All posts by Tabatha Abu El-Haj

“What Comes Next? A Post-Election Discussion”

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Very excited to participate in this virtual event sponsored by the Boston Review next week.

Event Details

A post-election discussion with Boston Review contributors Maurice Mitchell, Lee Drutman, Doran Schrantz, Sam Rosenfeld, Tabatha Abu El-Haj, and Cerin Lindgrensavage. 

Join us for a virtual event with Working Families Party national director Maurice Mitchell, political scientists Lee Drutman and Sam Rosenfeld, political strategist Doran Schrantz, legal scholar Tabatha Abu El-Haj, and political counsel Cerin Lindgrensavage discussing the election, pathologies of the two-party system, voter agency, and possibilities for fusion voting. This event will be moderated by Boston Review coeditor Joshua Cohen.

You can read work by all of our speakers in our recent issue, We Need More Parties. RSVP for an issue-included ticket to read it for just $15 (almost 25% off the cover price).

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“The danger of a narrative”

19th Amendment

Interesting post from Seth Masket on the real-world consequences of suggesting “Harris lost because she’s a woman” without evidence.

“Unless we’re really 100% sure Kamala Harris lost because she was a woman — and that, by extension, the Democratic Party should be wary of ever nominating a woman for president again — we should be extremely reticent to push this argument publicly. . . . It tells women that they shouldn’t run, and it tells party leaders that they shouldn’t nominate women. It affects what the pool of candidates in 2026 and 2028 will look like and which of them can best get party support. It’s not just idle chatter.”

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“Johnson condemns ‘insane’ bomb threats against Democrats”

authoritarian threats in US

Axios: Several Democratic lawmakers received threats on Thanksgiving Day. The threats were signed to suggest they were from “MAGA.” A handful of Republican lawmakers also received threats in the past week.

“This is dangerous and insane behavior,” Johnson said of the bomb threats against Democrats in a post on the social media site X.

“Regardless of what party you belong to, your political opponents are not your enemies. This is not who we are in America,” he added.

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New Article: “A Path to Multiparty Democracy”

ballot access

Nate Ela (Temple Beasley School of Law) has posted a new article in relation to the state constitutional challenges to anti-fusion laws that are currently underway. Building on the work of Jessica Bulman-Pozen and Miriam Seifter, Ela argues that many state constitutions distinctly favor popular sovereignty and small-d democracy in ways that counsel for applying strict scrutiny, rather than the interest-balancing approach used in the federal courts when assessing the constitutionality of bans on fusion candidacies. Ela also seeks to remind state courts that they are not constrained by the federalism concerns that drive the U.S. Supreme Court’s reluctance to strike down state election laws.

Ela’s is a very timely intervention not only because the Appellate Division of the Superior Court of NJ will hear oral arguments in the first of these challenges on December 10, but also because, as our two-party system has become polarized and vulnerable to authoritarianism, it is critical to consider structural reforms with the capacity to address the dissatisfaction that drives many voters, including those that reject both parties. Arizona and Nevada, for example, have roughly as many independents as registered Democrats and Republicans. Fusion offers an eminently feasible reform for bringing such voters into the democratic fold in a productive way. Let’s hope that state court judges recognize that they do not need to follow Timmons v. Twin Cities Area New Party (1997), which has been almost uniformly criticized by legal academics and which completely misunderstood the burdens fusion places on parties as organizations and associations.

From the abstract:

“By barring candidates from accepting the nomination of more than one party, anti-fusion laws violate a range of state constitutional provisions: the grounding of government in popular sovereignty; the right to vote; the right to free, equal, and open elections; the right to assemble, consult for the common good, and instruct elected representatives; and the freedom of political association. Rather than adopting the deferential approach of Timmons, state courts should rigorously and realistically review the true burdens of anti-fusion laws, and the actual, partisan interests they serve.”

Part II of the Article is particularly interesting. Among other things, Ela argues that the correct baseline for assessing the burdens of anti-fusion laws is the system that existed before fusion was banned–a system in which minor parties could name their standard bearers, present themselves to voters on that basis, and use their vote share to demonstrate support and exert influence over policymaking. The question, he argues, should be: How have anti-fusion laws undermined third parties in such efforts?

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 “Republican and Democratic Former Senate Counsels Agree: F.B.I. Checks on Trump Nominees Are a Must”

authoritarian threats in US

Noah Bookbinder (former counsel for Democrats on the Senate Judiciary Committee) and Gregg Nunziata (formerly counsel for Republicans on the committee and chief nominations counsel beginning in 2006) in a Guest Essay at the New York Times:

“Efforts to bypass F.B.I. background checks and even Senate confirmation itself via mass recess appointments, made by the president when the Senate is not in session, never would have flown with past iterations of the Judiciary Committee, regardless of which party was in charge. The Senate shouldn’t stand for it now.

. . . Americans may disagree about the policy agenda set by a president and enacted by his executive branch appointees, but the Senate must perform its constitutional duty to ensure that president’s nominees understand their obligations under the law and possess the character and fitness to perform their duties. That means, among other things, understanding their duty to the law and the Constitution.”

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“Trump signs transition agreement with Biden, but it lacks key guardrails”

authoritarian threats in US

Washington Post: “The agreement clears the way for Trump-appointed ‘landing teams’ to start entering government offices to receive briefings from career staff about the operations of hundreds of federal agencies, a ritual of presidential transitions.” Security clearances remain a sticking point:

“Trump’s transition team has not signed a memorandum of understanding with the Justice Department, for instance, that would allow the agency to conduct background checks and intensive reviews for the security clearances that many of Trump’s landing teams need for the Biden administration to legally share classified intelligence and national defense briefings. The briefings will only be given to Trump transition officials who have a proper security clearance and have signed a nondisclosure agreement, according to the White House.”

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“Ranked-choice voting continues to work in Alaska. It would everywhere else, too.”

alternative voting systems, primaries

Washington Post’s Editorial Board comes out in favor of RCV, arguing it is working well in both Alaska and Maine to select more moderate candidates that are more likely to reflect the preferences of electoral majorities, and that it is not confusing:

“Ranked-choice voting continues to work in Alaska. It would everywhere else, too.”Apart from accusations that it favors Democrats, which haven’t been borne out, the biggest knock on RCV is that it’s too confusing for people to rank candidates. But studies show that virtually all ballots cast in RCV elections are valid, with error rates similar to those of traditional elections. Usually, after trying it once, people become more comfortable with ranking candidates when they realize that they don’t need to vote strategically, worrying about throwing away their vote by supporting as their first choice someone who is unlikely to win.”

I do wonder how well RCV would transfer to larger, less rural states. Alaska and Maine are certainly not representative, and neither is subject to the same national forces as, say, Pennsylvania.

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Governor Cooper Vetos Bill that Would Shift Power from Executive Offices (soon to be held by Democrats)

chicanery

Raleigh News & Observer reports that Governor Cooper has temporarily halted efforts by the Republican legislature to restructure power in North Carolina to limit the impact of Democratic wins in the state. Republicans have repeatedly overridden Cooper’s vetos during this session, but speculation is that they do not have the votes this time.

NON-HELENE MEASURES IN BILL

  • “Significantly reduce the amount of time voters are given to fix issues with their provisional ballots and require counties to finish counting all provisional ballots on the third day after Election Day, a process that took nearly two weeks this year.
  • Make the the State Highway Patrol into a standalone department, rather than a subset of the N.C. Department of Public Safety, and require the governor’s choice for Highway Patrol commander to be approved by lawmakers.
  • Eliminate the positions of two Superior Court judges after their terms expire, including a Democrat who threw out two amendments to the North Carolina Constitution that voters approved in 2018 — one on voter ID and another to cap the state income tax rate.
  • Require the governor to fill any vacancies on the state Supreme Court and Court of Appeals from a list of people recommended by the leaving judge’s political party.
  • Allow donations from corporations, business entities and labor unions to be used to fund legal actions for political parties. Shift control of the state Utilities Commission away from the governor.
  • Require an extra step before the attorney general’s office can intervene in matters before the Utilities Commission, such as cases over how much Duke Energy’s utilities can charge for electricity.
  • Prevent incoming State Superintendent of Public Instruction Mo Green, a Democrat, from appealing decisions made by the N.C. Charter School Review Board.”

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Governing Likely to Be in Short Supply Come January

election subversion risk, political polarization

The 119th Congress is highly unlikely to be able to deliver effective government. Politico Playbook projects, “House Republicans are facing roughly two months with a 217-215 split — a one-seat majority.”

“The math … If the current leads hold, the final 2024 House tally would be 220-215 in favor of Republicans — a net gain of two seats for Democrats. But the GOP will immediately start the 119th Congress down a seat due to MATT GAETZ’s resignation, with Reps. ELISE STEFANIK (R-N.Y.) and MICHAEL WALTZ (R-Fla.) expected to step down later in January.” 

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“The Surprising Impact of North Carolina’s New Voter ID Law”

voter id,

NY Times: 2024 is the first general election under the state’s new voter ID law. Overall, the new voter ID law did not result in many votes being rejected. That said, the current law is significantly more voter-friendly than the original, which drew the legal challenge. North Carolina’s law is still stricter than most because it requires both mail and in-person voters to show proof of identity.

“But unlike the 2013 law, it offers voters an array of acceptable ID cards, from drivers licenses to student IDs to free state ID cards. If voters have no ID — older people who do not have a driver’s license and mail voters who do not have printers to copy their IDs, among many others — they can ensure their ballots count with the affidavit of explanation, or can show an ID later at a local elections office.”

Lots of interesting facts in this article:

  • “November’s election offered some evidence that the voter ID law disproportionately hindered Democrats. Of the 2,169 provisional ballots involving ID problems, registered Democrats cast 42 percent, registered unaffiliated voters 30 percent and registered Republicans 26 percent, said Michael Bitzer, an expert on North Carolina politics at Catawba College.”
  • Even a small impact might matter, as in the tight race for the judicial seat in NC this cycle.
  • “Today, however, at least 35 states have ID requirements, a prerequisite that has become broadly popular among voters across party lines who see it as a common-sense precaution.”

Given the complete lack of evidence of in-person voter fraud, the popularity of these last still baffles me!!

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“RNC Voluntarily Dismisses Challenge to Michigan’s Expanded Voter Registration Sites”

voter registration, voting

Democracy Docket has posted an update on the RNC’s challenge to Governor Whitmer’s decision to expand voter registration sites in Michigan. The RNC had take the position that Whitmer was acting outside of her executive authority in increasing the number of voter registration sites, claiming “expanding voter registration sites  ‘undermines the integrity of elections by increasing the opportunity for individuals to register to vote even though they are ineligible to do so.’” 

It will be interesting to see if Republican’s change their attitude toward reforms that make it easier to register and vote given their apparent advantages with low-propensity voters in the 2024 election cycle.

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New Article: “The Brave New World of Judicial Elections: What We Know and What We Don’t”

judicial elections

Charles Gardner Geyh (Indiana University Maurer School of Law) has posted this new article on judicial elections on SSRN:

In this essay, I begin with a discussion of established legal theory, which elucidates the difficulties created by calling upon judges to interpret and apply the law in a democratic republic. Next, I synthesize the scholarship, spanning thirteen books, that explains, defends, and critiques the modern era of judicial elections. Read synthetically, this body of work provides a well-developed, three-dimensional understanding of judicial elections at the turn of the 21st century. At the epicenter of the developments that this literature analyzes are battleground states where well-financed interest groups poured money into supreme court races to people high courts with judges whose perspective on tort liability was simpatico with that of their campaign supporters. That literature also reveals that tort reform campaigns in state judicial races later peaked as spending tapered off in the 2010s, signaling a lull in what leading, good-government interest groups denominated the “new politics of judicial elections.  I argue that this lull ended with the 2023 Wisconsin Supreme Court election, which heralded the arrival of a new generation of judicial elections in which state supreme courts are becoming war-torn forums for the resolution of deeply divisive policy questions that the federal courts and the political branches of government have been unwilling or unable to address. It is a development that portends to be of unprecedented intensity and poses new challenges for legal theory and the existing judicial elections literature to explain. And it adds new urgency to an increasingly stark choice: whether to fight to preserve the distinctive role that judiciaries have long played in interpreting and upholding the rule of law; or to acquiesce to a new world order in which judges are politicized actors responsive to their constituencies in ways traditionally associated with the other, so-called “political” branches of government.

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