Category Archives: The Voting Wars

“In North Carolina, vote will be a test of new, tighter election laws — and of voters’ faith”

USA Today:

On the last Sunday of February, a sea of sharp suits and dresses flowed out of St. Joseph AME Church. Worship was over, but early balloting in North Carolina’s primary election was still open. It was time to vote. 

The congregation had been fired up by a nearly two-hour service, filled not just with gospel music but also sermons about threats to hard-won voting rights from a slate of more restrictive laws that have taken effect in the last year.

New limits on the time to return mail-in ballots. A ban on ballot drop-boxes. A law – once struck down as unconstitutional, then revived by a new conservative majority on the state supreme court – requiring voter ID at the polls. 

Soon the crowd was lined up in cars or had boarded a bus with a paper sign pasted onto the driver-side door that read “Souls to the polls.” They rode in a caravan to a nearby polling site, arriving to music from a live DJ and signs for various candidates.

“We shouldn’t have things that stop people from voting,” said Carla Gilchrist, 52, an elementary school teacher who arrived at the polling place with the church caravan. New barriers, she said, only cemented her desire to vote. 

North Carolina last year was among 14 states to enact laws in the name of election security that will make it more difficult for some to vote in 2024, according to the Brennan Center for Justice, a nonpartisan policy group. The flood of laws in various states emerged following false allegations of voting fraud in the wake of Trump’s 2020 defeat….

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“Red State AGs Keep Trying to Kill Ballot Measures by a Thousand Cuts”

Bolts:

When a coalition of voting rights activists in Ohio set out last December to introduce a new ballot initiative to expand voting access, they hardly anticipated that the thing to stop them would be a matter of word choice.

But that’s what Ohio Attorney General Dave Yost took issue with when he reviewed the proposal’s summary language and title, then called “Secure and Fair Elections.” Among other issues, Yost said the title “does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” 

So the group tried again, this time naming their measure “The Ohio Voters Bill of Rights.” Again, Yost rejected them, for the same issue, with the same explanation. After that, activists sued to try and certify their proposal—the first step on the long road toward putting the measure in front of voters on the ballot. 

“AG Yost doesn’t have the authority to comment on our proposed title, let alone the authority to reject our petition altogether based on the title alone,” the group said in a statement announcing their plans to mount a legal challenge. “The latest rejection of our proposed ballot summary from AG Yost’s office is nothing but a shameful abuse of power to stymie the right of Ohio citizens to propose amendments to the Ohio Constitution.”

These Ohio advocates aren’t alone in their struggle to actually use the levers of direct democracy. Already in 2024, several citizen-led attempts to put issues directly to voters are hitting bureaucratic roadblocks early on in the process at the hands of state officials. …

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“GOP backs voting by mail, yet turns to courts to restrict it in battleground states”

Zach Roth:

Fearing that Democrats hold a crucial edge in ballots cast before Election Day, national Republicans are working to convince their voters to take advantage of mail and early voting this year.

“We can’t play catch up. We can’t start from behind. We can’t let Dems get a big head start and think we’re going to win it all on Election Day,” Republican National Committee chair Ronna McDaniel said in November on a conference call aimed at promoting the group’s Bank Your Vote initiative to encourage early and mail voting. “Things happen on Election Day.”

But the party’s army of lawyers is, more quietly, sending a very different message. The RNC is fighting in courtrooms and legal filings in key election battlegrounds across the country to make it harder to cast a mail ballot and to have it counted. 

On Feb. 20, attorneys for the RNC were in a federal courtroom in Philadelphia, in a bid to require that Pennsylvania throw out mail ballots with missing or incorrect dates. 

Eleven days earlier, they filed a lawsuit challenging several provisions of Arizona’s newly adopted election rules, including a rule allowing voters who have not shown proof of citizenship to cast a mail ballot. 

And that same day, they asked a court in Georgia to uphold a state law that imposes stricter rules on mail voting. 

Separately, in recent months the RNC has asked courts to let it join the defense of laws in OhioWisconsin, and North Carolina that similarly impose tighter rules on mail voting (judges in the latter two states denied the requests, while the Ohio motion was approved). 

The party also has sued to block a New York law that lets people vote by mail without an excuse (the state’s Supreme Court this month dismissed the complaint). And it has formally weighed in against proposed changes to Nevada’s election rules, including one that makes it easier for election officials to prevent volunteer observers from disrupting the counting of mail ballots. 

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My New Piece in Politico: “Opinion: The 2024 Election Will Be Fair. People Still Won’t Believe It.”

I have written this piece for Politico. A snippet:

The current backdrop for the 2024 election may seem bleak: Many of those who helped to ensure a fair election and a peaceful transition of power in 2020 have been silenced, replaced or intimidated. Researchers who studied and reported on disinformation have been unfairly attacked as engaging in election interference in collusion with the government. Conservative states have passed new laws barring the use of private funds to help support election administration, derisively calling such money “Zuckerbucks” after Mark Zuckerberg and Priscilla Chan’s foundation provided hundreds of millions in crucial 2020 funding. Lawsuits and congressional hearings by the Orwellian-named House committee on the “weaponization of government” may be deterring some government agencies from reporting election disinformation and foreign interference to social media companies and others. The social media platforms that had deplatformed Trump after he encouraged the violence at the Capitol have restored his accounts.

Some Republican officials have been booted out of the party or out of power, including Aaron Van Langevelde, the Michigan state member of the board of canvassers who confirmed Biden’s 2020 victory in the state, and Republican members of the U.S. House, including Liz Cheney and Adam Kinzinger, who lost primaries or chose not to run for reelection. Attrition rates among election officials, who have faced relentless threats and intimidation while earning relatively low pay, are substantial.

And yet there is reason for hope.

Efforts have been made to ensure the 2024 election will be mostly fair. Congress amended the set of rules used for its counting of Electoral College votes to close off some of the shenanigans with alternative slates of electors that Trump and his allies tried in 2020. The Supreme Court last year in Moore v. Harper rejected an extreme theory that would have empowered legislatures to overcome even their own state constitutions and state courts in constricting voting rights. Election deniers who ran for chief election officer in swing states lost in 2022. People are now hypervigilant about attempts to subvert election results and are on guard against new forms of manipulation. Trump, no longer in government, has fewer tools to try to manipulate results. The 2022 elections, without Trump on the ballot, went off smoothly. (Of course, there is much more that can and should be done in law, politics, media and tech to assure a fair and safe election, as a group of us explained in a recently issued report, “24 for ’24.”)

But things look less promising when it comes to voter confidence in the fairness of election results — on both sides of the aisle.

Trump is already laying the seeds for claiming voter fraud in the 2024 elections should he lose, positing without evidence that Democrats are allowing illegal immigration into the United States so that these new arrivals can vote for Biden in the 2024 elections. (Noncitizens are ineligible to vote in U.S. presidential elections.) One of the mistakes I made in the run-up to the 2020 elections was believing that if the U.S. could pull off a free and fair election, it would take the oxygen out of false and outlandish claims of voter fraud. In fact, Trump has been able to manufacture doubt out of absolutely nothing; fraud claims untethered to reality still captivate millions of people looking for an excuse as to why their adored candidate may have lost. The upshot, of course, was an insurrection on Jan. 6. We should be deeply concerned about a sequel, even if Trump is not in the Oval Office this time…..

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Indispensable Resource from Federal Judicial Center: “Emergency Election Litigation in Federal Courts: From Bush v. Gore to Covid-19”

It’s hard to overstate how rich a resource this Federal Judicial Center book is going to be. It is totally free online; a hard copy will be available for sale soon:

Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, Jason A. Cantone

December 4, 2023

This collection of case studies illustrates how federal judges managed the time pressures of emergency election litigation in the years 2000 through 2020. The case studies are based on reviews of the court records and interviews with more than one hundred judges. The 513 case studies cover 717 emergency cases and an additional 151 related cases.

Downloadable file:

PDF icon Emergency Election Litigation in Federal Courts: From Bush v. Gore to Covid-19(link is external) 1302 pages

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“Voter advocates, conservative activists brace for 2024 election showdown”

Reuters:

A year before voters choose the next U.S. president, groups of all stripes are already working to prepare for what they see as the greatest threat to the 2024 election: attacks on voters’ rights for some, potential electoral fraud for others.

A coalition of non-partisan voter advocacy groups is planning to recruit its biggest-ever “election protection” pool of volunteers – more than 20,000 – to answer voters’ questions, help poll workers handle problems and bring in legal assistance where needed.

Meanwhile, the Republican National Committee said it aims to train tens of thousands of poll watchers who can be deployed in 2024, and has launched a full-time “Election Integrity Department” that has hired more than 15 staff across the United States.

The committee said these steps would be independent of the campaign of former President Donald Trump, the frontrunner for the party’s nomination to run against Democratic President Joe Biden.

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“Top Wisconsin Republicans give mixed reviews on abolishing elections commission”

Milwaukee Journal Sentinel:

Wisconsin’s top Republican on Capitol Hill this week indicated support for a new proposal to dissolve the state’s bipartisan elections commission and give its powers to the secretary of state’s office with oversight from the GOP-controlled legislature. 

But others in his party have been skeptical of the plan to abolish the Wisconsin Elections Commission, and Senate Majority Leader Devin LeMahieu told the Milwaukee Journal Sentinel Wednesday he did not support it, casting doubt on the effort’s prospects.

“I’ve been consistent since the 2020 election saying I think the state legislature needs to reclaim its constitutional authority over federal elections,” U.S. Sen. Ron Johnson, Wisconsin’s highest-ranking Republican, said in a brief interview Tuesday. “How they do that, I’ll leave it up to them. But I think WEC is out of control.”

The proposal, released Monday by Senate elections committee chairman Dan Knodl and 10 other Assembly Republicans, would require Democratic Secretary of State Sarah Godlewski to take over the elections commission’s administration duties by June 30 — about five months before the 2024 presidential election. Under the measure, Godlewski’s actions would require the approval of the Republican-controlled legislative committees on elections.

It is the latest attempt from Republicans to overhaul how Wisconsin runs its elections ahead of the 2024 election. And it comes as the Wisconsin Elections Commission has faced continued criticism fueled by false claims by former President Donald Trump about Wisconsin’s system of elections and for policies election commissioners approved to navigate hurdles presented by the coronavirus pandemic….

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“In win for Cooper and Democrats, NC judges block GOP-backed elections law ahead of 2024”

WRAL:

A panel of judges on Thursday granted Democratic Gov. Roy Cooper’s request to block a new elections law before voters head to the polls in 2024.

The ruling from the three judges — two Republicans and one Democrat — was unanimous. They ruled that the law, passed by the Republican-controlled legislature last month, is likely an unconstitutional power grab. It’s just a temporary ruling pending a full trial, likely to be held in early 2024….

In addition to changing who has the power to appoint election board members, the law would also make the board have an even number of seats for both parties, instead of giving a majority to whichever party holds the governor’s office.

Republicans have said that’s needed to improve election integrity. But critics, who include Democrats as well as professional election workers and experts, say it would lead to chaos in elections administration — and possibly even spell the end of early voting and other political issues that would presumably result in tie votes and inaction….

On Cooper’s challenge to SB 749, Republican lawmakers have acknowledged that the previous law it’s based on was ruled unconstitutional.

A similar change to the elections board was also later shot down by voters when proposed as a constitutional amendment in 2018, after every living governor — Democratic and Republican — publicly campaigned against it, as well as another similar amendment proposal, as overreaching power grabs.

A lawyer for the state government agreed with Cooper in court Thursday. Senior Deputy Attorney General Amar Majmundar said blocking it from taking effect would be “not just appropriate, but necessary.”

But legislative leaders have said that since the GOP flipped control of the North Carolina Supreme Court in last year’s elections, they believe they have a better chance of winning in court this time and getting the past precedent overturned.

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“One year out: how a free and fair 2024 presidential election could be under threat”

Deep dive by Zachary Roth:

The last time America elected a president, it led to a deadly assault on the U.S. Capitol and a failed coup that gravely damaged the political system and marred the peaceful transfer of power for the first time in U.S. history.

A year from now, the nation’s voters will decide another presidential contest — likely one that pits the same two candidates against each other. 

Despite a slew of arrests and felony convictions stemming from the events of Jan. 6, 2021, there’s little sign that those who attacked democracy last time have significantly moderated their outlook. 

Former President Donald Trump has warned that, if restored to power, he’ll seek retribution against his enemies. An unrepentant election denier runs one house of Congress. Threats of political violence, now commonplace, are said to have affected key voting decisions made by elected officials. And 3 out of 4 respondents to a recent poll think American democracy is at risk in the election, with nearly a quarter saying patriots may have to use violence to save the country.

“The United States electoral process, and indeed American democracy itself, is under great stress,” warned a September report by a group of election experts for the Safeguarding Democracy Project. “No longer can we take for granted that people will accept election results as legitimate.” 

Since the tumult of January 2021, politicians, advocacy groups, and media outlets have rightly warned about a range of threats to a free and fair 2024 election — from problems with voter access and election administration to the potential for violence and chaos, or outright subversion of results, in the post-election period. 

Perhaps less noticed has been the progress made toward shoring up the system — chiefly in the form of federal legislation making it harder to subvert a presidential election.

That’s why, with a year before voting culminates next November, it’s crucial to take stock of where the nation stands, and to identify where, in the view of election experts and voter advocates, the major vulnerabilities remain….

More, in reference to the ECRA:

But though the law on paper is clear, Foley said he worries about a massive glut of election litigation, all filed in the immediate pre- and post-election period in one close, pivotal state.

The result, and perhaps the intention, could be to overwhelm the courts, potentially delaying decisions until a state risks missing the Dec. 11 “safe harbor” deadline. That could mean its electoral votes might not be counted. 

“The American judiciary is not built for thousands and thousands of hours of attention to election matters,” said Foley. “So I think there are reasons to fear that something really gets out of hand in terms of litigation, and you start bumping up against those deadlines.”

That threat could be exacerbated by a little-noticed aspect of the Supreme Court’s June ruling in a major elections case, Moore v. Harper. 

The court rejected the claim, pushed by conservatives, that state legislatures have essentially free rein to make election rules, unconstrained by state courts. But, as the election law scholar Rick Hasen has noted, the justices did give themselves the power to second-guess state courts if they decide state courts went too far in regulating an election.

This authority, Hasen has written, is going to be “hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results.”

Those statutory deadlines that Foley worries about also concern David Becker, the executive director of the Center for Election Innovation and Research. 

He warns that election deniers — including grifters looking to exploit Trump voters’ fears of a stolen election for financial gain — will be even more effective this time at sowing disinformation if their candidate loses on election night. That could lead to even more, and more unpredictable, political violence. 

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“Republicans Will Encourage Voting Before Election Day”

Walter Olson at Cato:

A more systematic benefit is that campaigns can save money and target their resources more effectively if supporters vote early. If a household is already recorded in the state database two weeks before Election Day as having voted, there’s no need to bombard it with last‐​minute mailings and phone calls.

There is also reason to believe that mail and drop box voting appeals to many constituencies among whom Republicans tend to do well, such as retirees and homemaking moms. In fact, until Trump chose to impose a different narrative, Republicans in many states were thought to be more skillful users of mail voting.

Partisan interest aside, there are two ways in which the interest of the nation as a whole is likely to be well served by the GOP’s return to course on this point. First, it abets distrust, polarization, and gamesmanship for one voting method to be seen as somehow “belonging to” one side. If early in‐​person voting is no longer perceived as a Democratic specialty, it will be easier for states to weigh impartially how much of it to schedule (from election administrators’ perspective, there are potential burdens in providing either too little or too much of it). Likewise for other methods.

The second ground for renewed optimism is that allowing voters to sort themselves more evenly between ballot channels will tend to dissipate the “red mirage” phenomenon in which one party jumps off to an early lead based on an early counting of votes that were cast its favored way, only to see that lead diminish and reverse as votes from the other party’s favored channels get counted.

It is hard to exaggerate how much damage the “red mirage” did in setting up the conditions for much of the public to be misled about the 2020 presidential election.

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Wisconsin: “Senate Republicans fire elections chief, setting the stage for a legal fight heading into the 2024 elections”

Milwaukee Journal-Sentinel:

Fueled by lingering outrage over the 2020 election within the Wisconsin GOP, Senate Republicans voted Thursday to fire the state’s top election official — a move that catapulted Wisconsin’s election agency into a legal battle over who oversees voting in this battleground state heading into the 2024 presidential election.

In a party-line vote during a floor session in the state Capitol, the state Senate rejected the nomination of Wisconsin Elections Commission administrator Meagan Wolfe, the leader of the state’s elections agency who has become a target of those who harbor intense distrust of election officials amid a baseless campaign by former President Donald Trump to sow doubt in the legitimacy of his 2020 election loss.

Minutes later on Thursday, Attorney General Josh Kaul filed a lawsuit asking a Dane County judge to declare Wolfe is still administrator despite the Senate’s vote and to block Republican legislative leaders from appointing a new administrator.

Republicans argued they must fire Wolfe in order to address the lack of confidence, concerns Trump first fostered without evidence to back up his claims. Critics of Wolfe, many of whom in 2022 supported impossible efforts to decertify the 2020 election called for by Trump, applauded from the Senate Gallery following the vote.

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We’ve Issued a Major New Report, “24 for ’24: Urgent Recommendations in Law, Media, Politics, and Tech for Fair and Legitimate 2024 Elections”

Back in March, the UCLA Law Safeguarding Democracy Project held a conference, Can American Democracy Survive the 2024 Elections?

Following the conference some of the participants met as an ad hoc committee to consider recommendations in law, politics, media, and tech for fair and legitimate elections in 2024. The goal was to convene a cross-ideological, interdisciplinary and broadly diverse group of election experts to consider ways to bolster both the actual fairness of the upcoming elections as well as public confidence in them.

Today, under the auspices of SDP, the 24 members of the Ad Hoc Committee for 2024 Fairness and Legitimacy released a new report: 24 for ’24: Urgent Recommendations in Law, Media, Politics, and Tech for Fair and Legitimate 2024 Elections.

Here are what I see as some of the key takeaways of the report:

  • The United States’ election system continues to be under great stress, especially after the last election was conducted during a pandemic and with unprecedented attacks on the integrity of the election system. There are reasons to worry 2024 could be worse
  • SDP convened a group that is really ideological diverse and is multidisciplinary, with scholars and leaders in law, media, politics and norms, and tech
  • 24 leaders came up with 24 recommendations for fair and legitimate 2024 elections; all of these can be put in place before the 2024 elections
  • Recommendations aimed not only at fair elections but at public acceptance of results across the political spectrum
  • Recommendations made to journalists, social media companies, government bodies, election officials, bipartisan Congressional and state leaders committed to democracy and the general public
  • Among key recommendations: states need to draft laws now to deal with how to handle election emergencies; courts need to resolve as soon as possible challenges to the qualifications of candidates to run for President under the Fourteenth Amendment; news organizations need to invest resources into training journalists on how elections are run, especially local and non-English language news outlets; election administrators need to harden their systems against “insider threats”—the actions of election workers or officials attempting to sabotage results

Below the fold, I share the summaries of the 24 recommendations; full recommendations are in the report itself. In upcoming weeks, we will look for opportunities to share our recommendations with specific constituencies to whom they are addressed.

In early news coverage, Zach Montellaro of Politico writes, “Election Experts Warn American Democracy is ‘Under Great Stress’ Ahead of 2024.” Read the full report for details.

Continue reading We’ve Issued a Major New Report, “24 for ’24: Urgent Recommendations in Law, Media, Politics, and Tech for Fair and Legitimate 2024 Elections”
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Wisconsin: “Senate elections committee votes against keeping elections chief Meagan Wolfe”

Milwaukee Journal-Sentinel:

Republicans who control the state Legislature took a step Monday toward firing Wisconsin’s top election official, setting the stage for a court battle over who leads this battleground state’s system of elections just months before voters begin casting ballots in the 2024 presidential contest.

Members of the Senate Committee on Shared Revenue, Elections and Consumer Protection voted 3-1 by paper ballot against the reappointment of Wisconsin Elections Commission administrator Meagan Wolfe − a move Democrats refused to acknowledge as legal after the Democratic Attorney General and the Legislature’s nonpartisan attorneys concluded earlier this month the Senate was taking up an appointment that was never made.

The legal opinions were based on the Wisconsin Elections Commission failing to produce four votes to reappoint Wolfe at the end of her term in June, with Democratic members citing a recent Supreme Court ruling that said appointed officers like Wolfe may stay in their positions beyond the expiration of their term unless they are removed….

Republican leaders of the state Senate have forced a vote on Wolfe’s future anyway as they continue to feel pressure to act over discontent within the base of the GOP over the 2020 election and false claims leveled by former President Donald Trump, who is the frontrunner in the 2024 Republican presidential primary race.

The full state Senate could vote on firing Wolfe as early as Thursday.

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