This release from the Bright Lines Project.
I’ve posted a revised (but not final) version of this article.
It will be out in early 2014 in the William and Mary Bill of Rights Journal.
No wonder almost all serious efforts at fraud involve either election officials committing fraud or absentee ballot fraud, which takes place outside the supervision of poll workers and election workers.
It’s why we can’t find a single election at least since 1980 where impersonation fraud plausibly could have used to change the outcome of an election. Yet we have ample examples of absentee ballot fraud and election officials committing fraud.
SEC Chair Mary Jo White deserves kudos for refusing to let the agency be yanked into this fiasco. Normally one would write, “I can only imagine the pressure she was under.” In this case, however, I know the pressure she was under, because I’ve had a similar experience.
In 2004, I was Chairman of the Federal Election Commission. After President Bush cynically signed the McCain-Feingold campaign finance law in 2002, Republicans believed the law would be declared unconstitutional. Democrats, however, set about establishing a network of non-party organizations that would effectively allow them to raise and spend money outside the law’s restraints. These organizations, such as Americans Coming Together, and others, called “527s” – were largely exempt from the law….
Zack writes here. Most interesting is the President’s comment suggesting the Democrats’ claims of voter suppression are overblown:
The one point I want to make though is that even with all the efforts that were made, let’s say in the last election, folks still voted, and if people feel engaged enough and have a sense of a stake in our democracy, you know, you’ll be able to vote. And our biggest problem right now is not the misguided efforts of some of these state legislatures. Our biggest problem is the one that you alluded to earlier which is people’s skepticism that government can make a difference. And even in the best of years these days, we still have about 40% of the population that’s eligible to vote that chooses to opt out. And they’re not being turned away at the polls, they’re turning themselves away, and that’s something that we’ve got to get at.
The Intelligencer: “The outcome of the Abington Ward 4 commissioner contest could come down to a Montgomery County judge’s determination of one voter’s intent in filling out an absentee ballot.”
I expect big pro-Democratic outside money—including 501c4 dark money—out there trying to help Democrats keep control of the U.S. Senate in 2014.
I found the following part of this NYT article quite interesting:
While the liberal organizations have been concentrating on members of Congress, Ms. Warren raised questions about the funding sources of policy groups like Third Way. Without specifically mentioning the group, she sent a letter on Wednesday to the chief executives of six of the country’s biggest banks asking them to reveal the groups they help finance.
Shareholders, she wrote, “have a right to know how corporate resources are spent, and, even more important, policy makers and the public should be aware of your contributions and evaluate the work of the think tanks accordingly.”
Vik Amar: “Yesterday the Federalism Working Group of the American Legislative Exchange Council (ALEC)—an influential and generally conservative policy-oriented institution that offers template legislation for state governments to consider adopting—was scheduled to meet to consider, among other things, a proposal that would empower state legislatures to add candidates to general election ballots for the office of United States Senator. In the space below, I take up the question whether a proposal like this would be consistent with the federal Constitution.”
Another Democratic Shaw lawsuit. Very interesting.
See this press release from ELEC in NJ.
CCP: “The Center for Competitive Politics (CCP) today submitted comments to the Internal Revenue Service on the agency’s proposed rules governing the political activity of social welfare groups. The group also proposed an alternative draft rule that it says would “greatly reduce the risk of selective enforcement” and protect First Amendment rights.”
Important NPR report from Peter Overby.
The latest from Iowa.
Adam Winkler writes in The Daily Beast on the news that the SEC, at least for now, won’t tackle corporate political disclosure.
This Jeff Shesol piece in the New Yorker discusses Shelby County, Citizens United, and the question of Court-Congress relations.
Not much of a downside if you ask me.
Ann Ravel, the new Democratic commissioner on the Federal Election Commission, has said she would not have taken the job if she had not been an optimist. A few weeks spent at the often-divided FEC, however, may have dimmed her outlook somewhat, Ravel told Bloomberg BNA in a Dec. 4 interview.
Ravel said she found the level of partisan division at the FEC “very surprising” after arriving in late October from her previous post as head of California’s campaign finance and ethics agency, the Fair Political Practices Commission (FPPC).
The latest from Va.
On behalf of New York University School of Law, you are cordially invited to a special program, “Exploring ‘Polarization’: A Conversation”, co-chaired by Bob Bauer and Sally Katzen, on Thursday, December 12, 2013 from 9:00 a.m.-1:00 p.m. at the NYU Academic Center at 1307 L Street, NW in Washington DC. The program is being sponsored by NYU School of Law’s new Legislative and Regulatory Process Clinic.
Through presentations and panel discussion, the program brings together experts from politics, the media and public policy to discuss how the question of “polarization” has become so prominent in our national policy debate and politics. The key questions explored will be whether and in what form polarization exists; the sources, scale and impact of any such problem; and whether the solution to “polarization” lies in ordinary politics, or in legal or institutional reform.
The program will begin at 9:00 a.m. with a dialogue between two scholars from the fields of law and political science: Richard Pildes, Sudler Family Professor of Constitutional Law at NYU School of Law and John Sides, associate professor of political science at George Washington University, who will provide the context for the panels to follow. The program will conclude with remarks from Senator Tom Daschle.
Panel I: Polarization: the Role and Response of the Media and Think Tank Communities (10:00-11:00 a.m.)
Moderator, John Fortier, Director, Democracy Project, Bipartisan Policy Center
Karlyn Bowman, Senior Fellow, American Enterprise Institute
Major Garret, Chief White House Correspondent, CBS
John Samples, Director, Center for Representative Government, Cato Institute
Neera Tanden, President of the Center for American Progress
Trevi Troy, Visiting Fellow, Hudson Institute
Panel II: “Polarization” in the “Political World” (11:15 a.m -12:15 p.m.)
Moderator, John Fortier, Director, Democracy Project, Bipartisan Policy Center
Eliot Cutler, Independent Candidate for Governor of Maine
Rick Davis, Partner and Chief Operating Officer, Pegasus Sustainable Century Merchant Bank and National Campaign Manager, 2000 and 2008 McCain Presidential Campaigns
Anita Dunn, Managing Director, SKDKnickerbocker
David Keating, President, Center for Competitive Politics
Remarks of Senator Tom Daschle (12:15 p.m.)
To register, please click here[nyulaw.imodules.com] or copy and paste the link below.
Registration link:: http://nyulaw.imodules.com/politicalpolarization[nyulaw.imodules.com]
A note about NYU Law’s Washington DC Clinic
The NYU Law Legislative and Regulatory Policy Clinic was established this fall at NYU’s campus in Washington DC. Under the leadership of Distinguished Scholar in Residence and Senior Lecturer Bob Bauer, former White House Counsel, and Visiting Professor of Law Sally Katzen, former administrator of the White House Office of Information and Regulatory Affairs and former Deputy Director for Management at the Office of Management and Budget, students have spent a semester examining the multifaceted role of government lawyers while gaining experience at federal agencies and congressional offices.
David Firestone (NYT Ed): If You Liked ‘Stand Your Ground,’ You’ll Love the Jeffersonian Project
Common Cause: ALEC Taking Cover from Federal, State Tax Laws
Eric Freedman has written this oped for the National Law Journal.
Via SSRN, you can now download a revised draft of my paper, Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere.
The final version should post on the Harvard Law Review website in January.
This event has an all-star cast:
The Center for Responsive Politics will host a panel discussion this Friday, Dec. 6 to look at the role of politically active nonprofits in 2012 — and what we might expect in 2014 and beyond.
Politically Active Nonprofits: What We’ve Learned about Dark Money
DATE & TIME: Friday, December 6, 8:30 – 10:00 AM
LOCATION: Faculty Conference Center, Burns Law Library, George Washington University (716 20th St. NW, 5th floor, Washington, DC 20052)
Political activity by nondisclosing nonprofits, often referred to as “dark money groups,” has become a major point of contention – as well as confusion – in the current campaign finance debate and a force in contemporary elections. Please join the Center for Responsive Politics for a panel discussion where we’ll take stock of what’s going on with these important players in the post-Citizens United, post-IRS scandal world, and recap what happened in 2012 based on new information from recently obtained 990s. We’ll also set the stage for the run-up to the 2014 and 2016 elections — and discuss the potential impact of the new proposed regulations from the IRS.
Panelists for this event include:
- Donald Tobin, Ohio State University Moritz College of Law
- Peter Overby, NPR
- Jan Baran, Wiley Rein
- Viveca Novak, Center for Responsive Politics
- Robert Maguire, Center for Responsive Politics
Ari Berman writes for The Nation.
The City of Palmdale’s expert, Doug Johnson, posted some comments to the EL Listserv in response to the earlier David Ely comments posted on this blog. He has agreed to let me repost them here:
As one might imagine from reading the ruling and remedy order in Palmdale, there are many, many complex issues going on here. As one of the City’s experts, I’ll save the details for court, but here are just a couple examples of the complexity of this situation: (these are already in the record):
- My friend Mr. Ely mischaracterizes the Defense view of the racially polarized voting evidence. But he is correct that it is possible to draw a district that is over 50% Latino CVAP – but that’s obvious, as the City as a whole is now over 50% Latino CVAP (this is in the record from the remedy hearing, though the 2012 one-year ACS data, which indicated the City was over 49% and that the Latino % of CVAP was continuing to increase 2-3 percent per year, was not until after the original trial testimony).
- The November election, whose certification the court blocked, elected the City’s first African-American Councilmember. At the time the injunction was requested it was known that election was guaranteed to elect either an African-American or a Latino, as two seats were up for election and only one Anglo was running (against a Latino former Councilmember and two African Americans).
- All of the incumbent Councilmembers (except one who did not run for re-election but who stays in office while the injunction against certification is in place), along with the newly-elected-but-not-yet-certified African American Councilmember, and along with the Latino former Councilmember who lost his effort to rejoin the Council in this recent election, are drawn into a single district (District 2) in the court plan.
- The Court directs the City to consolidate its elections with statewide November even-year elections, but LA County has recently barred jurisdictions from consolidating for the technical reason that the LA County ballot has no more space on its ballot card for any more local elections.
An interactive ArcGIS Online version, in color, of the district plan ordered by the court is available at the link below for anyone interested in a version easier to read than the black & white map in the ruling. The large unshaded areas in the middle are unincorporated county islands.
(If you use this map for professional or academic purposes, please attribute it to National Demographics Corporation).
This case is likely to remain interesting as it winds through the judicial process.
On the third bullet point, Ely responds via email: “This is true. It is also true that District 2 represents a clear distinctive community of interest with 1/4th of the City’s population. That community has a much lower minority population than the rest of the city. The fact that 3 of the 4 current incumbents, and all 4 if the recent election was certified, live in this one community, clearly illustrates the problem with the at large election scheme. The fact that the 3 incumbents mentioned would each have their own district in the City proposed plan further illustrates how that plan would be a poor remedy for the violation.”
Douglas Levene has written this column for NRO.
Kareem Crayton and Terry Smith have posted this draft on SSRN. Here is the abstract:
In this paper, we analyze the Supreme Court’s decision in Shelby County, Alabama v. Holder, which declared unconstitutional the coverage formula for Section 5 preclearance. We conclude that Shelby County is a radical departure not only from the Supreme Court’s Voting Rights Act jurisprudence but also from canons of statutory construction more generally. While the Court’s decision has adverse implications for both separation of powers doctrine and minority voting rights, the authors propose an expeditious fix to the coverage formula that would likely pass constitutional muster.
Ryan Reilly for HuffPo:
Nearly half of Americans live in precincts where long lines at the voting booth were a problem in the 2012 election cycle, according to a survey conducted by President Barack Obama’s Presidential Commission on Election Administration.
The survey of over 3,000 local elections officials also found that on average, poll workers received far less training than the eight hours most elections experts recommend. First-time workers in smaller jurisdictions received an average of just 2.5 hours of training, while workers in larger jurisdictions received an average of 3.6 hours of training, according to the survey.
“It looks like there’s not a whole lot of training going on, and my question is, what is the quality of that training?” said Charles Stewart, a professor at The Massachusetts Institute of Technology who presented the results of the survey during the commission’s final public hearing on Tuesday.
NYT: The independent group will feature the candidate’s father, former VP Dick Cheney, as keynote speaker.
Plaintiffs’ expert in the Palmdale case (see earlier post), David Ely, sends along these thoughts via email:
1. Judge did not say that incumbency can never be a consideration, he said that it cannot be used to justify a plan that otherwise violates traditional redistricting criteria and is designed to maintain the existing power structure. He quotes my characterization of their plan as an egregious incumbent gerrymander, and notes that it would work against remedying the violation. Going from an at large system found in violation to a district system is always going to need extra suspicion of incumbency protection. Since the incumbents were elected at large there are no issues of keeping officials with the constituents who elected them, as any district will do that.
2. While the CVRA standards may be much easier to meet than federal VRA standards, the case against Palmdale meets federal standards and could easily have been a Summary Judgment case in Federal court. Defendants’ expert agreed that it was possible to draw at least one 50% Latino CVAP district, and that historical elections have been characterized by racially polarized voting, and that minority candidates of choice in city council elections have only won when they were Anglo choice as well. Defense argument was based on idea that Democratic candidates winning locally in partisan statewide contests, supported by Latinos and not by Anglos, meant that Latinos could elect candidates of choice. In addition Palmdale has an extensive history of racial conflict and official discrimination.
3.The Modesto case which the Supreme Court refused to hear raised the equal protection argument in a situation where a Section 2 case might well have failed. There could be a case which raises the argument more compellingly, but that would require a judge to find a violation and order a remedy that could be said to violate Equal Protection as applied. This case raises none of those issues, and I doubt that California Courts will apply the CVRA in a way that does.