Joey Fishkin:

If you read Justice Kennedy’s opinion in Vieth in 2004 together with the Court’s opinions this morning in Gill v. Whitford and Benisek, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.”  The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).


Whitford’s Hints of Promise

The Court’s decision today holding that the plaintiffs in Gill v. Whitford have not proven their standing is disappointing. I’ll identify what I think are the weaknesses in the Court’s reasoning in a subsequent post. Here, though, I want to emphasize the significant signs of promise in the Court’s decision. First, the Court clearly left the door open to future partisan gerrymandering litigation. Second, the Court accepted, at least tacitly, the plaintiffs’ primary theory of gerrymandering: that it dilutes the votes of supporters of the disadvantaged party by cracking and packing these voters. And third, the Court’s standing requirements easily can be satisfied by future litigants—and will soon be satisfied by the Whitford plaintiffs.

Starting with the first point, Wisconsin and its amici had urged the Court to hold that partisan gerrymandering claims are inherently nonjusticiable—or that even if they may be brought, individual voters may not bring them. The Court, however, didn’t say a word about the intrinsic nonjusticiability of gerrymandering. The Court, that is, didn’t do the one thing that would have definitively terminated all gerrymandering litigation. Nor did the Court rule that individual voters may not bring gerrymandering claims (on the ground that no voter has the right to be placed in any particular type of district). To the contrary, the Court affirmatively confirmed the standing of a great many voters: all those residing in unnecessarily cracked or packed districts.

Second, while the Court purported only to address standing, it implicitly recognized the coherence (if not the merit) of the Whitford plaintiffs’ vote dilution theory. The Court had no choice but to engage with the theory’s substance because who has standing necessarily depends on what a suit is all about. And regarding what a vote dilution suit is all about, the Court agreed with the plaintiffs that its essence is the cracking and packing of the disadvantaged party’s supporters. “Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted,” the Court stated in a key passage. “That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district.” Or again: “Four of the plaintiffs in this case . . . . alleged that Act 43 ‘dilut[ed] the influence’ of their votes as a result of packing or cracking in their legislative districts.

It’s important not to overstate this point. The Court did not hold that vote dilution is a justiciable theory of partisan gerrymandering. Nor did the Court announce any kind of standard for a claim of partisan vote dilution. Nevertheless, the Court plainly understood what vote dilution is and how it operates to enhance one party’s power and to diminish the electoral influence of the opposition. If not exactly a great leap forward, this is still non-trivial progress in the fight against gerrymandering.

Third, and most importantly, the Court’s new standing requirements for vote dilution plaintiffs should be easy to satisfy in many cases (including Whitford itself). The Court ruled that vote dilution plaintiffs (though not necessarily other kinds of gerrymandering plaintiffs) must “live in districts where [voters] like them have been packed or cracked.” Packing and cracking, according to the Court, are relative concepts, not absolute ones. A district’s own partisan composition, in other words, is not enough to establish packing or cracking. Rather, the district’s makeup must be compared to that of a benchmark district (for example, a district in the same region in a prior map, a demonstration map, or a computer-simulated map). Only if the actual district is more packed or cracked than the benchmark district does a resident of the actual district have standing. In this case alone, the resident’s vote “carr[ies] less weight than it would carry in another, hypothetical district.”

In suits (like Whitford) where intentional, severe, and unjustified vote dilution has occurred, these new standing criteria should not be difficult to meet. Packed or cracked districts must be identified. Well, there are dozens of such districts in Wisconsin’s state house map, and they are necessarily ubiquitous in any other plan where a party’s votes have been significantly diluted. Less packed or cracked alternatives to these districts must also be established. They too are not hard to find if the challenged map is really a gerrymander. An earlier plan, a plan drawn by the plaintiffs, and/or a plan produced by a computer algorithm all may contain districts in the same areas as the plaintiffs’ districts that would enable the plaintiffs’ votes to carry more weight.

What will happen next in Whitford, then, is that the plaintiffs will amend their complaint to add more voters and to explain how their districts have been packed or cracked relative to alternative districts. Because packing and cracking took place throughout Wisconsin’s state house map, plaintiffs with standing will be easy to locate in every corner of the plan. Thus even if a subsequent remedy is limited to the districts where voters with standing live, this will not amount to a severe restriction. Curing the vote dilution in these districts will be quite similar to fixing the problem statewide.


“Justice Kennedy Still Won’t Rule on Gerrymandering”

I have written this piece for Slate. It begins:

Justice Hamlet lives.

For years, those who’d like the Supreme Court to rein in partisan gerrymanders have been teeing up cases with various theories to try to get Justice Anthony Kennedy, the swing Justice, to agree that sometimes the drawing of district lines to favor Republicans or Democrats goes too far. In 2004, Kennedy famously wrote an opinion that both kept the door open for future redistricting challenges but also rejected a variety of legal theories that had been paraded before him like beauty pageant contestants for separating permissible from impermissible consideration of political party in drawing congressional and state legislative district lines. Since then, plaintiffs have tried to get new cases before the court for Kennedy to make up his mind.

On Monday, the Supreme Court ducked the issue again, after years of plaintiffs litigating cases in Wisconsin and Maryland in hopes of prompting a larger ruling. The court sent Gill v. Whitford, the Wisconsin case, back for partisan gerrymandering challenges to be litigated on a district-by-district, rather than statewide, basis. According to the opinion, plaintiffs had no “standing” to assert a statewide injury. The court also said preliminary relief was not proper in Benisek v. Lamone, the Maryland case, sending it back to the lower court to determine whether relief is warranted when the case is fully complete.

Although people will focus on the court’s ducking of the issue, what’s really going on is that two of the court’s savviest justices on the right and left, Chief Justice John Roberts and Justice Elena Kagan, are continuing a battle for the soul of Justice Kennedy on the question of politics in redistricting, and Kennedy, who apparently is not leaving the court anytime soon, watches, broods, and stays silent.


University of Memphis Law Review Call for Papers for Election Law Symposium

The following announcement came via email:


Barriers at the Ballot Box: Protecting or Limiting the Core of the American Identity? 


The right to vote for a representative government is at the core of the American identity.  However, even after the passage of the Voting Rights Act and its amendments barring discriminatory practices and the enactment of provisions making it easier for individuals to exercise their right, barriers still exist at the ballot box for many.  Is there a need for these barriers today or are these barriers part of modern era disenfranchisement?

The University of Memphis Law Review invites manuscripts for publication in Volume 49, Number 4 and presentation at its March 2019 Symposium, “Barriers at the Ballot Box: Protecting or Limiting the Core of the American Identity?”  The Symposium will welcome a wide array of scholarship for a critical analysis of current legal issues dealing with voting rights, whether our electoral institution is working as intended, and the convergence of these issues on the individual voter and the electorate as a whole.

For consideration and inclusion in the 2019 Memphis Law Symposium, please submit a manuscript or abstract to Symposium Editor Sean O’Brien at memphislawarticles@gmail.com with “Barriers at the Ballot Box Symposium” in the subject line.  The deadline for submission of a manuscript or abstract is October 1, 2018.


Breaking: Supreme Court Sends Gill Back on Standing Grounds; Dismisses Benisek on Preliminary Injunction Grounds

More coming


“Will the Justice Department Investigate the Trump Foundation?”


Election law experts from across the political spectrum largely agreed that the New York attorney general made a compelling case this week that President Trump’s campaign and his charitable foundation violated federal campaign finance laws during the 2016 election.

What they could not agree on, though, was whether any federal investigators will pick up the case.

The allegations were detailed in filings released Thursday by the attorney general, Barbara D. Underwood, as part of a lawsuit her office brought in state court accusing Mr. Trump and his three oldest children of using the Donald J. Trump Foundation for political and business purposes. That constituted a violation of New York State laws governing charities, as well as federal tax and election laws, the lawsuit charged.

But Ms. Underwood’s office lacks the authority to prosecute federal matters. So, when she filed the lawsuit, she simultaneously sent letters to the Internal Revenue Service and the Federal Election Commission asking those agencies to investigate the alleged violations of federal tax laws and campaign finance laws, respectively.

And, for good measure, on the letter to the F.E.C., she copied two top officials from the Justice Department’s Public Integrity Section, which is charged with investigating and prosecuting criminal violations of election laws.


Bloomberg BNA Suddenly Cancels Its Daily Money in Politics Report

Every work day I rely on the excellent work of Ken Doyle.  So I find this notice in today’s report very distressing:

Notice to Subscribers
Bloomberg BNA will cease publishing Money & Politics Report with the issue dated June 29, 2018. Customers who subscribe to this product, if eligible, will receive a pro-rated credit for the remainder of their subscription term. Thank you for being a valued Bloomberg BNA subscriber and if you have any questions, please contact Bloomberg BNA’s Customer Contact Center…

I hope Ken will be continuing his work in this area, either at Bloomberg or elsewhere.

UPDATE from Ken:



Breaking: FEC Refuses to Act on Complaint Donald Trump Used Campaign Resources for Personal Use

Statement from dissenting FEC Commissioner Weintraub:

Trump hotels, Trump steaks, Trump water, Trump golf courses, Trump wine. The Complaint in this matter cites to an unprecedented catalog of candidate-branded products and properties used along the 2016 campaign trail. According to the Complaint, Donald J. Trump, his campaign committee, and his businesses used campaign funds and campaign events to promote the candidate’s businesses and enrich Trump’s personal interests, in violation of the law’s prohibition on converting campaign funds to personal use.

The Complaint alleges serious violations that merited investigation. For example, on September 16, 2016, Trump held a press conference at his newly opened hotel that was ostensibly a campaign event, but, the Complaint alleges, appeared more like an infomercial for his personal business venture. The Complaint contends that this campaign event, and several others, may have been used to promote Trump’s financial interests, suggesting a potential conversion of campaign funds to personal use.


“Why the I.R.S. Should Go After Trump”

Philip Hackney NYT oped:

The New York State attorney general yesterday filed a lawsuit against the Donald J. Trump Foundation and its directors, accusing the charity and the Trump family of violating campaign finance laws, self-dealing and illegal coordination with the presidential campaign. It asks that Mr. Trump pay restitution and be prohibited from leading a nonprofit in New York for 10 years.

As a former attorney for the chief counsel of the I.R.S. who specialized in nonprofit organizations, I believe Mr. Trump is also criminally liable for his actions. If I were still at the I.R.S., based on the lawsuit, I would make a criminal referral, on charges of tax evasion or false statements on a tax return, or both.


D.C. Circuit, in 2-1 Votes, Makes It Much Harder to Challenge Decisions by Republican FEC Commissioners Not to Enforce Federal Campaign Finance Laws

This opinion by Senior Judge Randolph, joined by Judge Kavanaugh is most unfortunate. As Judge Pillard suggests in her dissent, the opinion insulates FEC Commissioners’  refusal to enforce certain campaign finance laws from judicial review under the guise of “prosecutorial discretion.”


“Texas woman sentenced five years in prison for voting while on probation”

CBS News:

A  Texas woman plans to challenge a judge’s decision to deny her a new trial after sentencing her to five years in prison for voter fraud. Crystal Mason was convicted in March of voting illegally in the 2016 presidential election. Texas law makes the 43-year-old ineligible to vote because she was on probation for tax fraud. Mason says she didn’t know about that law.


Bob Bauer: “The Disastrous Legal Implications of the Trump Foundation’s Activities”

Bob in the Altantic:

The law governing the activity of charitable organizations can be complex, but on the question of whether 501(c)(3) charities can engage in political activity, it could not be more straightforward. They cannot. The IRS enforces an “absolute” prohibition on any intervention in political campaigns.

Whether such an intervention has occurred depends on the facts and circumstances, and sometimes there are close calls. None of those close calls are reflected in the New York attorney general’s complaint against the Donald J. Trump Foundation, which tells the tale of a relationship between a charity and a political campaign that flouts in every conceivable way the legal prohibition on 501(c)(3) campaign activity.

Enforcement action at the state level, including this action to dissolve the Foundation, is likely to be followed by repercussions from federal law enforcement. The charity is subject to inquiry, and to the payment of sizeable penalties, for failing by virtue of its political activity to comply with the terms of its exemption. The Federal Election Commission will have little choice but to initiate its own investigation into the illegal corporate contributions from the Trump Foundation to President Donald Trump’s campaign. The New York attorney general has specifically “referred” these matters to the FEC, the Department of Justice, and the IRS for their review.


North Carolina General Assembly Continues to Look for Ways to Tamp Down African-American, Democratic Vote

News and Observer:

One of the most popular days for early voting would be eliminated under a proposal that supporters say is meant to bring uniformity to the 100 North Carolina counties’ one-stop voting schedules.

Rep. David Lewis, a chief architect in the House of elections laws, said the proposal in the legislature would make it easier for elections officials to pivot from running early voting to Election Day preparations, and make it easier for people to know when and where they can vote early.

The proposal would set a 17-day early voting period that ends the Friday before Election Day.

Democracy North Carolina, a nonprofit concerned with election law, said nearly 200,000 people cast ballots on the last Saturday of early voting in 2016, and that the last Saturday is disproportionately used by African-American voters.


“The Supreme Court Made a Good Decision on Election Law; In praise of the ruling in Minnesota Voters Alliance v. Mansky.”

I have written this piece for Slate. It begins:

Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law I thought it should have upheld, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation….

First, the court made it clear that a state “may prohibit messages intended to mislead voters about voting requirements and procedures.” So Minnesota likely had the power to ban the “Please I.D. Me” buttons, not because they are political, but because they are misleading. In an era of campaign dirty tricks, “fake news,” and misinformation, this is a welcome recognition that states have broad powers to stop false and misleading speech about when and how to vote.

Second, when the court described permissible state laws to ban electioneering in polling places, it did not endorse the narrow, formalistic view of what counts as election speech that it has adopted in the campaign finance area. There, the court on First Amendment grounds has said that limits on election spending (say, barring foreign nationals from spending in our elections) are permissible only when they prohibit express advocacy (like “Vote for Trump”) or its functional equivalent.

In Mansky, the court endorsed a much broader and more functional approach. As an example of a permissible law, it pointed to Texas Elections Code section 61.010, which bans at the polling place and within 100 feet of it “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.” That “relating to” language is much broader than the narrow tests the court has used in campaign finance cases, and it recognizes the reality that campaign-related speech often does not use “magic words” of advocacy.


“Presidential Elections: National Popular Vote, Elector Unit Rule Voting and Related Issues”

William Josephson has posted this draft on SSRN. Here is the abstract:

How to elect the President was the second most debated issue at the 1787 constitutional convention. The last moment Electoral College compromise between congressional election of the President and popular vote reflected the states’ sovereignty in a federal system of limited national government and of plenary power state governments, except as the Constitution limited state powers.

The NY Times’s Electoral College solution, at least since 2006, is National Popular Vote (NPV). It adheres to it despite the NPV’s vital flaws, which I am about to describe in (excruciating) detail.


“Fred Wertheimer is NOT Retiring: Celebrating 50 Years of Advocacy”

Congrats to Fred Wertheimer, celebrating 50 years of advocacy! I received the following release from Common Cause about an event tonight:

One of Washington’s most well-known advocates, Fred Wertheimer, will be celebrated by friends, media, and members of Congress Thursday night from 5-7 pm at the offices of Common Cause. The celebration marks Wertheimer’s 50 years of advocacy opening government to public scrutiny and making sure the people’s voices are heard in our democracy. Wertheimer is founder and president of Democracy 21, advocating for government integrity, accountability and transparency, and worked for 24 years at Common Cause, serving as the non-partisan government watchdog group’s president from 1981-1995.

But if there is one thing Fred Wertheimer wants people to know as he celebrates this milestone, it is that he is NOT retiring. He’ll address why the work of the democracy movement is more important now than ever before in his remarks at the celebration.

Wertheimer has been described by The New York Times as “the country’s leading proponent of campaign finance reform,” and “the dean of campaign finance reformers,” by Washington Post columnist E. J. Dionne as “the eminence grise of the campaign reform movement” and by The Boston Globe as a “legendary open-government activist.” He was named as one of Washington’s 90 greatest lawyers of the last 30 years by Legal Times in 2008 and as one of Washington’s top lobbyists for several years by The Hill, a Capitol Hill newspaper.


New Voting System Coming to LA County—and PSAs on the Scale of “Carmageddon”


A week after a huge glitch during the California Primary, Los Angeles County moved to modernize its voting system. It comes with a big price tag and a lot of questions.

The mystery of the 118,000 missing names on L.A County voter rosters remains under investigation, yet the troubling lapse did not deter the Board of Supervisors from delivering a huge vote of support to County Registrar-Recorder Dean Logan on Tuesday.

The board voted unanimously to fund Logan’s plan for a massive overhaul of the the voting system. A contractor, Smartmatic, will be hired for terms that could reach $282 million.
Logan said safeguards for the county are built in.

“The contract is a performance-based contract based on key deliverables and service-level agreements,” said Logan.

The supervisors said that last week’s massive glitch is symptomatic of an antiquated system.

Logan said that the system is not a panacea, but it will make trouble-shooting much faster.

The system will employ touch-screen ballots. Neighborhood polling sites will be replaced by regional polling centers. Paper ballots will record each vote and be fully auditable. The system will go through mock elections later this year.


A More Fundamental Legal Problem with the 3-Californias Ballot Measure

Last night I flagged the revision/amendment issue as a major obstacle to 3-Californias going forward, but Bob Wolfe sees a more fundamental problem:

At first glance, I thought the initiative is unconstitutional because it “contemplates such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.” (See Raven v. Deukmejian (1990) 52 Cal.3d 336.)

But this initiative is even flimsier than that. To my huge surprise, it doesn’t even purport to be a constitutional amendment; instead, it’s an initiative statute, which has a much lower signature requirement. The amendment merely amends the Government Code section 173 to establish three new states. It doesn’t change the California Constitution.

This statutory initiative contravenes the letter and intent of virtually every provision of the California constitution. The initiative relies upon a provision in the California constitution which allows the state’s boundaries to be modified “pursuant to statute.” (Cal. Const., Art. III, §2.) That presumably could happen if a river changes course, or if there was a surveyor’s mistake. But the same constitutional section – which the initiative cannot amend, also provides that “Sacramento is the capital of California.” (Cal. Const., Art. III, §2.)

Yet, according to the initiative, Sacramento no longer is in the state of California; it’s now to be located in the new state of Northern California.

How can this be without a constitutional amendment?

The California Constitution provides that the University of California is a public trust, to be administered by the Regents of the University of California, who “shall be vested with the legal title and the management and disposition of the property of the university and of property held for its benefit . . . “ (Cal. Const., Art IX, §9.) Yet, under the initiative measure, UC Berkeley, UCLA and UC Irvine are now to be located in different states. Again, there is no way that a statute can alter a constitutional provision.

I doubt (and hope) that this statutory initiative measure will even make it onto the November ballot. The Calif. Supreme Court has the power to engage in “preelection review” to strike an unconstitutional initiative before anyone votes on it. (See Senate of State of Calif. v. Jones (1999) 21 Cal.4th 1142.) In Jones, the Supreme Court invalidated an initiative measure from the ballot just 11 days after receiving the final brief, and 3 days after oral argument. It never went before the voters.

So who is going to file a writ to get this knocked off the ballot before the November election?


Priorities USA Files State Lawsuit Challenging Missouri Voter ID Law

This is a really interesting state lawsuit. To simplify a bit: Missouri had a voter id law, which the state supreme court struck down as unconstitutional under the state constitution. So Missouri legislators put a voter id requirement into the state constitution, and then passed implementing legislation prescribing which forms of id were acceptable etc.

The new lawsuit claims that the implementing legislation violates the new voter id requirement in the state constitution.

You can find the complaint here.


“Low-Information Voting: Evidence from Instant-Runoff Elections”

Mike Alvarez, Thad Hall, and Ines Levin have posted this draft on SSRN (forthcoming, American Politics Research). Here is the abstract:

How do voters make decisions in low-information contests? Although some research has looked at low-information voter decision-making, scant research has focused on data from actual ballots cast in low-information elections. We focus on three 2008 Pierce County (Washington) Instant-Runoff Voting (IRV) elections. Using individual-level ballot image data, we evaluate the structure of individual rankings for specific contests to determine whether partisan cues underlying partisan rankings are correlated with choices made in nonpartisan races. This is the first time that individual-level data from real elections has been used to evaluate the role of partisan cues in nonpartisan races. We find that, in partisan contests, voters make avid use of partisan cues in constructing their preference rankings, rank-ordering candidates based on the correspondence between voters’ own partisan preferences and candidates’ reported partisan affiliation. However, in nonpartisan contests where candidates have no explicit partisan affiliation, voters rely on cues other than partisanship to develop complete candidate rankings.


“Mainers vote to keep ranked-choice voting, with supporters holding commanding lead”

Portland Press-Herald:

 Mainers supported ranked-choice voting for the second time in two years with the passage of a people’s veto on Tuesday, making the state the first in modern times to overhaul its system for choosing candidates.

Supporters of Question 1 held a big lead statewide as of 10:15 a.m. Wednesday morning, according to unofficial results from the Associated Press. With 77 percent of precincts reporting, the measure to proceed with ranked-choice voting had a total of 127,048 yes votes, and  106,607 no votes, results showed. The race was called early Wednesday morning.

Maine voters first approved ranked-choice voting by referendum in November 2016, but the law was mired in legal challenges for nearly a year. The Republican-led Legislature passed a bill in October 2017 that sought to delay implementation, and supporters then responded by gathering enough signatures to force a people’s veto. That’s what was on the ballot Tuesday.


“Radical plan to split California into three states earns spot on November ballot”


California’s 168-year run as a single entity, hugging the continent’s edge for hundreds of miles and sprawling east across mountains and desert, could come to an end next year — as a controversial plan to split the Golden State into three new jurisdictions qualified Tuesday for the Nov. 6 ballot.

If a majority of voters who cast ballots agree, a long and contentious process would begin for three separate states to take the place of California, with one primarily centered around Los Angeles and the other two divvying up the counties to the north and south. Completion of the radical plan — far from certain, given its many hurdles at judicial, state and federal levels — would make history.

Seems to me that this alone would doom the proposal:

There also is a sizable debate about whether such a sweeping change can be created through a ballot initiative — that is, whether it rises to the level of a “revision” of the California Constitution, which can only be instigated by the Legislature or by a formal constitutional convention. Revisions, Amar wrote in 2017, are generally seen by the courts as the most substantial kinds of changes to a government.

“What is of greater importance to a state than its geographic boundaries?” Amar wrote. “As the national debate about a wall along the Mexican border rages, we are reminded that even in a digital age, physical space and physical lines matter immensely to the course of peoples’ lives, and the legal regimes under which they live.”


“N.D. takes pride in its voting law”


In an era when hacking has raised concerns about the security of America’s elections and President Donald Trump raises concerns about voter fraud, North Dakota stands out as the only state that doesn’t require voter registration.

Residents and most state and local election officials say the low-tech system in use for Tuesday’s primary, as it has been for generations, works just fine.


“The Ohio Purge and the Future of Voting”

Dale Ho NYT oped:

States should also be encouraged to adopt Election Day registration programs allowing eligible voters — including those who have been knocked off the rolls — to register at the polls. Fifteen states and the District of Columbia follow this approach, and they see turnout rates as much as 10 percent higher than those of states that don’t.

Two more states may soon adopt Election Day registration: Maryland, where the State Legislature has placed a measure on the ballot in November that would create such a program and Michigan, where the A.C.L.U. is supporting an effort to gather enough signatures to put a similar initiative on the ballot.

Ultimately, if legislatures and courts won’t protect our voting rights, it may be up to us to do it ourselves at the ballot box.


Federal District Court Holds Colorado Law Allowing Private Individuals to File Campaign Finance Complaints Violates the First Amendment

This opinion (by Obama appointee Raymond Moore) is perhaps the worst-written and reasoned election law opinion I’ve read from a federal court.

I’m not saying the result is necessarily wrong (though my early thoughts are that it is). But much more clarity is necessary here.

Here’s a press release from the CO SOS saying this case “has major implications for Colorado’s enforcement of its campaign finance laws.”



“Do we have a right not to vote? The Supreme Court suggests we don’t”

Dan Smith and Michael Herron NYDN oped:

More fundamentally, do we have a right not to vote?

Should infrequent voters be removed from the rolls merely for not exercising their franchise? Is the right to vote only protected when it is used? Or do we tacitly renege the franchise when we skip a couple elections?

The Supreme Court has ruled and do not be surprised if other states jump on the court’s decision and begin purging infrequent voters. When it comes to the right to vote, it’s now use it or lose it.


Ohio’s Voter Purge Law Has Been in Place for 24 Years

Surprised to learn that?  I know I was.  I discovered that from Justin Levitt’s blog post, here, which says:

This is not a new piece of voter suppression devised by current elections officials: Ohio put the process in place 24 years ago, and it has been implemented by both Rs and Ds.

That sent me back to the plaintiff’s brief, which indeed complains about Ohio “retaining” this system, not about Ohio’s adoption of this system. Nor is there any claim I could see that Ohio has suddenly started enforcing this system more aggressively.  Indeed, Justin’s criticism is that in the last 24 years, more effective means of maintaining accurate lists have been developed.

None of this affects the issue of what the proper interpretation of the statute is.  But if the media coverage of this case has left you with the impression this was a recently enacted law, that’s wrong.


“IRS revokes dark money group Americans for Job Security’s tax exempt status”

Big news from Issue One:

This week, the Internal Revenue Service (IRS) announced that it revoked the dark money group Americans for Job Security’s tax exempt status. The announcement followed a complaintfrom Issue One and the Campaign Legal Center (CLC) against the organization.

Americans for Job Security was a tax-exempt “business league” that spent tens of millions of dollars influencing elections while keeping its donors secret, but failed to file its tax returns for the past three years. Issue One and CLC’s complaint called on the agency to enforce penalties against Americans for Job Security for failing to file multiple years of mandatory returns….

Founded in 1997, Americans for Job Security was among the earliest political “dark money” groups — so-called because they do not publicly disclose their donors, unlike political action committees, super PACs, candidates and parties, which do.

A tax-exempt business league under section 501(c)(6) of the tax code, Americans for Job Security spent more than $20 million in political advertising in the two election cycles following the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commission decision.

In July 2016, the Federal Election Commission fined Americans for Job Security $43,000 after the agency concluded that the group should have disclosed a nonprofit known as the Center to Protect Patient Rights, then associated with the political network of billionaires Charles and David Koch, as a donor behind some of its political expenditures in 2010.

In addition to its own political spending, Americans for Job Security also played a prominent role in funneling tens of millions of dollars to two ballot measure fights in California during the 2012 election — part of a scheme that the California Fair Political Practices Commission later concluded was designed to hide the identities of the actual donors supporting the ballot measure efforts.


Maine: “LePage declares he ‘probably’ won’t certify election results, but secretary of state says they’re still binding”

The Press Herald reports:

Gov. Paul LePage announced he may not certify the results from a historic vote Tuesday because he is opposed to a new way of voting.

Tuesday is the first time in Maine where voters statewide will use a ranked-choice system, which allows voters to submit a ballot that ranks votes for candidates in order of preference. It is being used in both parties’ voting for gubernatorial candidates, a race for the Democratic nomination for the U.S. House in the state’s 2nd congressional district and a state legislative seat.

LePage, in an interview with WCSH-TV, called the voting system “the most horrific thing in the world” and said he “probably” won’t certify the results and instead will “leave it up to the courts to decide.”

LePage also said, incorrectly, that Maine had ranked-choice voting before and former Gov. Joshua Chamberlain “got rid of it” because it was not working.

Secretary of State Matt Dunlap, in an interview Tuesday morning, said the election results will be binding whether LePage certifies them or not.