Max Fisher for the NYT.
Six years after a Supreme Court decision opened vast new channels for money to flow into national elections, Democrats have built the largest and best-coordinated apparatus of outside groups operating in the 2016 presidential campaign, defying expectations that conservative and corporate wealth would dominate the race.
A dozen different organizations raised over $200 million through the beginning of October and since May have spent more than $110 million on television, digital, and radio ads in support of Hillary Clinton, according to records filed with the Federal Election Commission through Thursday.
The handful of organizations backing Donald J. Trump have raised less than half that amount, a steep dive from four years ago, when wealthy Republicans poured hundreds of millions of dollars into groups backing the Republican nominee Mitt Romney.
The Democrats’ success this year reflects, in part, Mrs. Clinton’s close personal ties to her party’s elite donors and her allies’ willingness to exploit the 2010 ruling in the Citizens United case far more aggressively than President Obama did.
But the Democrats are also deeply indebted to one man: Mr. Trump, whose provocations and tirades — along with a loud crusade against his own party’s donors — have virtually shut off what once promised to be a half-billion-dollar spigot of outside money.
Politico:”He is not willing to not concede if he loses and there’s no fraud.”
Ben Heineman blogs.
Margaret Goarke has written this article for Political Science Quarterly. Here is the abstract:
MARGARET GROARKE examines the impact that claims of voter fraud has had on three cases of voter registration reforms in the United States. She argues that the opposition that these legislative efforts faced is best understood as a partisan strategy to redistribute the electorate.
Voters who mail in their absentee ballots have an earlier deadline to do so this year under a new state law that took effect last month.
Under the law the absentee ballots must be received by 8 p.m. on Election Day, Nov. 8, in order to count. Previously, mail-in absentee ballots had to be postmarked by Election Day and received by a clerk’s office by 4 p.m. on the next Friday.
The new law is one of a handful of changes to voting rules that could trip up some of the half-million to a million people in the state who only turn out to vote once every four years for presidential elections.
— James Woods (@RealJamesWoods) October 22, 2016
(For background on Trump supporters wearing red to supposedly ferret out voter fraud—just like figuring out skew in public public opinion polls by looking at the size of Trump rallies, see here).
A right-leaning nonprofit has proposed an 11th-hour effort to place news articles critical of HIllary Clinton and other Democrats in black newspapers in the runup to the November election, BuzzFeed News has learned.
The American Media Institute has approached Republican donors to finance the articles, three sources said. They were to run in a nominally apolitical black wire service that serves the black press, the sources said.
One source shared details of the plan with BuzzFeed News out of concern that the proposal “looks like voter suppression,” the source said. The group’s founder, Richard Miniter, adamantly denied that charge. It is also unclear whether any donors have committed to financing the project in the election’s final weeks.
It would be funny if his earlier comments were not so corrosive;
As Donald Trump once again warned his supporters on Saturday that voter fraud is rampant and could cost him the election, he wondered aloud if he’s receiving any of the fraudulent votes.
“Maybe they’ll vote for Trump, I don’t know, maybe I shouldn’t be saying that,” Trump said at a Saturday night rally in a convention center near the airport here. “I may be hurting myself, you’re right. You’re right. Maybe they’re going to vote for Trump. Alright, let’s forget that. It’s okay for them to do it.”
His tone was joking — but Trump’s comments follow several days of serious allegations that the system is “rigged” against him and that rampant voter fraud could cost him the election. He has claimed that Democrats are voting using the registrations of people who have died and that undocumented immigrants are illegally voting, even though there is little evidence that such fraud is widespread. At the rally on Saturday, he also suggested that some people are voting more than once by visiting several polling locations.
“There is the issue that everybody says: ‘Oh, oh, it doesn’t take place,'” Trump said. “Are these people playing games with us? Right? ‘Oh, it doesn’t take place.’ These are the people that negotiate our trade deals. These are the people that don’t know what’s going on in real life or these are the people that are just playing games with you. There is the issue of voter fraud. Isn’t it amazing how they say: ‘There’s no voter fraud.’ Folks, it’s a rigged system, and it’s a rigged election, believe me.”
Liberals have a simple explanation for this state of affairs: Republican-led gerrymandering, which has put Democrats at a disadvantage in the House and in many state legislatures. But this overlooks an even bigger problem for their party. Democrats today are sorting themselves into geographic clusters where many of their votes have been rendered all but superfluous, especially in elections for the Senate, House and state government.
This has long been a problem for the party, but it has grown worse in recent years. The clustering has economic and demographic roots, but also a basic cultural element: Democrats just don’t want to live where they’d need to live to turn more of the map blue.
Horrifying and condemnable conduct. David French:
Trump’s alt-right trolls have subjected me and my family to an unending torrent of abuse that I wouldn’t wish on anyone. I distinctly remember the first time I saw a picture of my then-seven-year-old daughter’s face in a gas chamber. It was the evening of September 17, 2015. I had just posted a short item to the Corner calling out notorious Trump ally Ann Coulter for aping the white-nationalist language and rhetoric of the so-called alt-right. Within minutes, the tweets came flooding in. My youngest daughter is African American, adopted from Ethiopia, and in alt-right circles that’s an unforgivable sin. It’s called “race-cucking” or “raising the enemy.” I saw images of my daughter’s face in gas chambers, with a smiling Trump in a Nazi uniform preparing to press a button and kill her. I saw her face photo-shopped into images of slaves. She was called a “niglet” and a “dindu.” The alt-right unleashed on my wife, Nancy, claiming that she had slept with black men while I was deployed to Iraq, and that I loved to watch while she had sex with “black bucks.” People sent her pornographic images of black men having sex with white women, with someone photoshopped to look like me, watching
It gets worse.
Jonathan Swan for The Hill:
In campaign talking points sent out Wednesday and obtained by The Hill, the Trump team told Republican surrogates to cite examples of voter fraud in North Carolina, Colorado, Pennsylvania and Virginia.
Under a headline ‘Must make points on rigged system,’ the Trump campaign encourages surrogates to say, “We have also seen very significant recent voting irregularities across the country from Pennsylvania to Colorado and an increase in unlawful voting by illegal immigrants.”
Another Trump talking point reads: “Non-citizen votes may have been responsible for Barack Obama’s narrow margin of victory in North Carolina in 2008.”
You can read the complaint at this link.
UPDATE: I have now had a chance to look at the legal arguments in this complaint. I cannot speak to the state constitutional issues, but as to the U.S. Constitutional issues, this seems exceptionally weak. The argument is that the failure to allow some voters within the state to serve as poll watchers violates equal protection, due process and First Amendment speech rights. I have never seen such an argument not extended to the act of voting, but to the act of watching at the polls. I cannot see how this severely burdens voters’ rights, and nothing in the complaint demonstrates that it does. I don’t think the federal arguments have much of a chance of going anywhere.
(It also seems awfully late in the process to be filing this).
And in a troubling development, the attack appears to have relied on hundreds of thousands of internet-connected devices like cameras and home routers that have been infected — without their owners’ knowledge — with software that allows hackers to command them to flood a target with overwhelming traffic.
Security researchers have long warned that the increasing number of devices being hooked up to the internet, the so-called Internet of Things, would present an enormous security issue. And the assault on Friday, security researchers say, is only a glimpse of how those devices can be used for online attacks.
Suppose this is Russia or another foreign or domestic actor intent on disrupting our elections, and suppose the next attack presents a greater series of outages. Here’s the kind of stuff that could potentially be disrupted on Election Day:
- Emails, messages, and telephone calls (over VOIP, at least) to and from election officials and volunteers dealing with problems at polling places that inevitably pop up (ballot problems, polling place problems)
- Voters obtaining correct information on where and when to vote, and polling place problems
- Accurate journalistic reports of voting, vote totals, problems at the polls
- Law enforcement activities that may be necessary if there are acts of voter intimidation or other problems
- Lots of everyday other features of daily life, from electricity, to traffic control, to emergency services, and to the rest of what is connected to the internet grid
If there are significant problems with people being able to vote on Election Day, this could lead to court lawsuits to keep polls open late, or even to extend voting to a different day, potentially throwing the results of not just the presidential election but numerous elections into question.
Further, a wide internet outage on any day could create a situation for uncertainty and the spread of misinformation. This is especially dangerous on an election day where between the Trump’s campaign charges of rigging and Russian and other interference with our process.
Let’s hope our cyber defenses are good, and that people act rationally and calmly in the event there are problems.
Concerned about voter suppression? Bands of feral Trumpers descending areas with large populations of black or Hispanic voters to harass and vet voters? Me too. So in Episode #7 of the Josh Marshall show I talked to my favorite election law expert, Professor Rick Hasen. Rick isn’t just an election law experts he’s one of the most knowledgable and vocal experts on bogus claims of ‘vote fraud’ and voters suppression. We talk about all these issues, incredibly pressing in the lead up to election day, in Episode #7 of the Josh Marshall Show.
Matea Gold for WaPo on an unusual plutocrat:
The Florida-based investor said he has contributed $40 million to Democratic super PACs and allied groups in 2016, double what he had planned to spend at the beginning of the election. He said he was driven by the desire “to leave my children a better country” by helping elect candidates who will restructure a system that allows such huge donations in the wake of the Supreme Court’s Citizens United decision…
Sussman said he has had limited interaction with Clinton as she has made her second presidential run — just a quick conversation in which they discussed overhauling the campaign finance system. “I’m not into the face time with the politicians,” he said. “I have had a four-minute conversation with her, where she assured me this is a top priority.”
The Wyoming Secretary of State’s Office alerted county clerks to require an undetermined number of people to provide proof of citizenship before allowing them to vote, stirring anger from some who say it has deterred people from casting ballots.
State Election Director Kai Schon said some noncitizens can apply for driver’s licenses and that information did not make it into the voter registration system until recently, making it necessary to ask some people to show they are qualified to vote.
The gloomy mood has extended to his signature rallies, which Trump used to find fun. He would bound onto rally stages bursting with energy and a sense of excitement that intensified as the crowds chanted his name and cheered his every word. He would regularly schedule press conferences, call into news shows and chat with reporters, eager to spar with them. He would say politically incorrect things and then watch his polling numbers soar. He used to be the winner.
But no more. In recent days, Trump has tried to explain away his slide in the polls as a conspiracy carried out by the media, Democrats and Republicans. If he loses, it will be because he was cheated, Trump has repeatedly told his supporters, urging them to go to polling places in neighborhoods other than their own and “watch.”
Trump’s supporters have concocted elaborate explanations for why he might lose that often involve massive voter fraud conducted by Democrats who bus undocumented immigrants and people posing as those who have died to battleground states to vote illegally. There are also fears that election results in some states will be tampered with, and Trump’s backers have cheered his promise to challenge the election results if he doesn’t win.
“Since we can’t check to see if you voted in three states, you will. If you want to vote in three states, you will,” said Larry Lewis, 67, a former electrician who lives in Hendersonville, N.C., who doesn’t know anyone who has committed voter fraud but has gotten up to speed on the issue thanks to talk radio. “I mean, that is human nature. I have ultimate faith in human nature.”
Disclosure can encourage speech. It provides information on candidates’ positions—are they supported by environmentalists or coal? The answer can energize voters who previously lumped the candidates together, causing them to speak in favor or against. Disclosure can also lend credence to candidates’ stump speeches. You say you support immigration reform, but will you follow through? A record of support from immigration activists convinces voters the answer is yes, so they give money. Finally, disclosure promotes association. Why settle for a yard sign when you can signal your support for a candidate to the entire world?
My colleague Henry Weinstein has written this LA Times oped.
Michael Wines with the absolute must-read in the NYT:
In asserting that the presidential election has been rigged against him and casting accusations of widespread voter fraud, Donald J. Trump has tapped deep into an increasingly prevalent theme of Republican Party politics: that Democrats try to steal elections, not win them.
It is the culmination of roughly two decades of alarms, investigations and political gamesmanship in which remarkably little voter fraud has been documented, but the conviction that it is widespread has gone from a fringe notion to an article of faith for many Republicans.
The Republican focus on voter fraud dates to the late 1990s, when the 1993 National Voter Registration Act — the “motor-voter” law — was put in place. Republicans in particular, but some election administrators as well, began to complain that registering had become too easy and ill supervised to spot ineligible voters.
The stakes for both parties in election rules and who gets to vote became glaringly clear in 2000, when a 537-vote court-challenged victory in Florida’s presidential election sent George W. Bush to the White House.
In the same election, accusations of voter fraud became a volatile issuein Missouri. Republicans claimed that Democrats in St. Louis were trying to steal that state’s Senate election after lawyers for Al Gore’s campaign won a court order keeping the city’s polls open late to accommodate voters who had been wrongly removed from the rolls.
And issues of race, often a subtext in Republican charges of fraud, were accentuated by the election of the nation’s first black president in 2008. Republicans accusations of voter fraud, as in St. Louis, have frequently been directed at minority groups in cities such as Philadelphia and Chicago. The issue now thrives in the hothouse of the internet, where corrections of fact and debunkings rarely catch up with the claims they address.
Mr. Trump’s pronouncement “did not come out of thin air,” Richard L. Hasen, an election law expert and professor at the University of California, Irvine, said in an interview. “It is, in fact, an often-repeated theme by those on the right who have been claiming, especially since 2000, that Democrats are stealing elections with voter fraud.”
I was a guest on this show with the great Warren Olney:
GOP candidates point with alarm at Hillary Clinton’s Supreme Court nominees, free college tuition and “Big Government” that’s bigger than ever. Advocates for Republicans are almost saying it out loud: Hillary Clinton is likely to be America’s next President. That’s got them campaigning to maintain a divided government. Are they selling government by checks and balances in hopes of gridlock and four years of a Democratic president who can’t get anything done? Is that what voters really want?
Bob Cusack, Editor-in-Chief of The Hill (@BobCusack)
Rick Hasen, Professor of Law at the University of California, Irvine (@rickhasen)
Norm Ornstein, Author, Congressional Scholar at the American Enterprise Institute(@NormOrnstein)
Reed Galen, Republican Political Consultant (@reedgalen)
Sam Stein reports for HuffPo.
Nick Corasaniti has written this article for the NYT.
This is the text of an email that went out to RNC folks (why this matters):
Please take a few minutes to read this important information. With early and absentee voting under way and Election Day approaching, I wanted to remind you of the restrictions placed on the RNC by the consent decree in the case Democratic National Committee v. Republican National Committee.
The Consent Decree prohibits the RNC – or anyone acting on the RNC’s behalf – from engaging in “ballot security” activity, which includes, but is not limited to, efforts to prevent or remedy vote fraud, unless advance notice is given to the DNC and the U.S. District Court that enforces the Consent Decree grants permission.
The effect is that no RNC employees or RNC members acting in their capacity as members may engage in any way with certain Election Day and pre-Election Day activities. Examples of things you are prohibited from doing in your role as an RNC member include:
· Preparing challenge lists
· Poll watching
· Recruiting or training poll watchers
· Making contact with voters at the polls
· Taking pictures or recording video at poll sites
· Informing potential voters that vote fraud is a crime
· Assisting, training or advising others who are participating in any of these activities
· Recruiting others to participate any of these activities
The prohibition on the RNC’s involvement in these activities also means that no RNC resources may be used for these activities, and that you may not use your RNC title, letterhead, business cards, or other indicia of RNC membership in connection with these activities.
If the RNC is found to violate the Consent Decree, its provisions will extend for another eight years. Currently, it is set to expire in December 17, and I ask your full cooperation in making sure that it is not extended.
Given the seriousness of the Consent Decree and the severe consequences of a violation, you are encouraged not to engage in “ballot security” activities even in your personal, state party, or campaign capacity. If you elect to do so, please be aware that the RNC in no way sanctions your activity. You are not an agent of the RNC for any such purpose.
Adherence to the Consent Decree is of the utmost importance. If you have questions, please do not hesitate to ask.
John Manning has posted this draft on SSRN (Columbia Law Review). Here is the abstract:
In recent years, most would associate “intent skepticism” with the rise of modern textualism. In fact, however, many diverse approaches — legal realism, modern pragmatism, Dworkinian constructivism, and even Legal Process purposivism — all build on the common theme that a complex, multimember body such as Congress lacks any subjective intention about the kind of difficult issues that typically find their way into court. From that starting point, competing approaches have tended to focus on which interpretive method will promote appropriate conceptions of legislative supremacy and the role of the courts in our constitutional system. The debates, in recent years, between textualists and modern defenders of Legal Process purposivism (such as Professor Peter Strauss) nicely illustrate that emphasis.
A new generation of empirical scholarship, however, has raised questions about the intent skepticism that has long framed the interpretation debate. Most prominently, Professors Abbe Gluck and Lisa Bressman conducted an extensive survey of the understandings and practices of 137 members of the congressional staff who are engaged in legislative drafting. According to the authors, the resultant findings show, inter alia, that some interpretive approaches cannot be squared with legislative intentions while others nicely reflect such intentions. Ultimately, however, this Essay concludes that the study’s findings, although illuminating, do not alter the baseline of intent skepticism against which the statutory debate has proceeded. Indeed, the very idea of legislative intent remains unintelligible without a normative framework that structures what should count as Congress’s decision.
Dahlia Lithwick and Raymond Vasvari for Slate.
Mona Charen for National Review.
Call me paranoid. But I worry this is a dry run (from Russia?) for more election day shenanigans.
During MSNBC’s post-debate coverage that spanned into the early hours of the Thursday morning, Washington Post reporter Bob Costa remarked on something Trump campaign manager Kellyanne Conway told him in the spin room about how the campaign was doing to crack down on “voter fraud.”
“She said that she is actively working with the national committee, the official party, and campaign lawyers to monitor precincts around the country,” Costa said, in a discussion about how Republicans were handling Trump’s rigged election claims.
While it was easy to see the contemporary ramifications of Conway tying Trump’s rigged election claims to the official party apparatus, Ben Ginsberg — the staid Republican lawyer who was also on the MSNBC panel — jumped in to bring up the decades-old decree.
“That’s a huge problem for the Republican Party,” Ginsberg said. “The Republican National Committee is under a consent decree that severely limits its election day activities because of some actions back in the ‘80s.”…
There has been some debate as to whether Trump’s actions already were enough to get the RNC in trouble, if he was interpreted to be an agent of the RNC or acting on its behalf, as Rick Hasen, a professor at the UC-Irvine School of Law, has posited on his Election Law Blog...
“The RNC does not work with any campaign at any level on so-called ballot security efforts and will not do so,” Lindsay Walters, a spokeswoman for the RNC, said in a statement to TPM. “We are completely focused on getting out the vote for the Republican ticket.”
Costa told TPM via email that Conway called him back later to tell him she was mistaken about the RNC’s involvement.
Philip Bump for The Fix.
U.S. intelligence and law enforcement officials are warning that hackers with ties to Russia’s intelligence services could try to undermine the credibility of the presidential election by posting documents online purporting to show evidence of voter fraud.
The officials, who spoke on condition of anonymity, said however, that the U.S. election system is so large, diffuse and antiquated that hackers would not be able to change the outcome of the Nov. 8 election.
Out system being “antiquated” a defense against the Russians? Wow.
Eric McGhee for the Monkey Cage:
John Sides and I recently released a forecast for this year’s U.S. House elections. This forecast shows that it will be hard, though not impossible, for the Democrats to retake the House, despite the problems facing Republican presidential nominee Donald Trump and the potential for him to hurt candidates down the ballot. Even if Clinton wins by 12 points and has strong coattails for House candidates, the Democrats have no better than a 50/50 chance of gaining the majority.
So does that mean that voters just prefer having the House in Republican hands?
Michael Morley for Jurist:
In short, requiring applicants to provide proof-of-citizenship is a common-sense backstop to help prevent the types of routine errors that inevitably arise when millions of people are filling out a particular form. In that sense, a proof-of-citizenship requirement is “necessary to enable the appropriate State election official to assess the eligibility of the applicant.” Newby (Brian) got it right; Newby (DC Circuit) got it wrong.
Alice Ollstein for Think Progress:
One of the areas with the longest lines this week — Charlotte’s Mecklenburg County — offered 22 locations for the first day of early voting in 2012. This year, they offered only 10. Voters reported waiting for more than three hoursto cast a ballot.
North Carolina state and county officials pursued these cuts despite the overwhelming popularity of early voting. More than half of all the votes cast in the 2012 election were cast early and in person, and black voters in particular favor early and in-person voting. A federal court found that before trying to eliminate the entire first week of early voting, the state requested data showing “African Americans disproportionately used the first seven days.”
Ned Foley in Politico:
The trouble would come if Trump really digs in. If he alone claims fraud while everyone else disagrees, then his solitary rants are more pathetic than dangerous. But if the Republican Party as a whole joins Trump in asserting that the results of the election were tainted (unlikely as it seems), that would be an entirely—and far more serious—matter. When the voting system goes seriously awry, as it has a couple of times, the system relies on the losing side to be able to accept defeat eventually for the sake of the rule of law. The American tradition, extending back to the Founding Fathers, has been to accept electoral outcomes perceived as unfair if they are recognized as legally authoritative. A genuinely intransigent candidate—one who refused to carry on that tradition after the legal system has run its course, and with the backing of a political party—would be an unprecedented, and worrisome, event in American history.
Now is an excellent time to get off your duff and order Ned’s great book on the history of contested elections in the U.S., Ballot Battles.
This is odd. Nearly half of respondents to a Morning Consult poll say it is very or somewhat likely that there will be widespread voter fraud. But the # 1 type of fraud is not fraud at all: it is voter intimidation.
Mr. Creamer is not seen on the Project Veritas videos approving or endorsing plans to instigate fights at Trump rallies, but his underling, Mr. Foval, is shown boasting about using unseemly methods, like planting people at the gatherings to agitate the crowd.
“Sometimes the crazies bite,” Mr. Foval said. “Sometimes the crazies don’t bite.”
Both men and others in the videos are seen discussing — or at least nodding along when their undercover interviewers broach the idea — how people could illegally vote. Among the practices described are moving voters across state lines by using cars with the destination state’s plates, and using pay stubs to make illegal immigrants appear to be citizens for voter registration purposes….
But it was unclear from the Project Veritas videos whether any of the elaborate plans had been carried out.
“We do not believe, or have any evidence to suggest, that the activities articulated in the video actually occurred,” said Donna Brazile, the interim Democratic chairwoman. The Clinton campaign similarly denounced the tactics, while chiding Project Veritas, saying it has “been known to offering misleading video out of context.”
Mr. Creamer said in a statement on Wednesday that the “unprofessional and careless hypothetical conversations” caught on hidden camera were regrettable, and he denied that any of the “schemes described” had ever taken place.