All posts by Bruce Cain and Emily Zhang

WashPo OpEd: A new Supreme Court case threatens another body blow to our democracy

By Leah Litman, Kate Shaw and Carolyn Shapiro:

The issue in Harper is whether the federal Constitution prevents a state court from determining whether the state legislature violated the state constitution in setting rules for federal elections. The petitioners — Republican legislative leaders — are asking the court to hold that it is unconstitutional for state courts and state constitutions to protect federal voting rights.

This argument rests on a blinkered reading of two clauses in the Constitution that assign to the legislature of each state the job of identifying the “Manner” of appointing presidential electors and the “Times, Places and Manner” of congressional elections. Neither clause suggests that state legislatures can violate their own constitutions.

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Feds: Arizona could face lawsuit over voter ID law


The Biden administration is planning to sue Arizona over a new state law that requires proof of citizenship to vote for president.

Kristen Clarke, the assistant attorney general of the civil rights division of the Department of Justice, said she has authorized going to court over what she contends is a violation of the 1964 Voting Rights Act. The only thing that would stop that, Clarke said in a letter to Attorney General Mark Brnovich, is if the state is willing to settle the issue, presumably by an agreement not to enforce the law.

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Gridlock in Congress Has Amplified the Power of the Supreme Court


On the last day of a turbulent term that included rulings on what the Constitution has to say about abortion, guns and religion, the Supreme Court issued another sort of decision, one that turned on the words of the Clean Air Act.

Without “clear congressional authorization,” the court said, the Environmental Protection Agency was powerless to aggressively address climate change. In years past, that might have been the start of a dialogue with Congress, which after all has the last word on what statutes mean, because it can always pass new ones.

But thanks to legislative gridlock, Congress very seldom responds these days to Supreme Court decisions interpreting its statutes — and that means the balance of power between the branches has shifted, with the justices ascendant.

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Democracy advocates raise alarm after Supreme Court takes election case


The idea, known as the “independent legislature theory,” represents to some theorists a literal reading of the Constitution.

But in its most far-reaching interpretation, it could cut governors and state courts out of the decision-making process on election laws while giving state lawmakers free rein to change rules to favor their own party. The impact could extend to presidential elections in 2024 and beyond, experts say, making it easier for a legislature to disregard the will of its state’s citizens.

This immense power would go to legislative bodies that are themselves undemocratic, many advocates say, because they have been gerrymandered to create partisan districts, virtually ensuring the party-in-power’s candidates cannot be beaten. Republicans control both legislative chambers in 30 states and have been at the forefront of pushing the theory.

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These candidates lost badly, but now are claiming fraud

Sore losers as reported by NPR:

This week, a Colorado county clerk indicted on charges including election tampering finished last in the GOP Secretary of State race, refused to acknowledge her loss and accused officials of cheating.

In South Carolina, a pair of Republican primary challengers said their blowout losses were tainted by serious problems. Both gubernatorial candidate Harrison Musselwhite and attorney general candidate Lauren Martel lost by double digits against popular incumbents, but sent nearly-identical letters to state officials claiming a plethora of concerns with the election.

And in Nevada, GOP gubernatorial primary runner-up Joey Gilbert told supporters in a video message he could not have been defeated.

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The Perils of Slow Vote-Counting and Delayed Election Results

NYTimes (subscriber-only newsletter):

What happens when Election Day lasts for weeks?

The short, glib answer to that question is that Jan. 6 happens — as we learned dramatically this week when Cassidy Hutchinson, a young former aide to Mark Meadows, gave testimony that put former President Donald Trump at the center of that day’s chaos and violence.

The somewhat longer answer is that there’s so much static over how votes should be counted that we’ve seen the same dysfunctional scene twice since 2020 in the same state.

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‘Take me up to the Capitol now’: How close Trump came to joining rioters


Toward the end of 2020, then-President Donald Trump began raising a new idea with aides: that he would personally lead a march to the Capitol on the following Jan. 6.

Trump brought it up repeatedly with key advisers in the Oval Office, according to a person who talked with him about it. The president told others he wanted a dramatic, made-for-TV moment that could pressure Republican lawmakers to support his demand to throw out the electoral college results showing that Joe Biden had defeated him, the person said.

The excursion that almost happened came into clearer focus this week, as the House committee investigating the attack on the Capitol on Jan. 6, 2021 presented explosive testimony and records detailing Trump’s fervent demands to lead his supporters mobbing the seat of government. Though Trump’s trip was ultimately thwarted by his own security officers, the new evidence cuts closer to the critical question of what he knew about the violence in store for that day.

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The Festering Wound of Election Fraud

As many in the Election Law group know, allegations of election fraud in the last few decades have been impossible to quash.  Over the years, after numerous attempts to verify rumors of widespread voter fraud, studies have found only scattered instances in every election of people who have unintentionally or intentionally voted illegally. The numbers come nowhere close to what is needed to overturn Congressional or Presidential elections.  

Nonetheless, the fraud allegations were supercharged by Trump and his supporters, and what was once dismissed as a side issue threatens to undermine confidence in the legitimacy of the entire electoral system.  A recent NPR report tracks and profiles four prominent election deniers who continue to provide “evidence” that the election was stolen from Donald Trump. One of them, Seth Keshel, has made over 121 appearances in 36 states and another, Douglas Frank, 137 events in 29 states.  As the article points out, the penetration of this messaging is likely much wider online, but this activity testifies to the evangelical fervor of Trump’s fraud squad:

It’s this constellation of election conspiracy theorists,” said Chris Krebs, a former Department of Homeland Security official who oversaw the federal government’s election security efforts in 2020. “You can see the complexion of local politics shifting as a result. They have decentralized post-January 6th and are really trying to effect change at the lowest-possible level.

It is especially disturbing that some of their rhetoric contains the thinly veiled threat of violence and intimidation that election officials now face and has been highlighted in the January 6 investigations:

Clements ends his talk with a request to the people in the audience: Go to the offices of your local officials. ‘They respond to fear,’ he says. ‘You need to hold these institutions with the contempt they deserve.

Clearly, this is deeply problematic and cannot be ignored by people who care about maintaining our democratic institutions.  But what can be done?

Convincing the hardest core is probably a waste of time.  Moving to online voting, as Andrew Appel’s post on Swiss e-voting reminds us, still creates security issues and would only encourage more suspicion from the election conspiracy faction.  For the foreseeable future, we are stuck with paper ballots.

Ben Ginsberg and Bruce Cain have been asked Hoover Institution to study where Democrats and Republicans can find consensus on election integrity.  Whether or not this will yield any breakthrough insights, we must continue to try to find a bipartisan pathway on the Electoral Count Act and ballot integrity before this delegitimization hits some tipping point from which we cannot recover.  Perhaps the cumulation of efforts from many of us working with elections officials and studying more closely what feeds election suspicion and what dampens it will start to close the festering wound.

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A Trump-appointed official who gets an important vote on whether Trump broke election laws spoke at a Texas GOP event where he was billed as a part of the ‘Trump Elections Team’

Business Insider:

In a series of Facebook ads promoting FEC Commissioner Trey Trainor’s appearance, the Denton County Republican Party made no mention of Trainor’s service as a duly appointed FEC commissioner — one who regularly votes on campaign finance-related cases involving Trump and his political associates.

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Supreme Court to hear case on state authority over elections

From the AP:

“This case could profoundly alter the balance of power in states and prevent state courts and agencies from providing protections for people’s right to vote,” said Rick Hasen, a law professor at the University of California, Irvine. “There’s a wide range of ways the court could rule on this. Taken to its extreme, it would be a radical reworking of our system of running elections.”

In the most extreme example, lawyers said, if the Supreme Court were to rule that no entity besides state legislatures can set rules regarding federal elections, that could stop a governor from vetoing election bills or a state court from blocking rules that set up different voting hours in urban and rural precincts.

Jason Torchinsky, a Republican lawyer who wrote a legal brief urging the high court to take the case, said it is absurd to think the Supreme Court would ultimately allow that. He noted that as recently as 2015, the court agreed that legislatures do not have absolute power in elections, ruling that Arizona’s voter-approved redistricting commission could legally take the authority away from lawmakers to draw district lines.

“I don’t think you can take the theory as far as ‘the legislatures alone can do whatever they want,’” Torchinsky said. “The problem is we have these rogue state courts.”

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Florida Republicans turn school elections into new political battlegrounds

From Politico:

Florida Republicans are capitalizing on the national movement surrounding parental rights and education by jumping into local school board races with crucial endorsements and much-needed cash.

Dozens of political committees with ties to Florida conservatives are funneling thousands of dollars toward candidates who share Gov. Ron DeSantis’ priorities by campaigning against issues like critical race theory. DeSantis endorsed a slate of 10 school board candidates — a rare, if not unprecedented, move for a Florida governor that could help Republicans capture more support in the midterms from parents energized by contentious issues such as masking students during the pandemic.

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