Some important folks in the field signing this letter:
We enthusiastically support your dedicated leadership efforts to investigate thec ybersecurity vulnerabilities in our country’s 2016 election process. We are a group of volunteer election systems technical experts and citizen advocates for secure and transparent elections. The purpose of our letter is to encourage you to expand the scope of your inquiries to include vulnerable elements of the election system that are being overlooked in the public discussions.There is a very common misunderstanding that voting systems are not vulnerable and that it would be difficult to alter election outcomes. This meme has been repeated inmany public forums….The significant cybersecurity weaknesses in our election system are well known to many computer security professionals as well as unfriendly nations and domestic criminals. Yet federal, state, and private monitoring, analysis, and oversight to protect the very foundation of our democracy is minimal.Even while the Department ofHomeland Security made its services available to election jurisdictions nationwide in the pre-election period, to our knowledge they were not examining voting and vote tallyingsystems for vulnerabilities, but rather scanning voter registration databases and systems for breaches.
Here is today’s Court’s order.
What does it mean that there was no order on Texas, despite the fact that the cases was considered and then relisted from last week?
It could mean that as early as Tuesday (when the Court is expected to issue more orders), there will be an order denying hearing in the case. That would keep the case on track in the district court, to both consider whether Texas acted with racially discriminatory intent and to fashion a more permanent remedy in the case.
But sometimes cases are relisted multiple times before the Court does something (that something could be an eventual grant, a denial, a denial with a dissent, etc.)
One possibility is that the Court delayed so that there’s less chance the case would be heard by an 8-Justice Court, where the Court could well divide 4-4 in a case like this.
So we will have to wait and see.
It is greatly regrettable that states did not adopt this electoral change previously. But as there is no constitutional obstacle to their doing so, we can only hope that they muster the political will to make this change sometime soon—preferably before 2020. For anyone concerned about the health of American democracy in the aftermath of the 2016 presidential election, this reform is worth rallying around. Given the power of the presidency, and thus the importance of the office, we should make sure that the candidate who wins the Electoral College is the one actually preferred by a majority of voters in each state necessary for that Electoral College victory.
A fight over Utah election law could roil the first few weeks of the 2017 Utah Legislature.
Speculation is swirling that Rep. Chris Stewart could be named Secretary of the Air Force in the Donald Trump administration. If that comes to pass, Stewart would have to resign his seat in Congress, leaving a vacancy.
Here’s where that becomes a problem. Utah has no procedure for filling a vacant seat in the U.S. House of Representatives. State law only says in the case of a vacancy in that body, “When a vacancy occurs for any reason in the office of a representative in Congress, the governor shall issue a proclamation calling an election to fill the vacancy.” That’s it. The law does not specify how soon he has to call the election, and how that election will be conducted.
A Wichita state representative has filed a bill to strip Secretary of State Kris Kobach of his authority to prosecute election crimes.
Rep. John Carmichael, D-Wichita, said allowing Kobach to bring criminal cases has not uncovered evidence of illegal immigrant voting fraud, which was a big part of Kobach’s pitch when the Legislature granted him prosecutorial power in 2015.
“Since that time, he has commenced approximately 10 of those prosecutions, all of them against United States citizens and in virtually every instance, against folks who made mistakes in casting their ballots,” Carmichael said. “Some of these cases have since been dismissed … as unfounded, and a handful more have resulted in minimal fines against otherwise law-abiding citizens….
“Evidently Mr. Carmichael thinks people who vote twice should not be penalized,” Kobach said in the statement. “He is wrong.”
With a single tweet on Thursday, President-elect Donald J. Trump pulled L. L. Bean, the Maine retailer known for its boots, jackets and preppy New England aesthetic, back into a political crossfire.
The company was already facing a boycott from liberal customers after reports that Linda Bean, a granddaughter of the company’s founder, had donated thousands of dollars to a political action committee that supported Mr. Trump’s presidential campaign. The donations turned out to be illegal.
An Alexandria man has been convicted of submitting bogus voter-registration forms while working for a progressive advocacy group….Porter said the chances that the bogus applications could have enabled actual voter fraud were minimal because the submitted names were fabricated.
The first New Yorker prosecuted for voter fraud since Susan B. Anthony in 1873 was exonerated of all charges Thursday to end a bitter 20-year legal battle.
“It feels great,” said attorney John O’Hara as he left Brooklyn Supreme Court. “When you’re a convicted felon, it’s like you’re a second-class citizen. We are going to go have a chicken quesadilla.”
O’Hara’s protracted fight for vindication ended when the Brooklyn District Attorney’s Conviction Review Unit looked at his case and reversed his voter fraud conviction.
O’Hara, a political outsider and thorn in the side of the Brooklyn Democratic Party, long claimed that his prosecution by then-DA Charles J. Hynes was politically motivated.
Iowa Secretary of State Paul Pate on Thursday defended his new voter identification proposal as an effort to improve administrative efficiency — not to prevent fraud or disqualify voters.
And he said he’d oppose any efforts by state lawmakers to expand the plan to include a more controversial photo-ID requirement for voters….
Iowa voters would be required to show a state-issued driver’s license, a passport or military ID card when they vote, allowing poll workers to scan a bar code on that document to accurately call up each voter’s file in the state database.
Should the law be enacted, election officials would identify all currently registered voters and new registrants who do not have appropriate ID and provide them a free, permanent, driver’s license-quality voter card containing the necessary bar code. The card would not include a photo.
No currently registered voters would risk disqualification under the plan, Pate said, and all new registrants without other ID would receive a free card. Voters who come to the poll without an ID card would vote a provisional ballot.
Pate said he’s abandoned a campaign pledge to enact photo identification requirements for voters and would fight legislative efforts to expand his proposal to include it.
“I have evolved,” Pate said. “What I want at the end of the day is the cleanest and best list to make sure everybody is eligible without imposing a lot of burden on the voter
Proposals to write new Federal Election Commission rules aimed at preventing foreign campaign money from influencing U.S. elections led to a deadlock between Democratic and Republican commissioners at the FEC’s first meeting in 2017.FEC Democrats said the agency should clamp down on a possible threat of foreign campaign money, in a contentious debate set against a backdrop of wider concerns about foreign interference in the 2016 presidential campaign.Republican commissioners responded that recent intelligence reports of Russian involvement in computer hacking and online campaign messaging had nothing to do with the campaign finance rules administered by the FEC.
The Justice Department announced on Thursday that it had filed a motion to join a lawsuit against the New York City Board of Elections, alleging that the board’s Brooklyn office violated federal voter registration law by erasing more than 117,000 Brooklyn voters from the rolls before the primary election simply because they had not voted in previous elections.
The filing accused the board of failing to take several steps that are normally required before a voter’s name is removed, and also raised concerns about how the board oversaw the Brooklyn office’s handling of the voter rolls.
Interesting timing. As I told Newsweek, I expect a lot of DOJ reversals on voting litigation decisions come the new administration.
The MIT Election Data and Science Lab (MEDSL) will generate, advance, and disseminate scientific knowledge in an effort to develop a comprehensive evidence base about the conduct of elections in order to improve their performance.
Founded by Charles Stewart III, Kenan Sahin Distinguished Professor of Political Science, the Lab will address multiple audiences of academic researchers, election practitioners, and the general public. It will serve a unique and independent role as it applies scientific principles to empirical questions about the administration of American elections.
“My hope for this Lab is that it will serve as an international, non-partisan resource for housing the expertise and evidence necessary to inform improvements of elections,” said Professor Stewart. “In the midst of a policy area that has become hyper-politicized, we hope to provide a counterbalance of hard evidence and analytical thinking. And, we look forward to bringing together communities in the election administration debate who often talk past each other, by offering an evidence-rich focal point of discussion.“
Good luck Charles and Co.!
Prominent conservative and libertarian profs on this one.
More than 50 retired jurists on Wednesday asked the Wisconsin Supreme Court to require judges and justices to step aside when hearing cases involving those who helped bankroll their elections.
Alexander Hertel-Fernandez has written this article for the Journal of Politics. Here is the abstract:
American employers are increasingly engaging their workers in the political process. Drawing on original surveys of firms and workers, this paper examines the extent to which employers act as political machines, channeling their employees into politics in ways intended to support corporate interests. I show that employer political requests greatly increased the likelihood that employees would report participating in politics around the 2014 election and employer requests were roughly as effective as those from unions and political parties. I also find that employer mobilization was most effective when employers used warnings of job loss to motivate participation and when employers could monitor the behavior of their employees, suggesting that employers are indeed acting as a type of political machine. My results shed light on the ways that American firms recruit workers into politics and show that employer mobilization of workers may be an important source of political power for business.
Matthew Postoski and R. Urbatsch have written this article for the Journal of Politics. Here is the abstract:
Raising the opportunity cost of people’s time may reduce their commitment to social obligations such as voting. Notably, entertaining sporting events can be strong civic distractions, as commentators throughout history have lamented. To consider sporting events’ influence on political behavior, this paper examines the effect of Monday Night Football games the day before US general elections from 1970 to 2014. More attractive games, such as those that feature more prominent and competitive match-ups or that feature local or high-scoring teams, may entice people to consume more entertainment and thus have less time to devote to civic affairs. When preelection football game quality increases from its 25th to 75th percentile, voter turnout falls by between 2 and 8 percentage points. These effects are somewhat weaker among those more interested in politics and do not appear in placebo tests on other political behaviors occurring before the preelection game.
Just hours after President-elect Donald J. Trump said he would not sell his vast business empire and would instead hand it over to a trust controlled by his two oldest sons, the government’s top ethics monitor said his plan was wholly inadequate and would leave the president vulnerable to “suspicions of corruption.”
The unusual public criticism from Walter M. Shaub Jr., director of the Office of Government Ethics, followed Mr. Trump’s most detailed explanation yet of his plans to distance himself from the global business operations of the Trump Organization. No modern president has entered the White House with such a complicated array of holdings.
Mr. Holder said his initiative would unfold on three fronts: In court, where Democrats will challenge Republican-drawn maps they see as violating the law; on the campaign trail, where they will seek to win offices that influence redistricting; and through ballot referendums in states that allow voters to give direct approval to laws mandating new procedures for legislative apportionment….
For the moment, at least, Democrats are portraying their campaign as a matter of fairness, criticizing Republicans for having mangled the maps in places like Ohio and Michigan, so that solidly purple states are represented disproportionately by Republicans.
Democrats believe that where states have drawn maps by nonpartisan means, or by court order, it has tended to benefit them. Republicans have tended to roll their eyes at Democratic complaints about redistricting, given how aggressively some in Mr. Obama’s party drew maps in their favor when Democrats had more state-level power.
Mr. Holder said he viewed Republican gerrymandering as more extreme than anything Democrats had engineered for their own benefit in blue states. But he declined to say that Democrats should eschew gerrymandering of their own.
Yet in a sign of tensions that might later emerge, Mr. Holder suggested that some Democratic incumbents might have to be willing to run in more competitive districts, to avoid clustering core Democratic constituencies in a tiny number of districts. Some senior black lawmakers have resisted efforts to overhaul the map in ways that would make their districts even modestly whiter and more competitive.
The Justice Department filed a lawsuit late yesterday to challenge the at-large method of electing the city council of Eastpointe, Michigan. The complaint alleges that the election system in Eastpointe violates Section 2 of the Voting Rights Act by denying black citizens in the city the equal opportunity to elect representatives of their choice.
A rare Obama administration DOJ Section 2 action, and filed just days before the end of the President’s term.
The Supreme Court has been asked formally to review a challenge to restrictions on “soft money” contributions to political parties—the last remaining major element of the McCain-Feingold campaign finance law passed in 2002.
The filing of a “jurisdictional statement” appealing to the high court had been expected since a lower court ruling last fall, which rejected the soft money challenge launched by the Republican Party of Louisiana. The party committee sued the Federal Election Commission, the agency that enforces restrictions on campaign money to national, state and local parties…..
How DOJ handles this case under the administration of President-elect Donald Trump could provide an early indication of whether the new administration is prepared to uphold and enforce campaign finance restrictions, which many Republicans have criticized in the past.
See my Nov. 7, 2016 post, Three-Judge Court Rejects Challenge to McCain-Feingold Soft Money Issues, Teeing Up Issue for (New) Supreme Court and my August 2015 NLJ oped, The McCain-Feingold Act May Doom Itself
The Philanthropy Roundtable filed an amicus brief Monday in the case Independence Institute v. Federal Election Commission urging the Supreme Court of the United States to uphold donor privacy and free speech for 501(c)3 charities.
“Many philanthropists value the freedom to keep their giving private for important religious, historical, cultural, and practical reasons,” said Sean Parnell, vice president for public policy at the Roundtable. “The Philanthropy Roundtable urges the Supreme Court to preserve this freedom and reject efforts to pry open the donor lists of nonprofits that are not engaged in election-related speech.”
In both Frank v. Walker and One Wisconsin now, this order with no explanation of if/when argument will be rescheduled:
|ORDER: The court, on its own motion, ORDERS that oral argument in this appeal set for Tuesday, 01/17/2017 is VACATED. CF  [16-3003, 16-3052] (RS)|
Earlier today, I blogged about the surprise order of the Supreme Court today putting a hold on 2017 special elections in North Carolina legislative districts ordered by a three judge court after a finding that the districts were unconstitutional racial gerrymanders.
I noted that the order could be short-lived, because the Court could take up whether to hear the underlying appeal of the case at its January 19 conference. This story in the News & Observer incorrectly states that the order lasts only until a decision on the underlying appeal, which could come as soon as the Jan. 19 conference. In fact, the order itself contemplates that North Carolina will file a separate appeal on the question of the special elections, and the stay remains in place until the Court rules on that appeal.
So let’s game this out. It is possible (but not likely, for reasons I’ll explain) that the Court will issue an order soon after the Jan. 19 conference simply affirming the lower court ruling that NC engaged in an unconstitutional racial gerrymander. If the Court does that, then it would be hard to win an appeal on the setting of the special elections in 2017 (but still possible, as the Court may believe that too disruptive.) If the Court decides to note jurisdiction and hear the underlying ruling, then this gets dragged out and it will be too late to set elections in 2017, which would end up coming too close to 2018 elections.
So here’s why it is unlikely the Court will simply affirm the lower court in the NC case: already before the Court (as I’ve noted in earlier posts) is another North Carolina case as well as a Virginia case raising questions about how to determine what constitutes an unconstitutional racial gerrymander. It seems quite possible that the Court holds all the other cases raising this same issue until those NC and VA cases are resolved. The Court would then send the held cases back to be reconsidered under the new standards. This suggests the Court either holds this case or notes jurisdiction (and potentially schedules briefing).
Further, when cases come up on appeal from a three-judge court rather than a cert petition, the Court is more likely to agree to hear the full case (because a decision not to hear an appeal (unlike a cert petition) counts as a decision that the lower court got its ruling right).
For all of these reasons, it is unlikely that this gets resolved soon after Jan. 19, and the special election put back on for 2017.
But this case has already surprised me….so let’s see what happens.
In (what I consider to be) a surprising development, the Supreme Court has issued this order calling off special elections in North Carolina which had been ordered by a three-judge court following a finding of racial gerymandering. It is possible this order will be short-lived, as the Court will consider whether to take up the underlying appeal in the case at a conference in just 9 days.
As I explained in this initial post on the motion, back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. As that is pending, the state filed this emergency motion with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The Court granted that motion today. Why is this surprising? It should take five Justices to grant a stay, and on the racial gerrymandering cases in the most recent case (from Alabama) Justice Kennedy sided with the four liberal Justices in holding that the Alabaman legislature, in some districts, appeared to make race the predominant factor in drawing lines, without adequate justification for doing so. There is another case from North Carolina (involving congressional districts) and one from Virginia raising similar issues this term. If the Court divides in those cases along similar lines, and if this North Carolina case is like the other North Carolina case, then NC would have a hard time winning on the merits (and therefore would not be entitled to a stay on appeal). Even without Kennedy, on an 8-Justice Court, if the Court divides 4-4 along ideological lines, there would be no stay issued.
So what happened? Maybe after conference in the other North Carolina case, the Court is poised to side for the state, and they expect the same thing will happen in this case. Reading the transcript of the earlier North Carolina case, Justice Breyer seemed to be struggling. So maybe it was Justice Breyer and the conservatives who are ready to pull back here. I’m not sure.
But I did not expect this ruling, especially given the fact that there has already been such a delay in getting relief in this case.
UPDATE: See my follow up post: Will the Supreme Court Put NC Special Elections Back for 2017? Not Likely
A group of Republicans trying to loosen campaign contribution limits in Alaska — following key decisions by the U.S. Supreme Court in recent years — is appealing a ruling by a federal judge in November that upheld the state’s strict limits.
Kevin Clarkson, attorney for the plaintiffs, said on Monday that the ruling by U.S. District Judge Timothy Burgess, an appointee of George W. Bush, came as no surprise. Burgess is bound to follow case law established by the 9th U.S. Circuit Court of Appeals that represents nine Western states, including Alaska, Clarkson said.
North Carolina might file a reply, and then I expect the Chief Justice will refer the matter to the full court for decision.
Interestingly, the petition for appeal itself is on the Court’s distribution list for January 19. The Court could hold it until then. [This has been corrected from a reference to a cert. petition.]
NEWS — SCOTUS UPDATE — MULTIPLE GOP SOURCES tell us that PRESIDENT-ELECT DONALD TRUMP is not likely to introduce his SCOTUS nominee until Sen. Jeff Sessions (R-Ala.) is confirmed as attorney general. Why? Handing the Judiciary Committee a SCOTUS nominee while they’re dealing with Sessions would be too heavy a workload. If Sessions gets confirmed in early February, Trump could have his new justice on the bench by Memorial Day.
Eisen and Painter in the Guardian.
Like the Kochs, the DeVoses are generous supporters of think tanks that evangelize for unrestrained capitalism, like Michigan’s Acton Institute, and that rail against unions and back privatizing public services, like the Mackinac Center.
They have also funded national groups dedicated to cutting back the role of government, including the National Center for Policy Analysis (which has pushed for Social Security privatization and against environmental regulation) and the Institute for Justice (which challenges regulations in court and defends school vouchers). Both organizations have also received money from the Koch family.
Indeed, the DeVoses’ education activism, which favors alternatives to traditional public schools, appears to derive from the same free-market views that inform their suspicion of government. And perhaps more than other right-wing billionaires, the DeVoses couple their seeding of ideological causes with an aggressive brand of political spending. Half a dozen or more extended family members frequently coordinate contributions to maximize their impact.
In the 2016 cycle alone, according to the Michigan Campaign Finance Network, the family spent roughly $14 million on political contributions to state and national candidates, parties, PACs and super PACs.
What does this mean? It could mean the Court will agree to hear the case, but that’s no sure thing just from a relist.
We’ll just have to sit tight and wait.
Even if you are satisfied that Trump is likely to violate one of the emoluments clauses, the arguments are technical, and the answers are not completely obvious. To argue against Trump’s behavior on those grounds is, I fear, to get sucked into a trap where the arguments are unlikely to resonate or accomplish their aims. (I think we have seen this in many other areas of over-constitutionalized law as well.)
The more urgent and more serious question is how the American people do and should feel about the president’s business interests. The emoluments clauses are not the most relevant thing to that inquiry, and maybe not the best way to frame it.
Fascinating Emily Bazelon for NYT Magazine.
Must-read Doug Chapin on an underreported story.
Back in July, the Fourth Circuit struck down North Carolina’s “monster” voting law, a law which among other things imposed a strict voter id requirement (later watered down in the face of litigation), cutback early voting, killed same day voter registration, eliminated the counting of out-of precinct ballots, and ended preregistration of 16- and 17-year-old high school students. The court, reversing the trial court, held the law was motivated by racially discriminatory intent.
Just before the end of the year and five days before the change in governors from Republican McCrory to Democrat Cooper (and after two extensions), North Carolina filed this brief seeking Supreme Court review of the decision. The brief offers three arguments for review, including this one:
Second, the Fourth Circuit’s decision addresses an extraordinarily important question in a way that is egregiously misguided and that threatens numerous State election laws. Simply put, the decision insults the people of North Carolina and their elected representatives by convicting them of abject racism. That charge is incredible on its face given the pains the legislature took to ensure that no one’s right to vote would be abridged, and the fact that the reforms align North Carolina with the majority of current State practices. It becomes even more perplexing given that the Fourth Circuit did not disturb the district court’s findings that the reforms have no discriminatory effect. And it becomes downright absurd given that the Fourth Circuit bluntly overrode the district court’s meticulous findings on a classic fact question—intent—reached after weeks of trial. Worst of all, the basis for the Fourth Circuit’s decision is not specific to North Carolina. On the contrary, the panel’s “evidence” showing discriminatory intent would overturn election laws in numerous States. A federal circuit should not take a step of such enormity without this Court’s review.
I think there is a fairly good chance the Supreme Court takes this case for review, if the Court’s conservatives believe they will soon be joined by a fifth member. It is also possible the case will be held for resolution of Texas’s voter id cert. decision (a decision on cert in that case could come as early as tomorrow). Texas’s case, though, concerns the discriminatory effects test under Section 2 and the North Carolina case concerns discriminatory intent. Still the NC cert. petition tries to tie the two together (perhaps hoping for an eventual GVR in light of Texas).
But one interesting question is what happens to this litigation now that the governor is a Democrat who has opposed this law. When the new Governor (Cooper) was the attorney general, the old governor (McCrory) appointed private counsel to represent the state’s interest in the case. (See this interesting LA Times oped by Neal Devins and Sai Prakash on what happens when attorneys general won’t defend laws they disagree with.) But now there’s Governor Cooper. What power does he have here? Can we withdraw the case? Concede issues in the reply brief? Can the Legislature seek to intervene at this point and take over the litigation?
These all seem to me to be questions of state law as to who can speak for North Carolina, and I don’t know the answers to those questions. Would love to hear from those who do.
ABC “This Week” interview via Politico Playbook: