“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.


“Political Donors Put Their Money Where the Memes Are”


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.


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.



“Small Donor Empowerment Depends on the Details”


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.


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.


“Seventh Circuit Reverses Injunction On Illinois Same-Day Registration”

Doug Chapin:

Last year, I wrote about a federal court challenge to Illinois’ same-day registration law that resulted in an injunction because of concerns it would result in voters in larger counties having more opportunities to vote than those in smaller counties. That injunction was eventually stayed, and last week the U.S. Court of Appeals for the Seventh Circuit overturned the injunction and sent the case back to the lower court. Courthouse News has more

You can find the 7th Circuit’s opinion here.


“The Congressional Map Is Historically Biased Against Democrats”

David Wasserman  for 538:

But there’s a larger, long-term trend at work too — one that should alarm Democrats preoccupied with the future of Congress and the Supreme Court.

In the last few decades, Democrats have expanded their advantages in California and New York — states with huge urban centers that combined to give Clinton a 6 million vote edge, more than twice her national margin. But those two states elect only 4 percent of the Senate. Meanwhile, Republicans have made huge advances in small rural states — think ArkansasNorth and South DakotaIowaLouisianaMontana and West Virginia — that wield disproportionate power in the upper chamber compared to their populations.


“AALS Call for Papers: “New Voices in Legislation””

Announcement via email:

AALS Call for Papers: “New Voices in Legislation”
AALS 2018 Annual Meeting

The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2018 AALS Annual Meeting in San Diego, CA.  This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles.  Scholars whose papers are selected will present their work in small panel sessions.  A senior scholar will moderate each panel and lead discussion about the draft article.

Eligibility:  The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less.   All scholars, whether or not presenting a paper or moderating a discussion, are welcome to attend the program and participate in discussions.

Submission Requirements: Submissions should be drafts of articles relating to legislation and the law of the political process, including articles related to legislative structure, the legislative process, the budget process, statutory interpretation, and deliberation.  Submissions should be near completion and should not exceed 30,000 words, including footnotes.  The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2018.  However, articles that already have been submitted to journals for publication, and accepted for publication, are not ineligible for this reason.

Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Evan Zoldan, evan.zoldan@utoledo.edu by Sunday, October 1, 2017.  Selected participants will be notified in early November 2017.  Final drafts of those who are selected must be submitted by December 15, 2017.

Senior Scholars: If you are interested is serving as a commentator for one of the junior papers, please contact Evan Zoldan, evan.zoldan@utoledo.edu.


“Professor David T. Canon Appointed New Editor-in-Chief of Election Law Journal: Rules, Politics, and Policy”

Announcement via email:

We are very pleased to announce that Professor David T. Canon, University of Wisconsin, Madison, has been appointed to assume the role of Editor-in-Chief of Election Law Journal: Rules, Politics, and Policy beginning September 1, 2017. Professor Paul Gronke, who has provided excellent leadership for the journal for many years, will be stepping down from his role as Editor-in-Chief and will remain as an Editorial Board Member on the journal.

David T. Canon is a professor in the Political Science Department at the University of Wisconsin, Madison and served as Chair of the department from 2014–2017. His teaching and research interests are in American political institutions, especially Congress. His more specific research interests include election administration, racial representation, partisan realignments, political careers, and the historical study of Congress, especially congressional committees.

Congratulations David!  And Kudos to Paul for a successful run!


On What States Does Partisan Control of the House Turn?

In a fascinating analysis in The Cook Political Report, Richard E. Cohen explores which areas of the country have essentially become locked-up by either the Democrats or the Republicans, and which areas remain fluid enough to provide the marginal forces that determine national political outcomes.  For the House, he concludes that six states essentially determine which party controls that chamber:  Ohio, Michigan, Indiana, Florida, Pennsylvania, and Virginia.

Then he goes on to offer the following perspective on the distribution of control over these seats from 2008-today:

Following the 2008 election, those six states had 51 Democrats and 46 Republicans in the Democratic-controlled House. The huge turnover in the 2010 election shifted 21 of those seats to the Republicans, with a five-seat GOP gain in both Ohio and Pennsylvania and at least a two-seat gain in each of the other four states. Strikingly, that 67- to 30-seat Republican control in those states barely shifted following the 2012 redistricting and the three subsequent elections. The 2016 results yielded a 64- to 31-seat advantage for Republicans. (The states have lost two House seats as a result of reapportionment shifts between the states.)

In addition, he notes:

Of those 31 Democratic-held House seats, each is in a large metropolitan area— either in a dominant city or close-in suburbs. Republicans control all of the exurban and rural districts in the six states.


“Comeback for ‘legalized money laundering’ in party politics?”


But a new Center for Public Integrity analysis of campaign finance data indicates Democrats and Republicans alike are now aggressively trafficking in a new — and perfectly legal — kind of soft money, enabled by a 2014 Supreme Court decision, the latest in a series gutting major parts of McCain’s 2002 law.

The new tactic is also changing political fundamentals.

In a fundraising environment that had come to be dominated by super PACs— committees that may raise and spend unlimited amounts of money to advocate for or against specific candidates — it’s helping national political parties regain some relevancy after years of declining power. It’s also reviving an era when politicians were able to directly solicit six- and seven-figure checks from donors on behalf of the political parties, raising the specter of corruption and scandals that dogged politicos during the 1990s.

Here’s how this shell game works: Top donors spent the 2016 election cycle legally writing six-figure checks to so-called joint fundraising committees — committees that can dole their contributions out to multiple allies, notably including state political parties.

But rather than keep all the cash, the state parties have been quickly steering the money to the national parties, taking advantage of their ability to transfer unlimited cash to their national affiliates.

The joint fundraising vehicles aren’t new, but the Supreme Court’s 2014 decision to eliminate some obscure but important campaign contribution limits in McCutcheon v. Federal Election Commission had the effect of supercharging them. The 2016 election provided a first, full glimpse at what the new legal landscape would mean in reality.


“Here’s your chance to comment on shape of maps to correct NC gerrymanders”

News & Observer:

North Carolina Republicans have begun to release details of their schedule for drawing new boundaries to correct legislative districts found unconstitutional by the federal courts.

But they have not presented any maps to the public yet.

The General Assembly, which met for what was expected to be a one-day legislative session on Thursday, is tentatively set to vote on new maps on Aug. 24 or 25, according to Rep. David Lewis, the state House member shepherding the redistricting process.


“Trial over Broward’s disputed voting lists ends”

Sun Sentinel:

A ruling by U.S. District Court Judge Beth Bloom isn’t expected for several months.

The ACRU, which filed the suit a year ago, is being represented by the Public Interest Legal Foundation. Both are conservative organizations that say their efforts to purge voter rolls of ineligible voters are designed to restore election integrity and reduce the potential of voter fraud. In 2015 alone, the foundation sent letters to elected officials in 141 counties in 21 states threatening lawsuits if those counties didn’t step up efforts to remove ineligible voters from their voter rolls.

Bloom gave the parties until Sept. 15 to submit their proposed findings of fact and conclusions of law that she will use in making her determination. Voters can be removed from the rolls if they die, become felons, are mentally incapacitated or move out of the county.

The current case could set a national precedent as it is the first to have a complete trial. A few have ended with settlements, but attorney Burnadette Norris-Weeks said Snipes isn’t interested in anything that indicates the elections office isn’t doing its job.

“We believe that we’ve shown that we follow Florida law,” Norris-Weeks said.

One of the chief indicators the suit used to claim the county’s rolls had thousands of ineligible voters was an analysis that showed more registered voters than eligible voting-age residents in the county. The suit said one year the number of registered voters amounted to 103 percent of voting-age residents in the county.

During the trial in Miami federal court on Wednesday, University of Florida Professor Daniel Smith testified those rates were flawed and unreliable because they used “two different databases designed for two different things.”

Smith, an expert witness for the defense and political science professor, said even if the percentage were as high as indicated, that still wouldn’t mean poor practices regarding ineligible voters was the reason.

Smith’s own review showed that between January 2015 and January 2017, about 192,000 people were removed from the county’s voter rolls and another 148,645 had had their addresses changed.

“That seems to be pretty clear evidence … of some type of list maintenance going on,” Smith said.


“Amicus Brief: NC General Assembly’s Attempt to Entrench One-Party Power is Unconstitutional Threat to Democratic Institutions”


Today, the Brennan Center for Justice at NYU School of Law and Democracy North Carolina filed an amicus brief with the North Carolina Supreme Court in Cooper v. Berger, in which the state’s newly-elected Governor, Roy Cooper, is challenging the General Assembly’s attempt to reorganize state and county election boards so that they will no longer be controlled by the Governor’s party, as they have been for more than a century. Among other things, the new law prevents replacement of the Republican-appointed Executive Director and provides that the election boards will be chaired by Republicans in every presidential and gubernatorial election year.

According to the brief, the General Assembly’s action is an attempt to entrench its majority party, the Republicans, in control over North Carolina’s electoral system regardless of their loss of voter support. This clashes with bedrock principles underlying the Constitutions of the United States and the State of North Carolina. Based on these principles, courts have interpreted the law to thwart political entrenchment in many circumstances involving the electoral and political processes. The North Carolina Supreme Court should do the same here.


“The Institutional Case for Partisan Gerrymandering Claims”

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

For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well for voters.

This Essay challenges an assumption at the core of that concern: the alleged tension between strong intervention and strong institutions. The Constitution’s structural principles were designed not only to prevent arbitrary and tyrannical rule, but to protect individual liberties and provide institutional accountability as well. The Court pays these principles no respect by standing silent when politicians insulate themselves from popular dissent and consolidate their grip on power through the violation of individual constitutional rights. As Justice Kennedy once wrote, “Abdication of responsibility is not part of the constitutional design.” By mistaking inaction for neutrality and avoidance for deference, the Court fails to fulfill its own role in the constitutional scheme and destabilizes the institutions it seeks to protect.

To honor structural principles, respect state legislators, and maintain judicial integrity, this Essay proposes a return to the Court’s traditional tools of principled neutrality: clear rules and coherent doctrine. Clear rules would distinguish general partisan intent (which is the intent to win voters’ political preferences and is legitimate even to an extreme degree) from invidious partisan intent (which is the intent to suppress voters because of their political preferences and is illegitimate regardless of degree). Meanwhile, the effects question in dilution cases should not be “how much suppression is too much suppression,” but rather whether the preferences of a targeted group will or will not usually be defeated.

Coherent doctrine could also be established in the coming term if the Court affirms in Gill v. Whitford and reverses in Harris v. Cooper. Doing so would end the “legal arbitrage” between racial and political redistricting law; harmonize the treatment of racial and political “advantage” arguments across equal-population, dilution, and sorting case law; and bring redistricting law into closer alignment with the Court’s broader equal-protection and First Amendment jurisprudence.

The Court may fear that judicial intervention will be too disruptive or that legislative compliance will be too difficult. These concerns are misplaced, overstated, and underestimate the institutional and structural consequences of the Court’s inaction or exit from the field. Instead, a precise and predictable jurisprudence provides what the Court, the Constitution, and the country all require: strong, accountable institutions, and a forceful defense of individual rights.


Warrington and Buzas: Are Chen and Cotrell Right About Net Partisan Gains in Partisan Gerrymandering Cases?

The following is a guest post from Greg Warrington and Jeff Buzas, which may be relevant to the upcoming Supreme Court partisan gerrymandering case:

I am grateful to Rick Hasen for the opportunity to post here about my recent preprint with Jeff Buzas.

Quantitative research into partisan gerrymandering serves at least two important ends. One is the goal of identifying partisan gerrymander and quantifying how extreme they are. Measures such as the compactness of an electoral district and the efficiency gap of an election can help do this. These measures can, and do, play a supporting role in litigation. Another is the goal of evaluating the impact of gerrymandered districts on people and their representative bodies. While there are many questions one could ask about the effects, we will focus here on one question in particular: To what extent does partisan gerrymandering influence the partisan composition of the US House?

In a February 2017 post on this blog, Rick Pildes describes a 2016 paper by Jowei Chen and David Cottrell that tries to answer this question. Their conclusion in the paper is that the Republicans only benefited from partisan gerrymandering by a single extra seat (net) in the US House in 2012. (In a follow-up to Rick Pildes’s post, Justin Levitt explores what this study does not tell us as well as some of the limitations of the Chen-Cottrell approach.) But as Rick Pildes presciently noted, "[a]ny complex study of this sort poses many methodological issues." In our preprint, Jeff Buzas and I identify one such methodological problem in their paper. We believe it is serious enough to invalidate their conclusion.

The Chen-Cottrell approach consists of two main parts. The first is the generation of simulated district plans that provide a basis to which enacted district plans can be compared. There are many challenges to generating appropriate distributions of districts (and even defining what one means by "appropriate"). Even so, we view the general approach of utilizing simulations as fundamentally sound. The flaw in their methodology occurs in the second part of their approach. There, they compute the expected number of democratic seats associated to a given district plan (whether real or simulated). Our critique of Chen-Cottrell lies in the particular way in which they approach this second part. Chen and Cottrell are not the only ones to compute the number of seats each party wins in a simulated district plan. But they are the only ones we know of who make this computation using a logistic regression. Unfortunately, a logistic regression is not sensitive to the packing and cracking by which partisan gerrymanders occur. Fortunately, our critique does not apply to any other papers we know of.

We will not attempt to give a detailed explanation in this post of why the logistic regression should not be used in this way. However, we can sketch the problem. What Chen and Cottrell do is assign a probability that each district elect a Democrat based solely on the presidential vote in that district. They determine this probability by fitting a logistic regression using historical data. In this context, such a model will generate probabilities that change gradually. For example, if the presidential vote in a district is 45%, the probability of electing a democratic legislator as determined by their logistic regression model will only be moderately lower than if the presidential vote there had been 55%. These probabilities are not wrong, they are merely the natural consequences of determining a probability from hundreds of historical races, each with its own idiosyncrasies.

The problem faced by the model is that map drawers are concerned not with what happens on average, but what will happen in a few particular districts of which they know a lot about. A gerrymander they create may fade in potency over time and may be susceptible to wave elections. But in the short term, reducing the democratic presence in a district from (say) 55% to 45% can be enough to effectively guarantee that what was a democratic district becomes a republican one. This substantial change in probabilities simply isn’t captured by Chen and Cottrell’s application of a logistic regression.

In our preprint, we offer our own computation of the net influence of partisan bias on the composition of the House using the declination introduced in this preprint. Our conclusion is consistent with that of a report from the Brennan Center authored by Michael Li and Laura Royden: the Republicans won more than 20 extra seats in 2012. But since our preprint does not utilize simulations, it is unable to distinguish between extra seats due to partisan gerrymandering and extra seats due to inherent geographic advantages. The very limited investigations we have done suggest that little is due to geography, however further investigation on this point is certainly warranted.


AZ Supreme Court Rejects Chamber of Commerce Attempt to Get Court to Apply Single Subject Rule to Voter Initiatives

From the opinion:

This Court has long recognized that the Single Subject Rule applies only to acts by the legislature; it does not apply to initiatives. See Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 525 ¶ 36 (2000); Iman v. Bolin, 98 Ariz. 358, 365 (1965); Barth v. White, 40 Ariz. 548, 555-56 (1932). Initiative petitions are governed by the Arizona Constitution, article 4, part 1, § 1, which, as relevant here, requires only that a proposed measure have some title and some text. See Ariz. Const. art. 4, pt. 1, § 1(9); Iman, 98 Ariz. at 365; Barth, 40 Ariz. at 556.

Petitioners ask us to reconsider our prior decisions. They point out that Barth, the genesis for the line of precedent, involved an initiative–proposed constitutional amendment, and other states now favor applying provisions similar to the Single Subject Rule to such initiatives. We decline to revisit our decisions.

The Barth line of cases did not turn on the substance of the initiatives at issue. Indeed, the initiative measures at issue in Citizens Clean Elections Commission and Iman proposed statutory amendments, not constitutional amendments. See Citizens Clean Elections Comm’n, 196 Ariz. at 518 ¶ 2; Iman, 98 Ariz. at 362. This Court’s prior decisions are further supported by the Single Subject Rule’s language and placement within the constitution. The Rule applies to “act[s],” which are enacted by the ARIZONA CHAMBER OF COMMERCE & INDUSTRY, ET AL. V. KILEY (STATE, ET AL.) Opinion of the Court 15 legislature, and does not address initiative or referendum petitions. Cf. Barth, 40 Ariz. at 556 (recognizing that an initiative petition is not an “act”). And the Single Subject Rule is set forth in article 4, part 2 of the constitution, which addresses “The Legislature.”

The Single Subject Rule does not apply.

More at Arizona Capitol Times.


“Elections watchdog group seeks answers after Georgia drops 590,000 from voter rolls”


A watchdog group is pushing the state of Georgia to explain why more than 591,000 people were struck from the voter rolls.

“Each of the 591,548 voters affected by the move had already been on the state’s ‘inactive’ registration list,” the Atlanta Journal-Constitution reported this week. That means those voters had not cast a ballot, updated their registration or address or responded to efforts to contact them for at least three years.

Let America Vote, an advocacy group run by former Missouri Secretary of State Jason Kander, wrote in a Wednesday letter to Georgia Secretary of State Brian Kemp that federal law doesn’t permit the purge of voters simply for not voting.


“Kobach had duty to publicize new voting schedule; it appears that he didn’t”

Lawrence Journal-World:

 Kansas Secretary of State Kris Kobach does not appear to have conducted any public information campaign, as required by law, to publicize the fact that the state recently shifted the election cycle for municipal elections from the spring to the fall of odd-numbered years.

Douglas County Clerk Jamie Shew cited that as one possible explanation for why voter turnout in the county was lower than expected on Tuesday, when the first municipal elections took place in Kansas under the new cycle.


“Trump Loyalist Mixes Businesses and Access at ‘Advisory’ Firm”


About a week after leaving his old firm, Mr. Lewandowski started a new consulting business, according to corporate filings. And now, as he takes on an increasingly broad role as an unofficial White House adviser, he is building a roster of clients with major interests before the Trump administration, including an Ohio-based payday lender seeking to block or overturn new federal financial regulations.

Mr. Lewandowski appears to be positioning his new firm as an “advisory” business, part of a growing cohort of Washington influencers who advise companies on how to navigate the government but do not register as lobbyists or disclose their clients. A draft contract obtained by The New York Times stipulates that Mr. Lewandowski’s firm “cannot and will not engage in any lobbying or advocacy services.”…

But Mr. Lewandowski, who is known for his keen understanding of Mr. Trump’s news media tastes and habits, used an appearance on NBC’s “Meet the Press” on Sunday to press his new client’s interests, calling for Mr. Trump to oust the bureau’s director, Richard Cordray, an Obama holdover who has led the effort to pass new payday lending requirements.

“It’s my recommendation to the president of the United States to fire Richard Cordray,” Mr. Lewandowski said….

Rejecting a question from the “Meet the Press” host, Chuck Todd, about whether he had “a client that wants to see” Mr. Cordray fired, Mr. Lewandowski said: “No, no. I have no clients whatsoever.” He explained his opposition to Mr. Cordray by pointing to a similar position taken by Representative Jeb Hensarling, Republican of Texas and the chairman of the House Financial Services Committee, who has called on Mr. Trump to dismiss Mr. Cordray.


“States with Election Day registration see bonus for democracy”

Boston Globe:

Voting on Election Day usually entails some pre-planning, with registration required several days, if not weeks, ahead of time in most places.

But now, following a court decision last week, Massachusetts is under pressure to join more than a dozen other states — including Connecticut, Maine, and Vermont — in allowing residents to register or reregister on Election day, and vote moments later.

While the state’s top election official is raising concerns about costs, research shows that allowing same-day, or election-day, registration can bolster democracy by motivating voters to go to the polls.


Top Recent Downloads in Election Law on SSRN


Top Downloads For:

LSN: Election Law & Voting Rights (Topic)

Recent Top Papers (60 days)

As of: 03 Jun 2017 – 02 Aug 2017

Rank Paper Downloads

The 2016 U.S. Voting Wars: From Bad to Worse

University of California, Irvine School of Law

The Causes and Consequences of Gerrymandering

University of Chicago Law School

Campaign Finance Reform Without Law

University of Wisconsin Law School

Resurrection: Cooper v. Harris and the Transformation of Racial Gerrymandering into a Voting Rights Tool

University of California, Irvine School of Law

Partisan Gerrymandering and the Illusion of Unfairness

University of Cambridge – Jesus College

The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent

Ohio State University (OSU) – Michael E. Moritz College of Law

Prisoner Voting Saga: Reasons for Challenges

University of Liverpool

Introduction: The Past, Present, and Future of Free Speech

Brooklyn Law School

Citizens United, Liberty, and John Stuart Mill

Washington and Lee University

Compulsory Voting and TV News Consumption

University of Sao Paulo (USP) – Department of Economics and Universidade Federal de Pernambuco

“Trump’s fundraising prowess keeps Republican Party close”


Trump’s fundraising prowess is the engine of the Republican National Committee and a lifeline for every Republican planning to rely on the party for financial help during next year’s congressional races. Leaning heavily on Trump’s appeal among small donors, the party has raised $75 million in the first six months of the year, more than double what the Democratic National Committee had raised by the same point in President Barack Obama’s first year.


Unanimous FEC Concludes Project Veritas Employee Likely Violated FEC Rules by Facilitating Foreign Contributions in Sting

Bloomberg BNA:

An undercover operative for a conservative group likely violated rules against foreign campaign contributions while seeking to show Hillary Clinton’s presidential campaign was willing to break those same rules, the Federal Election Commission concluded.
The FEC said in newly released documents that Laura Loomer, an employee of Project Veritas Action, appeared to violate campaign finance rules by taking money from a Canadian national to buy Clinton campaign merchandise.
An analysis written by the FEC general counsel’s office and unanimously backed by the agency’s commissioners accused Loomer of “knowingly providing substantial assistance to a foreign national in making a contribution.” However, the FEC said it wouldn’t seek any penalties in the case because of the small amount of money involved.
The FEC’s discussion of the knowingly standard for providing substantial assistance in helping a foreign individual make a contribution (pages 5-6 of the analysis) could be relevant to the Don Jr. Russian meeting controversy.
UPDATE: Project Veritas complains (and calls it “fake news”) that in my excerpt from the Bloomberg BNA story I did not note that the FEC decision (which I linked to twice above) also found that Clinton staffers who were part of the sting may have violated the law by accepting an apparent foreign contribution. That information of course is available in both the story I linked to and the analysis I linked to above twice. There is nothing “fake” or false in what I wrote above. At best this is incomplete—as is usually the case in the vast majority of my blog posts when I link to only a piece of a much larger story. People who want more information can click on the links for more information, as always. The fact that the person doing the stinging was found to violate the law seems to me a much bigger story than the person who was victim of the sting. Here is the relevant part of the analysis related to the Clinton campaign:
Barker and the Committee may also have violated the Act by accepting a foreign national contribution because, based on the facts available to them, a reasonable person might have inquired as to the source of the funds Loomer used to make a contribution. Although it is not clear from the video which portions, if any, of the conversation between Loomer and the Canadian national she overheard. Barker’s statements and actions suggest she may have been aware of sufficient facts to satisfy the “knowingly” standard. Specifically, Barker was told the Canadian national did not have a U.S. Passport or Green Card, she asked Tibe whether the  Committee could accept a contribution from the Canadian national, and she was asked by  Loomer whether an American could make a contribution on behalf of a foreign national. Moreover, the conversation between Loomer and the Canadian national arranging the transfer of money took place in close proximity to Barker. Based on these facts and circumstances. Barker and the Committee may have violated the prohibition against knowingly accepting foreign national contributions.

“Intent is Enough: Invidious Partisanship in Redistricting”

Justin Levitt has written this piece for the William and Mary redistricting symposium.  Here is the abstract:

When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that too much partisanship in the redistricting process violates the Constitution, but failed to agree on how much is too much (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” But this is a sprint to answer the wrong question: it is perhaps the question Justices have asked, yes, but not the one best illuminating the problem.

This paper suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish egregious unconstitutional partisanship from normal politics. In this endeavor, the nature of the intent, not the magnitude of the impact, matters most. A pivotal case just last Term reveals that the invidious intent of a state actor to subordinate others based on perceived partisan affiliation constitutes a constitutional violation, no matter the severity of any resulting injury. Testing for this intent provides the screening device the Justices seek. The proffered quantitative tests of the scholarly community may be valuable in this analysis, but not for the reason most think: they show not the threshold of impact necessary for a violation, but suggestive evidence of invidious intent.

I’ve read earlier drafts of this piece and I highly recommend it (even though I approach these issues very differently).

Download it while it is hot!


“U.S. judge denies Common Cause effort to block Trump voter commission”


A federal judge on Tuesday declined to temporarily bar President Trump’s voting commission from collecting voter data from states and the District, saying a federal appeals court likely will be deciding the legality of the request.

U.S. District Judge Royce C. Lamberth of the District denied an emergency motion by Common Cause, a nonprofit government watchdog group. The group alleged the request for voting history and political party affiliation by the Trump administration violates a Watergate-era law that prohibits the government from gathering information about how Americans exercise their First Amendment rights.

Lamberth advised the group to flesh out its claims by documenting the commission’s activity at a recent July 19 meeting while the lawsuit continues.


“The Franchise Project Launches, Releases 50-State Voting Access Scorecard”


Today marks the launch of The Franchise Project (TFP), a voting rights advocacy organization that aims to educate and empower grassroots activists to engage in effective voting rights advocacy at the local level. The group’s 50-State Voting Access Scorecard helps identify state laws and practices that create barriers to voting access. Then, TFP outlines concrete actions people can take to make voting easier in their states.


New Book from Me: Examples & Explanations for Remedies, Fourth Edition

For those teaching or taking a Remedies course, or who want to understand damages, injunctions, restitution and more, the new edition of my Remedies E&E is now out.

From the book’s description of what’s new for the 4th edition: 

  • A new discussion of the draft Restatement of the Law Torts (Third): Liability for Economic Harm’s treatment of the economic harm rule
  • A new discussion of special emotional distress rules for cases involving high risk of causing such distress, such as mishandling human remains and injuring pets
  • A new discussion of emotional distress damages for breach of contract
  • A new section discussing of the basis for temporary restraining orders, including the appealability of such orders (which has become a contested issue in challenges to Trump administration executive orders)
  • A new section discussing the controversy over the use of nationwide injunctions in highly charged political cases, a trend that has emerged to challenge policies of both the Obama and Trump administrations
  • A new discussion of restitutionary claims for constructive trusts involving disproportionate gains, such as lottery winnings, under both the common law and Restatement (Third) of Restitution
  • A new section on opportunistic breach of contract in Restitution, including the Supreme Court’s recent endorsement of the section in a 2015 case
  • A new section on the relationship between laches and statutes of limitations and new Supreme Court authority on the question

(Also available at Amazon.)


“How much proof is needed for a voter fraud allegation? NC board considers stiffer standards”

New & Observer:

Republicans and voting-rights advocates went head-to-head over a proposal that would have people make fact-based claims when they allege voters have committed fraud.

The State Board of Elections has proposed a stiffer standard for elections protests that would have people describe facts, say whether a lawyer helped them make their claims, and say whether they have any witnesses.

The rule is being considered in the aftermath of the November election and the close race between Republican Gov. Pat McCrory and Democrat Roy Cooper. Republicans filed complaints in more than 50 counties alleging ballots were cast by dead people, felons, and people who voted in other states. Most of those complaints were dismissed, but they helped delay vote counts….

The McCrory campaign and his Republican allies used protest forms to “make outrageous claims of voter fraud,” Hall said. As a result, voters were unfairly maligned and targeted on social media.

“They used charges of voter fraud for personal gain,” he said.

Democracy NC found that lawyers with a Virginia firm helped prepare nearly all the protests.

Dallas Woodhouse, executive director of the state Republican Party, said the rules would scare people away from filing protests.


“Ohio’s voter culling practices are legal, Ohio Secretary of State Jon Husted tells U.S. Supreme Court”


Ohio Secretary of State Jon Husted on Monday defended Ohio’s practice of beginning the process to cancel registrations of voters who haven’t cast ballots in two years, telling the U.S. Supreme Court its actions are needed to keep accurate voter rolls.

You can find the brief here.


Maine SOS Dunlap, Rare Democrat on Pence-Kobach Voting Fraud Commission, Won’t Turn Over Maine Data

Press Herald:

Maine Secretary of State Matt Dunlap said Monday that he is unlikely to release any state voter registration data to the federal voter fraud commission to which he was appointed by President Trump.

Dunlap said he will reject a second request for the data from the commission’s vice chairman, Kansas Secretary of State Kris Kobach, who promised last week that the data would be held in confidence at the federal level.

But Dunlap said he is uncertain that the federal Freedom of Information Act would allow the data to be protected from disclosure once it is in the federal government’s hands. He said he wants the commission, to which he was appointed in May, to first set goals for what it hopes to achieve as it investigates Trump’s claims of widespread voter fraud.

The secretary of state also said he wants the commission to figure out how it intends to protect voters’ privacy rights before he hands over any statewide voter data.


“U.S. judge set to hear new challenge to Trump voter commission Tuesday”


A federal judge will hear arguments Tuesday over whether a Watergate-era law prohibiting the government from collecting data on how Americans exercise their First Amendment rights bars President Trump’s Election Integrity Commission from American’s voting records.

U.S. District Judge Royce C. Lamberth of the District set the hearing Monday after Common Cause, a nonprofit government watchdog group, alleged that the Trump administration was violating the Privacy Act of 1974 by seeking the “quintessentially First Amendment-protected political party affiliation and voter history data” of every American.

The court could rule on the request for a temporary restraining order as early as Tuesday.


3-Judge Court Denies Request for Special NC Elections in 2017 But Orders Legislature to Hurry Up for 2018

You can find the court’s unanimous 11-page opinion here. It is clear that the judges (1) think the NCGA dragged its feet repeatedly but (2) it is too late for 2017 special elections.  The delay worked in the state’s favor and bought the Republican legislature potentially a longer veto-proof majority in the NC legislature.

New lines must be drawn by September 1 or the Court will draw them.  But there’s this carrot for more time:

Upon filing of a motion no later than 5 p.m. on August 21, 2017, supported by evidence that Legislative Defendants (1) publicly disclosed the criteria to be used in drawing the remedial districts, (2) drew and publicly disclosed proposed remedial districting plans applying those criteria and remedying the constitutional deficiencies with the Subject Districts, and (3) made public a method and process for receiving comments and evidence from the public and other legislators, the Court will extend these deadlines for fourteen days.

Bet the NCGA does not do this to buy 14 more days.


Must-Read: “Secret donations are helping to boost President Trump’s agenda, fights with investigators”

The great Fredreka Schouten of USA Today with this piece:

Groups spending millions in anonymous donations are leading the outside efforts to either defend President Trump or sell his agenda with voters and Congress, despite the president’s repeated calls to “drain the swamp” in Washington of special-interest money.

The political empire affiliated with billionaire Charles Koch has spent $2 million to date to advance Trump’s tax-cut blueprint and will hold events this week in Washington to kick off the next phase of its multimillion-dollar campaign to drive congressional support for a comprehensive tax plan to slice corporate tax rates and enact broader tax cuts.

Americans for Prosperity, the Koch network’s grass-roots arm, already has 50 events scheduled in August and September to help promote the tax plan.

The pro-Trump Great America Alliance is spending $450,000 on a TV and digital ad that casts special counsel Robert Mueller’s probe into possible collusion between Russia and Trump’s campaign as a “rigged game.”

The group already has pumped more than $3 million in advertising to advance Trump’s policies and has committed to spending $5 million more, said Eric Beach, a Republican strategist who helps run the group.

The Judicial Crisis Network, which spent $7 million to push Trump’s top judicial nominee, Supreme Court Justice Neil Gorsuch, is “prepared to spend whatever we need to spend to help President Trump fulfill his promise of restoring balance to our federal courts,” policy director Carrie Severino said in a statement.

Trump has more than 100 judicial vacancies to fill.