Yvonne Wingett Sanchez in the Washington Post.

POLITICO:

Former President Donald Trump’s political operation said Thursday that it plans to deploy more than 100,000 attorneys and volunteers across battleground states to monitor — and potentially challenge — vote counting in November.

The initiative — which the Trump campaign and the Republican National Committee described as “the most extensive and monumental election integrity program in the nation’s history” — will include training poll watchers and workers as well as lawyers. …

Most states have rules regulating activities at polling sites. That includes laws prohibiting voter intimidation, obstructing voters from casting their ballots, loitering and advertising. According to the National Conference of State Legislatures, partisan poll workers are allowed to monitor elections but can’t interfere in the electoral process except to report issues.

Those involved in the drafting of the program included RNC Chair Michael Whatley, RNC co-chair Lara Trump, who is Trump’s daughter-in-law, and the RNC’s general counsel, Charlie Spies.

In a statement, Spies said, “In 2024 we’re going to beat the Democrats at their own game and the RNC legal team will be working tirelessly to ensure that elections officials follow the rules in administering elections. We will aggressively take them to court if they don’t follow rules or try to change them at the last minute.”

This story reminds me of what occurred in Ohio in 2004: the GOP planned to undertake a similar effort of potentially challenging voters at the polls on Election Day, but had to back down at the last minute after litigation over the effort when all the way to the U.S. Supreme Court, with Justice Stevens issuing a warning to the state at around 3 am on Election Day. In response, Governor Taft ordered Republicans in the state to abandon their plans for aggressive challenging of voters. There were still extraordinarily long lines at many polling places in Ohio that day, but not attributable to the challenging campaign that the GOP had planned. As Justice Stevens’s opinion reflecting, this issue calls for careful balancing of the right to monitor the voting process in order to maintain transparency and thus public confidence in its integrity, while at the same time refraining from practices that would interfere the right of eligible voters to cast their ballots.

Nick, following up on my initial post on this important new case, adds his own helpful analysis. My views continue to be very preliminary and tentative (unlike Nick, I had no prior involvement in this case until reading the opinion yesterday). But I’m not (yet?) convinced about the potential distinction that Nick offers between when the party should win concerning a fight with the government over the rules for a partisan primary election and when, instead, the government should prevail. Nick says “who participates in a primary is genuinely associational” but “a manipulative ballot design” is not.

What makes a ballot design “manipulative”? Nick says it’s when it’s “an attempt to distort party members’ choices—not to enable those choices to be freely made.” But what’s the difference between party elites “distorting” the choices of the party’s members versus party elites just “influencing” or even trying very hard to persuade the choices of party members? Are there any circumstances in which the party elites making a choice about which candidates get a more advantageous position on the party’s primary ballot would be a matter for internal party governance, just like the decision of party elites over which candidate to endorse and whether or not to include the information of that endorsement on the primary ballot? A better spot on the ballot might “affect” or “influence” the vote of party members, but it doesn’t negate the freedom to exercise that vote completely. And what if the party would prefer to nominate its candidates by means of a party caucus or convention rather than a primary?

Suppose the very same ballot design were used, not in a party primary funded by the government and operated by government officials, but instead a purely internal party caucus or other electoral procedure used to choose the party’s nominees for the November general election. Would the party have a First Amendment right to use the NJ ballot design in this context, or would it’s doing so violate some constitutional rights of the candidates running in the party’s caucus disfavored by the party’s elite? I assume not. Nor could the state force the party to choose a different ballot design for its own internal party caucus. (Note in this actual case, the party elites and the government were aligned in wishing to permit the challenged ballot design; it was the disfavored candidates who challenged both the party elites and the state. This posture, it seems to me, implicates the Supreme Court’s Lopez Torres decision, but frankly I haven’t had a chance yet to think through the implications of Lopez Torres for this case; I don’t recall seeing Lopez Torres cited in the Third Circuit’s opinion, but I might have missed it.) But if these assumptions are correct, we are back with the condrundum–as Nick also notes–of trying to figure when, in the context of a government-run partisan primary, the government gets to control the rules instead of the party, and vice versa.

John Sides in Good Authority discusses a new paper that uses statistical analysis to show that “nonpartisan election administration may be the norm.” John add his own note of caution to the paper’s disclaimer against over-reading the implications of their statistical analysis: “The authors are appropriately careful about what their results can and cannot show. Although there is no average effect of partisan election administration on election outcomes, they write that ‘we cannot rule out small differences between Democratic and Republican officials that could determine very close elections. We also cannot rule out rare but very large effects.’”

I look forward to reading the paper. In the meantime, I’ll add my own cautionary note: the reason why I chose the historical methodology I used for the Ballot Battles book on disputed elections in the U.S. is that, after considerable preliminary research, I conclude that focusing on those specific episodes where official decisions over election administration could determine the outcome in a major race was necessary in order to understand how the system worked in the context when every vote truly mattered. The performance of election administration in run-of-the-mill cases, where the margin of victory is so great that the role of official decisions doesn’t make a difference, can’t tell us very much (if anything) about what happens when the system is put to a stress test. Moreover, even when the system is stressed for down-ballot races, where the stakes are not so high, how the system responds in those situations is not a reliable indicator for how it will respond when similarly stressed in the context of a statewide or other major election.

In this proceeding (MUR #8071), the Commissioners have released statements explaining their reasons for their votes:

04/11/2024 Chairman Sean J. Cooksey
04/11/2024 Vice Chair Ellen L. Weintraub and Commissioner Shana M. Broussard
04/10/2024 Commissioners Allen J. Dickerson and James E. “Trey” Trainor, III
04/09/2024 Commissioners Allen J. Dickerson, Dara Lindenbaum and James E. “Trey” Trainor, III

Rick H is delivering the Peck Lecture, “How Can We Safeguard American Democracy?” at 5 p.m. this afternoon. With Rick P’s Dunwody lecture tomorrow, it’s a very big week for our two Ricks in election law! Many congratulation to them both for these recognitions of their important leadership in our field.

Ned already provided some commentary about yesterday’s Third Circuit decision affirming the district court’s preliminary injunction against New Jersey’s distortive county line system for primary election ballots. I want to add a few more points. (Full disclosure: Harvard Law School’s… Continue reading

Common Ground Democracy commentary on the recent developments in Nebraska and why it demonstrates the need for changing the way we elect the president.

ABC News.

Ned Foley blogged yesterday about The Dunwody Symposium which starts today at the University of Florida. For those of you who prefer visual information rather than text, here are the full details, starting with Ned himself this am, along with… Continue reading

New Jersey Monitor reports. Also the New Jersey Globe. And NorthJersey.com (If I have any comments on the opinion that I think worth blogging, I will update this post accordingly.) UPDATE: Having read the opinion, I think the cases raises… Continue reading

Greg Bluestein in the Atlanta Journal-Constitution with more evidence that currently we really have three political parties that don’t fit easily into our existing two-party electoral system. (The solution is the kind of Top Three electoral system I’ve been advocating… Continue reading

On Friday (April 19), Rick Pildes is delivering the Dunwody Lecture, sponsored by the Florida Law Review. His topic is “Combatting Political Extremism,” something I’ve been very fortunate to work with him (among others) on over the last few… Continue reading