“Even with some very close races left to decide in California, a recount of ballots is rare”

John Myers for the LAT:

No state in the nation had as many voters show up for last week’s midterm elections as California. Preliminary data show that about 12 million ballots were cast — some coming in races that produced razor-thin outcomes, the kind that fuel talk about a recount in other states.

But not in California.

Here, a formal do-over of the tallying is exceedingly rare. A review of election records and news archives finds perhaps only about a half-dozen formal recount efforts in legislative, congressional or statewide contests since 1980.


“A Mysterious ‘Undervote’ Could End Up Settling the Florida Senate Race”

NYT’s The Upshot:

The vote count in Florida’s Senate race keeps getting tighter. Gov. Rick Scott’s lead over the Democratic incumbent, Bill Nelson, is down to 15,000 votes, and it’s likely to narrow further as provisional and late overseas ballots are counted.

As the initial count concludes, one issue will loom over the result: a substantial undervote in Broward County, the state’s most Democratic county, and the possibility that the ballot design, which might have made it harder to find the Senate choice, will ultimately cost the Democrats a Senate seat.


We’ve Reached “The Next Election Meltdown”

My 2012 Book, The Voting Wars, has a subtitle: From Florida 2000 to the Next Election Meltdown.  That meltdown has now arrived.  I’ve been traveling and need to get up to speed on everything and collect my thoughts before writing them out fully.

In the meantime, here’s a twitter thread with some opening thoughts:



Blockbuster WSJ Story: “Donald Trump Played Central Role in Hush Payoffs to Stormy Daniels and Karen McDougal”


As a presidential candidate in August 2015, Donald Trump huddled with a longtime friend, media executive David Pecker, in his cluttered 26th floor Trump Tower office and made a request.

What can you do to help my campaign? he asked, according to people familiar with the meeting.

Less than a year later, Mr. Trump asked Mr. Pecker to quash the story of a former Playboy model who said they’d had an affair. Mr. Pecker’s company soon paid $150,000 to the model, Karen McDougal, to keep her from speaking publicly about it. Mr. Trump later thanked Mr. Pecker for the assistance.

The Trump Tower meeting and its aftermath are among several previously unreported instances in which Mr. Trump intervened directly to suppress stories about his alleged sexual encounters with women, according to interviews with three dozen people who have direct knowledge of the events or who have been briefed on them, as well as court papers, corporate records and other documents.

Taken together, the accounts refute a two-year pattern of denials by Mr. Trump, his legal team and his advisers that he was involved in payoffs to Ms. McDougal and a former adult-film star. They also raise the possibility that the president of the United States violated federal campaign-finance laws.

The Wall Street Journal found that Mr. Trump was involved in or briefed on nearly every step of the agreements. He directed deals in phone calls and meetings with his self-described fixer, Michael Cohen, and others. The U.S. attorney’s office in Manhattan has gathered evidence of Mr. Trump’s participation in the transactions….

Mr. Cohen has also described to prosecutors his discussions with Mr. Trump and a Trump Organization executive about how to pay Ms. Clifford without leaving the candidate’s fingerprints on the deal.


“Judge orders Broward elections chief to turn over vote counts to Scott’s campaign”

Tampa Bay Times:

A Broward judge ordered the county’s elections chief to turn over to Rick Scott’s campaign for the U.S. Senate an accounting of total ballots cast and a breakdown of votes by category — all due by 7 p.m. Friday.

Circuit Judge Carol-Lisa Phillips also held that Brenda Snipes, Broward’s supervisor of elections, was in violation of Florida public records laws for not fulfilling a request for that information by Scott’s campaign.

Phillips ordered Snipes to turn over the number of all ballots cast in Tuesday’s midterm election, broken down by absentee, early and Election Day votes. She also ordered her to provide the number of ballots still to be counted.

The information that Scott’s campaign sought in a lawsuit filed against Snipes “should be a matter of record at this time and immediately available,” the judge said. The campaign submitted its request for Broward’s ballot records on Thursday afternoon, just hours before it filed suit.

A thought:



“Trump, Republicans call vote count into question amid tight McSally-Sinema race for Senate”

Arizona Republic:

President Donald Trump andRepublicans in Arizona and nationally are stoking claims of deliberate election fraud in the state’s U.S. Senate race as Martha McSally and Kyrsten Sinema await results of a vote that could swing in either’s favor.

The tight race has left Republicans in jeopardy of losing a Senate seat in the state for the first time in 30 years.

Though McSally held a lead in early-vote totals, the tally flipped in Sinema’s favor Thursday night. Updated results Friday evening kept Sinema with a 20,000-plus advantage, but an estimated 360,000 ballots remain to be counted.

No group has brought forward allegations of specific criminal activity, although one Republican lawsuit addressed an equity issue over how early-ballot signatures are verified.

“Just out — in Arizona, SIGNATURES DON’T MATCH,” Trump posted on Twitter on Friday afternoon. “Electoral corruption — Call for a new Election? We must protect our Democracy!”

Earlier, Trump told reporters it was “interesting” that the extended vote-counting “always seems to go the way of the Democrats.”

“Now, in Arizona, all of a sudden, out of the wilderness, they find a lot of votes,” Trump said. “And she’s — the other candidate — is just winning by a hair.”

Andrew Kaczynski:





Today’s Must-Read: Steve Huefner: “Counting Ballots Pursuant to Law is Not Stealing an Election”

Steve Huefner at Moritz:

It has been less than 72 hours since polls closed on the 2018 congressional midterm elections, and for candidates and their supporters who do not yet know the outcome of close contests, patience – not unsubstantiated or false allegations of election rigging – MUST be the order of the day.

As any close observer of U.S. elections knows, once the polls close each state then conducts a carefully structured process of tallying the votes. Critically, as any close observer also knows, the Election Night “results” are not only unofficial, they are also still entirely preliminary and will almost inevitably change, perhaps considerably. With the dramatic rise in the use of mail-in absentee voting over the past decade, election officials increasingly must deal after Election Day with a significant volume of paper ballots that have arrived around Election Day (each state sets its own rules for when the ballots must arrive). Meanwhile, provisional ballots also require individual review and processing after Election Day. These post-election processes are not some mere afterthought; rather, they are critical components of determining the official election outcome, and they must be respected as essential to the overall integrity of the election.

Although these processes occur as part of every election, they understandably do not attract much attention when the unofficial results reported on Election Night are not close. But for election officials, it is a routine part of their duties after every election to undertake the laborious and thoroughgoing canvassing processes now occurring everywhere, not just in states like Florida, Georgia, and Arizona (where some high-profile races are quite close or essentially even). In every election, these processes need to occur in ways that promote public trust, and election officials must be required to adhere to the law that governs these processes. (The American Law Institute has just published an extensive set of legal principles and related commentary designed to promote the fair resolution of disputed elections, developed after several years of collaborative work with a team of expert advisers, in which my Moritz colleague Ned Foley and I also participated as the project’s “Reporters.”) Correspondingly, candidates and the general public should be able to insist that election officials perform these duties properly.

Thus, it is beyond unseemly – indeed, it is downright destructive of public trust in our elections, and fundamentally inconsistent with the health of our representative democracy – for candidates to assert or imply that the reason that Election Night results have been changing in the past few days is because election officials have engaged in some sort of irregular or unlawful conduct to manipulate the results. For anyone who cares about democratic institutions, the responsible position is to let the counting proceed according to state law, and then if necessary to take advantage of recount, audit, and contest processes to ascertain whether any defects occurred in these processes.

We can revisit for future elections whether our system has come to rely too heavily on counting ballots days after Election Night. But that is a policy question for a later date, and all ballots cast in this year’s elections must be scrupulously counted according to the laws established for this year’s elections. Leaders of both parties, with the support of all concerned citizens, ought to condemn any effort to undermine this essential stage of the electoral process.


“Did voting problems influence outcome in Georgia election?”


Such irregularities appear to have occurred across Georgia in this week’s election for governor and other statewide offices, according to interviews by The Atlanta Journal-Constitution with voters, campaign operatives and election officials.

However, no evidence emerged of systematic malfeasance – or of enough tainted votes to force a runoff election between Republican Brian Kemp and Democrat Stacey Abrams.

The race remained too close to call Friday, three days after voting concluded. In unofficial returns, Kemp led with 50.3 percent of the vote. He had just 13,000 votes to spare to win outright without a runoff.

As county and state election officials prepared to certify the results early next week, Abrams’ campaign spent Friday trying to ensure that provisional ballots cast by voters whose eligibility was questioned on Election Day are recorded. Voters filed into voter registration offices with evidence of their identities, their addresses, their citizenship or other details that could prove their eligibility.

Some were not successful.


“US elections highly competitive, but voting rights not guaranteed for all groups, international observers say”


 The 6 November mid-term elections in the United States were highly competitive and contestants could campaign freely, with media presenting a wide array of information and views, enabling voters to make an informed choice. However, campaign rhetoric was often intensely negative and at times intolerant, including on social networks, the international observers from the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the OSCE Parliamentary Assembly (OSCE PA) concluded in a statement released today.

The fundamental right to suffrage was undermined in places by the disenfranchisement of some groups and the lack of full representation in Congress. Campaign finance rules do not guarantee full transparency, the observers said. While the elections were largely administered in a professional manner and voters turned out in high numbers, decisions on important aspects of the electoral process were often politicized, the statement says.

“The American people once again demonstrated their commitment to democratic elections in a hard-fought and vibrant campaign that clearly engaged voters and had millions eagerly awaiting results last night,” said George Tsereteli, Special Co-ordinator and leader of the short-term OSCE observer mission. “While the rhetoric we heard from the campaign trail was often divisive, Americans came together to vote in professionally run elections.”

There was an overall respect for fundamental freedoms in a campaign that was dominated by the two main parties. The intolerant rhetoric included several statements with xenophobic and anti-Semitic connotations, the statement says. Concerns were raised regarding online disinformation from both domestic and foreign sources, as well as regarding the transparency of online advertising.

The legal framework and the administration of elections are complex and diverse. As there are few nationwide procedural standards, detailed rules are made only at the state and sub-state level. Some states have amended laws to facilitate voter registration, early voting and the voting rights of ex-prisoners, partially addressing prior ODIHR recommendations. However, fundamental deficiencies remain, particularly with respect to the disenfranchisement of citizens on various grounds, the observers said. Lack of agreement in Congress to update a key aspect of the 1965 Voting Rights Act diminishes its effectiveness in safeguarding against discrimination on racial or linguistic grounds.

Voter registration is active and implemented by states, with minimum conditions set by federal law. A number of states enhanced efforts to facilitate voter registration, including online and automatic registration, but an estimated 50 million eligible citizens were not registered for these elections, for various reasons. Legislation and established practices effectively disenfranchised around 11 million otherwise eligible voters, the statement says. Voter identification is a politically divisive issue, and rules in some states can present obstacles, particularly for low-income voters, racial and linguistic minorities, and Native Americans.

“These were well-run elections, but the diverse nature of the American system means that there isn’t a single picture. We welcome progress in some states to facilitate voter registration and to reinstate voting rights to citizens, but we cannot ignore that countless millions remain effectively disenfranchised,” said Isabel Santos, Head of the OSCE PA delegation. “Much more attention and investment in democracy remains critical if the United States is to overcome these longstanding challenges and address new ones, like effectively securing election infrastructure.”

The media landscape is pluralistic and vibrant, offering voters a wide range of opportunities to inform themselves, but is increasingly polarized. There is limited regulation and few rules for broadcast media during elections. Verbal attacks on journalists and news media by senior officials raised concerns over their safety and undermined the essential role of media in a democratic society….


“NAACP Legal Defense Fund Files Complaint on Behalf of Alabama Students Denied Voting Rights in Tuesday’s Election”

Release via email:

The NAACP Legal Defense and Educational Fund, Inc. (LDF) today filed a complaint in federal court on behalf of four Black college students who were unlawfully denied their right to vote in Tuesday’s election in Alabama. The complaint is against Alabama Secretary of State John Merrill and election officials in Madison County, Alabama.

“Nothing is more fundamental than the right to vote, and these students, despite complying with all of Alabama’s regulations, were denied that right,” said LDF Senior Counsel Catherine Meza. “We are hopeful that the court will right this wrong and restore to our plaintiffs the voice to which they are entitled as American citizens.”

The plaintiffs, who are students at Alabama A&M University, had all registered before the election. But upon arriving at the polls on Tuesday, they were informed that they were not registered and had to fill out provisional ballots. The students had received no notice of any problems with their registrations, and the day after the election, the Alabama Secretary of State’s website listed the plaintiffs as registered to vote.

In a separate matter, LDF sent a letter to Secretary of State Merrill on Election Day asking him to address reports of confusion at Alabama polling sites over how to process the votes of voters listed as “inactive.” Under Alabama law, such voters are entitled to cast a regular ballot as long as they fill out an updated registration form, but many voters were denied those forms and were made to fill out provisional ballots.


Today’s Reading: Chapter 102 of Florida Elections Code

Title IX
Chapter 102 
View Entire Chapter

Inspectors and clerks to conduct elections.

Poll worker recruitment and training.

Compensation of inspectors, clerks, and deputy sheriffs.

Maintenance of good order at polls; authorities; persons allowed in polling rooms and early voting areas; unlawful solicitation of voters.

Tabulation of votes and proclamation of results.

Duty of sheriff to watch for violations; appointment of special officers.

Sheriff and other officers not allowed in polling place.

Elections Canvassing Commission.

Deadline for submission of county returns to the Department of State.

Elections Canvassing Commission to issue certificates.

Returns before canvassing commission.

County canvassing board; duties.

County canvassing board to issue certificates; supervisor to give notice to Department of State.

Certificate of election.

Manual recounts of overvotes and undervotes.

Contest of election.

Judgment of ouster; revocation of commission; judgment setting aside referendum.


Quo warranto not abridged.

Contest of election to Legislature.

Another Troubling Development for the Rule of Law and Election Administration: Rick Scott Requests Law Enforcement to Investigate Broward County Vote Counting, As He’s Locked in a Close Race for Senate, and President Piles On

Banana republic stuff spreads.

Marc Caputo and Matt Dixon for Politico:

Gov. Rick Scott announced Thursday night that he was calling for a state investigation into Broward County’s handling of tens of thousands of ballots that have led to statewide recounts in three races, including the U.S. Senate contest in which the Republican’s lead has slowly decreased since Election Day.

At the same time Scott called for a Florida Department of Law Enforcement investigation, Scott’s campaign filed a public-records lawsuit against Broward County Election Supervisor Brenda Snipes, accusing her of failing to provide details about the ballots tabulated after Election Day.

As a candidate he has every right to file a lawsuit, but calling for a law enforcement investigation while he is governor is stepping over the line when he has a personal stake in the outcome here.

And President Trump piles on:


“Democratic legitimacy is on the line in Georgia”

The sober Ned Foley with this important WaPo oped:

The Georgia race is close enough that the democratic legitimacy of the outcome depends on how ballots that have yet to be counted are handled. Stacey Abrams, the Democrat, trails Brian Kemp, the Republican. But if the gap sufficiently narrows as additional ballots are counted, state law would require a runoff.

One might hope that the remainder of the counting process could be straightforward. But Kemp has had every incentive to keep additional ballots from being counted by asserting that some impropriety disqualifies them. And Kemp, who finally resigned Thursday as Georgia’s secretary of state, has been supervising the process of casting and counting the ballots throughout the election.

This is no small matter. With all the concerns of possible cyberattacks on the nation’s voting infrastructure, there was serious anxiety that results this year might not be an accurate reflection of the choices voters made. Moreover, with all the fears that eligible voters might be prevented from casting ballots by various forms of voter suppression, there was a genuine worry that the results might not accurately reflect the will of the electorate for the simple reason that some eligible voters who attempted to participate were unable. (In other words, the output would be inaccurate because some of the inputs were wrongfully missing.)


“Russia Seen Adopting New Tactics in U.S. Election Interference Efforts”


If the goals of spreading divisive content have remained the same, the methods have evolved in multiple ways, researchers say. For one, there has been less reliance on pure fiction. People have been sensitized to look for completely false stories, and Facebook has been using outside fact-checkers to at least slow their spread on its pages.

“We’ve done a lot research on fake news and people are getting better at figuring out what it is, so it’s become less effective as a tactic,” said Priscilla Moriuchi, a former National Security Agency official who is now a threat analyst at the cybersecurity firm Recorded Future threat manager.

Instead, Russian accounts have been amplifying stories and internet “memes” that initially came from the U.S. far left or far right. Such postings seem more authentic, are harder to identify as foreign, and are easier to produce than made-up stories.


Recounts Likely in BOTH Florida Senate and Florida Governor’s Races

and there are concerns about the Broward ballots, and whether poor ballot design, ballot counting machine error or something else might explain the undervote for Senate.  Stay buckled in.



Florida! Poor Ballot Design in Broward County May Have Led Voters to Skip Senate Race

Sun Sentinel:

The difference was nearly even between the Republican and Democratic candidates.

Gillum received more than 10,200 votes than Nelson, while DeSantis also received more than 10,400 votes than Scott.

Some voters said that they don’t remember seeing the Senate race on their ballots or that they almost missed it.

For the midterms, Broward’s discrepancy among the number of votes wasn’t just in the Senate and governor races.

More people in Broward voted for the state’s commissioner of agriculture, chief financial officer and attorney general positions than they did for the Senate, according to the preliminary county results.



Breaking: Brian Kemp Resigns as Georgia Secretary of State, Effective Tonight, As Abrams Continues to Fight for Votes in Governor’s Race

Axios reports.

Kemp should have recused himself from any issues connected to this election, given his obvious conflict of interest.

This comes after numerous complaints about how he conducted this election and election administration in Georgia generally.

Protect Democracy, which sued Kemp to get him to step aside, claimed victory (though it is not clear the lawsuit was the direct cause of Kemp’s resignation.)

I wrote over the weekend at Slate about how he committed the most brazen act of partisanship in election administration in recent memory.

Kemp has declared victory in the governor’s race but Abrams, citing lots of problems with how the election was conducted and votes still outstanding, has not conceded.


“Scott-Nelson race for U.S. Senate seat could be headed for a recount”

Miami Herald:

Republican Gov. Rick Scott was clinging to a 25,920-vote advantage over Democratic incumbent Sen. Bill Nelson as of Wednesday evening — or just 0.32 percent of the 8.1 million ballots cast by Floridians.

State law allows for a machine recount of the results if the two candidates are separated by one-half of a percentage point or less. The race is well within that margin.


Georgia: “Thousands of provisional ballots remain uncounted in Fulton County”


A day after the election, the governor’s  race remained in limbo, with Secretary of State Brian Kemp declaring victory and Democrat Stacey Abrams vowing to hang in the race until every vote is counted.

A number of other races could result in a recount, including the 6th District Congressional contest between Republican Rep. Karen Handel and Lucy McBath. McBath, a Democrat, was ahead by fewer than 3,000 votes as of Wednesday afternoon, and the margin was less than 1 percent.

Some of the provisional ballots in question were cast at three Atlanta precincts that were ordered by a judge to remain open late. Votes cast by people who joined the line after the normal 7 p.m. close were required to be provisional, the Fulton elections director said, so they could be separated from other votes if the judge’s order is overturned.

Barron said he did not know how many of the total provisional ballots came from those precincts.


Republican Senate Could Block Democratic Supreme Court Nominees For a Long Time


But the midterm results have longer-term implications as well. By broadening their Senate majority from 51 seats to about 54 (some races have yet to be decided), Republicans have expanded their chances of retaining control of the chamber after 2020. Only a handful of Republican Senate incumbents will be up in states where Democrats are competitive, and they have their own vulnerable incumbents, too.

As a result, even if a Democrat defeats Mr. Trump and takes over the White House in 2021, Mr. McConnell is likely to retain sufficient power in the Senate to prevent that president from appointing judges to start swinging the pendulum back. That situation would be similar to what happened in President Barack Obama’s final two years in office, when Republicans, after taking control of the Senate, systematically blocked his nominees to fill vacancies on both federal appeals courts and the Supreme Court.

“Getting judicial nominees acceptable from a liberal persuasion into a position to get nominated and confirmed is a slim-to-none proposition over the course of the next two to three election cycles because of the composition of the Senate,” said Bruce Buchanan, a political-science professor at the University of Texas, Austin.


“Aging Machines, Crowds, Humidity: Problems at the Polls Were Mundane but Widespread”

Pro Publica:

While aging infrastructure was already a well-known problem to election administrators, the surge of voters experiencing ordinary glitches led to extraordinarily long waits, sometimes stretching over hours. From Pennsylvania to Georgia to Arizona and Michigan, polling places started the day with broken machines leading to long lines, and never recovered.


Breaking: Three Judge Federal Court Unanimously Strikes Maryland Congressional District as Partisan Gerrymander

The judges considered two First Amendment-based theories: all three joined in one of the theories, and two in the other.

This will go on direct appeal to the Supreme Court, in a case with an opinion written by a well respected conservative judge (Niemeyer) and involving a finding of gerrymandering against Democrats.

This will likely get taken up with the North Carolina case which involves a Republican gerrymander.

As I recently wrote at the HLR Blog, the Court without Justice Kennedy is much less likely to police partisan gerrymandering under the U.S. Constitution.


QV Or Not QV? That Is The Question: Some Skepticism About Radical Egalitarian Voting Markets

I have posted this draft on SSRN (forthcoming, University of Chicago Law Review, Online).  Here is the abstract:

This paper is part of a symposium on Eric A. Posner & E. Glen Weyl’s recent book, Radical Markets: Uprooting Capitalism and Democracy for a Just Society. Posner and Weyl argue for the use of quadratic voting, or QV, for conducting voting for ballot measures and (perhaps) representative government. The original version of Posner and Weyl’s QV would allow literal vote buying, in which the wealthy could decide how many votes to allocate in an election such as one to decide whether to build a public park. In the current version of their proposal, contained in their book, Posner and Weyl advocate a modified version of QV in which all voters receive an equal number of “credits” which they can then vote quadratically across ballot measures over time or among a number of candidates for office. They argue that such a system will allow “a passionate minority” to “outvote an indifferent majority” and that “the outcome of the vote should maximize the well-being of the entire group, not the well-being of one subset at the expense of another.” Their chapter on QV begins with a vignette of a rural Japanese voter saving up his money to cast a large number of votes in favor a measure repealing gun control in rural areas.

In this short response, I express some skepticism about the creation of the radical egalitarian voting market Posner and Weyl suggest, and argue instead for QV-based public financing of elections. First, I argue that the kind of tradeoffs that modified QV elections require are both normatively undesirable and likely beyond the rational capacity of voters, especially in a politically polarized political environment fueled by social media and disinformation. Second, I argue that the caveats and constraints Posner and Weyl build into their model makes modified QV risky and impractical as an actual voting reform, as compared to other voting methods that reflect intensity, such as cumulative voting. Third, I briefly argue that QV public financing of elections through campaign finance vouchers is both practical and can achieve many of the benefits Posner and Weyl suggest for their voting market without some of the drawbacks I have identified.


“Midterm Voters Significantly Expanded The Right To Vote”


Voting rights were on the ballot in the midterm elections on Tuesday, and voters sent a resoundingly clear message in favor of making elections more accessible and fairer.

After Tuesday’s election, approximately 1.4 million people with felony convictions in Florida will regain the right to vote. It will be much easier for people in Michigan to vote. Nevadans will be automatically registered when they conduct business with the state Department of Motor Vehicles unless they opt out. Lawmakers in Michigan, Colorado and Missouri (and potentially Utah) will no longer be able to draw electoral districts that severely benefit one party. Voters in Maryland will get to register to vote on Election Day. Democrats took control of the state Senate in New York, giving them a chance to do something about the state’s antiquated voting laws.

In Kansas, Kris Kobach, who championed perhaps the most restrictive voting law in the country and led President Donald Trump’s voter fraud commission, lost the race for Kansas governor to Democrat Laura Kelly.


What the Election Means for Redistricting

I see that Justin already beat me to the punch, but I wanted to add some more thoughts about the implications of yesterday’s elections for redistricting:

  1. First off, yesterday was the most successful day in U.S. history in terms of voter initiatives to prevent gerrymandering. Colorado, Michigan, and Missouri all passed anti-gerrymandering measures, and a fourth initiative, in Utah, is narrowly leading but still too close to call. By the standard of past efforts, this is astonishing. In a 2007 paper, I found that about two-thirds of redistricting initiatives to that point had failed, typically because of the intense opposition of the majority party. But now reformers seem to have cracked the code; they have repeatedly managed to turn anti-gerrymandering measures into valence issues instead of partisan contests.
  2. Reformers have done so, moreover, while advancing more ambitious visions of what fair redistricting should look like. None of the commissions in place in this cycle affirmatively took election results into account in order to try to achieve partisan symmetry. The Michigan initiative, however, requires that district maps not “provide disproportionate advantage to political parties.” The Missouri measure, similarly, states that “districts shall be designed in a manner that achieves . . . partisan fairness,” in that “parties shall be able to translate their popular support into legislative representation with approximately equal efficiency.” These criteria mean that the Michigan and Missouri commissions, at least, will have to do more than comply with traditional redistricting criteria. They will also have to consider partisan data to make sure that neither party is significantly—even if unintentionally—helped or harmed.
  3. Also encouragingly, it’s now highly likely that several states that had severe gerrymanders in this cycle will not in the 2020s. In Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin, there will probably be either divided government (thanks to Democratic gubernatorial wins) or a redistricting commission responsible for drawing the lines. The odds are therefore good that gerrymandering in the next decade will not be as prevalent, or as one-sided, as it was in this cycle.
  4. On the other hand, barring judicial intervention, we’re still likely to see some extreme gerrymanders. Democrats will probably have unified control in major states such as Illinois, Massachusetts (since they can override a gubernatorial veto), and New York (where the new commission’s maps are merely advisory). For their part, Republicans will probably have unified control in large states including Florida (where constitutionally prescribed criteria impose some check on gerrymandering), Georgia, North Carolina (since the governor can’t veto district maps), and Texas. These are the places that will likely be the flashpoints of redistricting litigation in the 2020s.
  5. Also on the bad news front, several of the existing gerrymanders that are currently being litigated had little difficulty weathering the blue wave. In North Carolina, for example, Republicans seem again to have won ten of the state’s thirteen congressional districts—exactly as in 2016, and exactly as intended by the map’s architects. In Wisconsin, similarly, Republicans appear to have retained their 64-35 advantage in the state house—even as Democrats swept every statewide office. This is further evidence of the durability of contemporary gerrymandering, even in the face of dramatic political developments.
  6. Lastly, with respect to Congress as a whole, Democrats look poised to win the national House vote by roughly 7 percentage points, and to translate this advantage into about 230 seats. While a majority is a majority, this outcome is actually quite biased in favor of Republicans. Both historically and in order to achieve a zero efficiency gap, a seven-point win nationwide should yield about 250 House seats for the majority party. The cost exacted by intentional gerrymandering—as well as unintentional factors like the geographic distribution of the parties’ supporters—is thus on the order of twenty seats. This cost did not deprive Democrats of the majority this time, but it did in 2012, and it may well again in 2020.

Tuesday’s implications for redistricting

Hi, all.  Justin here.

On Tuesday, voters in Colorado, Michigan, and maybe Utah (it’s still too close to call) approved ballot initatives changing the process for drawing state legislative and congressional lines, and voters in Missouri approved an initiative changing the process for drawing state legislative lines.

Overall, the initiative, legislative, and gubernatorial choices on Tuesday moved the redistricting process in Illinois, New Mexico, and New York from split partisan control to Democratic control, and moved Michigan and Wisconsin from unilateral Republican control to split control — if the districts were redrawn as soon as the new candidates-elect were sworn in.  Obviously, the 2020 elections could shuffle the decks again.

The elections in Alaska, Georgia, Kansas, Maine, Nevada, New Hampshire, and Washington state that were too close to call (including some state legislative races with the potential to yield a supermajority) could also shake things up on the redistricting front, either delivering or breaking up potential unilateral partisan control of the process.

I’ve got maps and tables showing the partisan control of the redistricting process in the aftermath of Tuesday’s elections here for congressional districts and here for state legislative districts.  And I’ll have writeups of the new initiatives and the processes they use, coming shortly.


Zack Roth and Michael Waldman: “Democracy Wins”

Blog post:

In the end, democracy won on Tuesday night.

Voters overcame suppression attempts, long lines, broken machines and nasty weather to turn out in massive numbers in key states. Extreme gerrymandering wasn’t enough to thwart the will of voters in the battle for the House. And Florida registered a massive win for democracy by voting to restore the franchise to those with past criminal convictions.

Still, some voters faced wait times of several hours, often thanks to machine problems, underlining the urgent need to fix our aging voting machines and improve election administration. Georgia, already a hotbed of voter suppression efforts, was the site of particular problems, especially in minority-heavy areas. And the landslide in the House, where Democrats likely won the popular vote by around 9 percent while winning only a narrow majority of seats, shows why we urgently need to unrig the map.

The most important result is a new Congress that’s likely be much more supportive of the reforms needed to strengthen democracy, and far more willing to act as a necessary check on the executive branch. Congress will come closer to reflecting America, too. The House will have a record number of women and minority members — including its first female Native American and its first female Muslim.

In Florida, a ballot initiative to restore voting rights to people with past criminal convictions, which the Brennan Center is proud to have helped draft, passed with strong bipartisan support, ending a ban that had affected over one in five African-Americans in the state. Around 1.4 million people total will now have a voice in their democracy. Not since the 26th Amendment lowered the voting age to 18 in 1971 has a law change conferred voting rights to so many Americans….


North Carolina Voter ID Amendment Poised to Win; Watch North Carolina General Assembly Try to Ram Through New Voter ID Law Before They May Lose Supermajority


“Florida voters approve Amendment 4 on restoring felons’ voting rights”

Miami Herald:

About 1.2 million convicted felons in Florida will automatically have their right to vote restored, thanks to a ballot measure that received about65 percent of the vote Tuesday.

At least 60 percent of voters had to approve for Amendment 4 to become law.

For the past seven years, felons have had to wait five years after completing their sentence to even apply to have their voting rights restored.

The movement to reform the state’s notoriously strict restoration process was championed by the Florida Rights Restoration Coalition, a bipartisan group led by convicted felons. The group collected more than 800,000 signatures to qualify Amendment 4 for the 2018 ballot.

Make no mistake: this is one of the biggest stories of the night.


“Civil Rights Organizations Request Extension of Poll Hours in Maricopa County, Arizona”

Release via email:

Today, the Lawyers’ Committee for Civil Rights Under Law, The Arizona Advocacy Foundation and All Voting is Local-Arizona sent a letter, demanding that the Maricopa County Arizona Board of Supervisors and the County Recorder extend voting hours in polling locations throughout Arizona’s largest county. The purpose of the demand is to allow those voters who could not vote in the morning and would not be able to vote before the 7 pm closing time.

There has been record voter turnout this election, but it has resulted in technology glitches and printing problems rendering some polling places unavailable to voters.   The Election Protection hotline has received numerous calls from registered Maricopa County voters who indicated that they were unable to vote at their assigned polling locations or at a vote center due to these problems. As a result, voters left polling places or were told to go to other voting centers. The technological issues affected ten precinct polling places and all of the 40 voting centers in Maricopa County.


“Georgia Voters File Emergency Lawsuit Seeking to Have Secretary of State Kemp Barred From Presiding Over His Own Election”

Release via email:

Today, a group of Georgia voters filed a federal lawsuit asking the United States District Court in Atlanta to enjoin Secretary of State Brian Kemp from exercising any further powers of the Secretary of State’s Office in presiding over the 2018 general election, in which he himself is a candidate.

The emergency legal papers were filed at 5 PM today on behalf of five Georgia voters: LaTosha Brown, Jennifer N. Ide and Katharine Wilkinson of Fulton County, Candace Fowler of Dekalb County, and Chalis Montgomery of Barrow County. They are represented in the matter by the nonpartisan nonprofit Protect Democracy, former United States Attorney for the Middle District of Georgia Michael J. Moore of Pope McGlamry, and former Department of Justice Voting Rights Section attorney Bryan L. Sells of the Atlanta Law Office of Bryan L. Sells.

The plaintiffs are seeking a temporary restraining order barring Secretary Kemp from being involved in the counting of votes, the certification of results, or any runoff or recount procedures that would normally be exercised by the Secretary of State’s Office or the Board of Elections, on which he also sits.

Counsel for Protect Democracy Larry Schwartztol said, “That no person should be a judge in their own case is about as basic a rule of fairness as you can get. That principle, embodied in the Constitution’s Due Process Clause, applies with special force to Secretary Kemp, who has misused his official position to try to tilt the playing field of the election in his favor. The extreme facts of this case warrant emergency relief to protect the rights of Georgia voters.”

Seems a bit late for this, no?


“Reports of long lines, broken machines as voters go to polls”


 Long lines and malfunctioning machines marred the first hours of voting in some precincts across the country Tuesday. Some of the biggest problems were in Georgia, a state with a hotly contested gubernatorial election, where some voters reported waiting up to three hours to vote.

At a polling place in Snellville, Georgia, more than 100 people took turns sitting in children’s chairs and on the floor as they waited in line for hours. Voting machines at the Gwinnett County precinct did not work, so poll workers offered provisional paper ballots while trying to get a replacement machine.