Symposium: “The Politics of State Constitutional Reform”

From APSA’s Law and Courts Section, featuring short papers by J.H. Snider, Sandy Levinson, John Dinan, and Carol Weissert.  Here’s a description:

When analyzing the consequences of elections for the development of the U.S. Constitution, scholars concentrate on elections for president and senate, on account of their role in selecting Supreme Court justices who are understood to play a key role in bringing about changes in understandings of federal constitutional provisions. But in the 50 states, voters have a wider range of opportunities to influence the development of constitutions and in a more direct fashion….

Law and courts scholars who have turned their attention to the state level have generated a number of studies of judicial elections. Legislature-referred and citizen-initiated constitutional amendments have also generated a fair amount of analysis. Yet relatively little attention has been paid to the periodic revision commission and periodic convention referendum, institutions that will be on display in a 2017 New York convention referendum and 2017 Florida revision commission and were examined in a short course at the 2016 APSA conference organized by J.H. Snider. Thanks to Law and Courts newsletter editor Todd Collins for inviting us to share some of the presentations, arguments, and conclusions from the short course.

The short course is here.


Cottrell, Herron & Westwood on Trump’s Fraud Allegations

Here’s the abstract to their paper, “Evaluating Donald Trump’s Allegations of Voter Fraud in the 2016 Presidential Election”:

During the 2016 presidential campaign, Donald Trump repeatedly claimed that the presidential election would be tainted by massive voter fraud. Despite winning the presidency, Trump has maintained that position through November. We suspected prior to the election that fraud allegations might dominate the post-election political landscape, and to this end we initiated a research project with the objective of evaluating the relationship between election returns and potential sources of fraud in the vein of Trump’s claims. Our research focuses on non-citizen populations, deceased individuals, the timing of results, and voting technology, and we do not uncover any evidence consistent with Trump’s assertions about widespread voter fraud. Moreover, we do not observe any striking abnormalities in two sets of states recently highlighted as potentially problematic: Michigan, Pennsylvania, and Wisconsin (the subject of ongoing recount efforts) and California, New Hampshire, and Virginia (three states cited personally by Trump). Our results do not imply that there was no fraud at all in the 2016 presidential contest, nor do they imply that this contest was error-free. They do strongly suggest, however, that the voter fraud concerns fomented and espoused by the Trump campaign are not grounded in any observable features of the 2016 presidential election.


Latest on #NCGov

From AP and NYT, which reports that the State Board of Elections’ preliminary tally has Democratic candidate Roy Cooper leading Gov. Pat McCrory by 9,813 votes, “perilously close to the 10,000-vote difference that would prohibit Mr. McCrory from demanding a recount.”


Today’s Recount News

CBS: “Clinton Team Sees Recount Effort as Waste of Resources”

CBS: “Jill Stein’s Michigan Recount Efforts”

Detroit News: “GOP Warns Recount Puts Michigan’s Electors at Risk”

The Hill:  “What Stein is Getting from Recount”

Milwaukee Journal Sentinel: “Judge Rejects Stein’s Request for Hand Recount”

Pittsburgh Post Gazette: “Court Hearing Set to Consider Pa. Vote Recount”

Politico: “Democratic senators: No Harm in Trump-Clinton Recounts”

Politico: “7 Questions about Jill Stein’s Recounts”

Vox: “The Presidential Recount, Explained”


How Will Congress and the Separation of Powers Function Under a Trump Administration?

Christopher DeMuth, former head of OIRA in the Reagan OMB and former President of AEI, has a long, thoughtful essay in the weekend Wall Street Journal in which he explores whether the separation of powers might see a revival in the Trump administration.

In his view, President Trump will not have “the reflexive support of party stalwarts on Capitol Hill that his recent predecessors have enjoyed.”  The revival of a more central role for Congress will follow, he suggests, from the newfound tensions within both political parties, and from the fact that Trump is more of a populist than a conventional Republican figure.

In addition to more vigorous competition between the branches, De Muth also sees Trump as perhaps generating a more bargaining-oriented approach to policymaking, in contrast to the “spectacles” produced by our hyperpolarized, intensely ideological and symbolic politics.  I appreciate his recognition of the way many of us have been trying to insist on giving Congress and congressional leaders tools to create more possibilities for a transactional kind of politics:

Spectacles such as these have given rise to a new school of political realism, led by Jonathan Rauch, Richard H. Pildes, Frances E. Lee and other scholars. Their essential argument, in Mr. Rauch’s words, is “that transactional politics—the everyday give-and-take of dickering and compromise—is the essential work of governing and that government, and thus democracy, won’t work if leaders can’t make deals and make them stick.”

The realists vary in their personal politics. They are united in understanding that, in a nation of diverse and conflicting views, civil peace and productive government require more than trumpeting one’s own positions and seeking to defeat one’s opponents at the ballot box. They also require accommodation through dialogue, negotiation and practical compromise.

As the essay puts it: “In combination, candidate Trump’s audacious policy positions, belligerent rhetoric and zest for deal making seem designed to establish his bona fides as the people’s own Washington wheeler-dealer.”

De Muth acknowledges that “transactional politics and interbranch rivalry are no guarantee of happy outcomes, which depend ultimately on the constitution of the participants.”  His claim is that these are necessary elements of successful democratic governance, even if not sufficient.  All speculative at this stage of course, but provocative speculations about large structural issues in our governance system and well worth a read.


The New Political Realism: Transactional Politics and Earmarks

Last week, Chris Cillizza of the Washington Post reported that there was “significant support” within the House Republican conference for bringing back earmarks.  Republicans eliminated earmarks when they took the House majority in 2010 as part of “political reforms” that would end “corruption” in Congress.

Cillizza’s piece argues, as many of us have also suggested, that this ban is one example of the misguided pursuit of “political purity” that has contributed to making the political process more dysfunctional.  Of course, voting in favor of restoring earmarks would be political dynamite for any individual member; it’s no surprise that Speaker Paul Ryan has vetoed the proposal for now.  But the fact that the issue even has significant support within the Republican conference and that journalists like Cillizza are pressing the case for restoring earmarks is noteworthy.

Here are some excerpts from his essay:

But politics — real politics — isn’t a theoretical discussion among political scientists. And if you believe that Congress works better when it, um, actually works, then you should be rooting like hell that Ryan changes his mind if/when the possibility of a return to earmarking comes to the floor for avote. . . .

Politics works best when compromise is incentivized, not scorned. Earmarks helped to do just that. They were a lever to pull on the way to the presumed end goal: dealmaking. Without them, compromise became a dirty word, and the GOP leadership — Boehner chief among them — paid a price. His decision to step down from the speakership (and Congress) was fueled by an inability to rally the bulk of the Republican Conference behind proposals he supported. He couldn’t do that because he was, effectively, fighting with one hand tied behind his back because of the earmark ban.

Cillizza references this conclusion, from political scientist Diana Evans 2004 study of earmarking, Greasing the Wheels:  Using Pork Barrel Projects to Build Majority Coalitions in Congress:

‘The irony is this: pork barreling, despite its much maligned status, gets things done.’ ”


Recount Roundup

ABC:  “Everything You Need to Know About the Election Recount Efforts”

CNN: “Green Party presidential nominee Jill Stein defended her recount efforts Monday, even though she admits there is no evidence of fraud at the ballot box.”

Detroit Free Press: “Michigan presidential recount? Here’s what we know”

The Hill:  “Annoyed Dems Dismiss Recount as a ‘Waste of Time'”

New Yorker:  “The Recount Road to Nowhere”

NPR:  “Trump Officially Wins Michigan As Possible Recount Looms”

Politico:  “Clinton team shrugs off recount effort”

Salon: “Jill Stein sues Wisconsin to go through with vote recount”

Slate:  “Jill Stein Requests Recount in Pennsylvania but Has No Evidence of Fraud”

WaPo: “Jill Stein tries to force recount in Pennsylvania”

WSJ:  “The Recount Hail Mary”


The New Political Realism: Resisting Inappropriate Transparency Demands

This piece, from a few days ago in the Washington Post, puts FBI Director Jim Comey’s real-time updates of the Clinton investigation into a broader framework involving the ever-increasing demands for greater governmental transparency.  Leaving aside the provocative title of the piece, the essay raises the right questions about the tradeoffs between transparency and other democratic values:

But the underlying story is not just about Comey or the FBI. Instead, it is about the perverse consequences of government transparency, and the fraught relationship between national security and the demands of democracy. . .

The public may now expect to have access to current intelligence and ongoing legal assessments. The desire for openness from government officials is understandable, of course. Transparency is the only way we can hold executive agencies accountable. However, the Comey saga is a stark and troubling reminder that transparency has a price. The more law enforcement and intelligence officials reveal about their ongoing activities, the greater the risk of unintended consequences….

Secrecy and democracy coexist uneasily. Too much secrecy can lead to inefficiency and government abuse. The events of the last month, however, highlight how transparency can lead to politicization and government dysfunction.


“McGahn, Trump’s Counsel Pick, Fought Regulation as FEC Member”

Bloomberg BNA ($): “President-elect Donald Trump, battling criticism about potential conflicts of interest even before he takes office, is set to be represented in the White House by a tough Washington lawyer whose fight against strict regulation of politics was a hallmark of his five-year tenure on the Federal Election Commission.”


Jesse Richman on Trump’s Fraud Claim

One of the co-authors of a widely cited paper on non-citizen voting writes:

Donald Trump recently suggested that his deficit in the popular vote to Clinton might be due entirely to illegal votes cast, for instance by non-citizens.  Is this claim plausible?  The claim Trump is making is not supported by our data.

Here I run some extrapolations based upon the estimates for other elections from my coauthored 2014 paper on non-citizen voting.  You can access that paper on the journal website here and Judicial Watch has also posted a PDF.  The basic assumptions on which the extrapolation is based are that 6.4 percent of non-citizens voted, and that of the non-citizens who voted, 81.8 percent voted for Clinton and 17.5 percent voted for Trump.  These were numbers from our study for the 2008 campaign.  Obviously to the extent that critics of my study are correct the first number (percentage of non-citizens who voted) may be too high, and the second number (percentage who voted for Clinton) may be too low….

Is it plausible that non-citizen votes added to Clinton’s margin.  Yes.  Is it plausible that non-citizen votes account for the entire nation-wide popular vote margin held by Clinton? Not at all.

If the percentage of non-citizens voting for Clinton is held constant, roughly 18.5 percent of non-citizens would have had to vote for their votes to have made up the entire Clinton popular vote margin.  I don’t think that this rate is at all plausible.   Even if we assume that 90 percent voted for Clinton and only 10 percent for Trump, a more than fourteen percent turnout would be necessary to account for Clinton’s popular vote margin.  This is much higher than the estimates we offered.  Again, it seems too high to be plausible.



Today’s Incident at Ohio State

Many of you by now have heard about the incident this morning on the Ohio State campus, involving an attacker who is now reportedly dead.  At least eight people have reportedly been hospitalized.  I’m fine — thanks to those of you who have asked — and as far as I know so is everyone at the law school.  I wasn’t far from the place of the attack, about to park my car, when I got the text alert and saw the sirens, then headed straight home.  The shelter-in-place order at the university has now been lifted, though classes have been cancelled for the rest of the day.  Like everyone else, I’m sure, my thoughts and prayers are with those who have been injured and their families.

Update:  I’ve edited the above post to delete references to a “shooter.”  Although the suspect was so described in an alert sent to the Ohio State community, subsequent reporting indicates that no gun was used.


“Trump falsely claims millions voted illegally; Without putting forth any evidence, the president-elect says he actually won the popular vote.”


Donald Trump tweeted without evidence on Sunday that millions of people voted illegally in November’s presidential election.

“In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally,” Trump wrote on Twitter.

There is no evidence to support Trump’s claim, which marks an unprecedented rebuke of the U.S. voting system for a president-elect.


Marc Elias: “Listening and Responding To Calls for an Audit and Recount”

The adult in the room:

Over the last few days, officials in the Clinton campaign have received hundreds of messages, emails, and calls urging us to do something, anything, to investigate claims that the election results were hacked and altered in a way to disadvantage Secretary Clinton. The concerns have arisen, in particular, with respect to Michigan, Wisconsin and Pennsylvania — three states that together proved decisive in this presidential election and where the combined margin of victory for Donald Trump was merely 107,000 votes.

It should go without saying that we take these concerns extremely seriously. We certainly understand the heartbreak felt by so many who worked so hard to elect Hillary Clinton, and it is a fundamental principle of our democracy to ensure that every vote is properly counted.

Moreover, this election cycle was unique in the degree of foreign interference witnessed throughout the campaign: the U.S. government concluded that Russian state actors were behind the hacks of the Democratic National Committee and the personal email accounts of Hillary for America campaign officials, and just yesterday, the Washington Post reported that the Russian government was behind much of the “fake news” propaganda that circulated online in the closing weeks of the election.

For all these reasons, we have quietly taken a number of steps in the last two weeks to rule in or out any possibility of outside interference in the vote tally in these critical battleground states.

First, since the day after the election we have had lawyers and data scientists and analysts combing over the results to spot anomalies that would suggest a hacked result. These have included analysts both from within the campaign and outside, with backgrounds in politics, technology and academia.

Second, we have had numerous meetings and calls with various outside experts to hear their concerns and to discuss and review their data and findings. As a part of this, we have also shared out data and findings with them. Most of those discussions have remained private, while at least one has unfortunately been the subject of leaks.

Third, we have attempted to systematically catalogue and investigate every theory that has been presented to us within our ability to do so.

Fourth, we have examined the laws and practices as they pertain to recounts, contests and audits.

Fifth, and most importantly, we have monitored and staffed the post-election canvasses — where voting machine tapes are compared to poll-books, provisional ballots are resolved, and all of the math is double checked from election night. During that process, we have seen Secretary Clinton’s vote total grow, so that, today, her national popular vote lead now exceeds more than 2 million votes.

In the coming days, we will continue to perform our due diligence and actively follow all further activities that are to occur prior to the certification of any election results. For instance, Wisconsin and Pennsylvania conduct post-election audits using a sampling of precincts. Michigan and many other states still do not. This is unfortunate; it is our strong belief that, in addition to an election canvass, every state should do this basic audit to ensure accuracy and public confidence in the election.

Beyond the post-election audit, Green Party candidate Jill Stein announced Friday that she will exercise her right as a candidate to pursue a recount in the state of Wisconsin. She has indicated plans to also seek recounts in Pennsylvania and Michigan.

Because we had not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology, we had not planned to exercise this option ourselves, but now that a recount has been initiated in Wisconsin, we intend to participate in order to ensure the process proceeds in a manner that is fair to all sides. If Jill Stein follows through as she has promised and pursues recounts in Pennsylvania and Michigan, we will take the same approach in those states as well. We do so fully aware that the number of votes separating Donald Trump and Hillary Clinton in the closest of these states — Michigan — well exceeds the largest margin ever overcome in a recount. But regardless of the potential to change the outcome in any of the states, we feel it is important, on principle, to ensure our campaign is legally represented in any court proceedings and represented on the ground in order to monitor the recount process itself.

The campaign is grateful to all those who have expended time and effort to investigate various claims of abnormalities and irregularities. While that effort has not, in our view, resulted in evidence of manipulation of results, now that a recount is underway, we believe we have an obligation to the more than 64 million Americans who cast ballots for Hillary Clinton to participate in ongoing proceedings to ensure that an accurate vote count will be reported.


“U.S. Officials Defend Integrity of Vote, Despite Hacking Fears”


The Obama administration said on Friday that despite Russian attempts to undermine the presidential election, it has concluded that the results “accurately reflect the will of the American people.”

The statement came as liberal opponents of Donald J. Trump, some citing fears of vote hacking, are seeking recounts in three states — Wisconsin, Michigan and Pennsylvania — where his margin of victory was extremely thin.

A drive by Jill Stein, the Green Party candidate, for recounts in those states had brought in more than $5 million by midday on Friday, her campaign said, and had increased its goal to $7 million. She filed for a recount in Wisconsin on Friday, about an hour before the deadline.

In its statement, the administration said, “The Kremlin probably expected that publicity surrounding the disclosures that followed the Russian government-directed compromises of emails from U.S. persons and institutions, including from U.S. political organizations, would raise questions about the integrity of the election process that could have undermined the legitimacy of the president-elect.”


Stein Recount Could Endanger WI Electoral Votes in the “Safe Harbor”


Wisconsin could be at risk of missing a Dec. 13 deadline to certify its 10 electoral votes if clerks can’t complete an expected recount by then.

Hitting the deadline could be particularly tricky if Green Party presidential nominee Jill Stein is able to force the recount to be conducted by hand, Wisconsin’s top election official said.

Stein — who received just 1% of the vote in Wisconsin — has promised to file for a recount by Friday’s 5 p.m. deadline in Wisconsin. She is also planning to ask for recounts in Michigan and Pennsylvania, which have deadlines next week.

A federal “safe harbor” law requires states to complete presidential recounts within 35 days of the election to ensure their electoral votes are counted. This year, that’s Dec. 13.


NC Spent Nearly $5 Million So Far Defending Its Voting Law Found to be Intentionally Racially Discriminatory

News and Observer:

Since coming to power five years ago, North Carolina Republican lawmakers have spent more than $10.5 million defending controversial laws on everything from redistricting to voter ID to House Bill 2.

And the total will only grow as ongoing cases make their way through the appeals process.

Almost half the money – $4.9 million – went to defend the state’s sweeping voter law, which was overturned by a panel of federal judges.


Quote of the Day: Jill Stein Recount BS Edition

“If there were something to do here, there are a lot of us who would be jumping on it”

Adam Bonin, attorney representing democrats, to the Phil. Inquirer. (Bonin said that while every election has “little hitches and glitches, I haven’t seen anything which would cause me to question the results.” Nor, he said, “have I ever seen evidence that would lead me to call the machines into question. . . . You can’t just go on a fishing expedition. You have to have allegations of specific fraud, or machines that didn’t accept votes.”)

UPDATE: The Bonin quote originally appeared in this Chris Potter story in the Pittsburgh Post-Gazette.


“Russian propaganda effort helped spread ‘fake news’ during election, experts say”


The flood of “fake news” this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy, say independent researchers who tracked the operation.

Russia’s increasingly sophisticated propaganda machinery — including thousands of botnets, teams of paid human “trolls,” and networks of websites and social-media accounts — echoed and amplified right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers. The effort also sought to heighten the appearance of international tensions and promote fear of looming hostilities with nuclear-armed Russia.