Opinion rejecting request for stay pending resolution of the Whitford partisan gerrymandering case at SCOTUS.
The Brennan Center comes through with tedious but very important debunking work:
The Presidential Advisory Commission on Election Integrity relies on a database produced by the Heritage Foundation to justify baseless claims — by President Trump and some of the panel’s members — of rampant voter fraud. But according to an analysis of the database by the Brennan Center for Justice at NYU School of Law, the numbers in the database reveal exactly the opposite.
Claims that the database contains almost 1,100 proven instances of voter fraud are grossly exaggerated and devoid of context, according to Heritage Fraud Database: An Assessment. It confirms what numerous studies have consistently shown: Voter fraud is vanishingly rare, and impersonating a voter at the polls is less common a phenomenon than being struck by lightning.
“The database includes an assortment of cases, many unrelated or tangentially related, going back decades, with only a handful pertaining to non-citizens voting or impersonation at the polls,” writes the author. “They add up to a molecular fraction of the total votes cast nationwide. Inadvertently, the Heritage Foundation’s database undermines its claim of widespread voter fraud.
A closer examination of the database shows:
Among the examples in the Heritage document are a case from 1948 (when Harry S. Truman beat Thomas Dewey) and a case from 1972 (when Richard Nixon defeated George McGovern). Only 105 of its 749 cases came from within the past five years.
In reviewing billions of votes cast, the Heritage Foundation identified just 10 cases involving in-person impersonation fraud at the polls (fewer than the number of members on the president’s Commission).
The database includes only 41 cases involving non-citizens registering, voting, or attempting to vote over five decades, highlighting the absurdity of President Trump’s claim that millions of non-citizens voted in the 2016 election alone.
A vast majority of fraud “examples” cited by the Heritage Foundation would not be addressed by the voter suppression laws its staff supports, including “Election Integrity” Commission member Hans von Spakovsky, a senior legal fellow at Heritage. Von Spakovsky distributed copies of the database at the panel’s first meeting in July.
Many cases highlighted in the database show that existing laws and safeguards are already preventing voter fraud — the ineligible voters or individuals engaging in misconduct were discovered and prevented from casting a ballot.
The letter is here.
Some GOP lawmakers angry.
Given the political heat over this, it is a good sign that at least this part of the DOJ was not subject to or able to resist political pressures to prosecute.
The other day I reported that a 5th Circuit motions panel, on a 2-1 vote, allowed Texas to enforce its revised voter id law pending appeal in the case. The court did this even though the trial court found Texas engaged in intentional racial discrimination, which should allow for a fuller remedy in the case.
Today the challengers asked the full 5th Circuit to reverse that decision. The vote will be a good test for what is likely to happen on the merits when this case, almost inevitably, makes it back before the full 5th Circuit on the merits.
Update: Josh Blackman points out that it is not clear that stays are subject to en banc review in the Fifth Circuit. But the ruling is also seeking full initial en banc review of the merits decision.
[This post has been updated.]
Another amicus supporting the challengers.
Jonathan Brater for the Brennan Center:
Despite his claims that he won’t “pre-judge” the findings of the Trump “Voter Fraud” Commission of which he is the vice-chair and public face, Kansas Secretary of State Kris Kobach is already inserting misleading claims into the public dialogue ahead of the Commission’s next meeting in New Hampshire. Specifically, he says there must have been voter fraud in New Hampshire because people registered to vote with out-of-state driver’s licenses (which is legal), and some still do not have a New Hampshire license or car registration. From this alone, he claims the election was tainted because these people must not have been eligible to vote in New Hampshire (he also purports to be able to divine which candidate they voted for).
It’s worth noting that Kobach is basically recycling the same misleading claim he made after the election, when he suggested there was widespread voter fraud in New Hampshire because of the mere fact that people registering on election day used out of state licenses. But this is completely legal, and commonplace, especially for college students, who probably comprised the majority of these voters. A typical example would be someone who lived in Massachusetts and got a driver’s license at 16, moved to New Hampshire for college at 18, and registered to vote in New Hampshire.
But now, Kobach is making hay out of the fact that of the 6,540 individuals who registered with out of state IDs, 5,313 of them had not gotten a New Hampshire driver’s license or registered a car there as of August. From this alone, he claims there is “proof” they never were “bona fide residents” of New Hampshire and voted illegally. Philip Bump has already pointed out some of the flaws in this logic, but it’s worth explaining at least three reasons the claim is completely bogus:…
Zack Roth for the Daily Democracy.
Pam Karlan has posted this draft on SSRN (forthcoming, Indiana Law Journal). Here is the abstract:
This essay explores two areas of law that at first blush might seem relatively disconnected from one another: voting rights and reproductive justice.
Many years ago, I joked about one aspect of that connection: “Redistricting, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology, and often a need to ‘pull [and] haul’ rather indelicately at the very end. And of course, it often involves somebody getting screwed.” But the connection between them is actually more profound — and potentially more promising.
First, a citizen’s right to vote and a woman’s right to decide whether to terminate a pregnancy share a distinctive structure: they are rights-creating and stereoscopic. That is, they enable the exercise of other rights and lie at the intersection of the liberty and equality values expressed by the Fourteenth Amendment.
Second, these rights have undergone a similar doctrinal evolution over the last half-century, as the Supreme Court first ratcheted up and then relaxed the level of judicial scrutiny. Both are now subject to an undue burden standard. While that doctrinal retrenchment has rightly been subject to withering criticism, in recent cases courts have begun to analyze burdens in ways that take into account the interaction between the challenged restrictions and socioeconomic disadvantage.
The emerging, more muscular understanding of undue burden allows us an opportunity, within the confines of current constitutional doctrine, to talk about how economic inequality and poverty undermine constitutional values of self-determination, liberty, and equality.
California Civic Engagement Project:
In 2016, nearly 58% of ballots cast in the general election were Vote-by-Mail (VBM) ballots-up from 27% in 2002. Encouraged by this rising usage, some counties are now planning to expand access to VBM balloting, and are making plans to switch to a new Vote Center Model. This new model provides for all registered voters in a participating county to be mailed a VBM ballot while, at the same time, also replacing neighborhood polling places with Voter Centers.
The CCEP’s new statewide survey research examines California voters’ use of VBM and their perceptions of the Vote Center Model. The findings identify some of the opportunities and challenges that may arise when switching to a Vote Center Model, particularly for electorally underrepresented populations. This research will help inform implementation strategies by election officials and community leaders as they work together in their planning for a new election model.
- A majority of Californians (61%) do not like the idea of Vote Centers replacing neighborhood polling places.
- 71% of polling place voters did not like the idea of Vote Centers, compared to 53% of Vote-By-Mail voters who did not like it.
- Younger voters were more receptive to the idea of a Vote Center – 36% of voters age 18-29 were receptive to the idea of Vote Centers, versus 25% of voters age 65 older.
- 66% of California voters are willing to travel only 15 minutes or less to get to a Vote Center, regardless of their mode of transportation.
- Just over a quarter of voters who do not typically use the U.S. Postal Service (USPS) to mail a VBM ballot, said they did not trust the USPS to get their ballot delivered safely, or in time to be counted.
The following is a guest post from Sam Issacharoff and Perry Grossman who worked on this amicus brief in the Whitford case:
In his concurrence in Vieth v. Jubilirer, Justice Kennedy suggested that the First Amendment provides a “sounder and more prudential basis” for judicial intervention in partisan gerrymandering “than does the Equal Protection Clause.” Our amicus brief on behalf of the ACLU and its affiliates takes up Justice Kennedy’s invitation by providing a First Amendment approach grounded in the principle of government neutrality in regulating private expression in the public domain. Although the state may speak on its own behalf as a participant in the marketplace of ideas, it can’t fix marketplace rules to ensure its preferred viewpoints prevail over popular competition. This neutrality principle takes on special force in the democratic process, particularly in the area of election administration, where self-dealing by the government can undermine the competitive mechanisms essential to electoral accountability to shifting voter preferences.
Not every limitation on the right to vote requires judicial intervention. Some burdens on the franchise are unavoidable. The Court has held that some partisan considerations are inherent and permissible in the apportionment process. But some burdens so alter the nature of the franchise that they deny a citizen’s inalienable right to full and effective participation in the political process. Where a state uses its apportionment power to enact a map designed to resist changes in voter preference in order to award its preferred political party a legislative monopoly, it impairs the integrity of the democratic process. The crux of our First Amendment argument is that a redistricting plan that disables the competitive mechanism that gives elections legitimacy debases voters’ rights to cast a meaningful ballot and to associate for political purposes.
To address this harm, we propose a burden-shifting approach generally applied to challenges to government discrimination on the basis of political activity. Like the district court, our burden shifting approach asks separately about the legislative intent behind a redistricting plan and the effect of that plan. The intent prong considers whether the state drew its redistricting plan to entrench its preferred party in office. This prong considers classic evidence of legislative intent that has factored into other redistricting cases—contemporaneous statements, political history, erratic procedures, and irregular district shapes. The effects prong has long presented a more complicated question, but we found a ready analog in pattern-or-practice cases under the civil rights laws. To determine whether an apportionment plan gives effect to a state’s intent to entrench, we propose that courts inquire whether a challenged map significantly deviates from the state’s normal range of partisan balance in favor of the state’s preferred party in a way that will endure any likely electoral outcome. Like the pattern-or-practice cases, our standard is suited to considering empirical evidence within the framework of a “totality of the circumstances” approach. This approach sets a discernible threshold for establishing a prima facie case, but gives district courts latitude to exercise their role as finders of fact and to consider both existing and emerging methods of analysis as well as probative qualitative evidence.
A key feature of this proposed standard is that the burden-shifting does not end the trial court’s inquiry, but instead only provides the predicate for demanding that a state provide a legitimate basis for its map—as the district court did here. This approach offers both the parties and the court manageable but meaningful burdens of production in trying partisan gerrymandering cases. First, the standard does not require plaintiffs to present irrefutably dispositive empirical evidence to establish a prima facie case, only sufficient, cumulative evidence to compel justification. Second, the standard only requires defendants to offer legitimate, rather than compelling, justifications for a challenged plan—although the plan must be necessary to advance those legitimate interests. And third, the standard is sufficiently clear and demanding to deter unmeritorious cases and to provide courts with guideposts for assessing liability that are well-defined but not rigid.
Note that most of the witnesses are not computer scientists.
Election officials are pushing back against a new Harvard study saying hackers could disenfranchise Americans in 35 states and the District of Columbia by exploiting vulnerabilities in online voter registration systems.
The study published Wednesday in the journal Technology Sciencesays hackers could buy — either from commercial data brokers or more cheaply from cybercriminals — all the personal data they need about millions of Americans to fraudulently alter voter registration records online. Calling it “voter identity theft,” journal Editor-in-Chief Latanya Sweeney, who is also a Harvard professor, and co-authors Ji Su Yoo and Jinyan Zang say a broad scale attack on several states could be carried out with data costing just a few thousand dollars.
But state elections officials told CyberScoop the report was overblown. “The study doesn’t reflect the safeguards that the states have in place to guard against this sort of thing,” said Indiana Secretary of State Connie Lawson, this year’s president of the National Association of Secretaries of State, or NASS. “I’m disappointed that a Harvard professor would put out such a study with incomplete research and inaccuracies like that.”…
“The vast majority of states mentioned in the report already do the things [the authors] recommend [as mitigations] and take security measures … to prevent bulk changes to voter records,” said Judd Choate, elections director for Colorado and president of NASED.
He noted that the vulnerabilities highlighted — essentially that someone with enough personal data could impersonate a voter and change their registration record — had nothing to do with the online availability of the process but were inherent in any system of voter self-registration.
Similar identity theft issues also exist with paper registration through the mail, Choate added.
See also this statement from the BPC’s John Fortier and Matt Weil.
Donald Trump Jr. told Senate investigators on Thursday that he set up a June 2016 meeting with a Russian lawyer because he was intrigued that she might have damaging information about Hillary Clinton, saying it was important to learn about Mrs. Clinton’s “fitness” to be president.
But nothing came of the Trump Tower meeting, he said, and he was adamant that he never colluded with the Russian government’s campaign to disrupt last year’s presidential election.
In a prepared statement during an interview with Senate Judiciary Committee investigators, the younger Mr. Trump said he was initially conflicted when he heard that the lawyer, Natalia Veselnitskaya, might have damaging information about Mrs. Clinton. Despite his interest, he said, he always intended to consult with his own lawyers about the propriety of using any information that Ms. Veselnitskaya, who has ties to the Kremlin, gave him at the meeting.
A copy of Mr. Trump’s statement was obtained by The New York Times.
The acknowledgment by the president’s eldest son that he intended to seek legal counsel after the meeting suggests that he knew, or at least suspected, that accepting potentially damaging information about a rival campaign from a foreign country raised thorny legal issues.
This goes to the question Andy Grewal raised about whether Trump Jr. displayed enough wilfullness to be criminally liable for any campaign finance violations.
Dave Levinthal with the news, who also notes that if Petersen is confirmed there would be only 4 commissioners on the 6-member commission, a bare quorum.
Zack Roth in The Baffler.
Pema Levy for Mother Jones:
Recent events loomed over the hearing. Dreiband faced questions about the violence in Charlottesville, which the division is investigating, and the rise of hate crimes. He was also asked about voting rights, amid moves by the Trump administration to crack down on voter fraud and potentially make it harder for many people, particularly minorities, to vote. Asked whether he agreed with Trump that millions of fraudulent ballots were cast in the 2016 elections, Dreiband answered simply that he was “unaware of the data about voter fraud in the United States.”
Please help spread the word about this wonderful opportunity.
(I am on the dean search committee. Feel free to reach out with nominations.)
My list yesterday was partial. I believe this is the full list:
Amicus Briefs in Support of Appellees
- Heather K. Gerken, Jonathan N. Katz, Gary King, Larry J. Sabato, and Samuel S.-H. Wang in Support of Appellees (August 30, 2017)
- Eric Lander in Support of Appellees (August 31, 2017)
- 44 Election Law, Scientific Evidence, and Empirical Legal Scholars in Support of Appellees (September 1, 2017)
- NAACP LDF, et al. in Support of Appellees (September 1, 2017)
- Colleagues of Professor Norman Dorsen in Support of Appellees (September 1, 2017)
- ACLU, New York Civil Liberties Union, and ACLU of the Wisconsin Foundation in Support of Appellees (September 1, 2017)
- Brennan Center for Justice at NYU School of Law in Support of Appellees (September 5, 2017)
- Republican Statewide Officials in Support of Appellees (September 5, 2017)
- Current Members of Congress and Bipartisan Former Members of Congress in Support of Appellees (Constitutional Accountability Center) (September 5, 2017)
- Bipartisan Group of Current and Former Members of Congress in Support of Appellees(WilmerHale) (September 5, 2017)
- Senators John McCain and Sheldon Whitehouse in Support of Appellees (September 5, 2017)
- Historians in Support of Appellees (September 5, 2017)
- American Jewish Committee, et al. in Support of Appellees (September 5, 2017)
- Political Science Professors in Support of Appeelles and Affirmance (September 5, 2017)
- Bipartisan Group of 65 Current and Former State Legislators in Support of Appellees(September 5, 2017)
- Law Professors in Support of Appellees (Karlan et al.) (September 5, 2017)
- Constitutional Law Professors in Support of Appellees (Sullivan et al.) (September 5, 2017)
- Election Law and Constitutional Law Scholars in Support of Appellees (First Amendment) (September 5, 2017)
- Common Cause in Support of Appellees (September 5, 2017)
- Political Geography Scholars in Support of Appellees (September 5, 2017)
- League of Conservation Voters, et al. in Support of Appelles (September 5, 2017)
- David Boyle in Support of Appellees (September 5, 2017)
- Represent.Us and Richard Painter in Support of Appellees (September 5, 2017)
- International Municipal Lawyers Association, et al. in Support of Appellees (September 5, 2017)
- Robin Best, et al. in Support of Appellees (September 5, 2017)
- States of Oregon, Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Massachusetts, Minnesota, New Mexico, New York, Rhode Island, Vermont, Washington, and the District of Columbia in Support of Appellees (September 5, 2017)
- Center for Media and Democracy in Support of Appellees (September 5, 2017)
- Georgia State Conference of the NAACP, et al. in Support of Appellees (September 5, 2017)
- California Citizens Redistricting Commission and FairDistricts Now Inc. in Support of Appellees (September 5, 2017)
- Professor D. Theodore Rave in Support of Appellees (September 5, 2017)
- FairVote and One Nation One Vote in Support of Appellees (September 5, 2017)
Chicago Daily Law Bulletin:
In his e-mail, Posner wrote leaving the bench opens the way for him to assist Pixie, a Maine Coon cat who succeeded the late Dinah.
Pixie intends to run for president in 2020, Posner wrote in the e-mail.
As a judge, he clarified, he could not manage or otherwise participate in Pixie’s bid last year for the highest office in the land. Pixie lost to real estate mogul Trump, despite writers at the Above The Law blog endorsing the cat.
Posner plans to take a leading role in Pixie’s 2020 campaign.
“I am optimistic that by then the public will be fed up with human presidential candidates, whether named Trump or Clinton,” he wrote.
Very disappointed to see people like Kim Brace, Andrew Appel and Ron Rivest participating in this charade.
Update: This from Michael McDonald is troubling.
Today’s news reveals that Facebook got money, likely from sources connected to the Russian government, to spend ads likely intended to benefit Trump’s election. Is this illegal?
The issue is complicated and below I reproduce a footnote from my Cheap Speech paper spelling out some of the particulars. But here are the basics:
- Federal law makes it illegal for a foreign individual, entity, or government to pay for ads independently expressly advocating the election or defeat of a candidate (e.g., Vote for Smith). If any Facebook ads did that, it is illegal.
- Federal law makes it illegal for a foreign individual, entity or government to contribute to a U.S. candidate campaign/party. Spending money in coordination with a campaign counts as a contribution. So if a campaign told the Russian entity where/who/when/how to place the ads, that would be illegal, even if the ads did not contain express advocacy. That seems to be the next question for investigators: how would the Russians know where to target the ads?
- The more difficult question is whether federal law prohibits, and if so if it is constitutional to prohibit, spending on elections that do not expressly advocate the election or defeat of a candidate (and don’t count as tv/radio electioneering communications) if those ads are intended to influence the outcome of the election. If the Facebook ads just riled up people on guns but did not mention Trump for example, but were intended to help Trump get elected, can those be illegal? That’s the harder question.
For those wanting more, the footnote is below the fold:
Representatives of Facebook told congressional investigators Wednesday that it has discovered it sold ads during the U.S. presidential election to a shadowy Russian company seeking to target voters, according to several people familiar with the company’s findings.
Facebook officials reported that they traced the ad sales, totaling $100,000, to a Russian “troll farm” with a history of pushing pro-Kremlin propaganda, these people said.
A small portion of the ads, which began in the summer of 2015, directly named Republican nominee Donald Trump and Democrat Hillary Clinton, the people said. Most of the ads focused on pumping politically divisive issues such as gun rights and immigration fears, as well as gay rights and racial discrimination.
The acknowledgment by Facebook comes as congressional investigators and special counsel Robert Mueller are probing Russian interference in the U.S. election, including allegations that the Kremlin may have coordinated with the Trump campaign.
This is a big deal. I address the legality and danger of this Russian interference in my Cheap Speech paper.
Chuck Lindell with the schedule.
Amy Howe with the November calendar.
Pam Karlan has posted this draft on SSRN (forthcoming, William and Mary Law Review). Here is the abstract:
The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic.
It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics.
Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.
Michael Chertoff oped in the WSJ:
American voters received yet another rude awakening last month. Chicago’s Board of Elections reported that names, addresses, birth dates and other sensitive information about the city’s 1.8 million registered voters had been exposed on an Amazon cloud server for an unknown period. Worse, it appears hackers might have gained access to employees’ personal accounts at Election Systems & Software, a major election technology vendor—info that could be used to hack a future U.S. election.
Earlier, the Department of Homeland Security reported that foreign agents targeted voting systems in 21 states in the 2016 election, and Bloomberg News reported that hackers had successfully compromised various election-technology companies.
In an age of unprecedented cyber risks, these dangers aren’t surprising. But lawmakers and election officials’ lackadaisical response is both staggering and distressing.