Did Sen. McConnell Choose the “BCRA” Name for His Health Care Law to Stick It to McCain-Feingold Supporters?

A reader emails with an interesting theory:

Plenty of pundits (presumably non-ELB readers) have recently puzzled aloud about the title that Majority Leader McConnell gave to the Senate substitute to the American Health Care Act (“weirdly named,” said Ryan Grim). Some suggested that the cockroach-level polling of the AHCA led to a need to re-brand, which makes perfect sense but gets us only halfway. Others have suggested that “Reconciliation” was included to influence the parliamentarian to permit a simple majority vote even if negotiations lead the budget savings to vanish or get too close for comfort. A likely stretch, in my view, but one that still gets us only another quarter of the way to “Better Care Reconciliation Act.” I have a strong hunch that the Better Care Reconciliation Act was not close to the top performer in polling or focus groups. And I have another hunch that you know where I’m going with this:
McConnell chose Better Care Reconciliation Act to symbolically bury the piece of legislation he hates most of all from his many decades of public service, which he litigated up through the Supreme Court in his own name, a bill most know as McCain-Feingold but one the drafters and courts and McConnell knew as the Bipartisan Campaign Reform Act. Already, a Google search for “BCRA” pushes McCain-Feingold to the fourth page (other than the Wikipedia disambiguation page), which was not true just two weeks ago (as you can confirm by searching BCRA with a date range before 6/14/2017, when it was the top hit).
There has been some talk of McConnell’s “winning by losing” if failing to repeal the ACA paves the way to accomplish tax reform. But McConnell has already won a minor symbolic but assuredly sweet personal victory over his great nemesis. Add search engine optimization to his suite of formidable skills.

 

 

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“The Supreme Court is in no hurry to protect voters from gerrymandering”

I have written this piece for the Washington Post’s PostEverything. It begins:

When it comes to assuring fair elections, the Supreme Court has a new message: Voters can wait.

Its recently completed term featured two key redistricting votes in which the court turned away temporary relief for voters as the court considered each case — not because these voters would eventually lose, but because the justices refused to put voters’ interests first. And these rulings build upon the court’s troubling “Purcell principle,” the idea that courts should not make changes to voting rules close to the election, even if those changes are necessary to protect voting rights.

Last December, North Carolina appealed to the Supreme Court a three-judge court decision holding that the drawing of certain state legislative districts were unconstitutional racial gerrymanders. The lower court also ordered that the state conduct special elections this year to cure the defect. North Carolina appealed that order, too, and it asked the Supreme Court to put the special elections on hold pending a decision on its underlying appeal….

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Washington Times Story Reveals Details About Kobach’s Plan for “Election Integrity” Commission

Among the nuggets in here:

  • commission to meet first in July in DC
  • delay in naming commissioners supposedly because of background checks
  • Obama won’t be called to testify because he has “no information or expertise on voter fraud”
  • Lawyers’ Committee is a “left wing organization”
  • Staff for commission will be drawn from the Executive Office of the President (sounds super nonpartisan)
  • “One part of the commission’s work will be to compare the federal government’s database of noncitizens — green card holders, temporary visa holders and illegal immigrants who’ve been arrested, for example — and check them against state voter registration rolls.”
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“Russian Intrusion and Partisan Pressures: Aspects of Election Administration Reform After 2016”

Key Bauer post:

What can be done about this?

At a minimum, the election administration community should perform an “after action” audit of the 2016 episode and examine how the federal and state government performed in emergency conditions and how this collaboration can be improved. Senior officials have concluded that the Russians will keep up their nasty work: this is not the last of the elections they will hope to influence or disrupt. The Putin regime’s own “after action” report would have to take cheerful note of the conflict that immediately arose between the federal and state government over how to respond.

Any such “after action” deliberation should be public, perhaps in multiple venues, which is the best way to assure accountability. The Presidential Commission on Election Administration’s overall experience with the election administration community suggests that its experienced, professional leadership, in both parties, would look closely and responsibly at this problem. Peer pressure can help to discourage or limit the spread of irresponsible behavior like Secretary Kemp’s.

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“Maine Senate votes to scrap ranked-choice election system”

BDN Maine:

The Maine Senate Tuesday took the first step in scuttling a voter-approved state election overhaul before it’s implemented.

The Senate voted 21-13 to repeal the ranked choice voting law that allows voters to rank candidates in order of preference.

The repeal movement follows a Maine Supreme Judicial Court opinion that a key part of the law is likely unconstitutional. While lawmakers are also considering a constitutional amendment, it has yet to achieve the two-thirds support necessary to go to voters for final ratification.

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Judge (and Stanford Prof.) McConnell: Justice Gorsuch More Conservative Than Expected

This from Greg Stohr was very interesting:

Michael W. McConnell, a professor at Stanford Law School and former judge who sat on the Denver-based appeals court with Gorsuch, said it’s too early to draw firm conclusions. But so far, the new justice has been “at least somewhat more conservative than I was expecting,” McConnell said.

“The pattern is a bit surprising,” McConnell said. When each individual decision is examined, “I’m not sure that they are particularly skewed to the right, but the pattern is.”

Greg will be one of the panelist at UCI Law’s SCOTUS term in review July 10 (which will be webcast).

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Why Would Republican House Majority Leader Complain About Delay in Swearing in New Democratic CA Representative?

LAT:

Gomez, a current Democratic state assemblyman, told The Times after the election he would try to delay his Assembly resignation to vote on extending the state’s cap-and-trade program, which requires companies to buy permits to release greenhouse gas.

Negotiations on cap and trade are escalating in Sacramento, and there are rumblings that Brown would like to be able to count on Gomez’ vote to pass the bill with a two-thirds majority before the Legislature leaves on July 21, something McCarthy took issue with in a letter to Gomez, House Minority Leader Nancy Pelosi (D-San Francisco) and California Secretary of State Alex Padilla.

“If this delay persists due to his prioritization of state legislative matters, Congressman-elect Gomez should be honest with the constituents of California’s 34th congressional district who he was elected to serve and resign from his newly-elected seat so they can elect someone ready to serve on Day One,” McCarthy wrote.

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“Let’s change how we elect the House of Representatives”

Rep. Don Beyer WaPo oped:

Democracy is in crisis. Even as the country is deeply divided along class and ideological lines, it seems to be unified in its frustration with our current brand of politics.

Polls show that less than 20 percent of the country approves of the way Congress is doing its job. The time has come to consider a transformative idea that reflects the American electorate’s desire for moderation and fairness and that encourages the reemergence of bridge builders and candidates with an eye for compromise. That idea involves changing the way we elect members of the House of Representatives.

This week I introduced the Fair Representation Act, which would make two fundamental changes in how voters elect their representative in the U.S. House . First, it would allow voters to rank the candidates in order of preference, rather than simply voting for their top choice. Some version of this system is already used in many municipalities, and six states have adopted some kind of ranked-choice voting for congressional elections. If your first-choice candidate does not win, your second or third choice may. This spurs candidates to work to appeal to a broader swath of voters, which would calm polarization in many parts of the country.

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“California’s Low Voter Turnout Driven by Demographics”

Release:

California’s low voter turnout has two elements: a decline in the voter registration rate relative to other states and a decline in turnout in midterm elections. Each has a different origin in the state’s demographics, according to a report released today by the Public Policy Institute of California (PPIC).

  • Registration rates. California’s Latino and Asian American communities have become eligible to vote at faster rates than their counterparts in other states. At the same time, Latinos and Asian Americans register at lower rates than members of other groups, leading to an overall decline in California’s registration rate compared with states where eligible voting populations are not changing as quickly. The registration problem is especially pronounced among Latinos and Asian Americans more closely connected to the immigrant experience, that is, naturalized citizens and children born in the United States to immigrant parents.
  • Turnout. The drop in midterm turnout is largely about age. Young people have been voting at slightly higher rates in presidential elections but at much lower rates in midterms than voters of the same age did two decades ago. The state’s expanding Latino and Asian American populations do not play a role in declining turnout. Once registered, these groups have voted at consistent rates over time.

Despite increases in California’s registration rate and turnout in the 2016 presidential election, broader voting trends have been disappointing, with record low turnout in the 2014 primary and general elections. A PPIC report in 2016 showed that the state’s registration rate has been falling compared with other states. The report also found that turnout among those who are registered has been falling in midterm elections while remaining largely flat in presidential elections.

PPIC’s new report, California’s Missing Voters: Who Is Not Voting and Why, identifies possible causes of these trends in electoral participation. It is based on an analysis of the effects of a wide range of factors, including ethnicity, age, and voter registration history.

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“Gorsuch is the new Scalia, just like Trump promised”

I have written this oped for the LA Times. It begins:

Whatever else comes of the Donald J. Trump presidency, already he has perfectly fulfilled one campaign pledge in a way that will affect the entire United States for a generation or more: putting another Antonin Scalia on the Supreme Court. The early signs from Justice Neil Gorsuch, who joined the Court in April, show that he will hew to the late Justice Scalia’s brand of jurisprudence, both in his conservatism and his boldness.

Usually it takes a few years to get the full sense of a new justice. The job provides awesome power, and new justices often are reluctant to issue stark opinions or stake out strong positions early on. Chief Justice John Roberts and Justice Samuel Alito, for example, were at first cautious on campaign finance and voting rights issues. Only later did they sign on to blockbuster decisions like 2010’s Citizens United campaign finance case (allowing corporations to spend unlimited sums in elections) or 2013’s Shelby County voting case (effectively killing off a key Voting Rights Act provision).

Not so with Gorsuch. In a flurry of orders and opinions issued Monday, Gorsuch went his own way. The majority affirmed the right of same-sex parents to have both their names appear on birth certificates, but Gorsuch dissented. The majority chose not to hear a challenge to California’s public carry gun law, thus leaving it in place, but Gorsuch dissented. Gorsuch also wrote separately in the Trinity Lutheran case, on whether a parochial school may take government money for playground safety equipment. The court found in favor of the school, but Gorsuch went even further to the right in endorsing the government’s ability to aid religious organizations. This followed his dissent with Justice Clarence Thomas a few weeks ago over the court’s failure to consider overturning the “soft money ban” contained in the McCain-Feingold campaign finance law.

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“A Cautious Supreme Court Sets a Modern Record for Consensus”

Important Adam Liptak in the NYT:

The Supreme Court was shorthanded for most of the term that ended Monday, and it responded with caution, setting a modern record for consensus.

“Having eight was unusual and awkward,” Justice Samuel A. Alito Jr. told a judicial conference a few days after Justice Neil M. Gorsuch joined the court in April. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.”

As Justice Alito’s remarks suggested, the next term, starting in October, will be very different from the past one, which was defined by the long vacancy caused by the death of Justice Antonin Scalia in February 2016 and the court’s strenuous efforts to avoid 4-4 votes.

The court has already agreed to hear cases on President Trump’s travel ban, a clash between gay rights and claims of religious freedom, constitutional limits on partisan gerrymandering, cellphone privacy, human rights violations by corporations and the ability of employees to band together to address workplace issues.

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New CFI Report: Unlimited Party Contributions Don’t Help Ease Polarization

Release: (my emphasis)

The Campaign Finance Institute (CFI) today is releasing a new study entitled Party Contribution Limits and Polarization. The study refutes one of the policy solutions put forward in recent years for a problem that almost everyone acknowledges to be serious.

The new study was co-authored by Michael J. Malbin and Charles R. Hunt. Malbin is CFI’s co-founder and executive director as well as being Professor of Political Science at the University at Albany, SUNY. Hunt is a graduate research assistant at CFI as well as a Ph.D. student in Government and Politics at the University of Maryland.

Roughly two years ago, at about the time John Boehner’s speakership was unraveling, there was a significant public dispute among scholars about the causes of the polarization and gridlock that led to the Speaker’s undoing. Since then, the scholarly dispute has receded from public attention. However, the political and governing issues remain with us. The level of toxicity in Congress and many state legislatures remains high. As a result, there is ample reason to re-open the conversation.

One much-cited book at the time offered evidence claiming to show that removing limits on contributions to the political parties (to put them on an equal footing with Super-PACs) would strengthen the parties, leading to the election of more moderate public officials, thereby decreasing polarization in legislatures. Offered to support this was comparative state evidence claiming to show legislatures to be less polarized in states without contribution limits.

Subsequent to this book, another was published that showed polarization to be closely linked to the competition for majority control over the branches of government. Where legislators saw a plausible chance to gain or lose their party’s majority, they were less likely to cooperate across the aisle to reach policy solutions.

Both studies seemed plausible. Unfortunately, neither tested the two explanations against each other. The current CFI study does that. The results were definitive. Removing party contribution limits would do nothing to affect polarization in Congress or state legislatures.

Make no mistake: polarization is a major problem. However, there are also major problems with mega-donors encouraged by unlimited contributions, as well as with the low rates of donor participation by American citizens. Each should be addressed. This study makes us feel confident that one does not have to be at the direct expense of another.

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No, DHS Did Not Try to Hack Into Georgia’s Voting System

It is a common claim I hear from the right, and now an Inspector General report debunks it and Georgia SOS accepts the conclusion.

AP:

Allegations that the federal government tried to hack Georgia’s election systems were unfounded, according to a letter the Department of Homeland Security’s inspector general sent Monday to Congress.

The conclusion comes more than six months after Georgia’s Republican Secretary of State Brian Kemp accused the department of attempting to “breach our firewall” a week after the November presidential election.

The letter said investigators with the inspector general’s Digital Forensics and Analysis Unit reviewed computer data from the federal agency, Kemp’s office and also interviewed a contractor. They also recreated the contractor’s actions. The data, Roth wrote, confirmed the contractor’s statements that on Nov. 15 he used a public page on Kemp’s website to verify security guards’ weapons certification licensing, which he then copied into a spreadsheet.

“Based on this work, we did not substantiate the allegations that DHS attempted to scan or infiltrate the Georgia computer networks,” the agency’s inspector general John Roth wrote in the letter. “Rather, the evidence demonstrated normal and appropriate use of Georgia’s public website.”

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“GOP wants new election maps for NC judges and prosecutors”

News & Observer:

A proposal to redraw North Carolina’s court districts has emerged in the final days of the General Assembly’s session.

A state House judiciary committee considered proposed maps for Superior Court and District Court judges and district attorneys on Monday afternoon.

The redistricting divides some single urban districts into multiple smaller districts, which could benefit Republican candidates’ chances to win elections.

If this passes, expect more litigation in North Carolina. (But that goes without saying, right?)

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“Could This Put an End to Gerrymandering?”

Anita Earls in The Nation:

For 30 years I have fought for election districts that are fair to people of color and make it possible for everyone to participate equally. I’ve filed lawsuits challenging districts drawn by Democrats and districts drawn by Republicans. At various times in our history, Democrats and Republicans alike have built barriers for racial minorities. But a new bill before Congress, the Fair Representation Act—a comprehensive new approach that rethinks our approach to districting and voting itself—offers a real way to transcend the redistricting wars….

There is a way forward. If we want to stop gerrymandering, and move beyond constant litigation over how lines are drawn, we must rethink the way we do districting itself. That’s why the Fair Representation Act, recently introduced before Congress by Representative Don Beyer of Virginia and Representative Jamie Raskin of Maryland, creates such an exciting path forward. It would stipulate that all 435 US House members be elected by ranked-choice voting. States with fewer than six seats will elect all members at-large. Larger states will have independent commissions draw multi-winner districts of three, four, or five representatives.

Yes, at-large elections have historically been used to dilute the votes of racial-minority communities. But that’s been made possible by winner-take-all voting rules that allow a handful of voters to control all the seats. With ranked-choice voting, winning requires a lower share of the vote. FairVote has simulated the impact with two national plans: Both times, the number of racial minority voters in a position to elect a candidate of their choosing has soared—from 38 percent in our current system, to nearly 60 percent. The number of potential minority seats jumps significantly as well, from 71 now to 101.

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Understanding Today’s Travel Ban Partial Stay as Sound Politics

Today’s partial stay in the travel ban case is a bit puzzling as law but may make more sense as politics. Following up on my colleague Leah Litman’s excellent post suggesting Court may never reach the merits, here are some thoughts.

I see the partial stay (which allows people with connections to U.S. family, business or university) as a political compromise. It has fingerprints of Breyer (especially the writing style) all over it. Likely with support from CJ Roberts, Kagan, Kennedy. It splits the difference–let’s each side declare victory, as is clear from early reactions–and says little on the merits.

And, as says, there’s a good chance the Court never needs to reach the merits. So the partial stay avoids hardships but lets the government credibly claim it can keep out those most likely to do U.S. harm and preserves President’s general prerogatives. It might be administratively messy (as Leah suggests) and perhaps incoherent as law, but makes sense as centrist political compromise.

More broadly it lets us divide into three camps in these kinds of cases centrist block, hard right, and hard left:

centrists-Breyer, Kagan, Kennedy, Roberts

hard right–Alito, Gorsuch, Thomas

hard left–Ginsburg, Sotomayor

If this is right, then when Kennedy leaves and Roberts is the swing Justice, he’s likely to be more institutionalist than hard right.What I mean by that is Roberts is more likely to vote in the center for pragmatic reasons even if his ideology lines up with hard right.Best institutionalist option in is this partial compromise stay, followed by a decision NEVER reaching merits. and today’s order seems to tee up that possibility nicely (if so, expect strong dissent from Gorsuch, Alito, Thomas).

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FairVote’s 25th: “Krist Novoselic and Rob Richie on Election Reform Efforts”

CSPAN video coinciding with FairVote’s 25th anniversary (and release of new congressional legislation). More from the group on the release of legislation:

Today, Congressman Don Beyer (VA-08) will introduce the FairVote’s signature reform proposal to Congress to mend our broken politics. Here’s how you can follow the day:

Capitol Hill Press Conference at 3pm ET

Congressman Beyer and supporters of the Fair Representation Act will hold a press conference on Capitol Hill from 3pm-4pm ET. We’ll be streaming the event on Facebook LIVE. Tune in to follow the groundbreaking announcement of the bill being introduced. I encourage you to share our live-stream with your friends on Facebook!

Reception with Friends and Supporters of the Fair Representation Act from 6pm-8pm ET

After the bill has been introduced, board members and supporters will join Congressman Don Beyer for a reception to celebrate the introduction of the Fair Representation Act and FairVote’s 25th anniversary year. If you haven’t RSVP’d to join us in person, you can follow us on Facebook LIVE, where we will live-stream remarks from members of Congress and allied organizations.

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Justice Gorsuch Already Showing Himself to Be Among Court’s Most Conservative Justices

There was a lot of dissembling when Justice Gorsuch was nominated to the Supreme Court, that he was some kind of blank slate, without preconceived ideas about how he would rule as a Supreme Court Justice. Of course, this was a ruse to blunt public criticism. Many of us knew that he would be a very conservative Justice—the only question is if he will be more like Scalia, Thomas, or Alito.

J. Gorsuch has been on the Court only a few months, and only heard one month’s worth of oral arguments. But today, on the last day of the Supreme Court’s term, we got a very good indication he will be most like Justice Scalia, and often voting with Justices Thomas and Alito, making Justice Gorsuch one of the most, or most, conservative Justices. We also got indications (from the fact that he wrote four separate opinions related to orders today, and joined a fifth–by Justice Thomas) that he will not be shy about getting the Court involved in the most sensitive issues, from gun rights to gay rights. He will not be like Chief Justice Roberts in considering institutional legitimacy and comity.

Already today, Justice Gorsuch dissented from the partial stay in the travel ban case, dissented from a gay rights case involving the right of same sex parents to be on birth certificates, and dissented from the Court’s decision not to hear a law involving a California concealed carry gun law. Justice Gorsuch also wrote separately in the Trinity Lutheran case to take a position further than the Court on the ability of the government to aid religion.

Finally, and what makes me think Justice Gorsuch will be more like Scalia than Alito or Thomas is Justice Gorsuch’s pro-criminal defendant statement in the Hicks case, over Chief Justice Roberts’ dissent. Justice Scalia, while very conservative, had a pocket of pro-criminal defendant cases. I expect Gorsuch to have the same.

But on most of the issues that get the greatest public attention—abortion, gay rights, voting rights, gun rights, federal power–I expect Justice Gorsuch to be on the far right of the Court. And given his age, he’s likely to be there for a generation or more.

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“White House Says Its Election Commission Will Examine Hacking. That’s News To The Commissioners.”

HuffPo:

But if understanding hacking is going to be a commission priority, it would appear to be news to at least some of the commissioners, who said this week they have no idea when the commission will meet or what it is actually going to examine.

Sean Spicer, the White House press secretary, pointed to the presidential commission on electoral integrity, created by Trump in May, when he was asked Friday whether Trump was concerned about hacking.

“He instituted an election commission that is making sure that we look at all of how we’re voting, and to make sure that we maintain integrity in all of our voting process to make sure that we have faith in it,” Spicer said Friday. “And that includes cyber, it includes voter I.D., it includes all sort of systems.  I expect that commission to have several announcements in probably the next two weeks, and potentially some hearings in July.”…

Maine Secretary of State Matthew Dunlap (D) told HuffPost he had no contact with Kansas Secretary of State Kris Kobach (R), the vice chairman of the panel, since being named to the commission in May. While he hoped the commission would investigate Russian hacking, he didn’t know if it would. There’s been an urgent focus on the need to address election security after leaked National Security Agency documents showed Russia successfully breached election systems last year. Bloomberg reported there was a breach in 39 states, but Trump has downplayed Russia’s responsibility.

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“Analysis indicates partisan gerrymandering has benefited GOP”

Extensive AP analysis using the efficiency gap:

The AP scrutinized the outcomes of all 435 U.S. House races and about 4,700 state House and Assembly seats up for election last year using a new statistical method of calculating partisan advantage. It’s designed to detect cases in which one party may have won, widened or retained its grip on power through political gerrymandering.

The analysis found four times as many states with Republican-skewed state House or Assembly districts than Democratic ones. Among the two dozen most populated states that determine the vast majority of Congress, there were nearly three times as many with Republican-tilted U.S. House districts.

Traditional battlegrounds such as Michigan, North Carolina, Pennsylvania, Wisconsin, Florida and Virginia were among those with significant Republican advantages in their U.S. or state House races. All had districts drawn by Republicans after the last Census in 2010.

The AP analysis also found that Republicans won as many as 22 additional U.S. House seats over what would have been expected based on the average vote share in congressional districts across the country. That helped provide the GOP with a comfortable majority over Democrats instead of a narrow one.

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“How Democrats Gerrymandered Their Way to Victory in Maryland”

Dave Daley in The Atlantic:

New court depositions and previously unseen emails uncover just how determined Maryland Democrats were to take a seat from the Republicans and knock 10-term veteran Roscoe Bartlett—an idiosyncratic conservative who after losing his seat retired off the grid in the mountains of West Virginia, issuing dire warnings about the vulnerability of our power grid—out of office. They also reveal the partisanship with which Democrats approached redistricting in Maryland: As former governor and 2016 Democratic presidential primary candidate Martin O’Malley explains, he and other Democrats wanted to use their party’s control of the governor’s office to secure a  7-1 majority.

“Yes,” said O’Malley, in a deposition. “Part of my intent was to create a map that, all things being legal and equal, would, nonetheless, be more likely to elect more Democrats rather than less.”

Nationally, Republicans not only dominated the decennial redistricting that followed the 2010 census, but reinvented the partisan gerrymander. The GOP executed a strategy called REDMAP, short for Redistricting Majority Project. They successfully targeted control of state legislative chambers in Pennsylvania, Ohio, Michigan, North Carolina, Wisconsin and many other states, earning total control of the new lines even in bluish swing states. The GOP emerged from 2010 with unilateral power to draw 193 U.S. House seats while the Democrats fully controlled merely 44. REDMAP cost just $30 million and went a long way to ensuring GOP control of the House and state legislatures nationwide. In 2012 when Democratic congressional candidates received 1.4 million more votes but Republicans maintained a 33-seat majority. It was the biggest bargain—and perhaps the most audacious heist—in modern politics.

Nevertheless, the untold story of Maryland’s sixth congressional district—unfolding now in documents before a U.S. District Court in the Benisek v Lamone partisan gerrymandering case—illustrate just how fiercely Democrats, as well, have fought to rig the system in their direction when presented with the opportunity. Republicans controlled redistricting in many more states in 2010. But these court records show that Democrats were also eager to maximize a fundamentally broken redistricting process to their advantage, and to the detriment of democracy.

Listen also to this On the Media segment.

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News Analysis Cannot Replicate PILF “Alien Invasion” Study Finding “Massive” Noncitizen Voting in VA

Capital News Service:

Last fall, a pair of groups supported by conservatives released a report with the sensational title “Alien Invasion in Virginia: The discovery and coverup of noncitizen registration and voting.” It said illegal voting is a “massive problem”:…

In recent weeks, Capital News Service attempted to replicate the study’s methods and found that some noncitizens have indeed voted in Virginia, though not on a massive scale. Using the Freedom of Information Act, voter registration records and voter history data, CNS found that:

  • About 240 people who weren’t citizens had been registered to vote in 10 localities, mostly in Northern Virginia and the Richmond area.
  • 28 of these noncitizens actually voted in an election before they were removed from the voter registration rolls.
  • They cast a total of more than 100 ballots.

CNS did not find evidence that noncitizens voted in massive numbers or tipped an election, as some Republicans have alleged. Indeed, half of the noncitizens who voted in a party primary voted in a Republican primary. However, the records seem to contradict Democrats’ assertion that voter fraud is nonexistent.

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ELB Podcast Episode 17. Josh Chafetz: Congress’s Power Before, During, and After Trump

In this era of polarization in politics, how much power does Congress have compared to the President and the courts? Is the Republican Congress a meaningful check on President Trump? How well does Congress do at policing ethical lapses of its own members?

On Episode 17 of the ELB Podcast, we talk with Josh Chafetz, Cornell Law School professor and author of the new book, Congress’s Constitution: Legislative Authority and the Separation of Powers.

You can listen to the ELB Podcast Episode 17 on Soundcloud or subscribe at iTunes.

 

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Court Fines SOS Kobach $1000 for Misleading Court on NVRA Documents, Allows ACLU to Depose Kobach

The 24-page order and opinion of the magistrate judge could be appealed.  The underlying document—Kobach’s advice to Trump as to how to make it harder for people to register to vote by changing the federal National Voter Registration Act (NVRA)—remains under seal, but, as Josh Gerstein explains, “Despite the ruling, the memo Kobach took into the meeting with Trump may well wind up in the public domain eventually. O’Hara suggested that if one of parties files the memo in court as part of formal pleadings in the case, it is likely to be made public.”

The magistrate judge also gave a glimpse as to what the document under seal actually says:

In response to the motion, defendant made patently misleading representations to the court about the documents, which at the time had not been produced to either the court or plaintiffs, such that the court was required to take defendant at his word. For example, in discussing the text of the draft amendment, defendant stated, “that text does not propose to ‘amend or alter’ an ‘eligibility-assessment procedures [sic] mandated by the NVRA.’” A review of the draft amendment, however, indicates that the text proposed amending the NVRA’s provisions governing the type of information a state could require voter-registration applicants provide to enable the state to assess the applicant’s eligibility.

In another example, defendant’s response brief states,

Plaintiffs theorize that ‘[A]ny alternative methods proposed by Defendant to alter the assessment of voter eligibility under the NVRA go directly to the second prong of the Tenth Circuit’s analysis.’ Pls. Memo. at 7. Plaintiffs suppose that, ‘efforts by Defendant to seek alternative means of assessing voter qualifications by amending the NVRA would suggest that a DPOC requirement is not the least restrictive method of verifying eligibility.’ Pls. Memo. at 7. First, had Plaintiffs actually sought the documents that they now claim they are seeking, Defendant would have responded that no such documents exist.

This paragraph gives the strong impression that neither of the two at-issue documents relate to proposals by defendant to amend the NVRA’s eligibility-assessment provisions. Upon in camera review of the documents, the undersigned learned this is clearly not the case.

The judge granted the right to depose Kobach rather than use written interrogatories because the judge feared more word games from Kobach. Indeed, the judge will personally preside over the 60 minute deposition on July 5 to rule on objections immediately. The deposition’s contents will, at least for now, be under seal.

(Kobach may appeal any or all of this from the magistrate judge to the district court judge.)

And, yeah, Kobach is the vice chair of President Trump’s “Election Integrity” commission.

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“Issue Brief: Why Are Millions of Citizens Not Registered to Vote?”

Pew:

Despite these efforts, little is known about eligible but unregistered U.S. citizens’ exposure to opportunities to register, reasons for choosing not to, or attitudes toward the electoral system and civic engagement, or how many of them are interested in registering in the future. To begin to fill this gap, The Pew Charitable Trusts commissioned a nationally representative survey conducted in March and April 2016 that included a large population of unregistered individuals. This chartbook presents findings from the survey about the attitudes and experiences of those who said they were not registered to vote in the months preceding the 2016 presidential election, including:

  • Less than 20 percent of eligible citizens have been offered the chance to register at a motor vehicle or other government agency.

  • The unregistered were more likely to say they do not vote because they dislike politics or believe voting will not make a difference, while people who are registered but vote infrequently say they do not vote more often because they are not informed enough about the candidates or issues.

  • At least 13 percent of the unregistered, generally those who are younger and more civically engaged, say they could be motivated to register in the future.

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“Has the Top Two Primary Elected More Moderates?”

Eric (“Efficiency Gap”) McGhee and Boris Shor have posted this draft on SSRN.  Here is the abstract:

Party polarization is perhaps the most significant political trend of the past several decades of American politics. Many observers have pinned hopes on institutional reforms to reinvigorate the political center. The Top Two primary is one of the most interesting and closely-watched of these reforms: a radically open primary system that removes much of the formal role for parties in the primary election and even allows for two candidates of the same party to face each other in the fall. In this paper, we leverage the adoption of the Top Two in California and Washington to explore the reform’s effects on legislator behavior. We find an inconsistent effect since the reform was adopted in these two states. The evidence for post-reform moderation is stronger in California than in Washington, but some of this stronger effect appears to stem from a contemporaneous policy change—district lines drawn by an independent redistricting commission—while still more might have emerged from a change in term limits that was also adopted at the same time. The results validate some claims made by reformers, but question others, and their magnitude casts some doubt on the potential for institutions to reverse the polarization trend.

Can’t wait to read this!

 

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“Who? White House names unknowns to voting panel”

Zack Roth:

President Trump’s commission on voter fraud appears to be struggling to attract A-list talent, at least among Democrats.

The White House announced three new members of the panel late Wednesday: Mark Rhodes, the clerk for Wood County, West Virginia; David Dunn (pictured), an Arkansas lobbyist and former Democratic state lawmaker; and Luis Borunda, a deputy secretary of state for Maryland, and an appointee of Gov. Larry Hogan, a Republican.

“Never heard of any of these folks,” Rick Hasen, an election law professor at the University of California, Irvine and a long-time close observer of the world of election administration, wrote on Twitter Thursday.

Of the three, only Rhodes appears to have direct experience running elections — for a county with a population of just 86,000. Borunda’s portfolio in the secretary of state’s office doesn’t include elections, according to his bio. And Dunn appears to have focused mostly on economic and tax issues.

“No disrespect but there are many significantly more qualified election practitioners from whom [to] choose, but who would likely say no,” Michelle Shafer, a senior adviser on elections technology for the Council on State Governments, wrote on Twitter.

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Verified Voting/Common Cause Letter: Government Needs to Do More to Deal with Risk of Voting Machine Hacking

Letter:

This letter was sent to the US Senate Select Committee on Intelligence following a hearing on June 21, 2017. (Download PDF)

Verified Voting vigorously applauds the Senate Select Committee on Intelligence for its leadership and commitment to securing our elections. With clear evidence that foreign attackers sought to attack our 2016 elections through various means, our intelligence agencies warn that hostile attackers will be back to attack future elections. Congress and the most vulnerable states should act with urgency to fund and implement protective reforms that will make our election systems resilient against cyber attack: funding the adoption of paper ballots and accessible ballot marking systems, and implementing robust, manual post-election audits of the votes.

The June 21 hearing is an important first step toward those reforms, providing valuable information through witness testimony and questions of the Senators. We wish to expand on several key points that were raised in the hearing to ensure a clear understanding of the challenges we face in securing our elections.

It is crucial to understand that further reforms are urgently needed to bolster the mitigations currently in place so that it is possible to detect and correct a cyber attack on the vote count.

Some testimony asserted that pre-election testing and post-election audits currently in place would catch errors in vote tallies caused by a malicious attacker or software failure. Unfortunately, pre-election testing, though helpful for ensuring the completeness of ballot programming, can be defeated by malicious software designed to detect when the system is in test mode. This is what happened with Volkswagen diesels cars: the software caused the cars’ emissions systems to behave correctly during testing, but then allowed them to pollute under non-testing conditions.

Likewise, while post-election audits currently in place in some states may serve to detect errors in the vote count—and indeed in a number of past elections have detected outcome-changing errors—such audits cannot be relied upon nationally. A post-election audit requires examination of some number of paper ballots marked by voters, to serve as a check on the software vote count. Because voters in five states are consigned to paperless machines, and nine other states contain jurisdictions that do not have paper ballots, it is impossible to conduct a legitimate post-election audit to detect software errors in 14 states.

Moreover, while roughly 70% of the nation has paper ballots,1 little more than half the country conducts post-election audits2 and, with few exceptions, these audits are not strong enough to always reliably detect vote count errors caused by cyber attacks or software problems. This is why we need paper ballots and robust post-election audits: to have sufficient evidence to detect and correct errors in all jurisdictions, not just in some jurisdictions.

Although most voting machines are not directly connected to the Internet, they nonetheless may be exposed to hacking attacks through other connections, as Dr. Alex Halderman explained in his testimony.3 Furthermore, 32 states allow the online casting of ballots for military and overseas voters;4 these ballots are directly exposed to Internet attacks. Because these ballots are cast electronically, their accuracy cannot be verified or accurately audited.

At the hearing, Senators pressed the important point that our current system does not ensure that State election directors will disclose breaches to the public or other entities. In some localities, election systems are managed by outside vendors, some of which may not have the resources to implement strong security. In these cases the vendors would be responsible to detect and report vulnerabilities or intrusions. But vendors may feel a financial and reputational disincentive to disclose vulnerabilities or breaches of their systems. Without reforms to require such disclosure, we cannot reasonably expect to learn of all breaches and vulnerabilities. This exacerbates the difficulty of addressing security challenges.

Paper ballots and post-election ballot audits provide resilience to cyber attacks on our voting process, because the paper ballot is physical, tangible evidence of voter intent that will remain untouched by a cyber attack. In the hearing we were told that one of our adversaries’ aims is to sow distrust in our elections so as to undermine U.S. democratic principles. Paper ballots and audits provide transparency and instill voter confidence in the process. By combining paper ballots with routine, mandatory post-election manual audits, we directly and effectively undercut our adversaries’ ability to shed doubt on the election outcome. Voters will have evidence to support the computer tallies, improving both transparency and voter confidence.

We thank you for focusing on this critical issue and for your commitment to address it. We hope to work with you to move the entire nation to resilient, auditable, transparent and accessible voting systems and stand ready to assist any way we can.

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Ga. SOS Brian Kemp Still Skeptical Russians Tried to Hack Voting Machines

This, from the SOS of a state whose voting security is most worrisome:

Brian Kemp, the Republican secretary of state of Georgia, used the call to denounce Johnson’s proposal as an assault on state rights. “I think it was a politically calculated move by the previous administration,” Kemp said in a recent interview, adding that he remains unconvinced that Russia waged a campaign to disrupt the 2016 race. “I don’t necessarily believe that,” he said.

 

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Today’s Must-Read: “Obama’s secret struggle to punish Russia for Putin’s election assault”

What a WaPo story:

In political terms, Russia’s interference was the crime of the century, an unprecedented and largely successful destabilizing attack on American democracy. It was a case that took almost no time to solve, traced to the Kremlin through cyber-forensics and intelligence on Putin’s involvement. And yet, because of the divergent ways Obama and Trump have handled the matter, Moscow appears unlikely to face proportionate consequences….

In early September, Johnson, Comey, and Monaco arrived on Capitol Hill in a caravan of black SUVs for a meeting with 12 key members of Congress, including the leadership of both parties.

The meeting devolved into a partisan squabble.

“The Dems were, ‘Hey, we have to tell the public,’ ” recalled one participant. But Republicans resisted, arguing that to warn the public that the election was under attack would further Russia’s aim of sapping confidence in the system.

Senate Majority Leader Mitch McConnell (R-Ky.) went further, officials said, voicing skepticism that the underlying intelligence truly supported the White House’s claims. Through a spokeswoman, McConnell declined to comment, citing the secrecy of that meeting.

Key Democrats were stunned by the GOP response and exasperated that the White House seemed willing to let Republican opposition block any pre-election move….

he White House also worried that they had not yet seen the worst of Russia’s campaign. WikiLeaks and DCLeaks, a website set up in June 2016 by hackers believed to be Russian operatives, already had troves of emails. But U.S. officials feared that Russia had more explosive material or was willing to fabricate it.

“Our primary interest in August, September and October was to prevent them from doing the max they could do,” said a senior administration official. “We made the judgment that we had ample time after the election, regardless of outcome, for punitive measures.”

The assumption that Clinton would win contributed to the lack of urgency.

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“Trump loses patience with his White House counsel”

Politico:

White House counsel Don McGahn has largely stepped back from managing Donald Trump’s response to the expanding Russia investigation, but that hasn’t stopped the president from lashing out at him about it anyway.

Trump started the week by giving McGahn, a loyal supporter who was among the first Washington establishment figures to sign on with his presidential campaign, a dressing down in the Oval Office for not doing more to squash the Russia probe early on.

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“Despite Claims To Contrary, Trump Has Signed No Major Laws 5 Months In”

NPR:

Measuring laws passed by counting rather than by significance is pretty meaningless. More on that in a bit. Among modern Oval Office occupants, Presidents Jimmy Carter (52), George H.W. Bush (41) and Bill Clinton (41) had all signed more bills into law than Trump has by this point in their presidencies.

So, what has Trump accomplished with Congress so far? Nothing that political scientists would categorize as major pieces of legislation. We looked at this question as Trump hit his 100 days mark. This story contains more detail on legislation he signed in the early part of his presidency.

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“Little movement on White House probe into voter fraud; No meetings yet; commissioners still being vetted”

CNN;

On Super Bowl Sunday this year, President Donald Trump told Fox News that Vice President Mike Pence would head a commission into voter fraud allegations — ones that he made, claiming that between three to five million people voted illegally in the 2016 election.

The commission was formed three months later, but it has yet to meet and there’s no date set to do so.But state-level commission members say if they were to get underway, Russia should be center stage.

More than one member of the White House‘s Election on Voter Integrity told CNN on Thursday that the group would not be doing its job if it did not examine possible interference by a Russian intelligence agency or a military intelligence agency in voting systems.

“If you know that there is an outside force that is trying to jimmy the door on the election process somehow, you would want to know about that,” said Matt Dunlap, Maine’s secretary of state and a member of the commission. “That includes the Russians, the Martians, I don’t care. It has to be part of the discussion.”

Dunlap said he has not heard from the White House about the commission since the May press release.

….

Dunlap said that he’s glad that the White House included him in the commission, but he thinks that the lack of movement so far may be intentional.

“If they have any dignity about this, they’ll stop meeting as a commission because I just don’t think we’re going to find very much,” he said. “It could be a realization that there’s not a lot there.”

EARLIER: My oped calling for Dunlap to not serve on the commission.

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Politifact Rates “False” ‘Fox and Friends’ Ridiculous Claim about 5-7 Million Noncitizen Voters in 2016

Politifact:

The claim made on Fox and Friends is based on an extrapolation of a controversial study that relied on a very small number of responses. Researchers involved in the underlying survey of voters have cautioned against using their data to reach conclusions about noncitizen voters.

We emailed a spokeswoman for Fox News and did not get a reply; however, the Washington Times article showed that the information came from Just Facts, a think tank that describes itself as conservative/libertarian and was founded by James D. Agresti, a mechanical engineer in New Jersey.

Agresti’s conclusions are based on data from a paper by Old Dominion University researchers who used data from the Cooperative Congressional Election Study, or CCES. He multiplied the findings in that data with U.S. Census Bureau estimates of the noncitizen population to come up with a conclusion about the number of noncitizen voters nationwide.

It’s important to note that the CCES researchers have disputed the conclusions Old Dominion researchers reached about noncitizen voters.

Here’s how the studies unfolded: In 2008, the CCES surveyed 32,800 adults nationwide online about their political views. Respondents answered at least 100 questions before they made it to the citizenship question, one of the last questions asked.

The survey showed that 339 identified themselves as noncitizens — about 1 percent of the total respondents. Then of the 339 self-identified noncitizens, 39 of those claim to have voted, said Brian Schaffner, a political science professor at the University of Massachusetts Amherst, one of the main researchers.

That’s 39 respondents out of 32,800 people who are now being used to extrapolate millions of illegal voters. Schaffner has warned that with a subset that small, the responses might be unreliable.

“Survey respondents occasionally select the wrong response by accident—perhaps because they are rushing through and not reading the questions carefully, because they do not fully understand the terminology being used, or because they simply click on the wrong box on the page,” Schaffner wrote in a Politico magazine article after the November election.

Subsequent CCES surveys provide more evidence that some respondents answered the question wrong. There were 20 respondents who identified themselves as citizens in 2010 but then in 2012 changed their answers to indicate that they were noncitizens, which Schaffer said is “highly unrealistic.”

In 2014, researchers at Old Dominion University used the CCES data in 2008 and 2010, as well as voter records in 2008, to conclude that more than 14 percent of noncitizens indicated that they were registered to vote. Their best guess at the portion of noncitizens who voted was about 6.4 percent, or 1.2 million votes cast.

The researchers at CCES (including Schaffner; Stephen Ansolabehere, a Harvard political scientist; and Samantha Luks, a statistician at YouGov) have criticized the methodology used by Old Dominion.

They said it didn’t fully consider the possibility that people responded to the survey inaccurately.

“You are ignoring the measurement error in a very small group which is going to inflate those numbers,” Schaffner said, “then you assume this is a random sample of all noncitizens in the country, which it probably isn’t.”

More than 100 political scientists from universities and colleges wrote an open letter in January disputing the Old Dominion paper as evidence for Trump’s claim that millions of noncitizens voted.

MORE from HuffPo.

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“How Tinder Could Take Back the White House”

Yara Rodrigues Fowler and Charlotte Goodman fascinating NYT oped:

With the help of two software engineers, Erika Pheby and Kyle Buttner, we designed a chatbot, a smart computer program that deployed an adaptable script. In the two days ahead of the election earlier this month, the chatbot struck up conversations with thousands of young people between 18 and 25 years old on Tinder. The chatbot talked about politics, with the aim of getting voters to help oust the Conservative government. The results were amazing. Over 30,000 messages reached young people in key constituencies.

This is how it worked: People we recruited from Facebook and Twitter “lent” us their Tinder profiles, and the bot convinced Tinder that their profiles were in geographical locations where the vote was close. In these places, the proportion of 18-25-year-olds was high enough that they could swing the election — if they turned out at the national average. Using the photograph of the person who’d lent their profile, the program would automatically swipe “yes” on every user, and if someone swiped “yes” back, creating a “match,” the bot would ask about the user’s voting plans.If the user planned to vote for Labour (or whatever party best placed to beat the Conservatives), the bot sent a message with a link to the nearest polling station. If the user planned to vote for another progressive party, the bot asked if he or she would consider a tactical vote to beat the Tories, voting for the progressive party most likely to beat the Conservatives in their area. And if the user was voting for a right-wing party or was unsure, the bot sent a list of Labour policies, or a criticism of Tory policies. People who lent their profiles could jump in and chat at any time. And they did.

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The Consequences of Gerrymandering

I wrote yesterday about my findings in a recent paper about the causes of district plans’ partisan skews. In a nutshell: Full control of the redistricting process consistently benefits the party in charge. Courts, commissions, and divided governments don’t reliably favor either party. Greater black representation produces a small pro-Republican shift, which disappears if Democrats are responsible for redistricting. And greater urbanization also produces a small pro-Republican shift, but only at the state house level.

Today I want to talk about the consequences of district plans’ partisan tilts. In particular, how does a large efficiency gap (or partisan bias) affect the legislative representation that voters get? The below chart begins to answer this question. The x-axis shows the Democratic share of the statewide vote in congressional elections from 1972 to 2012. The y-axis shows the ideological midpoint of each state’s congressional delegation (where negative values are liberal and positive values are conservative). Separate curves are plotted for plans with large pro-Democratic efficiency gaps (>10%), large pro-Republican efficiency gaps (<-10%), and all other efficiency gaps.

It is obvious from the chart that, at least in competitive states, gerrymandering has an enormous impact on representation. Take a state where the congressional vote is evenly split between the parties. If this state has a large pro-Democratic efficiency gap, then its median House member is likely to have an ideal point around -0.2 (or somewhat liberal). If the state has an intermediate efficiency gap, then the ideological midpoint of its House delegation is likely to be near zero (or moderate). And if the state has a large pro-Republican efficiency gap, then its median House member is likely to have an ideal point close to 0.4 (or quite conservative). Thus without a single voter changing her mind, redistricting can shift the ideological midpoint of a House delegation by about 0.6, or roughly two standard deviations. The same electorate can be represented in Congress in completely different ways, depending on how the lines are drawn.

I won’t get into my regression analysis here, but it strongly confirms the story told by the chart. Both the efficiency gap and partisan bias are powerful drivers of congressional representation in every model. What this means, in my view, is that the damage of gerrymandering is not limited to discrepancies between votes cast and seats won. It extends, rather, to the voting records of the legislators who end up in office. Pro-Democratic gerrymanders result in House members who are too liberal for their constituents. Pro-Republican gerrymanders yield House members who are overly conservative. Either way, the basic idea that legislators should be aligned with the voters who elected them is severely compromised.

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