“The 25th Amendment Solution to Remove Trump”

Ross Douthat NYT column:

Which is not an argument for allowing him to occupy that office. It is an argument, instead, for using a constitutional mechanism more appropriate to this strange situation than impeachment: the 25th Amendment to the Constitution, which allows for the removal of the president if a majority of the cabinet informs the Congress that he is “unable to discharge the powers and duties of his office” and (should the president contest his own removal) a two-thirds vote by Congress confirms the cabinet’s judgment.

The Trump situation is not exactly the sort that the amendment’s Cold War-era designers were envisioning. He has not endured an assassination attempt or suffered a stroke or fallen prey to Alzheimer’s. But his incapacity to really govern, to truly execute the serious duties that fall to him to carry out, is nevertheless testified to daily — not by his enemies or external critics, but by precisely the men and women whom the Constitution asks to stand in judgment on him, the men and women who serve around him in the White House and the cabinet.


“U.S. For Voting Rights Advocates, Court Decision Is ‘Temporary Victory’”

Michael Wines in the NYT:

It seemed like an important victory for voting rights advocates on Monday when the Supreme Court declined to reconsider an appellate decision striking down North Carolina’s restrictive voting law. But those who follow the arcana of election law have another view — that the justices have merely postponed a showdown over what kind of voting rules are acceptable and how much influence partisanship should have over access to the ballot box.

And in that struggle, it is by no means certain who will prevail.

A parade of voting rights cases is headed for likely review by the Supreme Court — including challenges to gerrymanders in Wisconsin, North Carolina and Texas and a ruling against another restrictive voter law in Texas. At the same time, states controlled by Republican legislatures and governors are continuing to enact stringent election laws, many of them similar to the ones already moving through the courts.

The pending cases and new laws raise some of the same issues the justices declined to address in the North Carolina case: What is the reach of the Voting Rights Act since the court struck down its most powerful provisions in 2012? Is it legal to disadvantage minority voters if the motivation is political gain, not racial or ethnic hostility? How heavily can the court weigh in on partisan issues like gerrymandering and voter ID requirements before it becomes even more enmeshed in partisanship itself?


“Trump’s Fraudulent Voter-Fraud Commission”

NYT editorial:

To state the obvious, this isn’t a commission. It’s a self-driving vehicle preprogrammed to arrive at only one destination: that strange, fact-free land in which, according to Mr. Trump and many conservatives, hordes of foreigners and people without valid photo identification flood the polls, threatening the nation’s electoral integrity. The right-wing politicians and anti-voter activists who appear to believe this never trouble themselves with the actual data.


“New Report: Extreme Partisan Maps Account for 16-17 Republican Seats in Congress”


The 2018 midterms will be fiercely fought, with a focus on control of the U.S. House after years of Republican dominance. At the same time, the U.S. Supreme Court will likely hear a challenge to partisan gerrymandering in Gill v. Whitford later this year. And both parties gearing up for the new national redistricting cycle starting in 2021. Congressional maps are back in the political spotlight.

Today, a new report from the Brennan Center for Justice at NYU School of Law finds that extreme partisan bias in congressional maps account for at least 16-17 Republican seats in the current Congress –a significant portion of the 24 seats Democrats would need to gain control of the House in 2020 – and that only a small number of swing states account for the vast majority of this partisan skew.

Extreme Maps, the first in-depth report to use data from the 2016 election as well as the 2014 and 2012 cycles, focuses on the most egregious map-drawing abuses. The congressional maps in question have high levels of “partisan bias” – the degree of systematic advantage one party receives over another in turning votes into seats – under at least three widely accepted statistical measures.


“Supreme Court order unlikely to deter voting restrictions”

Mark Sherman for the AP:

The Supreme Court’s refusal to breathe new life into North Carolina’s sweeping voter identification law might be just a temporary victory for civil rights groups.

Republican-led states are continuing to enact new voter ID measures and other voting restrictions, and the Supreme Court’s newly reconstituted conservative majority, with the addition of Justice Neil Gorsuch, could make the court less likely to invalidate the laws based on claims under the federal Voting Rights Act or the Constitution.

The justices on Monday left in place last summer’s ruling by the 4th U.S. Circuit Court of Appeals striking down the law’s photo ID requirement to vote in person and other provisions, which the lower court said targeted African-Americans “with almost surgical precision.”


Tobacco Companies, Other Corporations Pouring Money Supporting Republicans in Montana and Georgia Special Elections

Bloomberg BNA:

A Republican super political action committee that is pouring money into congressional races in Montana and Georgia is being funded by tobacco companies, video game manufacturers, other corporations and wealthy donors, according to recently filed Federal Election Commission reports.
Affiliates of R.J. Reynolds and Phillip Morris, along with the Entertainment Software Association (ESA), a trade association for video game makers, and the American Action Network (AAN), a nonprofit group that has received corporate funding, gave a total of nearly $2 million over the last month to the Congressional Leadership Fund, the super PAC endorsed by House Speaker Paul Ryan (R-Wis.) and other GOP leaders.
AAN provided more than $1.6 million to the super PAC, according to an FEC report filed May 11. RAI Services Co., an affiliate of R.J. Reynolds Tobacco Co. parent Reynolds American Inc., gave $250,000. Altria Client Services LLC, an affiliate of Philip Morris USA, gave $25,000. ESA gave $50,000.
Spending by the GOP super PAC and others in the Georgia and Montana special elections could presage record-shattering fundraising for the 2018 midterms. The latest FEC reports indicate an arms race is taking shape as Democratic contributors motivated by opposition to President Donald Trump and the Republican agenda are being countered by Republican groups funded by corporations, trade associations and wealthy individual donors seeking to preserve a business-friendly Congress.

The Texas Redistricting Cases are Likely the Next Big Voting Cases to Come to the Supreme Court

With the North Carolina voting case gone, I’ve seen some suggestions that the Texas voter id case is the next big voting rights case to make it to SCOTUS.

I don’t think that’s right. That case won’t be decided by the district court until summer at the earliest, and then there will be a Fifth Circuit appeal and possible en banc, followed by discretionary review by the Supreme Court.

But the longrunning Texas congressional and House redistricting case is headed to SCOTUS, directly from a three judge court on a mandatory appeal. It has everything in it: Voting Rights Act violations, racial gerrymandering, a finding of intentional racial discrimination in voting (with a dissent from Judge Jerry Smith saying it is all about party, not race), and potentially the imposition of preclearance by that Court on the next round of Texas redistricting.

This will be a big one, and it could make it to the court by the middle of next term, with our without Justice Kennedy.


Why Did the Chief Justice Write Separately in North Carolina and Texas Voting Cases?

Today Chief Justice Roberts wrote separately in connection with the Supreme Court decision not to hear the North Carolina voting case, underlining the procedural irregularities of the case and noting it was not a decision on the merits.

The Chief did a similar thing a few months ago in turning down the Texas voter id case. He made it clear that the rejection was all about the fact that the Texas case was not fully final, and not about the merits.

What’s this all about? I think the Chief is trying to signal to states to keep litigating these cases, and that he remains a great skeptic of the voting rights act and race-based remedies for voting. Whether or not the Chief Justice “evolves” on other issues if and when he becomes the new swing Justice, I don’t expect to see him evolving on voting rights. That’s one of his signature issues. Anyone thinking otherwise is engaged in wishful thinking.


North Carolina Passes Another Strict Voting Law at Its Peril

There’s already talk of the North Carolina general assembly (which has a veto-proof Republican majority) passing another strict voting rule (over the certain objections of the Democratic governor). This may happen even though the Supreme Court allowed the Fourth Circuit’s decision striking down the law as intentional racial discrimination in voting to stand.

It is worth remembering that a finding of intentional racial discrimination in voting gives a federal court the power to put a state or locality under federal supervision (or “preclearance”) for up to 10 years. Section 3 of the Voting Rights Act makes this “bail in” discretionary with the court after the intentional discrimination finding.

The Fourth Circuit declined to exercise this power in the last case, but a federal court could well do so next time, using the intentional discrimination finding in the last case as a predicate.

So more is at stake whenever the #ncga decides to make voting and registration harder again.


“Despite today’s Supreme Court ruling, the future looks grim for voting rights”

Paul Waldman:

And I promise you that if the Supreme Court upholds the Texas law, we’ll see just what we saw after the court took a knife to the Voting Rights Act: a rush to enact new restrictions in time for the next election. And they’ll be getting help from the Trump administration, which just impaneled its commission on voter fraud, led by crusading anti-immigrant activist Kris Kobach. The commission will provide the rationale, the Trump Justice Department will provide support, and the five conservatives on the Supreme Court will provide the legal stamp of approval.

The only thing Democrats can do to stop it is to win enough state elections to control the legislatures and governorships so that they can reverse these restrictions. Which, when Republicans have their way, is going to be just a little harder.


“U.S. District Court Rejects Gwinnett County Officials’ Efforts To Block Major Federal Voting Rights Lawsuit”


A federal district court judge in Georgia agreed that a coalition of plaintiffs representing minority communities has the right to claim the method of electing local officials in Gwinnett County, Georgia denies them from participating equally in electing local officials.

In her opinion in Georgia State Conference of the NAACP v. Gwinnett County Board of Registrations and Elections, Judge Amy Totenberg rejected the County’s argument that claims under Section 2 of the Voting Rights Act are limited to members of a single minority group.  Judge Totenberg noted that the Eleventh Circuit and other courts have held that coalition claims are permissible so long as the racial groups are politically cohesive.  The decision was issued on Friday.

You can read the ruling here.


“When Does Political Gerrymandering Cross a Constitutional Line?”

New Adam Liptak NYT Sidebar column:

The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party would win an outsize number of seats. But it has left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.

The problem, Justice Anthony M. Kennedy wrote in a 2004 concurrence, is that no one has come up with “a workable standard” to decide when the political gerrymandering has crossed a constitutional line.

Finding such a standard has long been, as one judge put it, “the holy grail of election law jurisprudence.”

In the coming weeks, the Supreme Court will consider an appeal from a decision in Wisconsin that may have found that holy grail. The case, Gill v. Whitford, No. 16-1161, arrives at the court in the wake of a wave of Republican victories in state legislatures that allowed lawmakers to draw election maps favoring their party.


Breaking and Analysis: Supreme Court Denies Cert. in North Carolina Voting Case; Chief Justice Issues Statement

Today the Supreme Court declined to hear a challenge to a Fourth Circuit decision holding that a North Carolina voting law (one I’ve called the strictest set of voting rules rolled into one law passed since at least the passage of the 1965 Voting Rights Act) could not be enforced because it was passed with racially discriminatory intent.

As I have explained in this forthcoming paper, the 4th Circuit used partisan discrimination as a proxy for race discrimination in determining that North Carolina had racially discriminatory intent. This controversial theory is an important one going forward in dealing with laws passed by white Republican legislatures in Southern states for self-interested reasons. The case is so important that I had urged (in Slate) the new Democratic governor and AG in North Carolina to withdraw the cert petition. They then tried to do so, and the Legislature fought against it.

In his separate statement regarding the cert denial, the Chief Justice did not say anything on the merits, but indicated that the fight over whether the cert. petition could be withdrawn was behind the Court’s decision not to hear the case, and that this does not mean he agrees with the decision on the merits:

Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260 U. S. 482, 490 (1923).

These days at the Supreme Court, getting the Court not to hear a voting case is a significant victory. While the Court could well issue an adverse decision in the future, the 4th Circuit opinion stays on the books for now, and it has already been relied upon to hold other strict voting laws illegal (as in the Pasadena Texas case, as described in my forthcoming paper).

So to summarize: Whew!

[This post has been updated.]


“A Seeker of Kansas Voter Fraud Gets a National Soapbox”


Kris W. Kobach, the Kansas secretary of state, oversees an office whose clerical and regulatory work costs the state’s taxpayers barely $5.5 million a year. But he has parlayed that modest post into a national platform for tough restrictions on voting rights and immigration, becoming both a celebrated voice within the Republican Party and a regular target of lawsuits by civil rights advocates.

Now, as vice chairman of the new Advisory Commission on Election Integrity announced by the White House on Thursday (Vice President Mike Pence is the titular chairman), Mr. Kobach has a far bigger soapbox for his views on voter fraud — which Republicans, including President Trump, call a cancer on democracy. Others say it is a pretense for discouraging the poor, minorities and other typically Democratic-leaning voters from casting ballots.

Academic studies regularly show — and most state election officials agree — that fraud is rare, and that the kind of fraud Republicans seek to address with voter ID laws is minuscule.

Mr. Kobach promised an impartial inquiry into election vulnerabilities during an interview on Friday, saying the commission would “go where the facts take us.” But in Kansas, the facts appear at best mixed, and critics say he is one of the most partisan and polarizing figures imaginable to preside over a fair inquiry on voter fraud.


No, “Liberal Professors” are Not “Trad[ing] Secret Emails” About Trump Voter Fraud Commission

A breathless Free Beacon story (like stories on Breitbart and the Daily Caller) points to Professor Lorraine Minnite’s efforts via the Election Law listserv to enlist other election law academics and professionals to organize a counter effort to Trump’s “voter fraud” commission.

The Free Beacon story is worse than the others because it tries to market Professor Minnite’s efforts as part of some secret conspiracy. The headline is: “Liberal Professors Trade Secret Emails in Effort to Undermine Trump Commission.”

To begin with, the Election Law listserv, which I have managed with Professor Dan Lowenstein since 1994, has over 1000 members, and many of them are not “liberal professors.” Certainly Jim Bopp and Brad Smith, who are active participants on the list, are no one’s liberals. Nor is Lowenstein himself.

Second, the email is not secret. It is publicly posted in the listserv’s archives.

Third, the idea of forming a counter commission to Trump’s faux “voter fraud” commission is neither new or private. On January 25, I wrote at Slate:

Baseless allegations of voter fraud hurt our democracy. You would think after the Department of Justice under President George W. Bush spent five years investigating voter fraud with nothing to show for it, the voter fraud canard would have been put to bed years ago. This call for a major investigation, if done fairly, could finally put the issue to bed. Let’s not fool ourselves into believing President Trump would order a fair investigation. But if he doesn’t, we will need a shadow investigation to counter whatever a Trump commission might put out to support its boss’ baseless conclusions.

 (My emphasis.)
So why was Prof. Minnite so exercised about the question of who sent the emails to these far right publications? Because it violates the posted rules of the listserv:
Members of the press may subscribe to the listserv and may describe in general terms the substance of discussion on the list, but should not quote posted comments or attribute ideas to specific individuals without the consent of the individuals.
The listserv has operated on the idea that it is a public list, and that archives are valuable for research and educational purposes, but that people will show courtesy to others before passing messages directly to the press. Someone was quite discourteous here. But that doesn’t translate, as Free Beacon makes it, into uncovering the work of a secret liberal cabal.

“Maryland Democrats’ faux redistricting reform”

WaPo editorial:

WITH ITS preposterously gerrymandered congressional voting districts, Maryland is an outstanding example of why states need nonpartisan redistricting reform. But the redistricting bill that emerged this year in Annapolis — in equal parts cynical and ludicrous — makes clear that the Democrats who dominate both houses of the General Assembly there remain loath to part with the incumbent-protection racket that enables them to choose their voters and perpetuate their grip on power with scant regard for good governance.


“Follow the data: does a legal document link Brexit campaigns to US billionaire?”

The Guardian:

But this signed legal document – a document that was never meant to be made public and was leaked by a concerned source – connects both Vote Leave and Leave.EU’s data firms directly to Robert Mercer, the American billionaire who bankrolled Donald Trump.

This is a deeply complex story. It has taken three months of investigation to unravel the web of connections – both human and contractual. But these connections and threads linking two separate foreign data analytics companies – one based in Canada and one based in London – raise profound and troubling questions about our democratic process. Because these intricate links lead, in not many steps, to Robert Mercer.

This ordinary-looking document is at the heart of a web of relationships that link Mercer with the referendum to take Britain out of the EU. What impact did Mercer have on Brexit? Did the campaigns know of the link? Did they deliberately conceal it? Or could they, too, have been in the dark?


Duke Journal of Constitutional Law & Public Policy Symposium: Voting Rights in Polarized America

This looks good:


Resurrecting Retrogression: Will Section 2 of the Voting Rights Act Revive Preclearance Nationwide?

By: Noel H. Johnson

“The Only Clear Limitation on Improper Districting Practices”: Using One-Person, One-Vote to Combat Partisan Gerrymandering

By: Allison J. Riggs and Anita S. Earls

Illiberal Democracy: The Toxic Mix of Fake News, Hyperpolarization, and Partisan Election Administration

By: Anthony J. Gaughan

North Carolina’s Racial Politics: Dred Scott Rules from the Grave

By: Irving Joyner

Why the South Matters Now: The Voting Rights Act, North Carolina, and the Long Southern Strategy

By: Caitlin Swain


Justin Levitt Comments on the Trump “Voter Fraud” Commission

Take Care blog:

Evidence suggests that the Commission’s conclusions are also already preordained.  Kris Kobach, co-chair of the new Commission, met with President-Elect Donald Trump in November 2016, in an apparent interview to become Secretary of the Department of Homeland Security.  He carried with him a memo, photographed by the press, labeled “Kobach Strategic Plan for First 365 Days.”  The last bullet on the page, number 23, read “Draft Amendments to National Voter …” — and the remainder was covered by Kobach’s sleeve. The full bullet almost certainly read “Draft Amendments to National Voter Registration Act,” the federal law that governs how Americans register to vote in federal elections. We’ll soon know for sure: Kobach has been ordered to turn the page over to plaintiffs in a pending lawsuit, by the end of this week.

What all of this likely means is that the person chosen as the new co-chair of the new Commission using federal resources to research and investigate potential election policies had, six months ago, already prepared a wish list of policies to implement.  This Commission is just the process of purporting to justify what has already been decided.

Moreover, there is absolutely no mention in the executive order of any potential costs of the policies the Commission is supposed to consider: no mention that the Commission should investigate the extent to which its preferred security theater policies actually make it more difficult for real, live Americans to exercise the franchise.  That’s a dangerously one-sided calculus for tinkering with a fundamental right.


Charles Stewart on New Trump “Voter Fraud” Commission: This Will Distract From Real Work of Election Reform

Charles is one of the smartest and fairest people working in the field of election administration from the academic side. From his post today:

4. The lost opportunity.  Most people who work in the field of election administration, academics and practitioners, know that the voter registration system is less than perfect and needs help.  Democrats and Republicans alike have worked in recent years to address the vulnerabilities in this system.  In some cases, they have come together to embrace programs like ERIC (the Electronic Registration Information Center) , in order to improve list maintenance.  In other cases, they have supported online voter registration, which holds the promise of improving the accuracy of voter lists.  The existence of a commission with a partisan framing will create barriers for non-partisan and dispassionate work in this area to proceed — not because it will necessarily politicize those already doing the hard, tedious work in this area, but because they (we) will yet again have to swat back unfounded rumors, leaving less time for the work that actually needs to get done.


Doug Chapin Has Questions About New Trump “Voter Fraud” Commission

Among Doug’s questions:

What impact does this have on members of the commission?

Several members of the new commission are involved in complicated issues elsewhere. Kansas’ Kobach continues to be the target of numerous lawsuits regarding his state’s voter registration laws – and as part of those has been ordered by a court to produce documents he shared with the then President-elect on the topic of voter rolls. Maine’s Dunlap is in the middle of a dispute (which has reached the State Supreme Court) over whether his state will implement ranked-choice voting for federal elections. And the EAC’s McCormick is involved in a lawsuit over the agency’s authority to add state proof-of-citizenship laws to the federal voter registration form – with a June 1 deadline for responding to the court on a key issue in the case.

I’ll be curious to see how (if at all) the commission’s work affects these other developments – especially the EAC, which already faces intense Congressional scrutiny and beyond the lawsuit is carrying a heavy and broad workload in support of state and local election officials nationwide.


Bauer on Trump Voter Fraud Commission: “election administration experts should keep their distance”

Bob Bauer, former co-chair of the last (bipartisan) Presidential Commission on Election Administration:

This means that the only hope for the Commission to attain respectability is to build a record of consultation with the respectable. And given how the Commission is organized–its leadership, the background of presidential claims, and its disingenuous plan to “enhance” the very public confidence that it is undermining –election administration experts should keep their distance. Or they will be, in a word, used. Their cooperation will allow for the Administration to pretend to have had serious bipartisan support for its work, which can be expected to result in politically charged claims and legislative and other proposals to restrict the right to vote.

One of the named Commissioners has committed to speak up if the Commission turns out to be a “Trojan horse” for delivering any such voting rights infringements. But the Trojan horse was an act of cunning, a deception. The Commission has been set up with its purposes quite openly advertised: it has been positioned within the city gates, to spare it the need to be sneaked in. The members of the community under invasion should retreat into their houses and lock their doors.


Why Didn’t Trump Announce All 15 (or 12?) Members of His “Voter Fraud” Commission? And Why Announce Now?

The Executive order establishing the “voter fraud” commission provides for the VP to chair and up to 15 additional members. Yet the NYT report says it will have “about a dozen” members, and so far we only know the names of Kobach, Lawson, Blackwell, Gardner, Dunlap and McCormick. That’s 6 names.

So unusual to announce the formation of a commission without saying who the members are and passing along their bios; without having a research director in place; without having infrastructure in place.

It is not as though this is a new idea. My Slate piece criticizing the idea of the commission was posted Jan. 25, just 5 days after inauguration.

So here are two theories:

  1. This was rushed today to take attention away from Comey/Russia, before everything was put in place.
  2. They’ve been trying to find more Democrats and some election professionals/academics to serve on the committee, and so far they’ve come up empty. They want to create the pretense of a fair, bipartisan commission.

I’m open to other theories including simple incompetence.


“Trump Picks Voter ID Advocate for Election Fraud Panel”


President Trump on Thursday named Kris W. Kobach, the Kansas secretary of state who has pressed for aggressive measures to crack down on undocumented immigrants, to a commission investigating vote fraud, following through on his unsubstantiated claim that millions of “illegals” voted for his Democratic rival and robbed him of victory in the national popular vote.

Mr. Kobach, who has championed the strictest voter identification laws in the country, will be the vice chairman of the commission, which will be led by Vice President Mike Pence and is expected to include about a dozen others, including state officials from both political parties, said Sarah Huckabee Sanders, the deputy White House press secretary.

Mr. Trump signed an executive order on Thursday creating the commission, which Ms. Sanders said would have a broad mandate to review policies and practices that affect Americans’ confidence in the integrity of federal elections. Marc E. Lotter, Mr. Pence’s spokesman, said that voter suppression would be among the topics studied by the commission, which he said would take a wide-ranging look at problems at the state and national levels. But the order makes no mention of suppression or voting restrictions, specifying only “improper” or “fraudulent” registration and voting as issues to be explored.


“Is the Supreme Court about to give state and local political parties a boost?”

Brad Smith in Wash. Examiner:

Hardest hit are state and local parties. As part of the McCain-Feingold campaign finance “reform” of 2002, virtually everything these local parties do was brought into the web of federal regulation, and their sources of funding largely cut off. A poorly-reasoned Supreme Court decision, McConnell v. Federal Election Commission, upheld these restrictions against a constitutional challenge in 2003. Cases decided since McConnell, however, have relied on traditional First Amendment reasoning to overturn many parts of that decision. One of the few parts that remains is the restrictions on state and local parties.

The Supreme Court now has a chance to rectify this element of the McConnell decision. Currently before the court is the case of Republican Party of Louisiana v. Federal Election Commission, which challenges those legal restrictions on state and local party activity. The party’s position is simple: Why can super PACs, or a nonprofit like Planned Parenthood Action Fund, accept and spend unlimited sums from any source to influence elections, while political parties cannot? And how can parties corrupt their own candidates by trying to help them win elections?


Misguided ME SOS Dunlap: “Dem Tapped For Trump Voter Fraud Panel: I’ll ‘Speak Up’ If It’s A ‘Trojan Horse’”


One of the Democrats slated to be on President Trump’s so-called “elections integrity” commission is already warning that he will “speak up” if it becomes a “Trojan horse” for infringing on the right to vote.

“If they take nothing and conflate it into something, I think being part of the commission is a good place to be in order to correct that record,” Maine’s Secretary of State Matt Dunlap told TPM in a phone interview Thursday.

Dunlap confirmed reports that he was likely to serve on the commission and said he is just finishing up the paperwork.

“I’ve been asked to be a part of it and my inclination is to do it,” Dunlap said.

If I were a Maine voter, I’d be calling Dunlap’s office and say he’s being used, and no commission without bipartisan support and headed by a voting rights charlatan is worth his participation.


Nate Persily, Research Director of Last Bipartisan Voting Commission, Blasts Trump “Voter Fraud” Commission


Even election administration experts who had served on presidential election commissions in the past were dubious of Trump’s panel’s true aims.

“It so beyond the pale. What can you say at this point?” said Nate Persily, who served as a senior research director for President Obama’s Presidential Commission on Election Administration. “There are a lot of serious academics who have done a lot of work in this area. Let’s see if any of them staff the commission.”…

“I think they’re going to recommend national legislation,” said Persily, who is now an election law professor at Stanford Law. “Why do this unless that’s what you’re going to do.”

“It should be no surprise that the election commission will not be looking at how proposed remedies will lead to eligible people not being able to cast ballots,” Persily added. “That is certainly a bigger problem than ineligible people casting ballots”


ACLU Makes FOIA Request Connected to Trump “Voter Fraud” Commission


The American Civil Liberties Union took legal action today related to President Trump’s new executive order establishing a “Presidential Commission on Election Integrity.” The ACLU filed a Freedom of Information Act “FOIA” request seeking information that the Trump administration is using as the basis for its voter fraud claims. The commission vice chair is Kansas Secretary of State Kris Kobach, whom the American Civil Liberties Union has successfully sued numerous times over voter suppression policies.


My Thoughts on President Trump’s Executive Order Establishing “Voter Fraud” Commission

The President has just issued the promised executive order (I’ve posted it below the fold).  A few notes:

  1. Although it broadly states a goal to look at public confidence in the election process, it seems to do this only by demanding a study of supposed voter fraud (not, as had been rumored) voter suppression.
  2. This breaks with the tradition of Carter-Ford, Carter-Baker, and Bauer-Ginsberg of having two well respected bipartisan leaders in charge of the Commission. It is not only led by the Republican vice president, but reports suggest that Kris Kobach will be the vice chair. (The EO does not list the members of the up-to-15 member commission.) That alone makes this commission suspect. The presence of some members of the Commission who have made it their mission in life to exaggerate or lie about the extent that voter fraud is a problem in this country today as an excuse to make it harder to register and vote makes this Commission illegitimate to begin with.
  3. It is not clear whether any serious Democrats or election professionals or academics who study election administration will be involved in the effort. Many have called for a boycott of the Commission, and that could well happen.
  4. What is the purpose of the Commission? It does not appear aimed at studying voter fraud in a serious way. We already know that the amount of voter fraud in the last election was very small. Very very small. There is absolutely no evidence supporting the President’s outlandish claim that 3 million or more non-citizen voters voted in the 2016 elections. So the point is either to give the President validation for his outlandish claims and/or to provide a pretext for passing more laws to make it harder to register and to vote.
  5. As far as pretext goes, the thing I’m most concerned about is using the report’s “conclusions” as an excuse for Congress to pass new legislation making it harder to register and vote, such as repealing voter friendly portions of the 1993 NVRA (motor-voter law). I suspect this is the end game. (We may get some insight into this if and when Kobach’s notes on how to kill the NVRA are released.)
  6. This is not a good day for those who believe we should have a system where all eligible voters, but only eligible voters, can easily cast a ballot that will be fairly and accurately counted.

Continue reading


Breaking: Trump to Launch a Voting “Commission” with No Credibility, with Pence, Kobach, and the EAC’s McCormick

ABC News:

President Donald Trump is expected to sign an executive order today establishing a commission to review alleged voter fraud and voter suppression in the American election system, multiple senior administration officials tell ABC News.

The officials say Vice President Mike Pence and Kansas Secretary of State Kris Kobach will be announced as Chair and Vice Chair of the ‘Presidential Commission on Election Integrity’ in a press release today. It’s not clear whether the White House will allow coverage of the order signing.

The commission, which will include Republicans and Democrats, will be tasked with studying “vulnerabilities” in U.S. voting systems and potential effects on “improper voting, fraudulent voter registrations and fraudulent voting,” according to one official with knowledge of the announcement….

Membership of the commission is still taking shape even as Trump is poised to sign the order creating it. Indiana Secretary of State Connie Lawson (R), New Hampshire Secretary of State Bill Gardner (D), Maine Secretary of State Matthew Dunlap (D), Christie McCormick, commissioner of the election assistance commission, and former Ohio Secretary of State Ken Blackwell (R), are among the names under consideration, the administration officials said.

Not sure what Democrat or election professional would be on a commission with Kobach or with Ken Blackwell—this is not a commission designed to ferret out the truth given their track record. But I am extremely disappointed to see EAC Commissioner Christie McCormick on this commission, lending the EAC’s credibility to a farcical effort.

Back on January 25, when the idea for this “commission” was first floated, I laid down some markers at Slate for what a fair commission would look like, and the need for a shadow commission if Trump did not follow fundamental rules of fairness:

First, members of the commission should be bipartisan and well-respected on all sides. This was the model of the Carter-Ford commission that investigated problems with the 2000 election, the Carter-Baker Commission that investigated problems with the 2004 election, and the Presidential Commission on Election Administration that was led by leading Democratic lawyer Bob Bauer and leading Republican lawyer Ben Ginsberg and that investigated problems with long lines and election administration after the 2012 election.* Legal commentator Andrew Cohen has suggested a commission headed by retired Supreme Court Justices Sandra Day O’Connor, David Souter, and John Paul Stevens, with a staff led by former U.S. attorney Patrick Fitzgerald. (All are Republicans, though Souter and Stevens leaned pretty liberal when they were on the court.)

Second, the commission should have professional staff with experience dealing with election administration aimed at searching for the truth through an examination of credible evidence. The Bauer-Ginsberg commission’s research director was Nate Persily, a Stanford law and political science professor who is known for his careful and even-handed research. Back in 2000 there were few political scientists and law professors studying the details of election administration. Now there are many and a large set of peer-reviewed studies on these issues, including questions of voter fraud. There are plenty of ways to try to examine these issues, and the precise claim of President Trump that 3 million to 5 million votes could have been cast illegally in a massive conspiracy without detection should be probed in a fair and scientific way…..

There’s a lot more in there.  I expect few of any of these markers will be met.

The only good news since I wrote this piece? The Administration’s credibility is so low that few except the true believers are likely to believe anything produced by the likely worthless report.


“Texas lawmakers racing against clock to pass bill aimed at curbing mail-in vote fraud”

Dallas Morning News:

Texas lawmakers are trying to implement legislation that would curb mail-in ballot fraud at nursing homes.

The House bill and its Senate companion would amend the Election Code to allow election judges to collect mail-in ballots directly from voters at nursing homes or similar facilities.

The new process would prevent political operatives from requesting mail-in ballots for unsuspecting seniors or the infirm and then returning to the facility to pick up the ballots before they reach the voter. It would also make it unnecessary for a person other than an election judge to help a nursing home resident vote.


Giving Keynote Address at Northwestern: Annual Law in Motion Lecture (May 11)

[Bumping to the top with the talk tomorrow/]

I’ll be talking at Northwestern’s annual Law in Motion conference about my draft paper on race, party, and polarization in redistricting and voting cases (which Judge Jerry Smith recently discussed in detail in his dissent in a Texas redistricting case).

(Note this is on the main campus and not at the law school.)


“ACLU Challenges New Hampshire Voter Signature-Matching Law”


The American Civil Liberties Union today sued New Hampshire for invalidating the absentee ballots of hundreds of voters, many of whom are disabled, without warning.

At issue is a state law that allows election officials — who have no handwriting-analysis expertise — to reject an absentee ballot, without giving notice to the voter, if they think there is a signature mismatch in the voter’s paperwork. People with disabilities are far more likely to have fluctuating handwriting or to require the assistance of someone to sign their name, as allowed under federal disability rights law.


“Feeling Underrepresented, California Groups Demand 1,200 More Lawmakers”

Courthouse News Service:

An eclectic group of plaintiffs of all political stripes want to renovate California’s political system, which they say is burdened by an “oligarchic” state government shaped by exponential population growth and an influx of corporate money in local elections.

Led by a group of secessionists whose main goal is to eventually break away from California, the plaintiffs claim in a federal lawsuit that the Golden State has stubbornly refused to increase its number of elected state lawmakers despite a population that has ballooned to nearly 40 million. With just one state senator per approximately one million people, the Californians say their votes have been diluted and their elections “purchased” by candidates from the two major parties.


“In Wisconsin, ID law proved insurmountable for many voters”


When Sean Reynolds went to his polling place at a local ice skating rink on Election Day, he showed his valid driver’s license. The problem? It wasn’t issued in Wisconsin.

Reynolds, 30, was taken aback. He had moved to Madison in 2015 to find work after leaving the Navy and receiving his associate’s degree from a university in neighboring Illinois. After successfully registering to vote in Wisconsin using an online website, he thought all he needed to show at the polls was a current photo ID. After all, his Illinois ID was good enough to board a plane, open a checking account and purchase cold medicine.

“Coming home and being denied the right to vote because I didn’t have a specific driver’s license is very frustrating,” said Reynolds, who served in both Iraq and Afghanistan providing support for special forces. “I was a little incredulous that they wouldn’t accept another state’s driver’s license. I didn’t understand why it was not a valid form of ID.”

Reynolds said he had been working 50-hour weeks, receiving hourly pay, and could not afford to take time off from his job in security management to visit a local DMV and transfer his license from Illinois….


Dallas: “Tabulation Delay and New Allegations About Ballot Fraud”


Dallas County Election Supervisor Toni Pippins-Poole said officials also saw a flood of mail-in ballots requested by the same person who signed the return envelope as assisting the person who cast the votes.

“That was a red flag for us, and that’s why we about three or four weeks ago decided to involve the district attorney,” Pippins-Poole said.

Opening the first of the mail-in ballots Monday, members of a signature review board compared signatures on the ballot return envelope to the initial mail-in ballot application to see if they matched.

But the election supervisor confirmed that some members did not take the extra step of comparing those signatures to the voter registration application to see if the mail-in ballot was sent to and completed by the actual registered voter.

“Some did and some did not,” she said. “All of them didn’t understand that that was an option that they should do.”



“U.S. Census director resigns amid turmoil over funding of 2020 count”


The director of the U.S. Census Bureau is resigning, leaving the agency leaderless at a time when it faces a crisis over funding for the 2020 decennial count of the U.S. population and beyond.

John H. Thompson, who has served as director since 2013 and worked for the bureau for 27 years before that, will leave June 30, the Commerce Department announced Tuesday.

The news, which surprised census experts, follows an April congressional budget allocation for the census that critics say is woefully inadequate. And it comes less than a week after a prickly hearing at which Thompson told lawmakers that cost estimates for a new electronic data collection system had ballooned by nearly 50 percent.



Some Words of Caution About New Study Finding Voter ID Cost Clinton WI and the Election

Today Ari Berman has an article in The Nation called Wisconsin’s Voter-ID Law Suppressed 200,000 Votes in 2016 (Trump Won by 22,748).

The story relies on a new study from Democrat-aligned Priorities USA finding a great decline in turnout, especially among African-American voters in Wisconsin, purportedly linked to voter id.

The story is getting picked up by Democrats and left leaning smart people across social media, because it confirms what they already think. But there is reason for considerable caution about this study, which is at odds with what other studies of the effect of Wisconsin’s voter id has found. There are questions about the study’s methodology being raised by people who know their stuff:

Eitan Hersh: “No offense, but this is something that is going to be shared hundreds of times and does not meet acceptable evidence standards.”

Nate Cohn: “At this point, the absence of good, file-based research showing a big voter ID effect might be telling.”

Derek Willis: “To expand a bit: yes, turnout in WI was down. I don’t think evidence that voter ID was main cause is there. We looked.”

The biggest effect appears to be in Milwaukee, and this New York Times story from right before the election gives another reason why turnout was down there: Black voters were not motivated to vote for Clinton like they were for Obama. The NYT story is one of the most important things to read about the election.

Yet Keith Ellison, the vice chair of the DNC is passing the 200K figure in the study along as fact. Willis: It’s not.

Once this methodology is pulled apart more, this survey will do more harm than good. Some people will say that because a 200K effect is not proven voter id laws are just fine.

As I’ve said many times, this whole analysis asks the wrong question. The right question is why a state like Wisconsin can burden the right to vote with unnecessary restrictions for no good reason, and for the bad reason of hoping it will suppress Democratic turnout (whether it actually does or not.)

UPDATE: To be fair to Ari, his story does note the potential methodological issues with the study: “It’s important to note that this study was conducted by a Democratic Party–affiliated group and has not been peer-reviewed or gone through the typical academic vetting process. While some studies have shown big reductions in turnout among minority voters because of voter-ID laws, others have not. But the Priorities USA study is consistent with a 2014 study by the Government Accountability Office, which found that strict voter-ID laws in Kansas and Tennessee reduced turnout by 2 percent, enough to swing a close election, with the largest drop-off among newly registered voters, young voters, and voters of color.” I’m afraid these caveats are lost on readers who read only a tweet of the headline.