All posts by Franita Tolson

“Voting Systems: How They Work, Vulnerabilities, and Mitigation”

New report from Steven Rosenfeld (National Political Report, Voting Booth) and Duncan Buell (Chair Emeritus, USC Dept. of Computer Science). Short description of the report from its authors:

This report describes how the systems that create ballots and detect and count votes work. The national media often trivializes this aspect of elections. They talk about clerical tasks, not properly programming and syncing 100s of devices. In 2020, errors by officials in a few rural counties with setting up and using these computers led to wrong election night results. Trump votes were bumped down in spreadsheets and assigned to Biden. Or officials double-counted votes but blamed the computers. Though found and fixed, the errors helped MAGA provocateurs and legislators to launch bogus post-election inquiries. These charades, featuring self-appointed experts spouting irrelevant and made-up technical-sounding claims, became fixtures on right-wing media.

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Monopoli on the Nineteenth Amendment

Paula Monopoli (University of Maryland Francis Carey School of Law) has a new article out entitled, “Gender, Voting Rights, and the Nineteenth Amendment.” The article is forthcoming in the Georgetown Journal of Law & Public Policy. The abstract is below:

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that ‘there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment’. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

Can’t wait to read this one! Important and timely.

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New Report from the Brennan Center

The Brennan Center for Justice at NYU Law has published “Voting Laws Roundup: October 2022,” their latest roundup of state voting and election laws, and “Restrictive Voting Laws Enacted Since 2020 in Effect for the Midterms,” a companion table outlining the impacts of the post-2020 restrictive voting laws that are in effect for the midterms.

The main findings (as of September 12, 2022): 

  • Voters in 20 states are being impacted by 33 new restrictive laws enacted since Jan. 1, 2021 and in effect for the midterms
    • The effects of these laws include but are not limited to reduced polling places and hours, shortened early voting periods, barriers to registration, and more (see table for all effects) 
    • The 20 states: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, New Hampshire, New York, Oklahoma, South Carolina, Texas, Utah, Wyoming 
  • So far in 2022, 7 state legislatures have enacted 12 election interference laws, of which 11 are in effect for the midterms
    • “Election interference” legislation – a brand new type of law that emerged after the 2020 election – either opens the door to partisan interference in elections or threatens the people and processes that make elections work (see roundup for these laws’ impacts)
    • The 7 states: Alabama, Arizona, Florida, Georgia, Kentucky, Missouri, Oklahoma 
  • So far in 2022, 12 state legislatures have enacted 19 laws that expand access to the vote, of which 18 are in effect for the midterms
    • The 12 states: Arizona, Connecticut, Delaware, Louisiana, Massachusetts, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Rhode Island, South Carolina 

See the full report/table for more analysis and conclusions.

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“Election officials confront a new problem: Whether they can trust their own poll workers”

Article in Politico sounding the alarm about 2020 election deniers and far right candidates encouraging like-minded individuals to become poll workers (not poll watchers, poll WORKERS) and engage in behavior that is problematic, to say the least. This development could have significant implications for the 2022 midterm elections, where bad faith poll workers could engage in behavior that disenfranchises many voters (or otherwise disrupts the system).

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“Who’s Bankrolling Election Deniers?”

Issue One has a new report out that shows that election-denying secretary of state candidates have collectively raised more than $12 million for their campaigns this election cycle — including more than $5.8 million raised by election deniers who prevailed in their primaries and will be on the ballot this November.

Election deniers have emerged as the Republican Party’s nominees in roughly half of the 27 secretary of state races on the ballot this November. In two states with competitive secretary of state races this fall (Arizona and Indiana), election deniers are significantly outraising their general opponents, according to Issue One’s new report.

This is also true in two Republican-leaning states (Alabama and South Dakota), as well as in Wyoming, where there is no Democratic general election opponent, meaning the election denier nominated by the Republican Party in August after a competitive three-way primary is on a glide path to becoming the next secretary of state there.

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“The Supreme Court Might Be on the Brink of Making Corruption Easier – Again”

Important article by Michael Linhorst in The New Republic on Percoco v. United States, a political bribery case that the Supreme Court will hear this term. While the other election law cases on the docket have monopolized much of the conversation, Percoco looms just as large because the Court could potentially undermine public corruption laws. Great insights on this issue from Dean Dan Tokaji, Ciara Torres-Spelliscy, and Fred Wertheimer in the article. Check it out!

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“Talk of ‘Civil War,’ Ignited by Mar-a-Lago Search, Is Flaring Online”

According to this article in The New York Times, in the hours after the FBI seized documents from Mar-a-Lago, social media saw a marked increase in posts that mentioned “civil war,” a trend that has only escalated in recent weeks. It remains to be seen what this extreme rhetoric will mean for the November midterms and for the longterm health of our democracy.

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“The Ongoing Electoral Efforts to up the Anti-Democratic Ante”

Important New Yorker article on the difficulties that election administrators face going into the midterm elections. Election administration has been a challenge because of newly enacted voting restrictions enacted by Republican-led legislatures and, importantly, the enforcement of some of those restrictions by private groups primarily made up of election deniers. For example, these groups used these new restrictions to challenge significant numbers of voters during the primaries, and these challenges will likely escalate in the midterm elections this fall. While these challenges usually fail, they may nonetheless intimidate some minority voters from voting.

Election administrators have already faced an unprecedented number of death threats and intimidation tactics in the wake of the 2020 election. This article details the many other ways in which their lives have been complicated since that pivotal election.

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