“Federal appeals judges question challenge to revised Texas voter ID law”

Texas Tribune:

In Texas’ bid to keep its voter identification law intact, it was its legal foes — lawyers representing voting and civil rights groups and individual voters of color — who faced a tougher line of questioning Tuesday before a federal appellate court.

In light of recent revisions to the state’s voter ID law, two judges on the three-judge panel of the U.S. 5th Circuit Court of Appeals raised questions about claims that lawmakers intentionally discriminated against voters of color when they passed rules on which photo IDs can be presented at the polls. That intentional discrimination claim, which a lower court affirmed this year, is key to the case over the state voter ID restrictions.

“If there is nothing that says we are trying to advantage white voters … isn’t that proof that there wasn’t discriminatory intent?” Judge Edith Jones, a Reagan appointee, said of the plaintiffs’ lack of a smoking gun to prove purposeful discrimination by lawmakers, despite thousands of pages of memos and transcripts of debates over the voter ID requirements.

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“FEC Draft Ruling Would Require Disclaimers on Facebook Ads”

Ken Doyle for Bloomberg BNA:

Political ads on Facebook would have to carry disclaimers stating who paid for each ad, under a new draft advisory opinion set to be considered by the Federal Election Commission.
Disclaimer requirements for online political ads have been uncertain since the FEC commissioners deadlocked in 2011 on an advisory opinion request in which Facebook Inc. asked for an exemption from disclaimer requirements….
The draft is expected to be considered by the FEC commissioners Dec. 14 at their last meeting of the year. Alternative drafts could be released before the meeting. At least four votes are required to approve any final ruling, and there are currently five commissioners, as one seat is vacant.
The FEC also is working on a new regulation which could impose broad new disclaimer requirements on all online political ads. A draft rule is expected to be completed by FEC staff in the coming weeks, according to Ellen Weintraub, a Democratic FEC commissioner, who spoke at this week’s annual meeting of the Council on Governmental Ethics Laws in Toronto.
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“Trump’s voter fraud commission plans to create a massive voter database. Former national security officials say it could be hacked.”

WaPo:

More than a half-dozen technology experts and former national security officials filed an amicus brief Tuesday urging a federal court to halt the collection of voter information for a planned government database.

Former national intelligence director James R. Clapper Jr., one of the co-signatories of the brief, warned that a White House plan to create a centralized database containing sensitive information on millions of American voters will become an attractive target for nation states and criminal hackers. This summer, the Presidential Advisory Commission on Election Integrity issued a sweeping request to state officials to submit voter data to “analyze vulnerabilities and issues related to voter registration and voting.” The commission, which is chaired by Vice President Pence and Kansas Secretary of State Kris Kobach (R), was established after President Trump claimed that he would have won the popular vote if not for as many as 5 million illegally cast ballots. State officials haven’t found any indication that there was widespread voter fraud.

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“Alabama’s Disdain for Democrats Looms Over Its Senate Race”

NYT:

“I don’t think the Lord Jesus could win as a Democrat in Alabama,” said Brad Chism, who runs a Democratic communications firm in Mississippi that has conducted surveys of female voters in Alabama in recent weeks. “They’re just waiting for the Republican Party to tell them how they’re going to fix this,”…

Abortion is one of the few issues that caused people to switch parties in past years, said Clyde Wilcox, a professor of government at Georgetown University who has studied the politics of abortion. But, he said the party sorting process has essentially played out, and stances toward abortion are now nearly synonymous with party identification.

“We’ve become so tribal to our politics, we want our tribe to dominate Congress for all kinds of reasons,” Professor Wilcox said. “Of all those issues, the one that is the easiest to say, but also maybe the most intense, would be abortion.” If an anti-abortion Democrat were running in the Alabama race, Professor Wilcox said, “my guess is most of the people saying ‘abortion’ would just be saying something else.”

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“Texas back in court on ‘discriminatory’ voter ID law”; 5th Circuit Panel Draw is Higginbotham, Jones, and Graves

Oral argument before the 5th Circuit Tuesday in Veasey case on the intentional discrimination question.

With Judges Edith Jones and James Graves on the panel, there is likely to be a dissent, given how each voted in the last go around. Judge Patrick Higgenbotham, now a senior judge, did not vote in that last en banc appeal.

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Colorado: “Voter fraud trial underway for former GOP chairman”

News from Colorado:

Just weeks before the 2016 presidential election, Steve Curtis told his radio listeners “Virtually every case of voter fraud, that I can remember in my lifetime was committed by Democrats or do I not have the facts?”

Now Curtis, the chairman of Colorado’s Republican party in the late 1990’s and a former talk show host for KLZ-560 AM, is on trial in a Weld County Courtroom, charged with forgery, a felony and election fraud, a misdemeanor.

The 58-year-old is accused of forging his ex-wife’s signature on her 2016 mail-in ballot after the couple divorced and she moved to South Carolina.

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“The Tax Overhaul is Proof that Money in Politics Affects All of Us”

Dan Weiner:

As Republicans in the Senate pushed a giant tax overhaul last week, the media took on many angles, from winners and losers, to subplots ranging from politicized churches to actor Paul Newman’s charitable foundation. But one dimension deserves far more attention: the role that vast sums of political money — much of it unleashed by Citizens United and other court cases — played in setting the agenda.

Republicans in Congress have been surprisingly forthright that they are pressing ahead a broadly unpopular set of tax code changes to satisfy their major donors. It is no secret that large donors have more sway than the average voter — but we have truly crossed the Rubicon when donor demands become an acceptable justification for major legislation. This should put to rest once and for all any doubts about the real-world impact of the Supreme Court’s evisceration of campaign finance law.

I made a similar point on Twitter last week, and it is a central theme in my book, Plutocrats United.

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“The Dark Money Subsidy? Tax Policy and Donations to 501(c)(4) Organizations”

Brian Galle has posted this draft on SSRN.  Here is the abstract:

This Article presents the first empirical examination of giving to § 501(c)(4) organizations, which have recently become central players in U.S. politics. Although donations to a 501(c)(4) are not legally deductible, the elasticity of c(4) giving to the top-bracket tax-price of charitable giving is – 1.24, very close to the elasticity for charities. 501c(4) donations also correlate with changes in the tax savings from in-kind gifts. These responses could be driven either by donor-side behavior, such as misunderstandings or intentional over-claiming, or by firm-side fundraising.

I find evidence consistent with both explanations. 501(c)(4) fundraising is also highly responsive to the value of the deduction, with an elasticity of -2.9, and is more effective when the value of the deduction rises. These results imply that the U.S. is currently granting much larger subsidies to c(4) firms than is generally understood, and that subsidies for charity cause previously unobserved pressures on competing c(4)s.

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Misleading Answer in Alabama Senate Race to “Can I cast a write-in vote for my favorite cartoon character or superhero?”

Answer from Alabama Secretary of State:

Can I cast a write-in vote for my favorite cartoon character or superhero?
No.  Write-in votes will be counted only for live, human beings who are eligible to serve in the office for which they have been voted.  Votes cannot be counted for fictional characters

The correct answer would seem to be:

Yes you can, but those votes will not be counted in the official tallies.

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Top Recent Downloads in Election Law on SSRN

Here:

1.

Flaws in the Efficiency Gap

Georgetown University – Department of Economics, University of Haifa – Faculty of Law and University of California at San Diego
140
2.

Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies

University of California, Los Angeles (UCLA) – School of Law and New York University School of Law
98
3.

Vote Dissociation

Ohio State University (OSU) – Michael E. Moritz College of Law
78
4.

Gerrymandering and Association

Ohio State University (OSU) – Michael E. Moritz College of Law
55
5.

Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law

Drake University – Law School
53
6.

Amending the Johnson Amendment in the Age of Cheap Speech

Loyola Law School Los Angeles
47
7.

Candidate Disclosure and Ballot Access Bills: Novel Questions on Voting and Disclosure

Yale University – Law School
28
8.

Malaysia’s Electoral Process: The Methods and Costs of Perpetuating UMNO Rule

University of British Columbia (UBC)
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Toobin Skeptical of Criminal Campaign Finance Charges Against Trump Campaign (But More Bullish on Obstruction Claims)

New Yorker’s Jeff Toobin:

Does any of this behavior rise to the level of criminality, and, if so, what laws might it have violated? Federal law prohibits political candidates and their advisers from seeking or obtaining contributions from foreign individuals or entities. “Foreigners can’t contribute to federal, state, or local campaigns, and that doesn’t just cover cash contributions,” Kathleen Clark, a professor at the law school of Washington University in St. Louis, told me. “According to the statute, if a campaign solicits a foreigner to give a ‘thing of value’ to a political campaign, that would be illegal as well.”

The argument for a criminal-conspiracy charge based on these exchanges would be that Trump officials, including the candidate, solicited opposition research from Russian interests, and that such research is a “thing of value,” an in-kind contribution, under the law. “There is clearly a market for damaging information about opponents in political campaigns,” Clark said. “While there might be some uncertainty about how exactly to value it, I can’t imagine there would be serious debate about whether information is a thing of value.”

Still, a prosecution along these lines would hardly be straightforward or routine. In the past, criminal cases about solicitation have focussed on cash, so Mueller’s case would rest on a novel interpretation of the law. The status of WikiLeaks also creates a potential obstacle. Federal law contains an exemption for the press; news operations cannot be charged with making illegal campaign contributions by covering a campaign. The Trump campaign—and surely WikiLeaks itself—would likely argue that the organization is a journalistic outlet. It’s worth noting that President Trump’s own Central Intelligence Agency has a different view of WikiLeaks. Mike Pompeo, the director of the C.I.A., said in a speech in April, “It’s time to call out WikiLeaks for what it really is: a non-state hostile intelligence service often abetted by state actors like Russia.”

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“Sean Spicer may hold key to future of N.J. Trump voter intimidation case”

Jonathan Salant for NJ.com.

Sean Spicer’s visit to Trump Tower on Election Night looms large as a federal judge decides whether to end Republican National Committee’s 35-year restriction on its voter activities in a case that began with  a New Jersey election.

A court-sanctioned agreement limiting GOP activities targeting minority voters, known as a consent decree, is scheduled to end Friday unless U.S. District Court Judge John Michael Vazquez decides to extend it.

Before he rules, Vazquez agreed to let Democratic National Committee lawyers question Spicer, the former White House press secretary, about his Election Night activities.

The case comes as President Donald Trump claimed without evidence that millions of people voted illegally in the 2016 election and formed a commission to examine voter fraud, which studies have shown is virtually non-existent.

“I would not have worried about the RNC engaging in conduct that would count as voter suppression,” said election law expert Rick Hasen, a professor of law and political science at the University of California, Irvine. “But with Trump leading Republicans, who knows? He’s made unfounded claims of massive voter fraud a key part of his political strategy. So I’m worried.”

U.S. Sen. Cory Booker, D-N.J., who called Trump’s Presidential Advisory Commission on Election Integrity “a thinly veiled voter suppression effort” and has introduced legislation to end the panel, said the consent decree should continue.

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Where Do We Go From Here? MLK50 Symposium

Really looking forward to this:

Where Do We Go From Here?

MLK50 Symposium

A Symposium and Luncheon hosted by the
University of Memphis Cecil C. Humphreys School of Law and the
National Civil Rights Museum

Featured Keynote Speaker:
The Honorable Eric H. Holder, Jr.
82nd Attorney General of the United States (2009-2015); Partner, Covington & Burling LLP

Monday, April 2, 2018
Cecil C. Humphreys School of Law | 1 North Front Street, Memphis, TN 38103
CLICK HERE TO REGISTER >>

 

The University of Memphis Cecil C. Humphreys School of Law will host the MLK50 Symposium to convene nationally renowned scholars, historians and thought leaders from across the country to present on the state of civil and human rights issues as well as racial and economic equity fifty years after Dr. Martin Luther King, Jr.’s death.

With former United States Attorney General Eric Holder as the keynote speaker at the symposium’s luncheon, and featuring an array of nationally recognized panelists, this symposium will focus on the legal accomplishments, challenges, hurdles and opportunities related to aspects of Dr. King’s legacy, including housing, education, voting rights, equal employment opportunity and the criminal justice system.

Featured panelists include Mark Osler, Toussaint Losier, Roy Austin, Tracey Maclin, Dayna Matthew, Debo Adegbile, Rick Hasen, Pamala Karlan, Sherrilyn Ifill, Dorothy Brown, Tomiko Brown-Nagin, Dorothy Roberts, Claude Steele, Beverly Tatum, Charles McKinney, and Cornell Brooks.

All panel discussions at the Symposium will be held at the School of Law at 1 North Front Street; the luncheon and keynote speech by Mr. Holder will be at the Peabody Hotel in downtown Memphis. The panel discussions at the law school are free to attend (including CLE). The keynote luncheon at the Peabody is $75 per person.

 

CLICK HERE TO REGISTER FOR THE SYMPOSIUM PANEL DISCUSSIONS AND TO PURCHASE TICKETS TO THE KEYNOTE LUNCHEON

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“Senate GOP campaign arm stole donor data from House Republican”

Politico:

Staffers for Senate Republicans’ campaign arm seized information on more than 200,000 donors from the House GOP campaign committee over several months this year by breaking into its computer system, three sources with knowledge of the breach told POLITICO.

The unauthorized raid on the National Republican Congressional Committee’s data created a behind-the-scenes rift with the National Republican Senatorial Committee, according to the sources, who described NRCC officials as furious. It comes at a time when House Republicans are focused on preparing to defend their 24-seat majority in the 2018 midterm elections. And it has spotlighted Senate Republicans’ deep fundraising struggles this year, with the NRSC spending more than it raised for four months in a row.

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Update on DNC v. RNC Consent Decree: “Judge allows DNC to depose Spicer on election night activities”

Politico:

A federal judge said Wednesday that he’ll allow the Democratic National Committee to depose Sean Spicer, the former Republican National Committee communications director and White House spokesman, on whether he violated a 35-year-old consent decree barring the RNC from engaging in ballot security or voter suppression efforts.

But the judge, Michael Vazquez, denied a DNC request for an evidentiary hearing on whether the RNC violated the consent decree.

The consent decree, which originated from RNC actions in New Jersey’s 1981 gubernatorial election, is set to expire on Friday, but its future is uncertain. Vazquez said he’s not yet ready to rule on whether it will expire on Friday.

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Montana Secretary of State Backs Off Earlier Unsubstantiated Claims of Voter Fraud

Montana Public Radio:

Montana’s secretary of state said Tuesday that he’s looked into whether there was election fraud during this May’s special election and hasn’t seen any evidence showing a coordinated effort to cast mismatched, or illegal, signatures on ballots.

Secretary of State Corey Stapleton raised the issue of potential voter fraud in August. At a meeting with state lawmakers, he said that just because it hasn’t happened in Montana before doesn’t mean it’s not happening now.

But in a Tuesday afternoon phone conference with clerks, Stapleton said that after examining results from a survey of illegal ballots from the May 25 special election, he now believes Montana has a healthy election system that could use some improvement.

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Alabama: “Secretary of state says some voters wrongly told they are not registered”

AL:com:

The Alabama Secretary of State’s office said today it has learned that some voters are receiving erroneous messages telling them that they are not registered to vote when, in fact, they are registered.

Two organizations that are contacting voters said they are not sending erroneous message.

Secretary of State John Merrill’s office sent out a press release about the erroneous messages today. Some erroneous messages are coming from people who claim to be members of the NAACP and of Open Progress, the secretary of state’s office said.

The Alabama NAACP said in a press release today that it used a database from the Voter Action Network System to notify voters that it believed were not registered.

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Trump Continues Claiming, Without Any Evidence, He Lost the Popular Vote Because of Widespread Voter Fraud

From this eye-popping NYT story on the President’s lies:

Mr. Trump’s falsehoods about the “Access Hollywood” tape are part of his lifelong habit of attempting to create and sell his own version of reality. Advisers say he continues to privately harbor a handful of conspiracy theories that have no grounding in fact.

In recent months, they say, Mr. Trump has used closed-door conversations to question the authenticity of President Barack Obama’s birth certificate. He has also repeatedly claimed that he lost the popular vote last year because of widespread voter fraud, according to advisers and lawmakers.

One senator who listened as the president revived his doubts about Mr. Obama’s birth certificate chuckled on Tuesday as recalled the conversation. The president, he said, has had a hard time letting go of his claim that Mr. Obama was not born in the United States. The senator asked not to be named to discuss private conversations.

 

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The Measure of a Metric, Part Three

Yesterday I pointed out that the efficiency gap complies with a series of criteria that, Eric McGhee and I argue in a forthcoming article, can be used to evaluate measures of partisan gerrymandering. To determine if the same is true of other metrics, we simulated several thousand more district plans, allowing the major parties’ vote shares to vary between 25% and 75%. The below charts show how often partisan bias (on the left) and the mean-median difference (on the right) violate the principle that if a party wins more seats with the same votes, a measure should indicate a larger advantage for this party. Party vote share is on the x-axis; the frequency of violations of this principle is on the y-axis.

In competitive jurisdictions, where the statewide vote is close to split, partisan bias and the mean-median difference perform reasonably well. They infrequently show a party scoring the same (or worse) while winning more seats with the same votes. But in uncompetitive jurisdictions, where one party predominates statewide, violations of the principle rise sharply. By the time one party earns 60% of the statewide vote, partisan bias and the mean-median difference produce counterintuitive results about half the time.

To see if this analysis has real-world implications, we constructed a series of regression models. The dependent variable in each case is the average ideology of a state’s House members in a given term. The key independent variable is a measure of partisan gerrymandering: the efficiency gap, partisan bias, or the mean-median difference. And we ran separate models for each metric and for competitive elections (closer than 55%-45% statewide) and uncompetitive elections (further apart than 55%-45%).

The below chart displays the results of these models. Each point indicates the impact on a congressional delegation’s average ideology of increasing a particular gerrymandering metric by one standard deviation. It is apparent that in competitive electoral settings, all three measures have large and statistically significant effects. If a swing state’s efficiency gap, partisan bias, or mean-median difference becomes more pro-Democratic (or pro-Republican), the state’s delegation becomes more liberal (or conservative) on net. But in uncompetitive environments, only the efficiency gap remains statistically significant. It continues to show that gerrymandering influences congressional representation. Partisan bias and the mean-median difference, on the other hand, wrongly suggest that gerrymandering in safe states has no impact on delegations’ ideological makeups.

The conclusion we draw from these studies is that in the competitive states where most recent partisan gerrymandering lawsuits have been filed (e.g., North Carolina, Pennsylvania, Wisconsin), all of the common gerrymandering metrics can and should be used. But if scholars or litigants want to analyze gerrymandering in uncompetitive states, they should not use partisan bias or the mean-median difference. These measures frequently violate the seat-vote principle in these settings, and are no longer connected to the substantive value—the quality of representation—that gerrymandering offends.

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“Ethics group demands investigation into vice chair of Trump’s election commission”

Washington Examiner:

Citizens for Responsibility and Ethics in Washington on Tuesday asked the Justice Department to investigate whether Kris Kobach is improperly getting a financial benefit by serving as vice chairman of the Trump administration’s Presidential Advisory Commission on Election Integrity.

According to the complaint, Kobach has been paid for writing columns for Breitbart News. One of those was written in his official capacity with the election commission, which alleged serious voter fraud in New Hampshire.

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Unanimous En Banc DC Circuit Rejects Challenge to Separate Federal Campaign Contribution Limits in Primary and General Election Campaigns

This one always struck me as a weird challenge, and today, per Judge Srinivasan, the D.C. Circuit, sitting en banc, unanimously rejected the argument:

Congress’s choice of a per-election structure thus is not a “prophylaxis-upon-prophylaxis”—a second anti-corruption measure layered on top of the base limits. Instead, the per election  structure is an essential ingredient of the base limits themselves—the first layer of prophylaxis. Unlike in McCutcheon, then, there is no warrant for attempting to ascertain whether the per-election timeframe of the $2,600 base limit itself combats corruption. Rather, it is enough if that base limit as a whole (of which its time period is an integral element) prevents the appearance or actuality of corruption in a manner satisfying the closely drawn standard.

I think it is very unlikely that the Supreme Court would want to take this case, which does not challenge the constitutionality of a $2,600 contribution limit itself.

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“State Board of Elections certifies disputed Fredericksburg-area results despite 147 people voting in the wrong House race”

Richmond Times Dispatch:

Virginia’s State Board of Elections on Monday certified the results of two Fredericksburg-area House of Delegates elections, despite Democrats asking the board to delay the process because 147 people voted in the wrong House district.

The elections board’s 3-0 vote to certify the results showing Republicans winning the 28th and 88th District races does not finalize the outcome. But it closes an initial, chaotic chapter in the legal battle over a close 28th District race that could decide which party controls the House after Democrats picked up at least 15 seats in a wave election on Nov. 7.

In the 28th District, Republican Bob Thomas leads Democrat Joshua Cole by just 82 votes. Democrats who appear to be on the losing end in the 28th and a handful of other tight finishes can still pursue recounts or contest the final results at the General Assembly. Under state law, recounts cannot begin until the elections board certifies the results as official.

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The Measure of a Metric, Part II

Yesterday I laid out a series of criteria that, Eric McGhee and I argue in a forthcoming article, can be used to evaluate measures of partisan gerrymandering. Today I’ll briefly explain why the efficiency gap satisfies these criteria.

Start with the principle that if a party wins more seats with the same votes, a metric should indicate a larger advantage for this party. To test the efficiency gap’s compliance with this principle, we simulated thousands of district plans. In these simulations, we allowed the major parties’ vote shares to vary from 25% to 75%, a third party’s vote share to range from 0% to 20%, and turnout to diverge across districts by up to a factor of 15. The results of the simulations are below (for both the efficiency gap and several variants that scholars have proposed). It’s immediately evident that the efficiency gap never violates the principle. In every electoral setting, the efficiency gap moves in the correct direction when a party secures more seats without appealing to more voters.

Next, consider the efficiency gap’s distinctness from other electoral values—competitiveness in particular, which some have claimed is related to the measure. Conceptually there’s no connection because it’s the difference between the parties’ average margins of victory (not the average margin itself) that drives the efficiency gap. Empirically too, as the below chart illustrates for state houses from 1972 to 2014, the correlation between the efficiency gap and the average margin of victory in an election is zero. In other words, knowing how competitive a state’s districts are tells us nothing about how skewed they are in favor of a party.

Third, the efficiency gap can be (sensibly) calculated in a wide range of electoral environments. Safe states pose no problem for the metric; it’s just as meaningful in, say, Massachusetts as in Michigan. Turnout variations from district to district aren’t an issue either; in fact, they’re directly incorporated into the wasted vote tallies that are used to compute the efficiency gap. And while we originally presented a two-party version of the efficiency gap, our article shows how it can be extended to the multiparty context.

Lastly, the efficiency gap is highly consistent with American electoral history. The below chart is a density curve of state house efficiency gaps from 1972 to 2014. The distribution is a near-textbook bell curve, centered almost exactly at zero. Most prior maps have thus been symmetric in their treatment of the major parties, and highly skewed plans have been rare. There also is no hint that the country’s political geography is tilted in either party’s direction. If it were, then the distribution’s mean and median would not be so close to perfect symmetry.

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“Vote Suppressors Unleashed: A district judge might be handing Donald Trump a chance to supercharge voter suppression.”

I have written this piece at Slate.  It begins:

This could be a very bad week for voting rights in the United States.

On Friday, a federal consent decree to stop potential voter suppression by the Republican National Committee—in place since 1982—is set to expire unless further extended by a federal district court in New Jersey. What happens next, with Donald Trump in charge of the Republican Party, will likely not be pretty.

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“Amending the Johnson Amendment in the Age of Cheap Speech”

Ellen Aprill has posted this important draft on SSRN (forthcoming University of Illinois Law Review On-Line).  Here is the abstract:

On November 2, 2017, the House Ways and Means Committee released its proposed tax reform legislation. It includes a provision amending the provision of the Internal Revenue Code, sometimes called the Johnson Amendment, that prohibits charities, including churches, from intervening in campaigns for elected office, at risk of loss of their exemption under section 501(c)(3). Under the Ways and Means proposal, as later revised and passed by the House, organizations exempt as charities under section 501(c)(3) would be permitted to engage in campaign intervention if “the preparation and presentation of such content . . . is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose and . . . results in the organization incurring not more than de minimis incremental expenses.”
If such legislation becomes law, the IRS and the Department will be faced with the difficult task of giving guidance as to the meaning of “regular and customary,” “de minimis,” and “incidental.” It would likely have to address whether donations could be earmarked for campaign intervention so long as they were within the organization’s de minimis limit and involved regular and customary activities. Whatever rules are announced are sure to be controversial and complicate enforcement of the prohibition for campaign intervention that is more than de minimis. Given the lack of IRS resources and controversy regarding its attempts to regulate political activities of exempt organizations, the IRS may well hesitate to take action against possible violations.
However these terms are defined and enforced, a de minimis exception raises significant issues that demand attention in an era of what Professors Eugene Volokh and Richard Hasen have called “cheap speech.” These are issues that require consideration whether or not a de minimis exception is adopted in the current tax reform legislation.
After giving background on the Johnson Amendment, this essay discusses the impact of any de minimis exception regarding campaign intervention in the age of cheap speech. It concludes that the availability of cheap speech may have undermined the most common constitutional justification for the prohibition – that the government has no duty to subsidize speech – such that a new approach to limiting the political speech of charities is needed.

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“Blowing Up Democracy and Charities in One Fell Swoop”

Eliza Newlin Carney:

By essentially repealing the so-called Johnson Amendment, a tax provision that bars charities from engaging in partisan politics, the House legislation frees up big donors to funnel even more unlimited, undisclosed money into campaigns, and, for the first time, to deduct that money from their taxes. The bill also threatens the credibility and viability of charitable groups, and would drastically reduce charitable giving—even as it robs education, housing, and health-care assistance from working families who invariably will turn to charities for help.

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The Measure of a Metric, Part I

Eric McGhee and I just posted a new article, The Measure of a Metric, that discusses the measurement of partisan gerrymandering and that’s forthcoming in the Stanford Law Review. In this post and a couple more, I thought I’d highlight the paper’s main contributions.

One of them is to identify a series of criteria that can be used to evaluate gerrymandering metrics. For decades, there was no need for such formal assessment, because social scientists mostly used a single measure (partisan bias). Over the last few years, though, gerrymandering metrics have proliferated, and now include the efficiency gap, the mean-median difference, the difference between the parties’ average margins of victory, the declination, and others. So it’s important today, in a way it wasn’t previously, to think rigorously about what we want and don’t want from a measure.

One thing we want, in our view, is consistency with the following principle: If a party wins more seats while receiving the same votes, a metric should indicate a larger advantage for this party. This principle stems from what we see as the defining characteristic of partisan gerrymandering: manipulating the relationship between votes and seats so that a party is able to translate its popular support into legislative representation more effectively. Whatever else a measure does, it should capture this conceptual core.

Our second criterion is distinctness from other electoral values. Redistricting implicates not just partisan fairness but also electoral competitiveness, minority representation, population equality, and several other concerns. But it’s only partisan fairness that’s at the heart of partisan (as opposed to bipartisan or racial) gerrymandering. So it’s only partisan fairness that should be revealed by a metric.

Third, we think a measure should be broad in its scope. In other words, it should be usable whether a state is red, blue, or purple; whether turnout is roughly equal or varies sharply from district to district; and whether two or more than two parties are competing for office. Gerrymandering is possible in all of these electoral environments, so a metric should not be foiled by any of them.

Our fourth and final criterion is consistency with American electoral history. Every measure implies a certain ideal: a perfect score (usually zero) indicating that neither party benefits from, or is disadvantaged by, a district map. This ideal, in our opinion, should be one that plans have actually achieved with some regularity in previous elections. Otherwise a metric would suggest that most prior maps were gerrymanders—and its adoption would be so disruptive as to be infeasible.

That’s it for today; in the next couple days I’ll address how various measures perform under these criteria.

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“In Tax Debate, Gift to Religious Right Could Be Bargaining Chip”

NYT:

Among the changes in the tax bill that passed the House this month is a provision to roll back the 1954 ban, a move that is championed by the religious right, but opposed by thousands of religious and nonprofit leaders, who warn that it could blur the line between charity and politics.

The change could turn churches into a well-funded political force, with donors diverting as much as $1.7 billion each year from traditional political committees to churches and other nonprofit groups that could legally engage in partisan politics for the first time, according to an estimate by the nonpartisan congressional Joint Committee on Taxation.

The Senate will begin voting as early as Wednesday on its own version of the sweeping tax rewrite, which the leaves the ban untouched, and differs in other key ways from the House version. The Senate bill has yet to garner enough support from Republicans to pass along party lines, with Republican senators raising concerns about the bill’s cost and approach, including how small businesses are treated and the elimination of the Affordable Care Act requirement that most Americans have health insurance or pay a penalty….

Critics warn that the change could dramatically increase untraceable political spending and lead to the creation of “sham churches” to take advantage of the new avenue for political spending, which — unlike donations to candidates, “super PACs” and party committees — would allow donors to deduct contributions.

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Newer Republican Plan to Deal with Roy Moore Has a Better Shot at Constitutionality Than Last Proposal

I’ve written about the likely unconstitutionality of a plan which would have temporary Senator Luther Strange resign from his seat, and have the Alabama governor call a new election. This seems pretty clearly to violate the 17th Amendment.

But buried in this NYT story on Trump standing by Roy Moore is a somewhat different plan:

Mr. McConnell even enlisted Washington campaign lawyers with experience in Alabama elections to devise a four-page memo outlining a legal avenue to block Mr. Moore’s path, but the White House counsel’s office ignored the document entirely. …

The campaign lawyers commissioned by the Senate leader last week sent a memo to the White House counsel, Donald F. McGahn II, arguing that, based on Alabama precedent, if Mr. Strange were to resign, Ms. Ivey could appoint a new senator. They also made the case that Ms. Ivey was within her rights to delay the special election.

“Our recommendation is to combine Steps 1 and 2: Strange resigns; the governor fills the vacancy with a new appointee; and the governor delays the special election to give the new appointee time to run as an independent candidate,” the lawyers wrote.

As I understand it, this would not be calling a new election, meaning that the Democratic and Republican nominees would stay in place. It would instead delay the election and give the newly appointed temporary Senator a chance to run a write-in campaign.

Now I am not certain if delaying an election already in progress (military and other absentee voters have already voted) solely for political reasons would be permissible under Alabama law and constitutional (under the Equal Protection and Due Process clauses). But it seems less of a constitutional affront than the original idea of a do-over.

The point seems moot.  The election is Dec. 12, and there’s no sign of any of this happening.

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“FBI gave heads-up to fraction of Russian hackers’ US targets”

AP:

The FBI failed to notify scores of U.S. officials that Russian hackers were trying to break into their personal Gmail accounts despite having evidence for at least a year that the targets were in the Kremlin’s crosshairs, The Associated Press has found.

Nearly 80 interviews with Americans targeted by Fancy Bear, a Russian government-aligned cyberespionage group, turned up only two cases in which the FBI had provided a heads-up. Even senior policymakers discovered they were targets only when the AP told them, a situation some described as bizarre and dispiriting.

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“New York Hasidim challenge Constitution in bid to forge the first ultra-Orthodox town in America”

Bloomberg/Haaretz:

Palm Tree may sound like a good moniker for a topical vacation resort, but it’s actually the name of the first new town being established in New York State in 35 years. The community is earmarked only for Satmar Hasidim – a move critics say will be closely scrutinized for possible breaching of the U.S. Constitution’s separation of church and state.

And that legal scrutiny might happen even though both sides of the issue, the Satmar Hasidim and other area residents, are delighted with the Hasidim’s secession – the latter because they want to keep their town semirural and are tired of voters turning down tax increases that would fund public schools and other local services, like a library.

After decades of legal fights between the Town of Monroe and other parties against Kiryas Joel, the Satmar village that is part of Monroe, both sides claimed victory after a November 7 referendum in which Monroe residents voted overwhelmingly to create the new town.

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“Older Voters Stymied by Tighter ID Requirements”

Paula Span NYT column:

Physical barriers at polling places, a longtime obstacle for the elderly and disabled citizens of any age, can prevent older voters’ participation. Voting machines may not accommodate people who use wheelchairs or are visually impaired.

The Government Accountability Office last month reported the results of a survey of 178 polling places used in 2016. Accessibility had improved since 2000, the G.A.O. concluded, but the great majority still had impediments outside — like steep ramps or inadequate parking — or inside that could discourage or exclude disabled voters.

Federal law requires accessibility, but “there’s very little enforcement and resources devoted to ensuring that older Americans and others with disabilities can vote,” said Wendy Weiser of the Brennan Center for Justiceat New York University.

More recently, a wave of onerous state voting requirements has added to the problem, with an outsized effect on older voters, argues a new report by Senator Robert Casey, Democrat of Pennsylvania, and Senator Amy Klobuchar, Democrat of Minnesota.

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“Culling Voter Rolls: Battling Over Who Even Gets to Go to the Polls”

NYT:

Conservative groups and Republican election officials in some states say the poorly maintained rolls invite fraud and meddling by hackers, sap public confidence in elections and make election workers’ jobs harder. Voting rights advocates and most Democratic election officials, in turn, say that the benefits are mostly imaginary, and that the purges are intended to reduce the number of minority, poor and young voters, who are disproportionately Democrats.

“The goal here is not election integrity,” Stuart Naifeh, the senior counsel at the voting rights group Demos, said. “It’s intimidation and suppression of voters.”

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