New Voter Suppression Effort Appears to Be on the Way from Trump Campaign Aides

NYT:

With President Trump’s poll numbers slipping, a group of the president’s former campaign aides is beginning an effort to encourage new voters in parts of the country that supported him in the election, and to stop what they contend are illegal votes in Democratic areas.

The former aides are starting a group called Look Ahead America to identify “disaffected” rural and working-class Americans who either do not vote or are not on the voter rolls, in order to register and mobilize them ahead of future elections, according to a prospectus being distributed to possible donors.

Look Ahead America also seeks to discourage or invalidate “fraudulent” votes by deploying poll watchers with cameras, and through what it called a forensic voter fraud investigation to identify “votes cast in the names of the deceased, by illegal immigrants or non-citizens,” according to the prospectus, which was shared with The New York Times.

The group is the brainchild of two people who initially helped run the data team for Mr. Trump’s campaign, Matt Braynard and Witold Chrabaszcz….

Mr. Braynard stressed that the effort to clamp down on alleged illegal voting is secondary.

But it could attract criticism from voting rights advocates. They say there’s little evidence of widespread voter fraud, and contend that the real goal of conservative efforts to fight illegal voting — including the Trump administration’s investigation of alleged voter fraud — is to purge Democratic-leaning African-American and Hispanic voters from the voter rolls.

And this statement is stunning:

Mr. Braynard said the idea is to create “the Acorn of the right” — a reference to the liberal community organizing juggernaut that was largely dissolved after a 2009 scandal sparked by a conservative provocateur’s sting videos.

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“Networking the Party: First Amendment Rights & the Pursuit of Responsive Party Government”

Tabatha Abu El-Haj has posted this draft on SSRN. Here is the abstract:

This Article argues that the Supreme Court’s party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. In this regard, the Supreme Court’s recent decisions denying certiorari in two cases implicating the rights of political parties — one involving a challenge to the federal ban on so-called soft money and the other involving a challenge to state mandated open primaries — provide a much needed opening to explore alternate paths to democratic responsiveness and to identify opportunities for First Amendment doctrine to increase rather than decrease the odds of responsive and responsible party government.

Without claiming that there are easy solutions to our democratic dysfunctions, and drawing on a substantial body of empirical literature, the Article maintains that an alternative path to democratic responsiveness emerges when one focuses on the associational qualities of partisan networks. Viewed as associations, the capacity of political parties to foster a functioning democracy depends less on their capacity to speak and the coherence of their platform and more on the depth and breadth of their political networks. This is because social connections turn out to be more central to political mobilization, organization, and information transmission than many, especially in law, appreciate. As such, strengthening and broadening social ties within partisan networks presents an alternative and, as yet underappreciated, path to responsive and responsible governance. Integrating these insights into existing First Amendment doctrine provides a new scale with which to weigh the burdens on a party’s First Amendment rights and a new ability to allocate First Amendment rights in such a way as to encourage political parties to attend to the concerns of their constituents and to govern in the public interest.

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“About those ‘democracy vouchers.’ They didn’t work for everyone”

KUOW:

This year, Seattle embarked on a bold political experiment in public funding for elections: the Democracy Voucher program.

But Hisam Goueli, a candidate for Seattle City Council Position 8, says the new voucher system is broken and lead to “frustration and tears” for his campaign. Although he received nearly $20,000, the money arrived the day before the primary election

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“Gerrymandering and the Constitutional Norm Against Government Partisanship”

This looks good! Michael Kang has posted this draft on SSRN (forthcoming, Michigan Law Review). Here is the abstract:

The Article challenges the basic premise in the law of partisan gerrymandering that government partisan purpose is constitutional at all. The central problem, Justice Scalia once explained in Vieth v. Jubelirer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking. The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a purpose-focused approach that identifies partisanship as an illegitimate basis for lawmaking and requires the government to justify its redistricting with reference to legitimate state interests beyond partisanship, irrespective of extreme partisan effects. The importance of consolidating and reifying the norm against government partisanship, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime.

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“The Voter Purge Crusade That Preceded Trump’s Sketchy Elections Commission”

Tierney Sneed for TPM:

Vice President Mike Pence, leader of President Trump’s shady “Elections Integrity” commission kicked off its first meeting last month with a promise that it would have “no preconceived notions or preordained results.”

But like many of its other members, commissioner J. Christian Adams has done little to hide what has been his end-game: bullying state and local election officials into aggressive voter registration purges that civil rights groups worry will end in eligible voters getting kicked off the rolls. Now he will be joining on the commission several other figures known for their efforts to make it harder — not easier – to vote in an endeavor that many in the voting rights community believe will be used to justify tougher voting laws, including measures that will prompt sloppy voter purges.

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Breaking: 3-Judge Court Issues Latest Order in Texas Redistricting Case (Congressional Seats), Finding Continued Intentional Racial Discrimination

You can find the court’s 107-page order here. From the conclusion:

In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.

In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW area fail for lack of proof of African-American and Hispanic cohesion. In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.

In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.

In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.

In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 

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“Cheap Speech and What It Has Done (to American Democracy)”

I have written this draft for SSRN (forthcoming, in the First Amendment Law Review’s symposium on “Distorting the News: ‘Fake News’ and Free Speech“).  Here is the abstract:

In a remarkably prescient article in a 1995 Yale Law Journal symposium on “Emerging Media Technology and the First Amendment,” Professor Eugene Volokh looked ahead to the coming Internet era and correctly predicted many changes. In Cheap Speech and What It Will Do, Volokh could foresee the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how cheap speech would usher in radical new opportunities for readers, viewers, and listeners to custom design what they read, see, and hear, while concomitantly undermining the power of intermediaries including publishers and book store owners.

To Volokh, these changes were exciting and democratizing. The overall picture he painted was a positive one, especially as First Amendment doctrine no longer had to deal with the scarcity of broadcast media to craft special First Amendment rules curtailing some aspects of free speech. As this article for a First Amendment Law Review symposium on “Fake News” argues, twenty-two years later, the picture of what cheap speech has already done and is likely to still do — in particular to American democracy — is considerably darker than Volokh’s vision. No doubt cheap speech has increased convenience, dramatically lowered the costs of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech also have undermined mediating and stabilizing institutions of American democracy including newspapers and political parties, with negative social and political consequences. In place of media scarcity, we now have a media firehose which has diluted trusted sources of information and led to the rise of “fake news” — falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Rather than democratizing our politics, cheap speech appears to be hastening the irrelevancy of political parties by facilitating the ability of demagogues to secure support from voters by appealing directly to them, sometimes with incendiary appeals. Social media also can both increase intolerance and overcome collective action problems, both allowing for peaceful protest but also supercharging polarization and raising the dangers of violence in the United States.

The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap speech, but it may stand in the way of needed reforms. For example, in the campaign finance arena the Court’s doctrine and accompanying libertarian ethos may stymie efforts to limit foreign money flowing into elections, including money being spent to propagate “fake news.” The Court’s reluctance to allow the government to regulate false speech in the political arena could limit laws aimed at requiring social media sites to curb false political advertising. Loose, optimistic dicta in the Justice Kennedy’s majority opinion for the Court in 2017’s Packingham v. North Carolina case also may have unintended consequences with its infinitely capacious language about First Amendment protection for social media. In the era of cheap speech, some shifts in First Amendment doctrine seems desirable to assist citizens in ascertaining truth and bolstering stabilizing institutions. Nonetheless, it is important not to fundamentally rework First Amendment doctrine, which also serves as a bulwark against government censorship and oppression potentially undertaken in an ostensible effort to battle “fake news.”

Non-governmental actors, rather than the courts and government, are in the best position to ameliorate some of the darker effects of cheap speech. Social media hosts and search sites such as Facebook, Google, and Twitter can assist readers, viewers, and listeners in ferreting out the truth if there is the commercial will to do so. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved. Fact checks can also help. Subsidies for (especially local) investigative reporting can also help the problems of corruption and bolster the credibility of newspapers and other supports for civil society. But nothing is certain to work in these precarious times, and the great freedom of information which Volokh rightly foresaw in the era of cheap speech is coming with a steep price for our democracy.

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“Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context”

James Blumstein has posted this draft on SSRN (forthcoming, Rutgers Law Journal).  Here is the abstract:

In the opening sentence of her opinion for the Court in Shaw v. Reno, the North Carolina racial gerrymander case, Justice O’Connor observed that the case “involve[d] two of the most complex and sensitive issues” that the Supreme Court has had to confront: “the meaning of the constitutional ‘right’ to vote, and the propriety of race based state legislation designed to benefit members of historically disadvantaged racial minority groups.” Had she stopped there, Justice O’Connor would have had consensus within the Court. But she went on to grapple with these issues and has spurred further discussion and debate about race and voting rights–a topic that had already gained political center stage when President Clinton withdrew his nomination of Professor Lani Guinier to serve as Assistant Attorney General for Civil Rights.

This article will analyze and evaluate Shaw in its doctrinal context and then examine some still unresolved questions. The Supreme Court’s resolution of those issues will eventually determine whether Shaw is an analytically significant and doctrinally influential case or whether it reflects a response to a unique set of substantive and procedural circumstances that are non-replicable.

The article begins in Section II with a discussion of the procedural context of the Shaw case and a consideration of the substantive and practical implications of the district court’s decision. In Section III, the article then examines the nature of the plaintiffs’ claim by explaining the race nondiscrimination paradigm, concluding that the Court was correct in holding that vote dilution and race discrimination are analytically distinct theories with independent lines of case law supporting each one. The precedent-oriented dissent of Justice White is analyzed and critiqued in depth. The conclusion is that Justice White erroneously conflates the vote dilution and the race discrimination lines of cases.

The principle-oriented dissent of Justice Souter is examined in detail and found to be both intellectually honest and substantively startling. Justice Souter argued that race-based Equal Protection claims involving districting should be treated differently than the same claims in other contexts. His rationale for this categorical approach was that race cannot be avoided in legislative districting, and the use of race does not disadvantage any individual because of race. The article concludes that Justice Souter’s approach is excessively tolerant of the use of race and in considerable tension with the nondiscrimination principles emanating from Brown. Further, Justice Souter’s observation that race is customarily a part of the districting process does not explain why that fact, if such it be, should be constitutionally legitimized. To the extent that Justice Souter’s views were influenced by his understanding of the Voting Rights Act, the article concludes that neither Section 5 nor Section 2 of that Act supports Justice Souter’s analysis.

Finally, in Section IV, the article examines five issues left unresolved by Shaw. It concludes that Shaw cannot sensibly and with doctrinal integrity be limited to weird districts. Under the principle of racial reciprocity, it concludes, any intentional use of race should trigger strict scrutiny unless government can show that the same districting decision would have been taken in the absence of racial considerations. The article concludes by considering how the Shaw compelling interest. standard should be applied, analyzing the nature of an appropriate “compelling interest,” how the “narrow tailoring” inquiry should be addressed, and how the burden of proof should be allocated under strict scrutiny.

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NC: “Redistricting criteria call for partisan maps, no consideration of race”

WRAL:

Map makers can use election data to achieve political goals as they redraw North Carolina’s legislative districts, but they’re forbidden from considering voters’ race under criteria approved Thursday by the House and Senate committees overseeing the process.

These rules also say incumbents can be protected in the new maps, allowing map makers to make “reasonable efforts” to avoid drawing sitting legislators into the same district. The decision disappointed reformers who had hoped to see a less partisan process emerge as the General Assembly complies with a federal court order to replace unconstitutional maps….

Some attention to race is typically required, though, because North Carolina must comply with parts of the federal Voting Rights Act, which is meant to protect minority voters’ ability to elect candidates of their choice. It is unclear how new maps will satisfy this point. When asked, Republican leaders repeatedly quoted from a court opinion that not only declared race was the predominant factor in drawing the old maps, but said GOP legislators failed to produce evidence showing they needed to rely on racial data to satisfy VRA requirements.

“The only way to comply … is not to consider race in that process,” Lewis said.

Democrats, and particularly black Democrats, were incredulous.

“Do you understand that, by not using race, you’re defeating your own purpose?” asked Rep.

, D-Durham. “The districts were declared unconstitutional because of race. If you don’t use race to correct it, how are you going to show the court that they’re not still unconstitutional?”Lewis pointed again to the court’s opinion. Smith-Ingram and others asked again: What metrics will show minority voters are treated fairly? Lewis asked to “refocus this conversation on the criteria.”

“We live in the South,” Sen.

, D-Forsyth, said at one point. “When in the South has race not been a factor? Because what I’m hearing doesn’t really add up.”

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Likely the Most Important Brief Filed in the WI Partisan Gerrymandering Case Supports Neither Party

This from Bernie Grofman and Keith Gaddie (with the great Josh Rosenkranz as counsel of record) may be the most important brief filed in the Gill case case:

Amici seek to assist the Court in understanding recent developments in social science methodologies for identifying and measuring the extent of partisan gerrymanders. They do not take a position on whether, given the particular facts and expert witness analysis, the district court correctly decided this case. But amici firmly believe that partisan gerrymanders are justiciable, and that this Court should adopt an articulable standard for adjudicating partisan gerrymandering claims. Social science tools now allow courts to diagnose partisan gerrymanders with accuracy and precision. They also allow courts to distinguish ordinary, acceptable politicking from conduct that rises to the level of unconstitutional discrimination against voters based on their political views. If the Court again declines to adopt a standard for unconstitutional partisan gerrymandering, politicians will have free rein to violate associational and representational rights….

Modern, computer-driven redistricting now allows the political party in power to craft extremely sophisticated partisan gerrymanders. With vastly improved computer speed, memory, and storage, map drawers can design district lines so precisely that they simultaneously maximize their party’s gains and eliminate most competitive districts—ensuring that the party in power enjoys an electoral advantage that endures throughout the following decade, irrespective of voters’ subsequent choices.

Left unchecked, partisan gerrymandering fundamentally undermines our democracy. It is a basic tenet of fair elections that the parties must play by the same rules. But a partisan gerrymander violates that core principle: Under a successful partisan gerrymander, one party needs fewer votes to win representation than the other party. A partisan gerrymander places unequal burdens on voters’ opportunity to elect their representatives, based on the party with which they associate. And where the partisan gerrymander is unresponsive to electoral shifts, only the courts can provide a remedy.

This Court should hold that partisan gerrymandering claims are justiciable. To be precise, partisan gerrymandering occurs when a districting plan penalizes the minority in its ability to translate its voting support into seats compared to what might be expected from a plan drawn on the basis of neutral principles. But not all partisan gerrymanders are unconstitutional. The Court should adopt a test for unconstitutional partisan gerrymandering that requires a showing of three specific elements: partisan asymmetry, lack of responsiveness, and causation.

The first element, partisan asymmetry, is based on the idea that a citizen’s representational rights must not depend on the party with which he chooses to affiliate. Unlike a claim that the plaintiff is entitled to a specified number of seats, an asymmetry standard requires only that the parties and their supporters receive equal treatment—that they have like opportunity to translate their votes into representation. Thus, if Party A would garner, say, 60% of the seats when it wins 53% of the votes, Party B should also garner about 60% of the seats when it wins 53% of the votes. If it would not, partisan asymmetry is present. The second element, lack of responsiveness, screens out cases where the political process can provide a remedy. It examines whether a map is responsive to shifts in voters’ allegiances, such that any disparate effect on voters is unlikely to persist throughout the decade following redistricting. If a map is responsive, then when voters change their allegiances, their representation also changes, making judicial intervention unnecessary. If a map is not responsive, the courts may step in. The third element, causation, requires that, to be actionable, a disparate effect on voters must be the result of invidious, intentional discrimination against disfavored voters—and not merely the natural byproduct of ordinary districting practices or chance.4

These three elements are derived from the Court’s Equal Protection and First Amendment jurisprudence, and the social sciences offer tools for measuring each. Because each of these elements reflects a different concept, it is important to recognize that no one number tells it all. Rather, the Court should adopt a test for partisan gerrymandering that makes each of these three elements a necessary, but not sufficient, condition of a claim. In none of the Court’s prior partisan gerrymandering cases did the plaintiffs propose such a test, much less offer evidence of all three elements. And the statistical tools for detecting and measuring partisan gerrymanders have improved greatly since the Court last considered partisan gerrymandering in LULAC. Courts—assisted by competent experts—can now reliably and accurately identify and measure the impact of partisan gerrymanders, including determining whether invidious discrimination is the cause of any disparate burden on one political party, or whether any disadvantage results instead from permissible, neutral factors or random chance. The courts can, and should, play a role in policing improper partisan gerrymanders.

 

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Must-Read: “Russian Cyberattack Targeted Elections Vendor Tied To Voting Day Disruptions”

Must-read Pam Fessler for NPR:

When people showed up in several North Carolina precincts to vote last November, weird things started to happen with the electronic systems used to check them in.

“Voters were going in and being told that they had already voted — and they hadn’t,” recalls Allison Riggs, an attorney with the Southern Coalition for Social Justice.

The electronic systems — known as pollbooks — also indicated that some voters had to show identification, even though they did not.

Investigators later discovered the company that provided those pollbooks had been the target of a Russian cyberattack.

There’s no evidence the two incidents are linked. But the episode has revealed serious gaps in U.S. efforts to secure elections. Nine months later, officials are still trying to sort out the details.

Update: See also Report from North Carolina Makes Reality Winner Leak Far More Important at EmptyWheel.

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“Republicans limiting early voting in Marion County, letting it bloom in suburbs”; and New Indiana Lawsuit Re Lake County Precinct Consolidation

IndyStar:

State and local Republicans have expanded early voting in GOP-dominated areas and restricted it in Democratic areas, an IndyStar investigation has found, prompting a significant change in Central Indiana voting patterns.

From 2008 to 2016, GOP officials expanded early voting stations in Republican dominated Hamilton County, IndyStar’s analysis found, and decreased them in the state’s biggest Democratic hotbed, Marion County.

That made voting more convenient in GOP areas for people with transportation issues or busy schedules. And the results were immediate.

Most telling, Hamilton County saw a 63 percent increase in absentee voting from 2008 to 2016, while Marion County saw a 26 percent decline. Absentee ballots are used at early voting stations….

Other Central Indiana Republican strongholds, including Boone, Johnson and Hendricks counties, also have added early voting sites — and enjoyed corresponding increases in absentee voter turnout.

But not Marion County, which tends to vote Democratic, and has a large African-American population….

In May, Common Cause Indiana and the NAACP’s Indianapolis chapter filed a lawsuit against the Marion County Election Board, Lawson and individual members of the Marion County Election Board, along with Marion County Clerk Myla Eldridge over the lack of early voting locations in the County.

They say the state has intentionally discriminated against minorities in forming these rules.

Meanwhile:

 Supported by Priorities USA Foundation, the NAACP Indiana State Conference, several precinct committee people and Lake County voters today filed a complaint in the U.S. District Court for the Northern District of Indiana challenging a new law enacted by the Indiana State Legislature (formerly SB 220), which forces Lake County, Indiana – and only Lake County, out of Indiana’s 92 counties – to consolidate voting precincts, targeting and burdening Lake County’s substantial minority voting population with onerous and confusing changes to the voting process. If the law is not stopped, the mandatory, forced precinct consolidation will discriminate against African-American and Hispanic voters in Lake County by unfairly reassigning large numbers to new polling locations, which may be difficult to access for the substantial number of voters who have mobility issues or lack access to reliable transportation, creating longer lines and decreasing the voice of these voters in local government.

In May, Indiana’s Republican-controlled legislature and Republican governor enacted SB 220, which requires Lake County to immediately consolidate precincts containing fewer than 600 “active” voters, with limited exceptions. Lake County, which is home to the state’s second largest African-American population and largest Hispanic population, is the only county in the state required to undergo this onerous process. In the heavily minority northern portion of Lake County—made up of Gary, East Chicago, and Hammond—half of the voting precincts may be eliminated as a result of the law, while the largely White voting population outside the county lines will see no changes at all.

The complaint challenges the law on the grounds that it violates Section 2 of the Voting Rights Act in its disparate impact on African-American and Hispanic voters in Lake County. Additionally, the suit alleges that the law places an undue burden on the fundamental right to vote guaranteed in the First and Fourteenth Amendments and violates the Equal Protection Clause.

 

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Texas House Votes to Repeal Voting Law Meant to Make Voting Easier, Calling it a Well-Intentioned Mistake

Texas Tribune:

Two months ago, Texas lawmakers quietly did something rare in this statehouse: They sent Gov. Greg Abbott a bill designed to make voting easier for thousands of Texans. Abbott praised that effort and ultimately signed the legislation that, in a rare moment of bipartisanship, both Democrats and Republicans supported.

Scheduled to take effect on Sept. 1, the law would overhaul balloting at nursing homes — an attempt to simultaneously remove opportunities to commit ballot fraud while expanding ballot access to nursing home residents.

But on Wednesday, the Texas House voted to repeal the new law, which some Republicans dubbed a well-intentioned mistake.

“It was an oversight that people missed,” said Rep. Craig Goldman, R-Fort Worth, who led the repeal effort.

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“Trump’s voter fraud commission could create target for hackers, critics say”

AP:

In Maine, Secretary of State Matthew Dunlap, a Democrat who is a member of Trump’s voting commission, is not handing over the information.

Dunlap said the information the commission is getting from other states “isn’t wicked intimate” and may be too sparse to identity ineligible registered voters. Another commission member, Indiana Secretary of State Connie Lawson, said in a statement that the commission is aware of limitations of the data. But Lawson, a Republican, said the commission’s work using the information could help find ways to help states improve the “quality and integrity” of their voter rolls.

But it could still be hacked, Dunlap said.

“The best way to protect people’s private information,” Dunlap said, “is not to have it in the first place.”

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“Measuring Efficiency in Redistricting”

Eric McGhee has posted this draft on SSRN. Here is the abstract:

There has been a recent surge in work on measuring partisan bias in single-member (SMD) redistricting plans. A classic SMD gerrymander is “efficient”: it “cracks” a party’s supporters so they barely lose many seats, and “packs” the remainder in a few seats that the party wins by large margins. This essay classifies these new metrics and proposes a simple principle for evaluating each metric as a gauge of this efficiency. It finds that only methods that measure the packing and cracking directly through the counting of wasted votes can serve as consistent measures of the concept. Indeed, measures of symmetry in the seats-votes curve not only fail to consistently measure efficiency, but suffer from internal contradictions in certain circumstances. Further examination of the wasted votes measures reveals that only a modified version of the “efficiency gap” — a measure active in ongoing litigation — can serve as a measure of efficiency under a wide range of electoral circumstances. Among the rest, there is considerable variation in their ability serve as appropriate measures of the concept.

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Sigh. “In a new poll, half of Republicans say they would support postponing the 2020 election if Trump proposed it”

Ariel Malka and Yphtach Lelkes for The Monkey Cage:

The survey interviewed a sample of 1,325 Americans from June 5 through 20. Respondents were recruited from the Qualtrics online panel who had previously reported identifying with or leaning toward one of the two major parties. We focus on the 650 respondents who identify with or lean toward the Republican Party. The sample has been weighted to match the population in terms of sex, age, race and education.

After a series of initial questions, respondents were asked whether Trump won the popular vote, whether millions of illegal immigrants voted, and how often voter fraud occurs. These questions evoke arguments frequently made by Trump and others about the integrity of the 2016 election.

Then the survey asked two questions about postponing the 2020 election.

  • If Donald Trump were to say that the 2020 presidential election should be postponed until the country can make sure that only eligible American citizens can vote, would you support or oppose postponing the election?
  • What if both Donald Trump and Republicans in Congress were to say that the 2020 presidential election should be postponed until the country can make sure that only eligible American citizens can vote? Would you support or oppose postponing the election?

Roughly half of Republicans believe Trump won the popular vote — and would support postponing the 2020 election.

Nearly half of Republicans (47 percent) believe that Trump won the popular vote, which is similar to this finding. Larger fractions believe that millions of illegal immigrants voted (68 percent) and that voter fraud happens somewhat or very often (73 percent). Again, this is similar to previous polls.

Moreover, 52 percent said that they would support postponing the 2020 election, and 56 percent said they would do so if both Trump and Republicans in Congress were behind this.

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“They sued for Clinton’s emails. Now they want information on California voters”

LAT:

California’s top elections officer and 11 county registrars have been asked to hand over detailed voter registration records or face a federal lawsuit, a request that centers on new accusations that the records are inaccurate.

The effort by the conservative-leaning organization Judicial Watch seeks an explanation for what its attorneys contend are official records that don’t match the group’s estimates of the legally eligible voting population in the counties, including Los Angeles County….

The exact size of the alleged errors is unclear. Judicial Watch declined a request from the Los Angeles Times to provide the full details of its voter registration analysis.

Dean Logan, the registrar of voters for Los Angeles County, countered that the two lists are quite different. He said the inactive voter list is more like “a fail-safe to make sure that people are not administratively disenfranchised.”

Even then, elections officials argue the lists shouldn’t be compared with ACS data, which are compiled with caveats about population accuracy.

“Voter registration is not a survey,” Gail Pellerin, registrar of voters in Santa Cruz County, said in questioning Judicial Watch’s methodology. “We deal in real facts.”

“We may be in litigation shortly,” Popper said when asked why the information won’t be shared.

Those details, however, are at the heart of the complaint. Judicial Watch alleges that adding together the active and inactive voter lists in the 11 counties produces a total number of voters significantly larger than the estimate of voting-age citizens calculated by the U.S. Census Bureau’s American Community Survey. The organization used the ACS five-year average for its baseline of eligible voters….

See also Sac Bee: More voters than eligible adults? Group makes dubious claim about California

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“Investor Reaction to Covert Corporate Political Activity”

Timothy Werner has posted this draft on SSRN (forthcoming Strategic Management Journal).

Here is the abstract:

Citizens United vs. Federal Election Commission and subsequent developments created a covert channel for firms to allocate resources from corporate treasuries to political activity. Through the use of a financial market event study of an accidental disclosure of firms’ contributions to a Republican non-profit organization, I examine investors’ reactions to covert investment in independent political expenditures. I find that, on average, contributing firms experienced positive abnormal returns around the disclosure event and that these abnormal returns were more positive for firms in heavily regulated industries, as well as those previously making campaign contributions to candidates. However, firms that recently faced a shareholder resolution on political spending disclosure experienced negative abnormal returns, suggesting that the controversial nature of covert activity moderated investors’ reactions.

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“Why Limits on Contributions to Super Pacs Should Survive Citizens United”

Al Alschuler, Larry Tribe, Norm Eisen, and Richard Painter have posted this draft on SSRN. Here is the abstract:

Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded.

No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption.

The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.”

This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it.

The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld.

The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart.

The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.

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“Voter Fraud Allegations Roil Montana Elections Officials”

AP: 

Secretary of State Corey Stapleton’s allegations of voter fraud in Montana has widened a rift with elections officers across the state, some of whom want the elections chief to dial back his rhetoric.

As they prepare to meet for their annual convention Tuesday, elections officials are hoping to rebuild relations with Stapleton, whose combative style has left some put off.

“We are hoping for better communications with the secretary of state, and I’m hopeful that will happen in the near future,” said Regina Plettenberg, the election administrator from Ravalli County and president of the Montana Association of Clerk & Recorders and Election Administrators.

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“Here’s a voter fraud myth: Richard Daley ‘stole’ Illinois for John Kennedy in the 1960 election”

Paul von Hippel:

President Trump has chartered a Commission on Election Integrity to investigate his claim that millions of voters, including undocumented immigrants, voted illegally in 2016. Although no evidence has been offered to support this allegation, it does evoke some popular histories of election fraud in the United States.

One of the most famous examples — cited by proponents of Trump’s commission — is the 1960 presidential election, when Chicago Mayor Richard J. Daley allegedly “stole” Illinois for the Democratic presidential campaign of John F. Kennedy.

But the story of the stolen 1960 election rests on several myths. When myths are replaced with evidence, it’s not clear that the election was stolen at all.

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Coming This Spring: My New Book on Justice Scalia

Yale University Press:

The Justice of Contradictions

Antonin Scalia and the Politics of Disruption

Engaging, but caustic and openly ideological, Antonin Scalia was among the most influential justices to serve on the United States Supreme Court in generations. In this fascinating new book, legal scholar Richard L. Hasen assesses Scalia’s complex legacy as a conservative legal thinker and disruptive public intellectual.

The left saw Scalia as an unscrupulous foe who amplified his judicial role with scathing dissents and outrageous public comments. The right viewed him as a rare, principled justice committed to neutral tools of constitutional and statutory interpretation. Hasen provides a more nuanced perspective, demonstrating how Scalia was crucial to reshaping jurisprudence on issues from abortion to gun rights to separation of powers. A jumble of contradictions, Scalia promised neutral tools to legitimize the Supreme Court, but his jurisprudence and confrontational style moved the Court to the right, alienated potential allies, and helped to delegitimize the institution he was trying to save.

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DOJ flips on SCOTUS purge case

Justin here (and with a caveat: at DOJ, I worked on amicus briefs on this issue, including in this case).

Today, DOJ filed an amicus brief in Husted v. A. Philip Randolph Institute.  The case, now at SCOTUS, is about whether the NVRA prevents certain types of purges.  The NVRA says that before officials can take someone off the rolls because they’ve moved, either the voter has to tell the official they’ve moved, or the official has to send a forwardable notice and wait two federal elections to see if the voter makes contact.  Most states send that latter notice after getting some affirmative evidence of a move rendering them ineligible — an indication in the USPS change-of-address system, for example, or unforwardable mail that can’t be delivered.  A few states — including Ohio and Georgia, where there’s separate litigation — send the notice after a period in which voters haven’t voted or otherwise made contact with officials, meaning that someone’s subject to purge for inactivity alone.  The fight is about whether the NVRA permits Ohio to do this.

I won’t get into the statutory interpretation arguments here — the statute is complicated, and the competing arguments on either side argue about surplusage, which means you’ve really got to dive into exactly which piece does what.  And I won’t get into the policy arguments here either — truly modernizing voter registration would mean accounting for moves to keep eligible people registered in the right place, rather than worrying about separately purging in one place and adding in another.

But the DOJ filing is notable in and of itself.  Today, DOJ said that Ohio’s purge is fine. But as the brief itself notes, that’s not what DOJ said last year, either in amicus participation in a Georgia federal trial court or in the 6th Circuit version of this very case.  (As mentioned, I was involved.)  It’s quite rare for the DOJ to change course after a filing a brief in the court of appeals: the Solicitor General’s office is often called the “Tenth Justice,” in part because while reversals happen, there’s a thumb on the scale to treat DOJ filings with some internal quasi-precedential weight.

And the brief is also notable for another reason: the signature block shows no participation from career civil rights attorneys.  (The same thing happened with the controversial Title VII filing two weeks ago in the 2d Circuit, when DOJ weighed in on the opposite site of the EEOC.)  In the normal course, you’ll see political and career attorneys from both the appropriate DOJ Division and the SG’s office, like this brief here.  Not so today.

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“Voting machine maker sues to block rival companies’ paper-using devices”

Austin American-Statesman:

The manufacturer of the digital voting machines used across the state has filed suit in Travis County state District Court, seeking to block the Texas secretary of state from certifying rival machine makers whose devices produce a paper receipt of votes cast.

The lawsuit adds to the growing controversy surrounding the security of voting systems across the country — prompted, in part, by fears of potential hacking and by claims by President Donald Trump that millions of illegal votes were cast in the 2016 election.

The lawsuit filed by Austin-based Hart InterCivic — the manufacturer of the eSlate voting machines used in Travis County — asks a state judge to pre-emptively rule that voting machines that produce a paper record don’t comply with state laws requiring the use of electronic voting machines for all countywide elections.

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“Political Donors Put Their Money Where the Memes Are”

NYT:

Imagine you’re a millionaire or billionaire with strong political views and a desire to spread those views to the masses. Do you start a think tank in Washington? Funnel millions to a shadowy “super PAC”? Bankroll the campaign of an up-and-coming politician?

For a growing number of deep-pocketed political donors, the answer is much more contemporary: Invest in internet virality.

As TV, radio and newspapers give way to the megaphonic power of social media, today’s donor class is throwing its weight behind a new group of partisan organizations that specialize in creating catchy, highly shareable messages for Facebook, Twitter and other social platforms. Viral media expertise is emerging as a crucial skill for political operatives, and as donors look to replicate the success of the social media sloganeers who helped lift President Trump to victory, they’re seeking out talented meme makers.

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C-SPAN to Air 7th Annual UCI Law Supreme Court Term in Review on Wed at 8 PM Eastern

You can watch here, from the event back in July.

Panelists

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“Small Donor Empowerment Depends on the Details”

Release:

The Campaign Finance Institute (CFI) is pleased to announce that the new issue of The Forum: A Journal of Applied Research in Contemporary Politics (peer-reviewed) includes a major article by Michael J. Malbin and Michael Parrott, “Small Donor Empowerment Depends on the Details: Comparing Matching Funds in New York and Los Angeles.” The Forum has made the article freely available for download, here. It substantially enlarges and revises the working papers previously made available by CFI.

ABOUT THE ARTICLE:

Political campaigns have long been financed by people with well above average incomes, but the balance has tilted dramatically in recent years. A number of jurisdictions have sought to rebalance the incentives through new (or updated) public financing programs. Unfortunately, much of the discussion about the programs’ effects has been sweepingly generic. The programs do differ from each other and we have good reason to expect that “success” or “failure” will depend both on their goals and the programs’ details. This article focuses on why New York’s program is more effective than Los Angeles’ for city council races, and why both are less successful in mayoral than city council races.

We asked these research questions for reasons explained in the article’s closing sentences:

Pluralism has many virtues, but it is essentially a system for promoting deliberation and compromise among those who already have resources to bring to the political bargaining table. . . . Tools designed to bring more small donors into the system are meant to enlarge the table – to help give more people, and different kinds of people, a meaningful voice. . . . This concern goes to the heart of successful democratic representation. It should not be dismissed lightly. We owe it to those who try to address the concern to see whether and how their efforts bear fruit.

The article focuses on one type of program that has become a model in recent years. Until recently New York City was the only jurisdiction with a multiple matching system explicitly designed to increase the role of small donors. Previous studies noted the apparent successes of matching funds in New York City, which offer $6 in matching funds for each of the first $175 that a donor contributes to a participating candidate. These studies have included “Small Donors, Big Democracy” (by CFI authors) in the Election Law Journal and “Donor Diversity through Matching Funds” published jointly by CFI and the Brennan Center.

However, it has been difficult to feel entirely comfortable with these conclusions when there was only one jurisdiction to test. After Los Angeles revised its system in 2013, serious comparisons became possible that made it possible to sort out the effects of the two cities’ programs from the effects of their larger environments.

This new look at the evidence has found that New York City’s program increased the number, proportional role, and diversity of small donors in city council elections but that the Los Angeles program was substantially less effective. The article distinguished program effects from the broader context by using a methodology that compared the donors to city council candidates over time against donors to state legislative candidates who sought to represent the same geographical space. A series of explanations were tested, leading us to conclude that the policy details were affecting the results. The policies had less of an impact on mayoral than city council candidates in both cities. This suggests that the programs might have to be adapted if applied to larger constituencies, such as for Governor or the U.S. Congress.

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