“The loser of November’s election may not concede. Their voters won’t, either.”

I have written this commentary for the Washington Post Sunday Outlook, a preview of my book, Election Meltdown, out Feb. 4. It begins:

When the polls closed on Nov. 5, 2019, the initial count showed the governor of Kentucky, Republican Matt Bevins, losing to his Democratic challenger, Andy Beshear. But rather than concede that he fell short in what should have been an easy reelection, Bevins claimed that “irregularities” had muddled the result — producing no evidence to support his accusations. At first, some Kentucky legislative leaders appeared to back him, and some pointed to the legislature’s power to resolve an election dispute and choose the governor regardless of the vote. But Bevins was not popular even within his own party, and eventually, he had to concede when the local GOP did not go along with him.

We could imagine a similar scenario this November: What would happen if President Trump had an early lead that evaporated as votes were counted, and then he refused to concede? The idea isn’t too far-fetched; Trump has raised it himself. Before the 2016 election, he wouldn’t agree to accept the results if he lost. After winning in the electoral college but losing the popular count by about 3 million votes, Trump claimed — with no evidence whatsoever — that at least 3 million fraudulent votes had been cast for his opponent, Hillary Clinton. He set up an “election integrity” commission headed by then-Kansas secretary of state Kris Kobach to try to prove that “voter fraud” is a major problem. But after the commission faced attacks from the left and the right for demanding state voter records with an apparent plan to use them to call for stricter registration rules, Trump disbanded it, with no work accomplished. In 2018, the president criticized elections in Florida and California, where late-counted votes shifted toward Democrats, suggesting without evidence that there was foul play.

It’s not just Trump who might not accept election results. Imagine that he wins in the electoral college, this time thanks to what Democrats believe is voter suppression in Florida. The Florida legislature and governor have already sought to stymie Amendment 4, a 2018 ballot initiative to restore voting rights to formerly incarcerated felons. When the state Supreme Court agreed that felons could not register to vote until paying all their outstanding fines, Gov. Ron DeSantis (R) praised the ruling and called voting a “privilege,” rather than a right. Some Democrats have called the new rules a “poll tax,” and a Florida public TV station concluded that “the implications of the bill passed by a majority-Republican legislature preventing former felons from voting could work to ensure Trump wins the 2020 presidential election.” During Trump’s impeachment trial this past week, Rep. Adam Schiff (D-Calif.) said “we cannot be assured that the vote will be fairly won” in November because of the allegations that Trump was trying to “cheat” by pressuring Ukraine to announce an investigation into Joe Biden and his family.

External forces could cause an election meltdown, too. A recent NPR-News Hour-Marist poll found that “almost 4 in 10 Americans . . . believe it is likely another country will tamper with the votes cast in 2020 in order to change the result.” What if Russians hack into Detroit’s power grid and knock out electricity on Election Day, seriously depressing turnout — and Trump wins the electoral college because he carries Michigan? Most states do not have a Plan B to deal with a terrorist attack or natural disaster affecting part of a presidential election.


“Libertarians Win Fight Against Kentucky on Voting”

Courthouse News:

A change to the deadline for independent political candidates to register for elections signed is unconstitutional, a federal judge ruled Wednesday.

Kentucky House Bill 114, signed into law by former Governor Matt Bevin in March 2019, changed the deadline for state and local candidates to declare their candidacy from April 1 to the last Tuesday in January.

The law was made retroactive to include 2019, and prevented several Libertarian candidates from filing their statements of candidacy with the board of elections.


“The Superfluous Fifteenth Amendment?”

Travis Crum has posted this draft on SSRN (forthcoming, Northwestern U. L. Rev.). Here is the abstract:

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both a statute and an amendment. Moderate Republicans rejected the statutory option because they believed that Congress lacked enforcement authority under the Fourteenth Amendment to impose voting qualifications on the States and that an amendment was the only politically viable option.

Given this historical evidence, this Article argues that the Fifteenth Amendment was a significant expansion of congressional authority to regulate voting rights in the States and that Congress’s Fifteenth Amendment enforcement authority is distinct from—and broader under current doctrine than—its Fourteenth Amendment enforcement authority. The Article V debate offers a persuasive reason for overturning Boerne’s congruence and proportionality test or, at a minimum, cabining it to the Fourteenth Amendment. Accordingly, laws enacted under Congress’s Fifteenth Amendment enforcement authority should be reviewed under Katzenbach’s rationality standard and the Voting Rights Act (VRA) would be on firmer constitutional ground.


“The New Voter Suppression”

New Brennan Center report:

On Election Day in 1960, four unanswerable questions awaited Clarence Gaskins, a Black voter in Georgia looking to cast his ballot for president. Upon arrival at his designated polling place, he was ushered into a room that held a jar of corn, a cucumber, a watermelon, and a bar of soap. He was informed that in order to vote, he first had to answer the following correctly:

“How many kernels of corn are in the jar? How many bumps on the cucumber? How many seeds in the watermelon? And how many bubbles in the bar of soap?”

Clarence didn’t bother guessing once the polling official admitted there were no right answers. His vote was neither cast nor counted.

The connection between race and voter suppression did not end in the 1960s. While the overtly racist voter suppression tactics of the Jim Crow past are no longer with us, voter suppression remains a mainstay of electoral politics in the United States today.


“American voters worry they can’t spot misleading information, poll finds”


The new survey from PBS NewsHour, NPR and Marist Poll found that 59 percent of Americans say it is hard to identify false information — intentionally misleading and inaccurate stories portrayed as truth — on social media. Another 37 percent disagreed, saying it is easy to spot.

Furthermore, with the 2020 presidential campaign about to pick up in earnest, more than half of U.S. adults said discerning these fake or deceptive stories has become increasingly difficult over the last four years. That sentiment was shared by 58 percent of Democrats, 55 percent of independents and a slightly lower proportion of Republicans at 44 percent.


“Tech Companies Volunteer to Beef Up Presidential Campaigns’ Cybersecurity”


Nearly a dozen technology companies said they will provide free or reduced-cost cybersecurity services to presidential campaigns, which experts and intelligence officials have warned are ripe targets for intrusion and disinformation.

They join a growing number of firms offering protection on a nonpartisan basis, a trend that has gained steam in the past 18 months or so, since federal regulators eased rules to make such offers permissible under campaign-finance laws. The Federal Election Commission made policy changes after urging from nonprofits and technology companies, including Microsoft Corp.

Campaigns have struggled to make their information more secure in part because of budget pressures and the fast-moving nature of a campaign.


“Resist Push for Online Ballot Box”

Seattle Times editorial:

The ubiquity of online life comes with devastating vulnerabilities. Even one of the world’s richest men, Jeff Bezos, is reportedly not safe from hackers of electronic devices.

Despite this well-established risk, Washington elections officials are moving in disjointed directions about internet security. In Olympia, Secretary of State Kim Wyman wants to bar emailed ballot returns because of potential fraud and network tampering via attachment. In King County, Elections Director Julie Wise is aiding a local public agency’s experiment with online voting.

The King County move is a badly flawed approach to broadening elections access. Washington’s elections must — without exception — be kept safe from online tampering. The best way to do this is to keep elections computers entirely off the internet.


Feb. 4 Symposium on the Fair Representation Act


FairVote and the Election Reformers Network have teamed up to host a Symposium called, A Congress for Everyone: The Impact of the Fair Representation Act on Tuesday, February 4. It’s free and will be held at the New York University campus in Washington, DC starting at 3pm.

At a time when Americans increasingly feel like our elections are broken, a bold new proposal has been put forward that could, in the words of the New York Times editorial page, create “A Congress for Every American.” The Fair Representation Act is intended to solve our problems of partisan gerrymandering and uncompetitive elections by replacing our winner-take-all system with a fair and proportional system: ranked choice voting in multi-winner districts. Hear scholars and practitioners discuss what impact the Fair Representation Act would have on our democracy.

New York University, Washington, DC has listed detailed for the event on their website. For those who cannot attend, we will be promoting their live stream. 

RSVP below to save your spot for the “A Congress for Everyone: The Impact of the Fair Representation Act symposium.” 


New York University – Washington,DC Campus
Abramson Family Auditorium
1307 L Street, NW
Washington, DC 20005


3:00 PM Program Start
6:00 PM Reception
7:00 PM Program End

Click here to see the line-up of moderators and panelists. 


“Taking Stock Of The Supreme Court’s Citizens United Decision, 10 Years Later”

Listen to NPR’s On Point:

It’s been 10 years since the Supreme Court’s landmark decision on Citizens United. We’ll look back at the last decade and take stock of the fallout.


Carrie Levine, senior reporter at the Center for Public Integrity. (@levinecarrie)

Bradley Smith, professor of law at Capital University Law School. (@CommishSmith)

Rick Hasen, professor of law and political science at the University of California, Irvine. (@rickhasen)

John S. Adams, editor-in-chief of the Montana Free Press. (@johnsadams406)


Citizens United and “Corporate Spending” on Elections

One of the important findings from yesterday’s major CFI Report on campaign finance that has gone unnoticed so far is that Citizens United did not lead to a significant increase in election spending by publicly-traded corporations. As the introduction to the report puts it:

The case did indeed increase the importance of independent expenditures. However, the much-predicted explosion in spending by large, publicly traded corporations just has not happened. This is consistent with what political scientists have known for years about the way most corporations prefer to engage in electoral politics.

As the report indicates, at the time Citizens United was decided, many of us predicted that the decision would not lead to a dramatic increase in election spending from publicly-traded corporations. But you wouldn’t know this hasn’t happened from much of the public and political commentary, which conflates the dramatic increase in independent spending funded by wealthy individuals with inaccurate claims about “corporate spending” that Citizens United supposedly unleashed.


“Trump is attracting a new crop of big donors, including many who have never given before”


Trump’s vaunted political money machine is helping drive record sums to the Republican National Committee, and not just from the same donors who supported him in 2016. Enticed by exclusive gatherings and ecstatic about the president’s tax cuts, an eclectic new crop of donors is going all in, giving five and six figures to support his reelection.

Their ranks include investors in a South Florida hot yoga studio, a Ni­ger­ian American real estate developer in Dallas and the head of a trucking business in Los Angeles. They have been joined by veteran GOP donors who have returned to the fold after sitting out Trump’s 2016 campaign.

The Washington Post identified at least 220 big donors to Trump’s reelection who are either new to major political giving or sat out the last presidential general election. Together, they have deluged pro-Trump fundraising committees with more than $21 million — a cash infusion that suggests a newfound enthusiasm for the president among supporters capable of writing large checks.

The influx of these donors represents a shift for Trump, who criticized other candidates’ reliance on wealthy backers during the 2016 election. This time, his campaign is actively wooing them, holding glitzy fundraisers that give people who donate large amounts a chance to mingle with his inner circle and often snap pictures with Trump himself.


“Common Cause Files Complaint Against Pro-Bernie Sanders Group Our Revolution for Violating Soft Money Ban”


Today, Common Cause filed a complaint with the Federal Election Commission (FEC) alleging reason to believe that Our Revolution, a nonprofit political organization established by Sen. Bernie Sanders (I-VT) in 2016 and now supporting his 2020 presidential campaign, violated the federal ‘soft money’ ban. Sen. Sanders has been a longtime critic of super PACs and so-called “Dark Money” groups. The complaint documents that Our Revolution has solicited contributions explicitly to elect Sanders president, received contributions far in excess of the applicable $5,000 contribution limit and spent funds in connection with federal elections, including current voter mobilization efforts supporting Sanders in Iowa.

Under the Bipartisan Campaign Reform Act, an entity directly or indirectly established by a federal candidate or officeholder is not allowed to “solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office” unless the “funds are subject to the limitations, prohibitions, and reporting requirements” of federal law.

According to Our Revolution’s tax returns showing contribution amounts but not contributor names, data compiled and first reported by the Associated Press, from 2016 to 2018 Our Revolution raised almost $1 million dollars from contributors who gave in excess of the applicable $5,000 contribution limit, including multiple contributions of between $100,000 and $300,000. Our Revolution has not disclosed any of its contributors to the FEC, as required by federal campaign finance law.


“As Americans Fear Foreign Interference, Federal Agencies Work To Secure Elections”

Pam Fessler for NPR:

PAM FESSLER, BYLINE: Late last year, an election official in a small Texas county got a curious phone call. Someone claimed to be from Hart InterCivic, the vendor who supplied the county’s voting machines. The caller asked about sensitive security measures and tried to get the official to log into unfamiliar websites.

SAM DERHEIMER: And she didn’t know the person on the other side of the phone, and red flags were raised immediately.

FESSLER: Sam Derheimer of Hart says the local official immediately called the company with her concerns. Hart then contacted the Department of Homeland Security, which issued an alert through an information-sharing group that includes election officials and vendors around the country.

DERHEIMER: It really laid out the incident as best we knew it, what had occurred and what to be wary of.

FESSLER: It turns out the woman was unknowingly the target of a security firm hired by her county to test its cyberdefenses. But for those who run elections, the quick national response was a sign of just how much progress has been made since Russia attacked the 2016 elections.

CHRISTOPHER KREBS: An election official that three or four years ago would have probably just blindly and blithely followed the instructions now is like, wait a second; that doesn’t sound right.

FESSLER: Christopher Krebs is pretty happy about that. He runs the agency within the Department of Homeland Security charged with helping to secure elections. Krebs isn’t surprised that voters are worried about what might happen this year, with all the reports of social media disinformation campaigns and a wave of ransomware attacks against local governments. But Krebs thinks voters should be more confident than they are.


“Election Security Boss: Threats To 2020 Are Now Broader, More Diverse”


Threats to U.S. elections this year could be broader and more diverse than before, warns the spy world’s boss for election security — and she also acknowledged the limits of her ability to tackle them.

Shelby Pierson, the intelligence community’s election threats executive, told NPR in an exclusive interview that more nations may attempt more types of interference in the United States given the extensive lessons that have since been drawn about the Russian attack on the 2016 presidential election.

“This isn’t a Russia-only problem,” she told Noel King on Morning Edition. “We’re still also concerned about China, Iran, non-state actors, ‘hacktivists.’ And frankly … even Americans might be looking to undermine confidence in the elections.”


“Exclusive: Seattle-Area Voters To Vote By Smartphone In 1st For U.S. Elections”


A district encompassing Greater Seattle is set to become the first in which every voter can cast a ballot using a smartphone — a historic moment for American democracy.

The King Conservation District, a state environmental agency that encompasses Seattle and more than 30 other cities, is scheduled to detail the plan at a news conference on Wednesday. About 1.2 million eligible voters could take part….

In its bipartisan report on Russian election interference, released last year, the Senate Intelligence Committee said, “States should resist pushes for online voting.”

Many outside specialists continue to agree.

“There is a firm consensus in the cybersecurity community that mobile voting on a smartphone is a really stupid idea,” said Duncan Buell, a computer science professor at the University of South Carolina who specializes in election technology. “I don’t know that I have run across cybersecurity experts whose mortgages are not paid by a mobile-voting company who think it’s a good idea.”


“CFI’s Guide to Money in Federal Elections, 1974-2018”

Release via email about what will be a very useful compilation:

This week marks the tenth anniversary of the Supreme Court’s decision in Citizens United v. Federal Election Commission. That decision, together with its offspring, were the major catalysts for a massive growth in independent spending over the past decade.

This week also marks the release of the new edition of CFI’s Guide to Money in Federal Elections. The Campaign Finance Institute (CFI) is a division of the National Institute on Money in Politics (NIMP). The Guide’s co-authors are Michael J. Malbin (CFI’s director and a professor of political science at the University at Albany, SUNY) and Brendan Glavin (CFI’s senior data analyst).

If you want some sense of how much Citizens United has mattered, just turn to page 83 of the Guide. There you will learn that independent spending (IEs) in congressional elections by non-party spenders was 25 times [!] higher in 2018 as in 2008.

And this is only one of thousands of facts in this volume’s essays and tables.

For example, did you know . . .

  • Donald Trump raised more money from small donors in 2016 than Bernie Sanders and Hillary Clinton combined (pages 33 and 43)?
  • 2018 was the first time in 30 years that successful U.S. House challengers actually spent more than the incumbents they beat (in other years they spent less, page 53)?
  • 2018 was the first time the average cost of winning or keeping a seat in the House topped the $2 million mark (page 11)? 

All this and much more is in the new Guide. It is loaded with tables, many of which reach back decades. The Guide is divided into four main sections: presidential elections, congressional elections, political parties, and independent spending.

This will be exactly the reference politics-watchers will need to give a good perspective on money in the elections of 2020. You can download or view a copy of the full publication here. Any of the tables in the report can be also downloaded as spreadsheet files by using links located under each. Many of the tables present the information in inflation-adjusted dollars. Where they do, the downloaded versions include a separate tab with the dollar figures before adjustment. Feel free to use or republish the tables; please credit CFI/NIMP.


“The Decade of Citizens United”

Reupping this Slate piece of mine that ran in December, on what the opinion has meant in the last decade:

In 2010, the largest reported individual contributors to federal campaigns in American politics were Robert and Doylene Perry, owners of Perry Homes, who donated about $7.5 million to support Republican and conservative candidates. In 2018, the largest reported contributors were casino magnate Sheldon Adelson and his wife, Miriam, who contributed about $122 million in outside money to support such candidates, representing a 16-fold increase over the Perrys’ 2010 contributions, according to data collected by the Center for Responsive Politics. What explains this dramatic shift in American elections, where the wealthiest Americans get to have even greater influence over who is elected and what policies elected officials pursue? The Supreme Court’s 2010 opinion, Citizens United v. Federal Election Commission.

In 2010, Citizens United held that corporations have a First Amendment right to spend sums independently to support or oppose candidates for office. Looking at the amount of direct corporate spending in elections over the past decade, one might think that Citizens United was a bust. Few for-profit corporations spend money in their own names boosting or dissing candidates. But this case helped to usher in a sea change in American elections, and its influence on the decade that followed is hard to overstate. We’ve seen an explosion of outside, often-undisclosed money in elections, candidates skirting campaign finance rules by having shadow “super PACs,” and dangerous foreign interference in our elections. And that pivotal opinion contains all the tools the Supreme Court needs to get rid of remaining campaign contribution limits.


Criticisms of New Ballot Marking Devices (BMDs) Hits New Los Angeles County Voting System

So far, most of the coverage of BMDs (voting machines in which voters cast their votes on a touchscreen, the machine spits out a ballot listing the voter’s choices and produces a bar code/QR code for a ballot reading machine to tally the devices) have been of machines produced by for-profit companies in Georgia and North Carolina.

But Los Angeles County, the country’s largest electoral jurisdiction, is about to roll out the use of BMD machines in the upcoming elections, machines which the county designed rather than buying through a vendor. (Disclosure: for a brief period when Justin Levitt was serving at DOJ, I took his place on an advisory committee about the new ballot machines, but because of scheduling conflicts I never attended a meeting or gave an input on the design).

Now it is time for the state of California to consider certification of the new LA BMDs, and some computer scientists/election integrity advocates are arguing that the machines are not secure enough to be certified. For example, see this letter from UC Berkeley Professor Philip Stark. (More coverage at the Brad Blog.)

Keep your eye on this issue in 2020.


New NPR Polling Shows Americans Worried About Fairness of Upcoming Election, Election Interference from the President

New polling from NPR/News Hour/Marist shows increasing distrust in fairness of the electoral process, and worries about the President encouraging election interference (themes of my upcoming Election Meltdown book).:

Weeks before the first votes of the 2020 presidential election, Americans report a high level of concern about how secure that election will be and worry about the perils of disinformation, according to a new NPR/PBS NewsHour/Marist Poll.

Forty-one percent of those surveyed said they believed the U.S. is not very prepared or not prepared at all to keep November’s election safe and secure….

Driven by Democrats and independents, 56% of those surveyed think Trump has not done very much or has done nothing at all to make sure there will be no future election interference — although 75% of Republicans think he has done enough….

Remarks like those may have been on the mind of the 51% of the Americans surveyed who said Trump had encouraged election interference. Eighty-eight percent of Democrats and 51% of independents backed that assertion…

Although there is no evidence that any votes were changed by a foreign power in 2016 or 2018, almost 4 in 10 Americans surveyed said they believe it is likely another country will tamper with the votes cast in 2020 in order to change the result.

The poll’s results also paint a picture of a polarized electorate wary about what it reads and not fully convinced that elections are fair.

In a reflection of how divided the country is, only 62% of Americans said U.S. elections are fair.


“Revisiting Campaign Finance Regulation 10 Years After Citizens United”


ACS held a panel discussion on the state of campaign finance on January 16, 2020.  Titled “Revisiting Campaign Finance Regulation 10 Years After Citizens United,” the event featured Jason Abel, Lee Goodman, Chisun Lee, and Ciara Torres-Spelliscy and was moderated by Michael Tomasky. 

A decade after the Supreme Court’s Citizens United decision, super PACS and independent expenditures now dominate the political landscape. The FEC, tasked with monitoring these expenditures and enforcing campaign finance laws, lacks a quorum. What is the current state of play and what changes can and/or should be made to the way our elections are regulated?


“The Administration of Federal Campaign Finance Laws”

Listen on Ricochet:

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” For the second annual symposium, scholars wrote papers on such fundamental questions as: Is nonpartisan campaign-finance regulation possible? Who should draw electoral maps—and how? How can we best protect voting rights? How should the census be administered? How do we preserve the regulatory process’s democratic legitimacy? And, are members of Congress entitled to see the President’s tax returns? These papers are forthcoming in the George Mason Law Review. In addition, the event featured a Keynote Conversation with two former public servants with deep expertise in both governance and campaigns: Robert Bauer, former White House Counsel to President Obama, and Donald McGahn, former White House Counsel to President Trump.

The first panel focused on the administration of federal campaign finance laws. We discussed two new papers: Capital University Law School Professor Bradley Smith’s paper, “Feckless: A Critique of Criticism of the Federal Election Commission Structure, and Possible Lessons for the Administration of Campaign Finance and Election Law,” and George Washington University Law Professor Richard Pierce’s paper, “A Realistic Version of Campaign Finance Reform and Two Essential Steps Toward a Return to Effective Governance.” Pierce is affiliated with the Gray Center as a member of our Advisory Council. The discussion was moderated by the Gray Center’s Executive Director, Adam White, and also features a welcome from George Mason Law Review Editor-In-Chief, Conor Woodfin. The video is available at http://administrativestate.gmu.edu/events/the-administration-of-democracy-the-george-mason-law-reviews-second-annual-symposium-on-administrative-law/.

Featuring Bradley A. Smith, Richard J. Pierce, Ciara Torres-Spelliscy, Trevor Potter, Conor Woodfin, and Adam White.


“Lev Parnas Paid His Way Into Donald Trump’s Orbit”


After Donald Trump’s election, Lev Parnas saw a chance to cash in on his connections.

The Florida businessman and Trump donor was courting investors for a real-estate project. He took one of them, Roman Nasirov, at the time the head of Ukraine’s tax service, to Mr. Trump’s Florida Mar-a-Lago resort, where they chatted with the president-elect in a crowd of supporters, a video released by Mr. Parnas’s attorney shows. Mr. Nasirov ultimately helped fund a $10 million loan Mr. Parnas arranged for the project, people familiar with the matter said.

A sizable donation to a political campaign typically brings a handshake and some chitchat with the candidate. In the three years that followed, Mr. Parnas went further.

As he launched himself into Mr. Trump’s orbit, Mr. Parnas found sponsors for his own ventures among wealthy Republican donors, mingling with them at fundraisers and dinners that he documented in copious selfies. He also sought out and eventually became a key associate of Rudy Giuliani, the president’s personal attorney, who embraced Mr. Parnas in his pursuit of investigations in Ukraine.

The role he has carved out for himself has thrust the Ukrainian-born Mr. Parnas into the impeachment saga, injecting a wild card into the tightly choreographed proceedings on Capitol Hill. Last week, he offered new allegations in several interviews that have inflamed the debate about whether senators should call witnesses in the president’s trial, which opens Tuesday.


“Trump Campaign Plans Greater Focus on ‘Bundlers’”


President Trump’s re-election campaign plans to step up its efforts to capitalize on so-called bundlers, supporters who can raise money from friends and business associates in increments up to $2,800, the legal limit for a level of giving that has lagged in the campaign despite a far more sophisticated fund-raising operation than existed in 2016.

The campaign has excelled at small-dollar fund-raising online and at raising six-figure donations from wealthy individuals and corporations for a joint-effort fund-raising arrangement between the Trump campaign and the Republican National Committee.

But there has been little effort to cultivate bundlers who can gather donations from a network of friends and associates that can go directly to a candidate’s campaign.

Mitt Romney and George W. Bush, who ran for president before legal changes allowed joint committees to accept six-figure checks, were prodigious fund-raisers who tended to their bundling networks, ranking them based on the amount they had raised and rewarding the bundlers with names like “Pioneers” and “Ramblers” and giving them special access at retreats and other events.


“Iowa Democrats revamped their caucuses to fend off disinformation. Now some fear the changes could sow new confusion in tight 2020 race.”


Now, as Iowa Democrats hurtle once again toward the opening faceoff of a hard-fought presidential primary cycle — with at least four candidates seemingly in contention to win Iowa’s Feb. 3 contest — some in the party fear that reforms put in place to prevent the disarray of 2016 may create an entirely new set of problems in 2020.

It has long been the tradition here that voting plays out in school gyms and church basements, with multiple vote tabulations as supporters of candidates who do not reach a threshold on the initial vote scramble to make a second choice among the remaining contenders. This year, for the first time, the state party will release the initial raw vote totals as well as the final delegate allocation.

The change will mean more transparency, but it also will add to the workload of party officials and volunteer leaders — and it raises the possibility that multiple campaigns could claim a victory of sorts, with supporters of one candidate seeing another’s triumph as illegitimate.


Divided Fifth Circuit Rejects Argument of Dallas, Texas White Voters of Voting Rights Violation and Racial Gerrymandering; Judge Ho Partly Dissents, Seeking to Read Voting Rights Act More Strictly

You can find the opinions in Harding v. County of Dallas at this link.

Judge Ho’s partial dissent is significant in that it reads the Supreme Court’s 2018 opinion in Perez v. Abbott to add new requirements for plaintiffs seeking to bring Voting Rights Act claims. (For authority, he relies on Justice Sotomayor’s dissent in the case and a Slate piece of mine on the case.)

And yet even as Judge Ho says that plaintiffs generally will have a harder time winning VRA cases, he wants a remand for the white voters who failed to prove their case under (what he considers to be) an easier standard. That’s quite odd.


Breaking: Supreme Court Takes Colorado and Washington Faithless Elector Cases, Teeing Up Major Issue and Possible Uncertainty in 2020 Presidential Election

The Court’s order granting and consolidating the two cases is here.

From my earlier Slate piece on these cases:

As Lessig explained to me, the Supreme Court “should have the opportunity to reflect on the question without it determining an election one way or the other. If the court follows the Washington Supreme Court, then this uncertainty within our election process has been removed. If the Court follows the 10th Circuit, then the public has a chance to determine whether it wants to accept that result. If it doesn’t, then either the National Popular Vote compact or an amendment could remedy it.”

How would giving electors the power to vote their consciences lead to the adoption of voting along the lines of the National Popular vote compact? According to Lessig, “NPV would most likely create a significant buffer in favor of the winner, so that any changes caused by independent electors would not be likely to affect the result.” In other words, with enough states in the compact voting for the national popular vote winner, and other states not in the compact going the same way, there would be a large-enough margin in the Electoral College that a handful of faithless electors would not threaten to change the result.


Despite this high risk that the presidential election results could be thrown into chaos by a handful of rogue electors, it is not clear that the country could come together at this time of polarization to amend the Constitution or adopt the NPV compact. So far, only states with Democratic majorities have adopted it. Fairly or not, Electoral College reform has become yet another partisan issue.


Today’s Must-Read: “Hackers Are Coming for the 2020 Election — And We’re Not Ready”

Andy Kroll for Mother Jones:

Are we prepared going into the 2020 election? After seven months of reporting, interviewing more than 40 experts as well as current and former government officials and reviewing thousands of pages of records, the reality is this: We’ve made progress since the last election — but we’re much less secure than we should be. To use Sen. Warner’s analogy, the windows and doors are no longer wide open, but the burglars are more sophisticated, and there are a lot more of them than there were four years ago. They may try to break into our voting systems; they may push online propaganda to merely create the impression of an attack as a way to undermine our faith in the electoral process. “The target is the minds of the American people,” says Joshua Geltzer, a former counterterrorism director on the National Security Council. “In some ways, we’re less vulnerable than we were in 2016. In other ways, it’s more.”

Nearly every expert agrees on this: The worst-case scenario, the one we need to prepare for, is a situation that causes Americans to question the bedrock of our democracy — free and fair elections. If such a catastrophe occurred and the integrity of a national election came into doubt, Michael Daniel, the former cybersecurity coordinator in the Obama White House who now runs the Cyber Threat Alliance, isn’t sure the country would ever be the same. “How do we deal with that?” he asks. “How do we recover from that?”


“Pennsylvania’s 2020 election results could take days to count under a new law”

Philadelphia Inquirer:

People holding their breath to see how Pennsylvania votes in the 2020 presidential election might not want to wait up too late on election night.

While the unofficial and more immediately available results have accounted for the vast majority of votes cast in years past, a new law means a significant share of ballots might not be tallied until after Election Day, according to county elections officials. Races with razor-thin margins may be too close to call for days.

It’s an unintended consequence of changes meant to make voting more flexible and accessible, including by making absentee ballots available to everyone. Many of those mail-in ballots won’t be counted on election night — even in counties that used to include them in their initial results.


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