public debate over the legitimacy of presidential electors voting in a way different from how their votes were pledged.  Despite my decidedly non-titan status, this is a blog about government structure and process, so I suppose it’s worth weighing in: both seem wrong in my view….

Worth reading!


Dueling Michigan Recount Lawsuits, in Federal and State Courts


Green Party candidate Jill Stein is asking a federal judge to order Michigan to quickly start a recount of presidential votes.

…The recount could start Wednesday because officials say state law requires a break of at least two business days.

Stein’s attorney, Mark Brewer, filed a lawsuit Friday….  He says the delay means the recount might not be finished by a Dec. 13 deadline.

If that’s really Stein’s claim (I haven’t seen the complaint), then it would suffer from the same problem as the pro-Trump PACs’ due process claim in their Wisconsin lawsuit: there’s no federal-law mandate that the recount be completed by the safe-harbor date.

Meanwhile, Trump and the Michigan attorney general are both trying to stop that state’s recount. Trump’s team has reportedly sued in state court claiming that Stein lacks standing to demand a recount. Michigan Attorney General Bill Schuette (a Republican) has also sued to stop the recount.


Bush v. Gore Lawsuit from Pro-Trump PACs

Yesterday’s complaint in Great America PAC v. Wisconsin Elections Commission begins:

This lawsuit seeks to enjoin a recount that — like the ill-fated Florida recount the Supreme Court enjoined in Bush v. Gore, 531 U.S. 98 (per curiam) — fails to satisfy Equal Protection requirements, threatens to extend past the federally specified “safe harbor” deadline for choosing presidential electors, and — particularly in conjunction with other baseless recounts sought by a candidate who did not win a single presidential elector — may unjustifiably cast doubt upon the legitimacy of President-Elect Donald J. Trump’s victory.

Further down, the complaint alleges that Wisconsin’s standards for conducting the recount are too vague and indeterminate, although the quoted provisions of Wisconsin law are more specific than the intent-of-the voter standard deemed inadequate in Bush v. Gore.  For example, Wisconsin law says that votes should be counted if specified marks (such as an X, V, O, / or +) appear within the square by the candidate’s name or anywhere within the space where that name appears.  Whether Wisconsin’s legal standard is specific enough may depend on what’s actually going on in different localities where the recount is proceeding, a factual issue about which the complaint says virtually nothing.

The complaint also includes a due process claim, asserting that there’s a “substantial likelihood” that the recounts won’t be finished by deadline set forth in the federal safe harbor statute (3 U.S.C. 5).  I’m skeptical that there’s a real federal claim here.  Even aside from the speculative nature of this claim, federal law doesn’t require states to resolve post-election disputes by the safe harbor deadline (this year December 13) — it merely ensures that state determinations regarding electoral votes will be conclusive if they do.  There might be a state law claim, if Wisconsin law really mandates that recounts be completed by the safe harbor date and the recounts can’t be completed in time, but probably not a due process violation.

For coverage of this case, see Politico and NYT.


Strict Voter ID May Be Coming To Michigan

MLive: “Most Michigan voters would have to present an ID card for their votes to count under legislation that popped up suddenly during Michigan’s lame-duck session…. Under the bills a voter without ID would fill out a provisional ballot. That ballot would only be counted if the voter returned to their clerk’s office within 10 days to show either a photo ID or present evidence they are either indigent and can’t afford an ID or have a religious objection to having their photo taken.


Gerken on Wisconsin Gerrymandering Case

At Vox:

Democrats have reason to be frustrated these days. They won the presidential popular vote and the Senate popular vote, and they were just shy of winning the House popular vote. And yet they are entirely shut out of power in Washington. The Electoral College and Senate are here to stay, needless to say, but Democrats do have an unexpected chance to make substantial gains in the House and in state legislatures post-2020 if they can convince the Supreme Court to go along. It’s a long shot, to be sure, but it’s got a better chance of succeeding than some of their other options: Jill Stein’s recount efforts or a time machine.


FSU Law of Democracy Symposium Now in Print

Available here and featuring:

The Law of Democracy At a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket, by Franita Tolson

A “Checklist Manifesto” for Election Day: How to Prevent Mistakes at the Polls, by Joshua A. Douglas

The Coordination Fallacy, by Michael D. Gilbert & Brian Barnes

Reining in the Purcell Principle, by Richard L. Hasen

Race, Shelby County, and the Voter Information Verification Act in North Carolina, by Michael C. Herron & Daniel A. Smith

The Nineteenth Amendment Enforcement Power (But First, Which One Is the Nineteenth Amendment, Again?), by Steve Kolbert

Quick and Dirty: The New Misreading of the Voting Rights Act, by Justin Levitt

Residency and Democracy: Durational Residency Requirements from the Framers to the Present, by Eugene D. Mazo

Contingent Constitutionality, Legislative Facts, and Campaign Finance Law, by Michael T. Morley

Legislative Delegations and the Elections Clause, by Derek T. Muller

Rescuing Retrogression, by Michael J. Pitts

Voting Is Association, by Daniel P. Tokaji

Kudos to Franita and the FSU Law Review editors for putting this great issue together.


Symposium: “The Politics of State Constitutional Reform”

From APSA’s Law and Courts Section, featuring short papers by J.H. Snider, Sandy Levinson, John Dinan, and Carol Weissert.  Here’s a description:

When analyzing the consequences of elections for the development of the U.S. Constitution, scholars concentrate on elections for president and senate, on account of their role in selecting Supreme Court justices who are understood to play a key role in bringing about changes in understandings of federal constitutional provisions. But in the 50 states, voters have a wider range of opportunities to influence the development of constitutions and in a more direct fashion….

Law and courts scholars who have turned their attention to the state level have generated a number of studies of judicial elections. Legislature-referred and citizen-initiated constitutional amendments have also generated a fair amount of analysis. Yet relatively little attention has been paid to the periodic revision commission and periodic convention referendum, institutions that will be on display in a 2017 New York convention referendum and 2017 Florida revision commission and were examined in a short course at the 2016 APSA conference organized by J.H. Snider. Thanks to Law and Courts newsletter editor Todd Collins for inviting us to share some of the presentations, arguments, and conclusions from the short course.

The short course is here.


Cottrell, Herron & Westwood on Trump’s Fraud Allegations

Here’s the abstract to their paper, “Evaluating Donald Trump’s Allegations of Voter Fraud in the 2016 Presidential Election”:

During the 2016 presidential campaign, Donald Trump repeatedly claimed that the presidential election would be tainted by massive voter fraud. Despite winning the presidency, Trump has maintained that position through November. We suspected prior to the election that fraud allegations might dominate the post-election political landscape, and to this end we initiated a research project with the objective of evaluating the relationship between election returns and potential sources of fraud in the vein of Trump’s claims. Our research focuses on non-citizen populations, deceased individuals, the timing of results, and voting technology, and we do not uncover any evidence consistent with Trump’s assertions about widespread voter fraud. Moreover, we do not observe any striking abnormalities in two sets of states recently highlighted as potentially problematic: Michigan, Pennsylvania, and Wisconsin (the subject of ongoing recount efforts) and California, New Hampshire, and Virginia (three states cited personally by Trump). Our results do not imply that there was no fraud at all in the 2016 presidential contest, nor do they imply that this contest was error-free. They do strongly suggest, however, that the voter fraud concerns fomented and espoused by the Trump campaign are not grounded in any observable features of the 2016 presidential election.


Latest on #NCGov

From AP and NYT, which reports that the State Board of Elections’ preliminary tally has Democratic candidate Roy Cooper leading Gov. Pat McCrory by 9,813 votes, “perilously close to the 10,000-vote difference that would prohibit Mr. McCrory from demanding a recount.”


Today’s Recount News

CBS: “Clinton Team Sees Recount Effort as Waste of Resources”

CBS: “Jill Stein’s Michigan Recount Efforts”

Detroit News: “GOP Warns Recount Puts Michigan’s Electors at Risk”

The Hill:  “What Stein is Getting from Recount”

Milwaukee Journal Sentinel: “Judge Rejects Stein’s Request for Hand Recount”

Pittsburgh Post Gazette: “Court Hearing Set to Consider Pa. Vote Recount”

Politico: “Democratic senators: No Harm in Trump-Clinton Recounts”

Politico: “7 Questions about Jill Stein’s Recounts”

Vox: “The Presidential Recount, Explained”


How Will Congress and the Separation of Powers Function Under a Trump Administration?

Christopher DeMuth, former head of OIRA in the Reagan OMB and former President of AEI, has a long, thoughtful essay in the weekend Wall Street Journal in which he explores whether the separation of powers might see a revival in the Trump administration.

In his view, President Trump will not have “the reflexive support of party stalwarts on Capitol Hill that his recent predecessors have enjoyed.”  The revival of a more central role for Congress will follow, he suggests, from the newfound tensions within both political parties, and from the fact that Trump is more of a populist than a conventional Republican figure.

In addition to more vigorous competition between the branches, De Muth also sees Trump as perhaps generating a more bargaining-oriented approach to policymaking, in contrast to the “spectacles” produced by our hyperpolarized, intensely ideological and symbolic politics.  I appreciate his recognition of the way many of us have been trying to insist on giving Congress and congressional leaders tools to create more possibilities for a transactional kind of politics:

Spectacles such as these have given rise to a new school of political realism, led by Jonathan Rauch, Richard H. Pildes, Frances E. Lee and other scholars. Their essential argument, in Mr. Rauch’s words, is “that transactional politics—the everyday give-and-take of dickering and compromise—is the essential work of governing and that government, and thus democracy, won’t work if leaders can’t make deals and make them stick.”

The realists vary in their personal politics. They are united in understanding that, in a nation of diverse and conflicting views, civil peace and productive government require more than trumpeting one’s own positions and seeking to defeat one’s opponents at the ballot box. They also require accommodation through dialogue, negotiation and practical compromise.

As the essay puts it: “In combination, candidate Trump’s audacious policy positions, belligerent rhetoric and zest for deal making seem designed to establish his bona fides as the people’s own Washington wheeler-dealer.”

De Muth acknowledges that “transactional politics and interbranch rivalry are no guarantee of happy outcomes, which depend ultimately on the constitution of the participants.”  His claim is that these are necessary elements of successful democratic governance, even if not sufficient.  All speculative at this stage of course, but provocative speculations about large structural issues in our governance system and well worth a read.


The New Political Realism: Transactional Politics and Earmarks

Last week, Chris Cillizza of the Washington Post reported that there was “significant support” within the House Republican conference for bringing back earmarks.  Republicans eliminated earmarks when they took the House majority in 2010 as part of “political reforms” that would end “corruption” in Congress.

Cillizza’s piece argues, as many of us have also suggested, that this ban is one example of the misguided pursuit of “political purity” that has contributed to making the political process more dysfunctional.  Of course, voting in favor of restoring earmarks would be political dynamite for any individual member; it’s no surprise that Speaker Paul Ryan has vetoed the proposal for now.  But the fact that the issue even has significant support within the Republican conference and that journalists like Cillizza are pressing the case for restoring earmarks is noteworthy.

Here are some excerpts from his essay:

But politics — real politics — isn’t a theoretical discussion among political scientists. And if you believe that Congress works better when it, um, actually works, then you should be rooting like hell that Ryan changes his mind if/when the possibility of a return to earmarking comes to the floor for avote. . . .

Politics works best when compromise is incentivized, not scorned. Earmarks helped to do just that. They were a lever to pull on the way to the presumed end goal: dealmaking. Without them, compromise became a dirty word, and the GOP leadership — Boehner chief among them — paid a price. His decision to step down from the speakership (and Congress) was fueled by an inability to rally the bulk of the Republican Conference behind proposals he supported. He couldn’t do that because he was, effectively, fighting with one hand tied behind his back because of the earmark ban.

Cillizza references this conclusion, from political scientist Diana Evans 2004 study of earmarking, Greasing the Wheels:  Using Pork Barrel Projects to Build Majority Coalitions in Congress:

‘The irony is this: pork barreling, despite its much maligned status, gets things done.’ ”


Recount Roundup

ABC:  “Everything You Need to Know About the Election Recount Efforts”

CNN: “Green Party presidential nominee Jill Stein defended her recount efforts Monday, even though she admits there is no evidence of fraud at the ballot box.”

Detroit Free Press: “Michigan presidential recount? Here’s what we know”

The Hill:  “Annoyed Dems Dismiss Recount as a ‘Waste of Time'”

New Yorker:  “The Recount Road to Nowhere”

NPR:  “Trump Officially Wins Michigan As Possible Recount Looms”

Politico:  “Clinton team shrugs off recount effort”

Salon: “Jill Stein sues Wisconsin to go through with vote recount”

Slate:  “Jill Stein Requests Recount in Pennsylvania but Has No Evidence of Fraud”

WaPo: “Jill Stein tries to force recount in Pennsylvania”

WSJ:  “The Recount Hail Mary”


The New Political Realism: Resisting Inappropriate Transparency Demands

This piece, from a few days ago in the Washington Post, puts FBI Director Jim Comey’s real-time updates of the Clinton investigation into a broader framework involving the ever-increasing demands for greater governmental transparency.  Leaving aside the provocative title of the piece, the essay raises the right questions about the tradeoffs between transparency and other democratic values:

But the underlying story is not just about Comey or the FBI. Instead, it is about the perverse consequences of government transparency, and the fraught relationship between national security and the demands of democracy. . .

The public may now expect to have access to current intelligence and ongoing legal assessments. The desire for openness from government officials is understandable, of course. Transparency is the only way we can hold executive agencies accountable. However, the Comey saga is a stark and troubling reminder that transparency has a price. The more law enforcement and intelligence officials reveal about their ongoing activities, the greater the risk of unintended consequences….

Secrecy and democracy coexist uneasily. Too much secrecy can lead to inefficiency and government abuse. The events of the last month, however, highlight how transparency can lead to politicization and government dysfunction.


“McGahn, Trump’s Counsel Pick, Fought Regulation as FEC Member”

Bloomberg BNA ($): “President-elect Donald Trump, battling criticism about potential conflicts of interest even before he takes office, is set to be represented in the White House by a tough Washington lawyer whose fight against strict regulation of politics was a hallmark of his five-year tenure on the Federal Election Commission.”


Jesse Richman on Trump’s Fraud Claim

One of the co-authors of a widely cited paper on non-citizen voting writes:

Donald Trump recently suggested that his deficit in the popular vote to Clinton might be due entirely to illegal votes cast, for instance by non-citizens.  Is this claim plausible?  The claim Trump is making is not supported by our data.

Here I run some extrapolations based upon the estimates for other elections from my coauthored 2014 paper on non-citizen voting.  You can access that paper on the journal website here and Judicial Watch has also posted a PDF.  The basic assumptions on which the extrapolation is based are that 6.4 percent of non-citizens voted, and that of the non-citizens who voted, 81.8 percent voted for Clinton and 17.5 percent voted for Trump.  These were numbers from our study for the 2008 campaign.  Obviously to the extent that critics of my study are correct the first number (percentage of non-citizens who voted) may be too high, and the second number (percentage who voted for Clinton) may be too low….

Is it plausible that non-citizen votes added to Clinton’s margin.  Yes.  Is it plausible that non-citizen votes account for the entire nation-wide popular vote margin held by Clinton? Not at all.

If the percentage of non-citizens voting for Clinton is held constant, roughly 18.5 percent of non-citizens would have had to vote for their votes to have made up the entire Clinton popular vote margin.  I don’t think that this rate is at all plausible.   Even if we assume that 90 percent voted for Clinton and only 10 percent for Trump, a more than fourteen percent turnout would be necessary to account for Clinton’s popular vote margin.  This is much higher than the estimates we offered.  Again, it seems too high to be plausible.