Democracy North Carolina Responds to My Post on Its New Report

Following up on my post from this morning, linking to Democracy NC’s new report, I received the following response via email:

The 30K to 50K estimate is not based on assuming an equal number of voters who used same-day registration or out-of-precinct voting in North Carolina’s 2010 midterm would have done so in the more contested election of 2014, but certainly many thousands who would have, maybe even more – we’ll never know.

We should have explained more clearly that the estimate is also based on hotline calls, news articles and field reports from hundreds of poll monitors in all the large counties and many smaller ones who saw thousands of voters leaving long lines, being sent away from polling places, etc.  At just one polling site, the monitors counted over 300 voters leaving without voting. We’ll be reviewing these reports in more depth and checking the lists some monitors gathered of names of voters leaving to see what percent actually voted at another precinct.

So our “preliminary report” is a work in progress with some ballpark numbers to indicate the seriousness of the impact of the new law. The real point is not whether it’s 15,000 or 50,000 but that the new rules, along with the confusion and lack of preparation related to those rules, led the election process to become dysfunctional in too many ways, in too many places, and harm too many voters.

Bob Hall and Isela Gutierrez, Democracy North Carolina


“Is Eight Enough?”

Jerry Goldfeder:

Thirty years ago there was a TV program called Eight Is Enough. It comes to mind because now that the gubernatorial candidates of the Stop Common Core Party (Rob Astorino) and the Women’s Equality Party (Andrew Cuomo) each exceeded 50,000 votes, they join the  currently constituted parties on the ballot, giving New York a total of eight political parties. One can say voters here have a rich variety of choices. One can also say the ballot, already crowded, will be even more confusing. This is especially true because ours is one of only a handful of states that permits “fusion”—allowing parties to cross-endorse one another’s candidates. This can lead voters to wonder what a candidate or party actually stands for.


“Making Ohio’s Electoral System a National Model”

Dec. 10 Bipartisan Policy Institute event at Ohio State:

Ohio is at the epicenter of electoral policy discussions in the United States. Over the next two years, Ohio will again engage in debates about redistricting reform, early voting, voter registration and provisional ballots.

Please join Secretary of State Jon Husted and a panel of experts that follows for a conversation about prospects for electoral reform in Ohio in 2015 and beyond. The secretary, who was recently re-elected to a four-year term, will focus on his vision for making redistricting reform a reality in 2015.

Discussion with:

Jon Husted
Ohio Secretary of State

Karen Kasler
Statehouse Bureau Chief, Ohio Public Radio and TV

Panel discussion featuring:

Herb Asher
Senior Vice President for Government Affairs and Counselor to the President, The Ohio State University
Member, Ohio Constitutional Modernization Commission

Senator Mark D. Wagoner, Jr.
Former Senator, Ohio Senate, District 2
Member, Ohio Constitutional Modernization Commission

Edward B. Foley
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Director, Election Law @ Mortiz

John Fortier
Director, BPC’s Democracy Project


Breaking: Federal Court Again Strikes Down FEC Disclosure Regulation as Unduly Narrow

You can read Judge Amy Berman Jackson’s 46-page decision in the long-running Van Hollen v. FEC case at this link. If this ruling stands, it likely will mean more disclosure by those who spend on election-related television and radio advertising close to the election.

FEC Commissioner Ellen Weintraub, who favors greater disclosure, tweeted: “In a victory for transparency, the court struck down reg used by groups to hide their donors.”


“Policy Changes to Hold Ferguson Accountable”

Kami Chavis Simmons, Justin Hansford, and Spencer Overton oped in St. Louis American suggests election law changes:

Change Election Timing. Whereas whites and blacks in Ferguson were almost equally likely to vote in the 2012 November presidential elections (55% of whites and 54% of blacks voted), whites were almost three times more likely than blacks to vote in the April 2013 municipal elections (17% of whites and 6% of blacks voted). Changing election timing for mayor, city council, and school board from April to the November presidential elections could save money, boost turnout of residents from all backgrounds, and make government more representative.

Other steps could boost accountability as well, including dash police vehicle and body cameras, a probable cause requirement for stops (higher than reasonable suspicion), and better hiring and training procedures. Local government could also be more representative by replacing at-large school board elections with single-member districts or ranked choice voting, early voting (including on weekends), same day registration, and compliance with federal law requiring voter registration at state offices. Further, officials should examine municipal consolidation, outsourcing police services to St. Louis County, and significant municipal court reforms.

Policy proposals are meaningless without effective community organizing. Engaged citizens are needed to develop a pipeline of representative candidates, to organize voter registration and mobilization, and to endorse representative candidates and distribute slates that flag them for voters in nonpartisan elections.



Democracy NC Claims Up to 50,000 Voters “Silenced” by New Voting Restrictions

See this release from Democracy North Carolina.

I’m quite skeptical of the 50,000 figure, based upon how the group explains part of its calculations:

How many voters were blocked by the new law? The number easily exceeds 30,000 and likely reaches 50,000, according to Democracy North Carolina’s initial analysis of reports from election officials, volunteer poll monitors, hotline operators and the media. And that’s not counting the thousands who might have voted before Election Day if the Early Voting period had not been cut by a full week, from 17 to 10 days. One way to measure the impact of the new election rules is by looking at the number of voters who used same-day registration and out-of-precinct voting during the last midterm election:

• In the 2010 general election, 21,410 citizens used same-day registration during Early Voting to register and become first-time voters in their county. In 2014, no one did this.
• In the 2010 general election, 5,756 voters cast out-of-precinct provisional ballots that counted at least in part. In 2014, only 455 out-of-precinct provisional ballots were accepted at least in part.
Bottom line: In 2010, these two provisions allowed 27,166 voters (21,410 + 5,756) to successfully cast ballots. But because of the new law only 455 voters could use them in 2014 – a decrease of more than 26,000 votes.


The obvious problem with the logic here is that it assumes that almost all people who would have used same day voter registration or out-of-precinct voting in 2010 simply did not and could not vote in 2014 because the change in the new provision.

The new laws certainly could have depressed turnout. But an analysis will have to be much more nuanced than this to be convincing.

UPDATE: The group responds.



“Separating Fact from Fiction on Voter ID Statistics”

Brennan Center responds to @Nate_Cohn:

In “Why Voter ID Laws Don’t Swing Many Elections,” Nate Cohn understates the impact of restrictive voting laws. Yes, it is likely rare for an election to be close enough for voter ID laws to swing the outcome. But Americans should indeed be concerned about laws that shut out thousands of eligible voters.

Cohn says “figures overstate the number of voters who truly lack identification.” But the evidence underlying these figures is quite strong and detailed.


“Response: Conscious Congressional Overriding of the Supreme Court, Gridlock, and Partisan Politics”

Jim Buatti and I have posted this draft on SSRN (forthcoming, Texas Law Review See Also).  Here is the abstract:


In a pathbreaking 1991 study of congressional overrides, Yale law professor William N. Eskridge found a rise during the 1970s and 1980s in the number of times that Congress consciously overrode Supreme Court interpretations of congressional statutes. As Eskridge explained his focus on deliberate congressional action, the term “override” does not “include statutes for which the legislative history — mainly committee reports and hearings — does not reveal a legislative focus on judicial decisions.” Replicating Eskridge’s methodology and updating the Eskridge study through 2012, we found that the number of conscious congressional overrides of Supreme Court statutory interpretations had fallen markedly after 1991 and had slowed during the Obama presidency to a trickle. The Hasen study suggested that increased party polarization in Congress was responsible for the decline in overrides since the Eskridge study, as well as for the shift from bipartisan overrides to more partisan overrides. Now, in a fascinating and wide-ranging study published in the Texas Law Review, Matthew E. Christiansen and Professor Eskridge disagree with some of the conclusions of the Hasen study, both on the extent to which overrides have declined in the 1990s and also whether political polarization will likely keep the number of overrides low for the foreseeable future during periods of divided government.The Christiansen-Eskridge study offers important and counterintuitive insights on the nature of congressional legislation enacted following Supreme Court statutory interpretation. However, as well explained by Professor Deborah Widiss in her perceptive analysis, the Christiansen-Eskridge study has shifted the meaning of “override” compared to the earlier Eskridge and Hasen studies. Instead of a study of conscious overrides, the Christiansen-Eskridge study uses new methodology to study cases in which congressional action consciously or unconsciously changed the understanding of a congressional statute as the Supreme Court had interpreted it. While unconscious overrides can be important to study for many reasons, they are less relevant for purposes of studying the Congress-Supreme Court dialogue.

Importantly, however, the Christiansen-Eskridge methodology also provides a much better way of identifying conscious overrides than the methodology used in either the original Eskridge or Hasen studies, and it has led us to add 25 additional conscious overrides to the 1991-2012 period of the Hasen study. Nonetheless, looking only at conscious overrides identified in the Hasen study and augmented by the later Christiansen-Eskridge study, we conclude that the Christiansen-Eskridge study mostly supports the two main claims of the Hasen study: (1) conscious overrides are on the decline, precipitously so in recent years and (2) partisan polarization is to blame.

This short Response makes four points. First, for purposes of measuring Congress-Supreme Court relations, it makes sense to limit a study of overrides to conscious overrides. Second, the Hasen study and Christiansen-Eskridge study, while differing in their particulars, are consistent in finding a marked decline in conscious overrides, especially during the Obama administration — a trend which has continued through 2014. Third, committee reports and legislative history surprisingly do not appear to have become a less reliable way of identifying overrides. Fourth, political polarization best explains the decline in conscious overrides, and there is good reason to believe the trend will continue during periods of divided government, with spurts of (conscious) overriding during periods of united government, until political polarization diminishes.



ELB Nominated in “Profs” Category for ABA Blawg 100

I am pleased to announced that the Election Law Blog has once again been named to the ABA Blawg 100. This year they have changed the categories somewhat, and I am listed in the “Profs” category along with some excellent law professor bloggers.

If you are so inclined, please vote for ELB.  Since election law is my thing, it is worth noting that there are 13 categories and you have 13 votes, but you need not limit your votes to one vote in each category. “Now, it’s time for you, the reader, to take a shot. Let us know what you think about our choices. Click here to go to our voting page to vote for the best of the best. Each person gets a total of 13 votes, to distribute as they see fit among the blogs they like, with a limit of one vote per person, per blog. Once you’ve used all 13 votes, you’ll notice the “Vote Now!” buttons will disappear.”

The upshot is you can vote for multiple folks in the law prof category–and you should!



Ballot Order Effect in Top Two Race in CA Assembly District?

How is a political novice poised to win against an incumbent in CA’s 39th assembly district? KPCC considers a number of intriguing theories, including this one:

Did ballot order make a difference?

There is another twist to this race, said Mitchell, who provides data to political candidates from both parties: Bocanegra’s name appeared second on the ballot. The five preceding races on the page featured a Democrat first and a Republican second. Lopez and Bocanegra were both Democrats competing under California’s new top-two system.

“People are still not expecting to see two candidates with the same party in November,” Mitchell said. “If they are Democrats, they are literally going down this page and voting for the first Democrat they see.”

Mitchell looked at six other races where members of the same party faced each other in both the primary and the general election. In each case, the candidate who went from the first position to the second on the ballot garnered a smaller percentage of the vote in the second position.

Be interesting to hear more about this.

UPDATE: The incumbent concedes.


Report: CA Gov. Brown to Nominate Leondra Kruger to CA Supreme Court

So reports Cheryl Miller of The Recorder. Kruger would be the first African-American Justice on the state Supreme Court since the departure of Justice Janice Rogers Brown (who now serves as a judge on the U.S. Court of Appeals for the D.C. Circuit).

Here’s a 2010 profile at WSJ’s Law Blog when she joined the SG’s office.

This may have been Kruger’s most controversial argument before the U.S. Supreme Court.


“Meet the New Super Donors”

Kevin Bogardus:

“We used to have a standard fax, which we turned into an email, that would go out in response to solicitations that said something like Mr. O’Brien has hit his maximum or something like that,” says O’Brien, founder of the OB-C Group, a high-profile lobby firm. “The cap did have a real world consequence. Once you hit it, you hit it.”

O’Brien was referring to the limit on a donor’s overall campaign contributions, which stood at $123,200 per election cycle. The Supreme Court, however, obliterated the aggregate cap last April on First Amendment grounds with its McCutcheon v. FEC ruling.

And with that, K Street’s familiar refrain to candidates’ pleas for campaign cash—“I’ve maxed out”—was no longer operative. Campaigns, meanwhile, interpreted McCutcheon as a hall pass for harassing K Street donors.

In this free-fire fundraising environment, O’Brien is now liberated to give more and bother his relatives less.

“I invariably hit the limit every cycle and if I felt the justification to go beyond that, I often sought the help of other family members for making donations on their own,” O’Brien says. “In a sense, I used to see us over the limit anyway.”


“Campaign Finance and American Democracy”

Yasmin Dawood has posted this draft on SSRN (forthcoming, Annual Review of Political Science). Here is the abstract:

This review essay considers the scholarly literature on campaign finance regulation in the United States. It charts the original debate about campaign finance regulation and its subsequent evolution in both political theory and constitutional law. It also identifies current areas of inquiry and new directions in research. In addition, it surveys some of the findings within the empirical literature in political science and economics. In terms of general trends, the scholarly treatment of campaign finance regulation has become increasingly focused on fundamental questions about democratic governance and democratic values. While the connection between campaign finance regulation and the nature of democracy has always been a subject of study, in recent years this relationship has become the predominant focus of several fields of inquiry. The topic of campaign finance regulation has generated profound debates about democratic participation, representation, free speech, political equality, liberty, and the organization and distribution of political power in government and society.
I read an earlier draft of this great, synthetic piece. Highly recommended!



John Harwood NYT Article Blames Lack of Technical Corrections on ACA Bill on Partisan Polarization

This on King v. Bruwell seems clearly right, and formed the background of my recent LA Times oped, which included this passage:


Even if Congress were to come together in a bipartisan way to override some statutory interpretations of the Supreme Court, there is no way it is going to override the Supreme Court on the Affordable Care Act. The House has voted dozens of times to repeal the healthcare law in its entirety; there is little chance it would step in now to save a law its members have so long maligned.

Roberts can point to many past cases in which court decisions have initiated a “dialogue” with Congress, which then stepped in with legislation to correct what it saw as errors in the court’s interpretation of congressional statutes.

In today’s fraught political environment, court-Congress dialogues are not generally possible.  But that might not stop Roberts from citing the possibility of such a dialogue  — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.



“Bipartisan support develops for state election changes”


Fresh off an election marked by polling places that opened late and long wait times, both Democrats and Republicans appear willing to consider changes to Connecticut’s elections system when lawmakers return to the state Capitol in January.

Members of both parties agree the state needs to do something to professionalize a bifurcated system in which locally elected registrars of voters run the elections and the Secretary of the State’s Office interprets state election law.


“Exclusive: new emails reveal efforts to redraw Florida political lines to favor Republicans”

Naples Daily News:

More than 500-pages of emails kept secret during an ongoing redistricting legal battle shed light on the behind-the-scene efforts by a handful of GOP political consultants to influence Florida’s political lines, according to documents obtained by the Scripps-Tribune Capital Bureau.

They highlight, among other things, an early plan that would have drawn the then-longest serving GOP member of Congress out of office, the admission that former state Sen. John Thrasher did not live in his district, and a strategy to use a well-known GOP consultant to recruit people to submit maps as part of the formal process.

The documents also include discussion of strategies to bring “more population…to minority districts.” During the more than two-year legal fight, plaintiffs raised concerns about “packing,” or placing usually Democratic-leaning minority voters into a single district to make the surrounding seats more Republican.


“Overview of First Amendment Issues in Initiative Proponent Disclosure Case”

The following is a guest post by Emily Hogin. Hogin is a second-year law student at Harvard Law School, where she is an editor on the Harvard Law Review.

On December 16, the en banc Ninth Circuit will hear oral arguments in Chula Vista Citizens for Jobs and Fair Competition v. Norris. The panel had struck down California’s law requiring initiative proponents to identify themselves on official petitions. The case presents new and thorny First Amendment questions about the right to anonymous speech on the one hand and the value of government transparency on the other — and it might be headed to the Supreme Court. See below for an overview of the legal issues involved.

Continue reading


True the Vote Fundraising Appeal Predicts Noncitizen Voting, Citizens Turned into “Subjects”

Sigh (and the reference to “ammunition” is particularly disturbing):

Congress can talk of repeal, the states can talk of lawsuits; but while all the political sabers rattle in stereo, our attention is being diverted from the process failure that will skew American elections for generations to come.
We already know federal government databases are unstable. Now, millions of new names will soon be flooding into them. Our states are not prepared to deal with the coming influx of illegal aliens wanting social service programs including Medicaid, food stamps, welfare, taxpayer-funded credits and, of course, drivers’ licenses.  These programs are run independently and have few, if any, firewalls to ensure that noncitizens don’t end up as registered voters.
The co-mingling of citizens and noncitizens into databases with limited capacity for secure segmentation will result in noncitizens voting. Count on it. 
The 2014 election cycle showed us clear, repeated evidences of state limitations in segmenting data pools – case in point, North Carolina, where noncitizens were registered to vote while receiving drivers’ licenses.
Our country can handle just about anything.  But, when the votes of citizens can be diluted or negated by the fraudulent votes of noncitizens numbering in the millions, it is entirely possible that in the course of one election cycle we could find ourselves fundamentally transformed from citizens to subjects. 
True the Vote offers one of the few remaining ways that the voice of the American citizen voter can be both protected and strengthened.  Our biggest challenge is funding.  The courtroom battles and technology build-outs of 2014 prepared us to advance election integrity programs in ways never before seen.  So now, with your support, it’s time to take those technologies and messages on the road.  To states and counties, to local communities, to our fellow citizens.  We want to lay a clear course for citizen-led action – to equip you to protect the sanctity of your vote on all fronts, from neighborhood events to legislative sessions.
I don’t think I’ve ever asked for your help as emphatically as I am right now.  We are fighting on the front lines, but we are running out of ammunition at the worst possible time.
Words can never express how thankful we are for your past support.  Now, we are asking you to invest again in True the Vote and the work we do.  Please, click here and donate. Then, forward this message to your friends and ask them to donate, too.
If our elections aren’t truly fair, we aren’t truly free. Please contribute to the cause of freedom. If we don’t work together to protect our vote…who will? It’s up to us, working together.  And together, we really can True the Vote.
Thank you, again and as always, for your unwavering support.
Onward -
Catherine Engelbrecht