Get Your Election Results Poster Here

Watch tomorrow’s hard copy Washington Post or see this flyer  from Election Data Services. According to Kim Brace of EDS, “We did several new things this year that should be of interest to Election Law readers: 1) county results from a number of different referendum issues, including a section on Voting Rights, and 2) a new map showing which party controls the highest State Election Office in each state (ie, Secretary of State, State Election Board, etc.) and how they are appointed or elected.”


“With Midterms Over, Voter ID Law Effects Get Close Look”

Trip Gabriel and Manny Fernandez write for the NYT. A snippet:

Voting rights advocates raised eyebrows about the role of voting restrictions in races that were narrowly decided. Wendy Weiser, director of the democracy program at the Brennan Center for Justice, which has challenged voting restrictions in court, said that in some key races, Republicans won tight victories that were close to what she called the “margin of disenfranchisement.”

In North Carolina, Ms. Weiser noted, 200,000 voters cast ballots over seven days of early voting in 2010 – a window used especially by African-Americans – that was eliminated this year. Thom Tillis, a Republican, defeated Senator Kay Hagen by just 48,000 votes.

Similarly, Ms. Weiser pointed to Kansas, where Gov. Sam Brownback, a Republican, was re-elected by fewer than 33,000 votes, or 2.8 percent. At the same time, 22,000 would-be voters, whose registrations were suspended for lack of a document to prove their citizenship, did not get to cast a ballot. Kansas also has a strict voter ID law, which a federal government study this year said suppressed turnout by about 2 percent. It had a greater impact on young and black voters.

“These laws should give us pause,” Ms. Weiser said. “They’re creating disenfranchisement. We have enough information to gauge what the order of magnitude is, and it’s close to the order of magnitude of the margins of victory.”

But Kansas’s secretary of state, Kris W. Kobach, who wrote the law requiring proof of citizenship to register and a photo ID to vote, dismissed the suggestion that it played a role in suppressing turnout. “Voter turnout in the November 2014 election was 50 percent, exactly what it was in the November 2010 election before we adopted our photo ID law — also 50 percent,” he said.

Ms. Weiser said she was not implying that any of last week’s victories were illegitimate, but other commentators, especially on the left, have not been so restrained, implying that voter requirement laws are already deciding elections.

But there are problems in leaping to such conclusions, voting experts said. In North Carolina, despite the elimination of seven days of early voting, overall early voting was up by 35 percent compared with 2010, according to the United States Election Project at the University of Florida.



“Inspector General Cites FEC Management Problems, Staff Vacancies”

Bloomberg BNA breaking news via email:

The Federal Election Commission has serious management problems, including a failure to hire a general counsel and fill other top staff positions, according to a new assessment from the agency’s inspector general, Lynne A. McFarland.

“Critical management positions that are directly linked to carrying out the agency’s mission have remained vacant for more than a year,” McFarland said in a memo quietly posted on the FEC website late Nov. 17 as part of the agency’s annual financial report for fiscal 2014.


The Critical Federalism Issue at the Heart of the Alabama Redistricting Cases

Justin here, with a thought on last week’s oral argument in two consolidated cases about Alabama’s redistricting process.  There’s an issue lurking at the heart of the dispute that may be difficult to spot in the transcript.

The cases concern the rationale behind Alabama’s last state legislative redistricting plan.  Press headlines pitched the issue as a tussle between racial reasons and political ones.  Such cases can indeed be quite messy … but for better or worse, this dispute is not one of them. Alabama said that its districts were driven by the Voting Rights Act, and not by partisan politics.  And by the end of the argument, most of the Court seemed to understand that any deeper partisan impulse was achieved through race-based means.  (Look at LULAC — or Judge Kozinski’s Garza opinion — for an explanation of why using race to achieve partisan ends is still race-based action.)

At least some Justices also seemed to understand that Alabama’s districts were not actually driven by the Voting Rights Act.  As I’ve written, Alabama instead deployed a poor essentialist facsimile.  The Voting Rights Act is a nuanced statute that requires attention to race only after careful consideration of on-the-ground political reality. Alabama cut corners, pegging its districts to raw demographic targets without the necessary homework. Whatever Alabama was following wasn’t the statute on the books.

Which leads to the intriguing buried issue. Why manufacture a false façade for a federal law?  Perhaps it was honest mistake about what the statute requires.  Perhaps it was an attempt to overpack many African-American voters into a few hyperconcentrated districts, or to change the representative face of the Democratic party in Alabama.  Or perhaps the ostensible federal mandate offered the prospect of a convenient path around an inconvenient state structure.

Alabama’s state constitution, like many others, builds state legislative districts out of whole counties. This has an important tie to local governance in much of the south, where county policy is effectively set by the state legislative delegation from each county.  The rules for Autauga County are driven by the state legislators from Autauga; Winston County’s state legislators make law for Winston.

In a system like this, when state legislative districts follow county lines, those with the county’s interests set county rules.  But any district claiming a portion of a county becomes part of the county’s governing delegation.  The more times a county is split, the larger the governing delegation. Some of the county splits involve only a few voters in any one county.  And when counties are carved up to give several suburban legislators little bits of urban-county fragments, county policy is set by state Senators serving primary constituencies miles away.

Alabama is only able to effectuate this double gerrymander — warping state legislative districts and county governance, in the same stroke — if it can find a way around the county-line requirement. That’s the “federalism” at issue, and it is precisely the inverse of the norm.  Alabama’s representatives have sought to distort federal law as cover to override their own state constitution. 

There are two ways in which Alabama’s legislature misread the federal law at hand.  First, it tightened population constraints well beyond what the federal constitution requires.  Then Alabama picked racial demographic targets, falsely claiming the mantle of the Voting Rights Act. 

There are indeed times — many times — when these federal mandates will override state standards.  But the fake versions that Alabama applied do far more damage to the state constitutional commands than would a legitimate application of federal law (which, not coincidentally, would be more responsive both to longstanding state interests and facts on the ground).  In doing so, the legislature turned a few federal adjustments to a state’s legal regime into an excuse to ignore state law altogether. 

The use of fake federal authority and an ostensible racial imperative to seize county control was part of these cases from the beginning: the loss of policymaking authority for their constituents at home is an injury that the countries’ true representatives feel keenly.  It is also an awkward legal claim on its own, and not directly before the Supreme Court.  But it is a powerful and underrecognized illustration of the practical political consequences of Alabama’s misrepresentation of federal law.  And it is therefore perhaps an explanation for that misreading as well.  Indeed, it may be the issue at the heart of the case.


“Mayday, a Super PAC to Fight Super PACs, Stumbles in Its First Outing”

Derek Willis, NYT’s The Upshot:

Mayday should find opportunities on the Democratic side, backing primary candidates for whom campaign finance reform is a top issue against candidates for whom it is one of many. Having a presidential contest in 2016 will increase the field of potential targets compared with 2014. The number of freshman Republicans in the House facing their first re-election fight will provide some potential opportunities.

But unless Mayday can Republican primary voters to unseat incumbents on the issue of money in politics, winning a legislative majority that will change the current campaign finance rules looks dubious.



“Georgia senator: Ban driver’s licenses for immigrants with DACA”


Similar legislation died on a bipartisan vote in the state Senate during this year’s legislation session. Critics said Senate Bill 404 would have punished children for the choices their parents made and blocked them from working and contributing to the state’s economy. Supporters spoke about upholding the nation’s legal immigration system. On Monday, McKoon cited road safety, “voter integrity” and security issues.

“There have been press reports in North Carolina that folks on deferred action have registered to vote – have attempted to vote,” he said. “We simply can’t have that in our state. We have to have elections that people can respect the integrity of.”

“You generally are not going to be granted admittance to a federal building without a driver’s license of some kind and that is a security measure,” he added. “And if you start talking about issuing these licenses to large populations that we know very little about — in terms of where is the person’s country of origin, what is their reason for being in the country — I think quite frankly we create some security challenges as well.”


“How the GOP used Twitter to stretch election laws”

Chris Moody with the campaign finance coordination story of the season on CNN:

Republicans and outside groups used anonymous Twitter accounts to share internal polling data ahead of the midterm elections, CNN has learned, a practice that raises questions about whether they violated campaign finance laws that prohibit coordination.

The Twitter accounts were hidden in plain sight. The profiles were publicly available but meaningless without knowledge of how to find them and decode the information, according to a source with knowledge of the activities.

The practice is the latest effort in the quest by political operatives to exploit the murky world of campaign finance laws at a time when limits on spending in politics are eroding and regulators are being defanged.

The law says that outside groups, such as super PACs and non-profits, can spend freely on political causes as long as they don’t coordinate their plans with campaigns. Sharing costly internal polls in private, for instance, could signal to the campaign committees where to focus precious time and resources.

The groups behind the operation had a sense of humor about what they were doing. One Twitter account was named after Bruno Gianelli, a fictional character in The West Wing who pressed his colleagues to use ethically questionable “soft money” to fund campaigns.

A typical tweet read: “CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52–>49/476-10s.” The source said posts like that — which would look like gibberish to most people — represented polling data for various House races.

Posting the information on Twitter, which is technically public, could provide a convenient loophole to the law — or could run afoul of it.

See also the related video.

My first impression is that Ken Gross, quoted in the story, hits the key question:

“If it truly requires some sort of Ovaltine decoder ring to make heads or tails of the information, then there certainly is the possibility that there was some pre-arrangement,” Gross said. “Just making it public is not enough. You have to further meet the requirement of no pre-arrangement or coordination. But it is the burden of the government to demonstrate that.

I expect we will hear much more from this as other campaign finance reporters work on this story.

I would love to hear the back story of how Chris discovered this. Wow.


“Two Charged in Campaign Finance Case; De Blasio Aide Backs Out of Speaking With Special Prosecutor”


Since 2012, Mr. Adler has been investigating the Working Families Party’s relationship with Data & Field Services, a corporation formed by the left-leaning party to provide its candidates with get-out-the-vote staffing and expertise.

Investigators are looking at whether the for-profit firm charged significantly lower fees than is typical for such services, potentially providing an unfair advantage to favored candidates.

According to a criminal complaint, David Thomas, who served as treasurer in Councilwoman Debi Rose’s 2009 campaign, and Ms. Rose’s campaign have been charged with grand larceny in the third degree and a variety of other charges. David Jones, a political consultant, was charged with grand larceny in the third degree.



“Invest in Smarter Government”

Lee Drutman for Cato:

Congressional offices are thus stretched thin. They lack resources to develop and execute policies. What this means is that to get its work done, Congress has to rely significantly on lobbyists representing some very narrow interests, primarily large corporations and business associations who tend to benefit from the status quo. It’s hard to get anything done in Washington if you don’t have significant help from outside lobbyists, anyway. Lobbyists play essential roles in shepherding legislation through — drafting and vetting laws, building coalitions, and ensuring widespread support.11

By my count (looking at disbursement data), the Senate spent $490 million on compensation, and the House spends $876 million, a total of $1.37 billion, in 2013. If this seems like a lot of money, consider that it is 0.03% of the total federal budget of $3.6 trillion. It is also less than half of the $3.24 billion spent on direct lobbying in 2013 (which itself is probably less than half of the money actually spent on lobbying). Since the Republicans took control of the House in January 2011, they’ve cut committee staffs by 20 percent. Congress is being run on the cheap.

Here’s what I would do with my wave of the magic wand. I would triple the amount the Congress spends on staff (keeping it still at just under 0.1% of the total federal budget). I’d also concentrate that spending in the policy committees. I’d give those committees the resources to be leading institutions for expertise on the issues on which they deal. I’d also give these committees the resources to hire their own experts — economists, lawyers, consultants, etc.12 But I’d also make sure that these committees were not explicitly partisan. Rather than Republicans and Democrats having separate committee staffs, have one committee staff of professionals and experts. Staff could be a mix of political leanings. But let them be one team, where they argue and hash out ideas together.


“Low voter turnout eases ballot-measure requirement”


Got a ballot measure for 2016? You’re in luck.

Ballot initiatives two years from now will need about 30 percent fewer qualifying signatures than they did this year, according to the political-consulting types at Sacramento’s Redwood Pacific Public Affairs.

The reason: abysmal turnout for the Nov. 4 election. California requires valid signatures equal to 8 percent of the most recent gubernatorial vote to qualify a constitutional amendment for the ballot, 5 percent for regular laws and veto referenda.


“California officials ponder all-mail voting”

SacBee reports.

While some opponents believe all-mail elections open the door to voter fraud, academics and voting-rights advocates worry an all-mail statewide voting system would further disenfranchise young people, residents at the lower end of the socio-economic ladder and those whose native language is not English..

Every election, many ballots go uncounted, including those that are filled out incorrectly, missing valid signatures or simply mailed in too late. Research out of UC Davis shows that nearly 3percent of the vote-by-mail ballots received – or roughly 91,000 – in the June primary election were not counted. It was 1percent, or 69,000 ballots, in the 2012 general election.

“California has one of the highest uncounted mail-ballot counts in the nation,” said Kim Alexander, founder and president of the California Voter Foundation. “At a time when civic participation is in decline, I think it’s important to nurture the voting process as much as we can, which means operating polling places and keeping voting a visible, public act rather than something people only do in the privacy of their homes.”

Other experts doubt moving to all-mail would indeed speed up the counting process. Much of the lag time is attributable to the large number of ballots that pour into county elections offices in the final days and hours.