“Unqualified Ambassadors” (New Piece on Connection of Ambassadorships to Campaign Contributions)

Ryan Scoville has posted this draft on SSRN (forthcoming Duke Law Journal). Here is the abstract:

In making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In this context, it is difficult for the public to evaluate official practice and hold accountable those who wield power under the Appointments Clause.

This Article helps to correct for the current state of affairs. Using a novel dataset based on a trove of previously unavailable documents that I obtained from the State Department through four years of requests and litigation under the Freedom of Information Act (FOIA), the Article systematically reveals the professional qualifications and campaign contributions of over 1900 ambassadorial nominees spanning the administrations of Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama, along with the first two years of Donald Trump. In doing so, the Article substantially enhances the transparency of the appointments process and exposes developments of concern: not only are political appointees on average much less qualified than their career counterparts under a variety of congressionally approved measures, but also the gap has grown along with the size of their campaign contributions to nominating presidents, resulting in a significant number of questionable appointments to ambassadorships involving major U.S. partners. In short, it appears that campaign contributions may be generating an increasingly deleterious effect on the quality of U.S. diplomatic representation overseas. The Article concludes by exploring potential legal reforms, including Senate rule amendments and statutory measures to regulate qualifications and enhance transparency.


Supreme Court to Bypass Second Circuit, Hear Census Citizenship Question This Term, with Oral Argument in April

You can find the unusual cert. grant before judgment order here.

Here is what I wrote when the government asked for this petition to be granted: “As for the merits, the plaintiffs should win given the strength of Judge Furman’s opinion. But this is a highly charged political case before a partisan-divided Supreme Court, though CJ Roberts is trying to keep the temperature down.”

And earlier I wrote: “Justin suggests that would be procedurally irregular. But I’m not so sure. Yes DOJ has been running to SCOTUS a lot to try to get it to break its usual procedures and hear cases early. The Court has mostly rebuffed those requests. But not with the census, and for good reason. It seems to me that if the Court does not hear this case fully it would either (1) let plaintiffs run out the clock before the case gets full Court review or (2) the case gets decided as a stay, without a full SCOTUS opinion, on the so-called “shadow docket.” That’s really dissatisfying that we may get a dispositive SCOTUS ruling with no explanation. So I think things get expedited, and it would not be surprising for the normal schedules to be changed and contracted so that this all gets resolved by June (rendering other cases involving the census moot).”


“‘Point person’ for Texas secretary of state in controversial voter fraud inquiry quits”

Dallas Morning News:

Betsy Schonhoff, whom newly disclosed emails depict as the secretary of state’s office’s honcho of a nearly yearlong effort to match voter lists with databases at the Department of Public Safety, quit recently with no explanation, a spokesman for interim Secretary of State David Whitley said late Thursday.

“Betsy Schonhoff resigned last week after working at the Secretary of State’s office since 2012, and she didn’t provide any reason for her resignation,” Whitley spokesman Sam Taylor said in an email.

“She served as our Voter Registration Manager and we did not have any discussions with her about her resignation or her performance before she resigned.”


“Mississippi Felons Seeking Voting Rights Win Class Status”


Mississippi convicted felons won class status Feb. 13 in their suit to have their voting rights restored.
The state’s argument that class certification lacks utility has “practical appeal, but it finds no foothold in Rule 23’s text,” Judge Daniel P. Jordan III wrote for the U.S. District Court for the Southern District of Mississippi. Federal Rule of Civil Procedure 23 governs class actions.
The class includes tens of thousands of people convicted under Mississippi law and no longer incarcerated, attorney for the plaintiffs Jonathan Youngwood told Bloomberg Law. Youngwood is a partner in Simpson Thacher & Bartlett LLP’s New York office.


“North Carolina elections officials will give U.S. attorney vastly fewer records than he sought in voter probe”


Six months after a grand jury demanded millions of North Carolina voting records, state officials have announced they will release fewer than 800 voter files — a potentially significant setback for a Trump-appointed U.S. attorney who has targeted noncitizen voting as one of his top priorities.

The state Board of Elections last week instructed 44 county election offices that received wide-ranging subpoenas for millions of voting records in August to hand over the files for only 289 voters. The state will turn over registration records for an additional 500 voters.

It is unclear whether the vastly reduced volume of records is the result of a court order or an agreement between the board and U.S. Attorney Robert J. Higdon Jr., who sought the records in August, shortly after he announced the arrest of 19 noncitizens on charges that they had illegally voted in the 2016 presidential election.


“Democrats Swear off Big Money, but Will It Hurt Their 2020 White House Chances?”

Good Amanda Becker piece for Reuters:

Legally, Super PACs are supposed to operate independently of candidates and cannot contribute to them directly. In reality, they often are run by donors close to the candidates and their campaigns.

David Donnelly, president of Every Voice, a campaign finance watchdog group, said candidates are smart to “think twice about winking and nodding at the Super PACs that are set up for themselves.” They “may be more of an albatross than a benefit” with Democratic primary voters, Donnelly said.

Promising to reject all Super PAC support, however, could cause consternation. Super PACs supporting Trump, the presumed Republican nominee, have continued raising money throughout his presidency.
Donnelly said that “you’d see a lot of hand-wringing in Washington about a candidate” who would forsake any Super PAC support, saying such a stance could be read as a “signal you’re not serious about winning.”


More Entries Posted at SCOTUSBlog Symposium on Partisan Gerrymandering Cases

DateAuthorPost Title
02.11.19Justin LevittSymposium: Clarity of the record should bring clarity of purpose
02.08.19Tyler GreenSymposium: 1 First Street, NE, Punxsutawney, PA
02.07.19Guy-Uriel E. Charles and Luis E. Fuentes-RohwerSymposium: Precedent dictates a win for the plaintiffs in this term’s partisan-gerrymandering cases
02.07.19Kaylan PhillipsSymposium: Much ado about partisan gerrymandering
02.06.19Daniel TokajiSymposium: How to win the partisan-gerrymandering cases
02.05.19Derek MullerSymposium: Why not continue the political struggle in partisan-gerrymandering cases?
02.04.19Amy HoweJustices to tackle partisan gerrymandering … again: In Plain English

“ACLU sues to block NH voter fraud law deriding it as a ‘poll tax'”

Union Leader:

The American Civil Liberties Union has sued the state on behalf of two college students who claim a new law that requires a New Hampshire driver’s license to vote violates their constitutional rights and represents a 21st-century “poll tax.”

Caroline Casey is originally from Louisiana and Maggie Flaherty is from California. Both women are sophomores at Dartmouth College who voted in the 2018 primaries and general elections in New Hampshire but maintain driver’s licenses from their home states, according to the lawsuit.

Under HB 1264, which was signed into law last year but doesn’t take effect until July, anyone who votes in New Hampshire must obtain an in-state driver’s license and vehicle registration within 60 days of casting their ballot.

“Under this law, I have to pay to change my California license to be a New Hampshire one. If I vote and don’t change my license within 60 days, I could even be charged with a misdemeanor offense with up to one year in jail. Make no mistake — this is meant to deter young people from participating in our elections, and students are an important voting bloc here,” Flaherty said in a statement provided by the ACLU of New Hampshire.


“Texas secretary of state apologizes for how he rolled out voter citizenship review. But he still supports the effort.”

Texas Tribune:

Facing an uncertain path to confirmation after ordering a deeply flawed voter citizenship review that seemingly focused on naturalized citizens, Texas Secretary of State David Whitley is now apologizing to state lawmakers for the way his office bungled its roll out of the review — but he is still holding firm behind the overall effort.

In a letter sent to state lawmakers late Wednesday, Whitley largely defended the review efforts as a legally sound exercise, and he did not admit that his office had erred when it mistakenly threw into question the eligibility of tens of thousands of U.S. citizens or when it sent counties lists of voters they knew very likely included naturalized citizens.
Instead, Whitley vaguely admitted there were some shortcomings to the data his office used to flag almost 100,000 registered voters for citizenship reviews and noted his office should have devoted more time to “additional communication” with local and state officials to “further eliminate anyone from our original list who is, in fact, eligible to vote.”

“After close consultation with the Texas Department of Public Safety (DPS), the counties, and members of the Texas Legislature, I have discovered that additional refining of the data my office provides to county voter registrars, both in substance and in timing, is necessary to ensure a more accurate and efficient list maintenance process,” Whitley wrote in the letter obtained by The Texas Tribune.


“Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford”

Mike Parsons has posted this draft on SSRN. Here is the abstract:

Partisan gerrymandering claims occupy a unique purgatory in constitutional law, floating between justiciable and nonjusticiable. This term, the Supreme Court will finally decide. The issue said to divide the Justices is whether these claims pose a “political question” due to a lack of “judicially manageable” standards. To resolve this, the Court has interrogated numerous gerrymandering standards, questioning whether they can be made administrable or whether they would require the courts to play an inappropriate role in our constitutional scheme. 

But the Justices are focused on fixing the wrong set of standards. The problem is not with political gerrymandering claims, but with the political question doctrine itself. No Supreme Court majority has ever found “judicial unmanageability” alone sufficient to render a constitutional claim nonjusticiable under the doctrine. And for good reason: doing so would violate the limits and duties imposed by Article III.

Contrary to Justice Scalia’s characterization in Vieth v. Jubelirer, manageability is not an “independent test” of jurisdiction. It provides no coherent constitutional standard for controlling judicial power. Such an interpretation of the political question doctrine would invite federal courts to opine about abstract questions untethered from actual cases (an arrogation of judicial power) and to refuse jurisdiction over cases for purely discretionary reasons (an abdication of judicial obligations). This should be unacceptable to a Court increasingly disciplined about its jurisdictional jurisprudence and sensitive to its constitutional role.

This Article evaluates the modern political question doctrine, examines its tension with Article III, and recommends that the Court adopt a more limited and precise interpretation of the doctrine. This view of the doctrine reveals the Supreme Court’s debate about partisan gerrymandering claims and the proper role of the federal courts to be a practical (and resolvable) one over constitutional construction rather than a principled (and intractable) one over constitutional meaning. The Article then proposes and explores four paths that the Supreme Court might take this term in Rucho v. Common Cause, and what they mean for the future of partisan gerrymandering claims and the political question doctrine.


“BPC Launches 3 New Task Forces to Improve Voting Experience”

Release via email:

The Bipartisan Policy Center today launches three new task forces to develop recommendations that improve the voting experience in three key areas: voter registration, casting a vote, and counting the vote. 
“Having the people around the table who are charged with actually administering elections is vital when crafting smart election policy that can be implemented in any jurisdiction,” said Matthew Weil, senior associate director of the Democracy Project at BPC. “As we have seen over and over again, the challenges are many, but we remain optimistic that these bipartisan deliberations will improve the voting experience for all American voters.” 
The Task Force on Voter Registration will tackle the need for an accurate and secure list of eligible voters by looking at the entire registration process from start to finish. The primary focus will be to improve the ways voters get on the list, including the availability of registration options, the verification of voter eligibility, and the maintenance of voter rolls to keep lists accurate, which improves election administration.
The Task Force on Casting a Vote will analyze various methods for casting votes in an evolving, modern American voting system. These could include voting by mail, early voting, and vote centers.
The Task Force on Counting the Vote will produce recommendations that serve to ensure a full, transparent, and accurate count within a timeframe the public can understand with confidence. That will include looking at post-election audits, recounts, and certification. 
Participants in the three task forces are still being finalized and will include a bipartisan group of local and state election officials as well as election lawyers from across the country.
EARLY PEEK: BPC’s Voting Lines Project will release its results from the 2018 elections in the spring. So far, line data have been received from 3,736 polling places in 108 jurisdictions in 14 states, representing a total of 8.3 million registered voters. Stay tuned. 
WATCH today’s event “The Voting Experience: 2018 and the Future”


Travis Crum: A Lone Star Bail-in?

The following is a guest post from Travis Crum [cross-posted at Take Care]:

Last August, the three-judge district court overseeing the Texas redistricting litigation issued a briefing order on whether the State of Texas should be “bailed-in” under Section 3(c) of the Voting Rights Act for its unconstitutional conduct during the 2011 redistricting cycle. Earlier this week, that briefing was finally completed. In a previous series of posts, I argued in favor of bailing-in Texas. Building off those posts, here’s the major takeaways from the briefs.

1.         Targeted and Temporally Limited Bail-in Requests: At the outset, there are two sets of plaintiffs’ briefs. All plaintiffs limit their bail-in request to redistricting plans, following the approach of previous targeted bail-ins like New Mexico. The “joint plaintiffs’ brief” filed by nearly all the plaintiffs asks for bail-in to last “no less than five years.” By contrast, the plaintiffs represented by MALDEF (“the MALDEF plaintiffs”) expressly request that bail-in last through 2030. To be sure, a longer bail-in is more vulnerable to challenge, but a twelve-year bail-in is well-within the historical norm and is sensible given Texas’s brazen and discriminatory mid-decade redistricting in the 2000s. This targeted, temporally limited bail-in is statutorily sound, constitutionally appropriate, and strategically prudent.

2.         The United States Now Opposes Bail-in: As Justin Levitt has highlighted, the United States changed its position in this litigation and now opposes bail-in. Given the Trump DOJ’s prior actions in the Texas voter ID case, this development is not surprising, just disappointing. The DOJ’s brief is a toned-down version of Texas’s argument and invokes an intervening Fifth Circuit decision as an excuse for its about-face. Nevertheless, I expect the Solicitor General to get tough questions about this reversal if the case reaches the Supreme Court.

3.         The Threshold Arguments against Bail-in: Pointing out that its 2011 redistricting plans were never used for an election, Texas asserts that bail-in cannot be premised on those plans. Although masquerading under different labels like ripeness and mootness, Texas’s argument boils down to a “no harm, no foul” mantra. In a related vein, Texas and the United States invoke the Fifth Circuit’s recent decision in Veasey v. Abbott to argue that the enactment of the 2013 redistricting plans precludes bail-in based on the 2011 plans. Recall that in Veasey the Fifth Circuit concluded that bail-in was unwarranted because Texas had passed a less stringent voter ID law.

These threshold arguments are unavailing for four reasons. First, the district court has already rejected Texas’s mootness argument because the plaintiffs can still obtain some relief, namely bail-in. Second, as the joint plaintiffs’ reply brief aptly notes, Texas’s “no harm, no foul” argument would preclude equitable relief whenever a preliminary injunction is granted. Such a result would be absurd. Third, Texas didn’t just sit on its hands in the run-up to the 2012 election. Texas relentlessly sought to use its intentionally discriminatory 2011 redistricting plans. But for the ancien preclearance regime and this ongoing litigation, Texas would have used those plans. Texas, moreover, would have never enacted the 2013 redistricting plans but for this litigation. Texas’s invocation of the VRA’s deterrent effect to preclude bail-in is simply bewildering. Finally and as I argued previously, the situation here differs from Veasey because the Fifth Circuit presumed that the revised voter ID law would apply for the foreseeable future whereas Texas must enact new redistricting plans after the 2020 census.

4.         The Statutory Standard for Bail-in: Unsurprisingly, the parties disagree on the appropriate statutory standard for bail-in. The plaintiffs rely on a list of equitable considerations first identified in Jeffers v. Clinton, a 1990 decision bailing-in the State of Arkansas. The Jeffers Court looked to the persistence, frequency, and recency of constitutional violations and whether those violations were likely to recur but for preclearance. On this front, the plaintiffs convincingly canvas Texas’s lengthy and recent history of enacting racially discriminatory redistricting plans and focus on the sheer scale of constitutional violations in the 2011 plans.

For its part, Texas declines to engage with the Jeffers factors. Instead, Texas argues that preclearance is justified only to combat the flagrant gamesmanship of the 1960s. After reading Texas’s brief, one could be forgiven for thinking that the coverage formula was enacted in 1965, upheld in 1966, and then invalidated in 2013. Texas’s narrative, however, skips some important history. Texas seems blissfully unaware that the Court upheld the coverage formula’s 1970 re-authorization in 1973, its 1975 re-authorization in 1980, and its 1982 re-authorization in 1999. Blatant defiance of federal court decrees was no longer the norm for these latter reauthorizations, as covered jurisdictions had shifted to more subtle means of disempowering minority voters. Preclearance, therefore, is not contingent on Jim Crow-style gamesmanship.

5.         Constitutional Violations that Qualify for Bail-in: Another flashpoint is what types of constitutional violations count under Section 3(c). Here, all parties agree that Section 3(c) encompasses intentional racial vote dilution, though the severity and frequency of those violations that trigger bail-in is hotly contested.

Most prominently, the parties dispute whether Shaw violations can trigger bail-in. This issue is important because the sole constitutional violation in the 2013 redistricting plans was a Shaw violation. But that Shaw violation occurred because Latino voters were added to a district in response to a complaint made by one of the MALDEF plaintiffs—who now argue that the Shaw violation mandates bail-in. It’s not hard to imagine the Roberts Court viewing a bail-in request based on that fact pattern skeptically.

Preclearance and Shaw, moreover, employ diametrically opposed methods of inquiry. Preclearance injects race into the decision-making process whereas Shaw seeks to root it out. As both Texas and the United States correctly note, these divergent approaches are reflected in the Section 5 regulations, which never authorized objections based on a Shaw violation. The Shaw line of cases and Section 2’s discriminatory-effects test have long been viewed as on a collision course; Section 3(c) should not be pushed onto the same path.

Another point of contention is whether violations of the one-person, one-vote principle qualify for bail-in. The plaintiffs don’t push this argument too hard, but they strongly imply that these findings are relevant because race often lurks just beneath the surface in those cases. That may well be true, but bail-in should not be premised on malapportionment violations. Indeed, in Blackmoon v. Charles Mix County, a district judge in South Dakota reasoned that granting Section 3(c) relief based on such violations would be “nonsensical” because it imposed a race-conscious remedy without a predicate finding of intentional racial discrimination.

The plaintiffs also identify the recent bail-in of the City of Pasadena, Texas, as additional evidence favoring bail-in. As the plaintiffs explain, Section 3(c)’s plain text looks to whether the relevant constitutional violations “occurred within the territory of such State.” Given this language, the fact that a jurisdiction within Texas has violated the Fourteenth Amendment is persuasive evidence that the district court should consider in balancing the equities and the likelihood that future constitutional violations will occur, even if Pasadena’s bail-in does not itself require that Texas should also be bailed-in.

Put simply, Texas is a poster child for bail-in. Given the number of times that Texas engaged in intentional racial vote dilution in the 2011 redistricting plans, the district court need not overreach by relying on Shaw and one-person, one-vote violations to justify bail-in. And because any bail-in of Texas will almost certainly be reviewed by the Supreme Court, the decision should be bulletproof and not create an easy target for reversal.

6.         No Constitutional Challenge to Bail-in: As I predicted, Texas did not raise a facial challenge to Section 3(c). Rather, Texas’s strategy appears to be a redux of Northwest Austin—invoke constitutional-avoidance concerns to implausibly re-write the statute. But as discussed above, Texas’s attempt to limit preclearance to Jim Crow-era gamesmanship is a grave misreading of Section 3(c) and the Court’s precedent

.7.         Looking Ahead: There’s currently no indication on the district court’s docket whether there will be a bail-in hearing, so we don’t have a reliable timeline as to when a decision will be issued. Given this litigation’s history, I expect a split decision bailing-in Texas, along with a vociferous dissent from Judge Smith. But at the end of the day, a Lone Star bail-in will almost certainly be resolved by the Supreme Court


“Trump’s DHS Guts Task Forces Protecting Elections From Foreign Meddling”

Daily Beast:

Two teams of federal officials assembled to fight foreign election interference are being dramatically downsized, according to three current and former Department of Homeland Security officials. And now, those sources say they fear the department won’t prepare adequately for election threats in 2020.

“The clear assessment from the intelligence community is that 2020 is going to be the perfect storm,” said a DHS official familiar with the teams. “We know Russia is going to be engaged. Other state actors have seen the success of Russia and realize the value of disinformation operations. So it’s very curious why the task forces were demoted in the bureaucracy and the leadership has not committed resources to prepare for the 2020 election.”


The Virginia Remedy

The federal court redrawing portions of Virginia’s House of Delegates map recently announced the new configuration of the district lines. PlanScore evaluated both the old plan and the new one. As you can see below, the improvement is dramatic. The new plan has a projected efficiency gap of just 1% (compared to 7% previously), a projected partisan bias of just 1% (compared to 4%), and a projected mean-median difference of almost exactly 0% (compared to 3%). These gains are especially impressive since it was racial — not partisan — gerrymandering that was being remedied.


“Manafort-Linked PAC Failed To Report $1 Million And The FEC Wants To Know Why”


A super PAC closely linked to Paul Manafort is facing questions about why it failed to report a $1 million contribution received just before the 2016 presidential election.

In a Tuesday letter, the Federal Election Commission asked the Rebuilding America Now PAC for more information about the contribution, which the PAC first disclosed in an amended report in November 2018—some two years after the fact.

The FEC letter raises new questions about the murky financial operations of the PAC, which was operated by two Manafort deputies. Special counsel Robert Mueller is reportedly investigating whether Rebuilding America Now illegally received foreign funds and was connected to a scheme that Manafort allegedly lied about while purportedly cooperating with Mueller.


On Third Anniversary of Justice Scalia’s Death, His Influence is Greater Than Ever


Josh Douglas Takes on Mitch McConnell Again over Whether Democrats’ H.R. 1 Reform Bill is Good or Bad for American Democracy

Tweet thread starts here:


“Seattle mailing out ‘democracy vouchers’ ahead of 2019 City Council elections”

Seattle Times:

Seattle is mailing out “democracy vouchers” for residents to donate to candidates in this year’s hotly contested City Council elections.
Officials intend to send the vouchers to 463,000 residents Tuesday, weather permitting.

All seven of the council’s district seats are up for grabs in 2019, and 39 candidates already have registered campaigns.

It’s only the second election cycle for the first-in-the-nation voucher program, which voters approved in 2015 and which debuted in 2017.

Eligible residents each receive four $25 vouchers that they can sign over to candidates who abide by special rules, such as limits on cash contributions and campaign spending.


New NBER Study Finds Voter ID Laws Have Little to No Effect on Voter Turnout or Fraud Prevention

New paper:

Strict ID Laws Don’t Stop Voters: Evidence from a U.S. Nationwide Panel, 2008-2016

Enrico CantoniVincent Pons

NBER Working Paper No. 25522
Issued in February 2019
NBER Program(s):Political Economy 

U.S. states increasingly require identification to vote – an ostensive attempt to deter fraud that prompts complaints of selective disenfranchisement. Using a difference-in-differences design on a 1.3-billion-observations panel, we find the laws have no negative effect on registration or turnout, overall or for any group defined by race, gender, age, or party affiliation. These results hold through a large number of specifications and cannot be attributed to mobilization against the laws, measured by campaign contributions and self-reported political engagement. ID requirements have no effect on fraud either – actual or perceived. Overall, our results suggest that efforts to reform voter ID laws may not have much impact on elections.


Census Challengers in NY Case Agree That If Supreme Court Review is Necessary, It is Better to Review Now and Skip the Second Circuit

From the NY brief:

Respondents recognize, however, that the resolution of this dispute over the Secretary’s decision to add a citizenship question to the decennial census has consequences for the Nation that may lead this Court to conclude that its review is warranted, despite the narrow and well-grounded nature of the factual and legal conclusions presented. If the Court determines that this case will eventually require its review, whether on a writ of certiorari or on a stay application during or after review by the court of appeals, then the Court should grant certiorari before judgment and issue an expedited briefing schedule. As petitioners explain, there is insufficient time for two levels of merits review before June 30, 2019, the date that petitioners represent as the firm deadline for finalizing the census questionnaire for printing. And if this Court is inclined to review the case, it should do so now, rather than on an application for a stay at some later date, when there is no longer time for full briefing and argument.


Today’s Must-Read: “‘Private Mossad for Hire: Inside a plot to influence American elections, starting with one small-town race.”

Adam Entous and Ronan Farrow in the New Yorker:

Psy-Group’s larger ambition was to break into the U.S. election market. During the 2016 Presidential race, the company pitched members of Donald Trump’s campaign team on its ability to influence the results. Psy-Group’s owner, Joel Zamel, even asked Newt Gingrich, the former House Speaker, to offer Zamel’s services to Jared Kushner, Trump’s son-in-law. The effort to drum up business included brash claims about the company’s skills in online deception. The posturing was intended to attract clients—but it also attracted the attention of the F.B.I. Robert Mueller, the special counsel, has been examining the firm’s activities as part of his investigation into Russian election interference and other matters.

Psy-Group’s talks with Benzeevi, after the 2016 election, spurred the company to draw up a plan for developing more business at the state and local levels. No election was too small. One company document reported that Psy-Group’s influence services cost, on average, just three hundred and fifty thousand dollars—as little as two hundred and seventy-five dollars an hour. The new strategy called for pitching more than fifty individuals and groups, including the Republican National Committee, the Democratic National Committee, and major super pacs. The firm published a provocative brochure featuring an image of a goldfish with a shark fin tied to its back, below the tagline “Reality is a matter of perception.” Another brochure showed a cat that cast a lion’s shadow and listed “honey traps” among the firm’s services. (In the espionage world, a honey trap often involves deploying a sexually attractive operative to induce a target to provide information.)

Psy-Group put together a proposal for Benzeevi, promising “a coordinated intelligence operation and influence campaign” in Tulare to preserve Kumar’s seat on the hospital board. Operatives would use fake identities to “uncover and deliver actionable intelligence” on members of the community who appeared to be leading the recall effort, and would use unattributed Web sites to mount a “negative campaign” targeting “the opposition candidate.” All these activities, the proposal assured, would appear to be part of a “grass roots” movement in Tulare. The operation was code-named Project Mockingjay, a reference to a fictional bird in the “Hunger Games” novels, known for its ability to mimic human sounds….

Zamel had another opportunity to pitch his services in early August, 2016, when Erik Prince, the founder of the Blackwater security firm, helped arrange a meeting at Trump Tower among Zamel, Nader, and Donald Trump, Jr. (Prince, whose sister Betsy DeVos became Trump’s Education Secretary, was a major Trump donor and had access to members of his team.) In the meeting, Zamel told Trump, Jr., that he supported his father’s campaign, and talked about Psy-Group’s influence operations. (Zamel’s lawyer, Marc Mukasey, played down the encounter, insisting that Zamel made no formal proposals during the meeting.)

Burstien said that his talks with the Trump campaign went nowhere; a representative for Zamel denied that his client engaged in any activity having to do with the election. But, according to the Nader representative, shortly after the election Zamel bragged to Nader that he had conducted a secret campaign that had been influential in Trump’s victory. Zamel agreed to brief Nader on how the operation had worked. During that conversation, Zamel showed Nader several analytical reports, including one that described the role of avatars, bots, fake news, and unattributed Web sites in assisting Trump. Zamel told Nader, “Here’s the work that we did to help get Trump elected,” according to the Nader representative. Nader paid Zamel more than two million dollars, but never received copies of the reports, that person said.


“6 Days When 2020 Democratic Hopefuls Scored With Small Donors”


In the 2020 race for the White House, small donors are expected to play a more significant role than ever before. With so many Democratic candidates running, and only so much money to go around, whom small donors choose to support will determine in part which contenders will have the cash to compete — and who will not.

So, what clicks with donors online?

The Times analyzed six years of online donations to potential 2020 candidates through ActBlue, the Democratic Party’s main donation-processing platform, to tally the number of donations each candidate has received by day.

[See the rankings of 2020 Democratic hopefuls with small donors.]

The findings show that the art of inspiring online donors is very much about timing: It’s about having a moment in the national spotlight — and then capitalizing on it. Also, small donors are just like the rest of us: procrastinators inspired by a looming deadline.

With that, here are six days when some current and potential Democratic candidates for president scored big online, and why:


Utah: “A state lawmaker says a San Juan County split should be on the table, after a court-ordered redistricting that ‘disenfranchised’ his voters”

Salt Lake Tribune:

After a landmark power shift that gave San Juan County its first majority Navajo Democrat commission, a state lawmaker from mostly white, Republican Blanding is broaching the subject of secession.

The sheer size of the state’s largest county, which has more land area than Massachusetts and takes about two hours to traverse from top to bottom, has prompted past conversations about carving out one or more new counties. Now, with a fresh sense of disenfranchisement permeating some San Juan communities, Rep. Phil Lyman says county division is something to consider.


“Federal judges reject state of Ohio’s request to delay gerrymandering trial”


A three-judge federal panel on Friday rejected a request from the state of Ohio to delay a gerrymandering lawsuit that aims to put a new Ohio congressional district map in place in time for the 2020 election.

The state wanted to delay the trial, scheduled to start March 4, until after rulings are released this summer in two gerrymandering cases before the U.S. Supreme Court – one brought by Republicans in Maryland and one brought by Democrats in North Carolina.

But the judges in their Friday ruling cited time considerations. The state has said any changes to a map must be in place by Sept. 20, 2019, to get ready for the 2020 election.


Blackman: What happens if the Virginia Lieutenant Governor resigns?

The following is a guest post from Josh Blackman:

In Virginia, the Governor, Lieutenant Governor, and Attorney General are all being called upon to resign. If the Governor resigns, Article V, Section 16 of the Virginia Constitution provides a fairly clear order of succession: 

In the case of the removal of the Governor from office or in the case of his disqualification, death, or resignation, the Lieutenant Governor shall become Governor. If a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor or to serve as Acting Governor, the Attorney General, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If the Attorney General is ineligible to serve as Governor, the Speaker of the House of Delegates, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If a vacancy exists in the office of the Speaker of the House of Delegates or if the Speaker of the House of Delegates is ineligible to serve as Governor, the House of Delegates shall convene and fill the vacancy.

However, the Virginia Constitution does not explain what happens if the Lieutenant Governor resigns. The Virginia Attorney General recognized this gap in a 1982 opinion:

There is no provision in the Constitution of Virginia (1971) which expressly deals with filling a vacancy solely in the office of Lieutenant Governor. Article V, § 16 acknowledges the possibility of such a vacancy by providing that the Attorney General shall succeed to the office of Governor if a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor. Neither is there a statute which expressly deals with filling vacancies in the office of Lieutenant Governor.

What, then, happens if the Lieutenant Governor resigns? In the immediate aftermath of the vacancy, Section 24.2-212 would kick in. It provides:

“When a vacancy occurs in the office of Lieutenant Governor, the duties of that office shall be discharged by the President pro tempore of the Senate, but he shall not by reason thereof be deprived of his right to act and vote as a member of the Senate.”

However, the Attorney General concluded that the President pro tempore would only serve until the Governor made a unilateral appointment pursuant to Article V, Section 7. It provides:

“The Governor shall have power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.”

The Attorney General concluded that:

“neither the Constitution nor § 24.1-84 [currently codified at 24.2-212] provides a method for filling a vacancy in the office of Lieutenant Governor. Consequently, I conclude that the Governor is empowered to fill such a vacancy under Art. V, § 7 and § 2.1-18.”

In other words, the Governor has the unilateral power to appoint the Lieutenant Governor—that is his successor.  And that person would serve until the next election.

There is another reading. The Virginia appointments clause gives the Governor plenary appointment powers  “for which the Constitution and laws make no other provision.” Would Section 24.2-212 be such a law that “makes other provisions”? In other words, Section 24.2-212 would create a special carve-out to the Governor’s general unilateral power.

As a structural matter, this alternate reading makes sense. Consider the 25th Amendment as an analogy. It provides:  “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” After the resignation of Vice President Spiro Agnew, President Nixon was only able to select then-House Minority Leader Gerald Ford as his VP with the consent of Congress. It would have been untenable for Nixon to select a crony who would replace him following resignation. This situation somewhat resembles the crisis in Virginia, where the Governor is also under calls to resign.

If the Lieutenant Governor resigns, and the Governor makes an appointment, the President Pro Tempore would have standing to challenge his displacement from office.


The Impact of Partisan Gerrymandering on Political Parties — Part II

In yesterday’s post, I described the data and methods that Chris Warshaw and I use in a new paper on the effects of partisan gerrymandering on parties’ associational activities. Today I’ll discuss our findings and their implications. In a nutshell, parties that are victimized by gerrymandering are impaired in their performance of several key associational functions. These handicaps, moreover, are substantively large, statistically significant no matter how gerrymandering is measured, and roughly equal in size at the congressional and state house levels. Justice Kagan’s speculation in Whitford about the associational harms of gerrymandering thus appears to be entirely correct.

Start with our first outcome variable: the difference between the parties’ respective shares of contested seats. When our aggregate measure of gerrymandering increases by one standard deviation, the disadvantaged party contests three percentage points fewer state house seats relative to the advantaged party. The point estimates are very similar at the congressional level and if gerrymandering is assessed using a particular (rather than an aggregate) metric.

Next consider our other proxy for candidate recruitment: the difference between the overall quality of each party’s candidates. A one-standard-deviation rise in our aggregate gerrymandering metric is associated with roughly a nine-percentage-point decline in the relative quality of a party’s candidates. A party that is the victim of gerrymandering, in other words, runs many fewer incumbents and quality challengers than its opponent.

The story is much the same with fundraising. When our aggregate gerrymandering metric goes up by one standard deviation, the share of total campaign contributions received by a party’s candidates goes down by about five percentage points. Donors, that is, give substantially less money to candidates with lower odds of winning seats and capturing a legislative majority.

Lastly, our results for ordinary voters (as opposed to candidates and donors) are smaller in scale but still statistically significant. A one-standard-deviation increase in our aggregate gerrymandering metric is linked to around a half-percentage-point drop in a party’s statewide vote share. Thus through some combination of lower turnout and actual conversion, voters become somewhat less likely to support a party that is disadvantaged by a district map.

In our view, our findings strongly confirm Justice Kagan’s hypothesis in Whitford. She predicted that backers of a “‘disfavored party’” would “face difficulties fundraising . . . generating support from independents, and recruiting candidates to run for office”—and that is precisely what our analyses showed. Accordingly, our findings should be helpful to plaintiffs currently pursuing associational challenges to district plans. To date, these litigants have relied primarily on qualitative testimony from voters, candidates, and party officials about how their associational activities have been impeded. This evidence may now be complemented by our data-driven conclusion that, across many states and years, partisan gerrymandering systematically undermines party health.

We also think our findings are relevant to political scientists. Until now, they have mostly focused on other gerrymandering issues, like measuring the concept and distinguishing it from the impact of political geography. These are certainly important topics, but unfortunately they have overshadowed the equally vital question of how gerrymandering affects the rest of our political system. Our paper makes progress toward answering this question by exploring the relationships between gerrymandering and various associational functions performed by parties. But this literature is still in its infancy—despite Justice Kagan’s plea for exactly these sorts of studies—and much more work remains to be done.


“The Civil Rights Division Bails Out of Bail-In in Texas”

Justin here. I’ve got a new post up at the Take Care blog, on a filing last week from DOJ’s Civil Rights Division. It’s a reversal of position, signed by a political appointee rather than career staff, of a request for VRA bail-in in Texas on the redistricting case. And it’s an attempt to ensure that there are no meaningful consequences for intentional racial discrimination. (I’m not a fan.)

Some snippets:

On Tuesday, the Department of Justice filed a brief reversing position in a case it brought six years ago.  . . . Civil Rights Division now argues that Texas should be let off the hook for its repeated intentional efforts to minimize the voting power of its minority population.  Nonpartisan career staff apparently refused to do this dirty work — and rightly so.

* * *
After Perez, from the perspective of legislators bent on preserving power at minorities’ expense, there remains just one serious practical deterrent to giving discrimination a shot: bail-in under section 3(c).  A finding of intentional discrimination renders the jurisdiction eligible for federal supervision.  If bail-in has no teeth, there’s nothing keeping officials with a demonstrated history of wrongdoing from their worst instincts.

Which brings us to Texas.  The state has a serious problem with discrimination against its minority citizens.  The problem spans decades, but it’s not just ancient history. 
* * *

This is the behavior of a jurisdiction with a problem, and one that does not appear willing or able to contain its worst impulses on its own.  Yes, the impact of both the redistricting lines and the voter ID law have since been mitigated, but only after Texas was repeatedly dragged kicking and screaming into federal court.  In the criminal justice system, the Texas government would be labeled a recalcitrant recidivist.

* * *
The pattern in Texas redistricting . . . demands systemic intervention.  2011 was discriminatory, and no court has overturned that finding.  2003 was discriminatory, and no court has overturned that finding either.  And tragically, the DOJ brief identifies absolutely no reason to believe that Texas won’t try in 2021 exactly what it did in 2011 and 2003. 
“Baby, I swear I won’t do it again.” 
And the DOJ says Texans should just trust that promise.  Actually, it’s stronger: the DOJ says, based on one sentence in Veasey ripped out of its proper context, that Texans are legally bound to trust that promise. 

* * *
The weakness of the DOJ’s filing has one other tell, and it may be the most significant.  Trial briefs are normally signed by the career attorneys who do the bulk of the work.  . . . Mr. Gore signed the DOJ’s filing personally on Tuesday.  This is not the new convention of the Civil Rights Division in the Trump era.  . . . I have no inside information about the anomalies, but I read them as statements.  The career attorneys know that Tuesday’s filing is wrong.  They’ll sign the final page’s certificate of service, because they can truthfully say that they sent the brief into the court’s e-filing system.  But they can’t truthfully say that they believe the legal argument in the remaining 12 pages. 


North Carolina Poll Worker Pleads Guilty to Advising Noncitizen to Register and Vote; DOJ Press Release Misleadingly Refers to Worker as a “Board of Elections Election Official”

The DOJ press release headline refers to the worker as a “Board of Elections Election Official” but that seems incorrect.

From an earlier HuffPost piece:

The sole U.S. citizen facing charges ― Denslo Allen Paige, a 66-year-old Walmart worker who lives in Raleigh ― told HuffPost she helped her boyfriend register in the weeks before the 2016 general election because he had been talking a lot about politics. Paige wasn’t sure if her boyfriend, a legal permanent resident, was eligible to vote, so when she filled out a voter registration form at an early voting site with him, she left the box asking about his citizenship blank. A copy of the form provided to HuffPost by the North Carolina State Board of Elections and Ethics Enforcement shows a checkmark in the “yes” box asking if the person is a U.S. citizen, but Paige insists she did not check it.

Paige said she had served as a poll worker before, and she thought someone would flag the application and send her to a separate table to inquire about her boyfriend’s citizenship status. But she said when she asked if her boyfriend could vote, a poll worker accepted the form and indicated he could cast his ballot, so she thought everything was OK. 


“Georgia voters suing for paper ballots win appeal to 11th Circuit”


A federal appeals court on Thursday upheld a judge’s ruling that said Georgia’s electronic voting system poses a “concrete risk” to secure elections.

The decision from the 11th U.S. Circuit Court of Appeals allows the voting system lawsuit to move forward. 
The plaintiffs, who are election integrity advocates and concerned voters, want U.S. District Judge Amy Totenberg to switch Georgia’s statewide voting system to hand-marked paper ballots

Totenberg ruled in September that the plaintiffs will likely succeed in the lawsuit, but she denied their request to immediately switch to paper ballots so close to November’s midterm elections.

You can find the unanimous per curiam opinion by Judges Pryor, Rosenbaum, and Moore at this link. “As set forth below, we affirm in part and dismiss in part because the State Defendants are neither entitled to Eleventh Amendment immunity nor legislative immunity and their standing arguments are not yet reviewable. “


“Texas’ election chief defends sharing flawed noncitizen list”


Texas’ election chief on Thursday defended giving prosecutors a list of 95,000 potential noncitizens on the state’s voter rolls before vetting the information, which turned out to wrongly include scores of people who were naturalized before casting legal ballots.

Secretary of State David Whitley deflected sharp questions from Texas lawmakers over whether his office made mistakes in his first public comments since his office in January called into question the citizenship of tens of thousands of voters since 1996. Nearly 58,000 of those voters were said to have cast a ballot at least once, but those numbers quickly unraveled .

Within days, local officials found that the list wrongly included scores of naturalized citizens, setting off accusations from Democrats and Latino rights groups of attempted voter suppression and launching another heated voting rights battle in Texas.


North Carolina: “New board gets private preview of Congressional race probe”


A  reconstituted North Carolina elections board received a private preview Thursday of what investigators uncovered in their probe of absentee ballot irregularities in the country’s last unresolved congressional race.

Chairman Bob Cordle said the new five-member State Board of Elections received a “full briefing” on findings in the 9th Congressional District race. The members met behind closed doors with attorneys and investigators for nearly four hours.

Cordle said the findings will be released publicly at a hearing Feb. 18. He said the board will vote at the hearing’s close on whether to certify the 9th District results, order a new election or take some other step….

Whatever decision the board makes could be superseded by the U.S. House, where Democrats in the charge of the chamber have suggested they may review the election no matter what action the state board takes. The U.S. Constitution says the House is the judge of the elections and qualifications of its members.


The Impact of Partisan Gerrymandering on Political Parties — Part I

In her concurring opinion in Whitford, Justice Kagan suggested that partisan gerrymandering might be unconstitutional not just because it dilutes the votes of a party’s supporters but also because it burdens their associational rights. “Members of the ‘disfavored party’ in the State,” she wrote, “may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office.” Since Whitford, plaintiffs in several gerrymandering cases have accepted Justice Kagan’s invitation to mount associational challenges. They have introduced testimony and other evidence from voters, candidates, and party officials that their associational activities have indeed been inhibited.

What these litigants haven’t done, though, is test the overall validity of Justice Kagan’s claim. They haven’t analyzed whether, as a general matter (as opposed to in a particular state), parties victimized by gerrymandering incur the injuries alleged by Justice Kagan. In a paper that Chris Warshaw and I just posted, we investigate precisely this issue. Today, I’ll describe our data and methods. Tomorrow, I’ll talk about our findings and their implications.

To capture the extent of gerrymandering, first, we use five separate measures of partisan advantage: the efficiency gap, the mean-median difference, the declination, partisan bias, and an aggregate of all these metrics. Through this inclusive approach, we’re able to bypass the ongoing debate about the measures’ respective strengths and weaknesses. We calculate the five metrics for congressional and state house elections from 1972 to 2016. This large dataset covers the vast majority of redistricting since the one person, one vote revolution of the 1960s.

Second, we use the following four variables to operationalize the associational harms that Justice Kagan cited in Whitford:

  1. Contesting seats: The difference between the parties’ respective shares of contested seats. This is a measure of “recruiting candidates to run for office.”
  2. Candidate quality: The difference between the aggregate quality of each party’s candidates (where incumbents and challengers who have previously held elected office are considered high-quality). This is also a measure of “recruiting candidates to run for office.”
  3. Campaign contributions: The share of total campaign contributions received by each party’s candidates. This is a measure of “fundraising.”
  4. Vote share: Each party’s mean vote share across all districts. This is a measure of “generating support from independents.”

Lastly, we run a series of difference-in-difference and dynamic panel models to evaluate the impacts of partisan advantage on these variables. All of these models include fixed effects for states and years; the latter also lag the outcome variables. The models thus compare different years within the same state and estimate how parties’ associational activities are affected when partisan advantage is relatively high or low for that state.


“Amendment 4 is already changing Tampa’s electorate. Here’s how:”

Tampa Bay Times:

That’s when voters approved Amendment 4, a ballot measure that restored the right to vote to most people who had served out sentences for felony convictions. What would 1.2 million potential new voters mean to perhaps the purplest big state?

But an earlier test for Amendment 4 comes on March 5 in Tampa. It’s the election for the mayor and city council.

Monday marked the deadline to register to vote in the city’s election. That gave ex-felons in Tampa just 27 days to register if they intended to vote.
Newly-released data on registrations in January show us what

Amendment 4 meant, at least so far: crowds of people registered to vote, and those crowds are older, blacker and more Democratic.

When the law took effect, supervisors of elections’ offices were as busy as they get before statewide general elections, despite it being January in an off-year. In Tampa, 426 people registered to vote that week, about 2.5 times as many as the weekly average in the months before.

At the beginning of 2019, 22 percent of Tampa voters were black. But on Jan. 8, the first day of Amendment 4, the black share of those registering to vote skyrocketed to 47 percent. For the entire week, black people made up 35 percent of new registrations.


“NRA Chief Wayne LaPierre Targeted in Congressional Inquiry Into Illegal Campaign Coordination”

The Trace:

A joint congressional inquiry is demanding that National Rifle Association executive vice president Wayne LaPierre hand over internal documents showing whether the NRA made “illegal, excessive, and unreported in-kind donations” to the campaigns of Donald Trump and several GOP Senate candidates.

The probe, led by Senator Sheldon Whitehouse, Democrat of Rhode Island, and Representative Jamie Raskin, Democrat of Maryland, is based on a series of investigative reports published by The Trace laying out evidence that the NRA and its vendors used apparent shell companies to evade rules prohibiting coordination between outside groups and the campaigns they support. 


Potentially Bad News for Trump and Trump Organization: SDNY Still Investigating Michael Cohen for Campaign Finance Crimes

Potentially a big deal here:


“Fantastic! The EAC Is Officially Four Again”

Doug Chapin:

Yesterday, the U.S. Election Assistance Commission (EAC) was formally restored to full membership for the first time in nearly ten years with the swearing in of two new recently confirmed Commissioners. … Full membership puts the EAC formally back in the game on many issues, including voting system standards and management of federal election administration funding, and ensures that the EAC can continue to support the work to collect and analyze data on state and local election administration nationwide.