All posts by Derek Muller

The effect of Brnovich v. DNC on the intentional discrimination lawsuit against Georgia

Over at RealClearPolitics, I have this piece looking at the potential effect of Brnovich v. Democratic National Committee on intentional discrimination claims, including the lawsuit recently filed by the Justice Department against portions of Georgia’s SB 202. Much of the commentary after Brnovich has focused on the disparate impact components of the opinion, but I wanted to tease out some of the implications from the intentional discrimination side. Additionally, I try to puzzle out Justice Elena Kagan’s footnote in her dissenting opinion in which she concludes she “need not pass” on the intentional discrimination holding of the Ninth Circuit’s opinion.

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Court concludes California candidate tax disclosure law applies only to gubernatorial primaries, not recalls

California recently enacted a law to compel presidential candidates and gubernatorial candidates to disclose their tax returns as a condition for appearing on the primary ballot. The presidential rule was targeted at Donald Trump; the gubernatorial rule added at the behest of Gavin Newsom, who was voluntarily disclosing tax returns anyway. While Jerry Brown had vetoed a similar bill, Newsom signed the bill. A federal district court and the California Supreme Court independently enjoined enforcement of the presidential primary component (which I discuss, among other things, in Weaponizing the Ballot, recently published in the Florida State University Law Review; enjoined, despite the serial assurances of its constitutionality mentioned in Newsom’s signing statement).

On the gubernatorial side, Division 8 of the Elections Code includes rules for the primary. Section 8902(a) provides, “Notwithstanding any other law, the name of a candidate for Governor shall not be printed on a direct primary election ballot, unless the candidate, at least 98 days before the direct primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years, in accordance with the procedure set forth in Section 8903.”

Newsom now faces a gubernatorial recall election. A number of candidates filed to challenge him.

One might think that this tax disclosure provision would not apply to a recall election. After all, the Code uses the word “primary,” not “recall.” Ballot access for a recall election is governed by an entirely separate part of the Elections Code, Division 11. Professor Jessica Levinson at Loyola Law School noted that it’s “going to be hard to overcome a plain language problem.”

One might think. But it didn’t dissuade California’s Secretary of State from summarizing that “gubernatorial candidates,” not primary candidates, are required to disclose tax returns. And she enforced the rule, dutifully disclosing the sordid details of dozens of candidates, which you’re welcome to peruse here, and excluding any candidate who failed to comply.

One prospective candidate, Larry Elder, failed to comply with the law, apparently inadvertently failing to redact some information from his tax returns. He sued, and a state court found he should appear on the ballot. As the court said, “I don’t find that Mr. Elder was required to file tax returns at all.” By its plain text, the statute applies to primaries, not recalls.

Whether other candidates were improperly excluded from the ballot for failure to file tax returns remains to be seen. Did it “scare off” any candidates? Time will tell if the California recall ballot gets much longer in the days ahead as the recall election rapidly approaches and ballots need to be printed.

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When has a state enacted a “new hurdle” to voting?

Dan links to an analysis from the Washington Post citing figures from the Voting Rights Lab about “18 states” that “enacted 35 laws with provisions that create new hurdles to vote.” The piece has some important depth-of-treatment looks at what’s happening in some states. But as with any effort to aggregate figures and present big numbers, I think there is less happening under the hood in other states.

Some of the things the Voting Rights Lab identifies are not laws. Take Michigan’s Senate Resolution 25, which is the sense of the Michigan Senate that Congress should not enact H.R. 1 (which, I assume, Congress will dutifully ignore), not a law.

Others are pretty minor and may not merit the label “Anti-Voter” as given them. Consider Nevada’s Senate Bill 84, which passed 20-0 (1 excused) and 40-0 (1 absent) in each chamber and raises the maximum size of precincts from 3000 to 5000 registered voters. As the sponsor the bill explained:

Testimony from the Clark County and Washoe County registrars of voters indicated that, in some cases, certain areas of their counties could accommodate precincts with more than 3,000 active registered voters–the current statutory maximum. Moreover, under the “vote center” model used by Nevada’s counties for the past few election cycles, assigning voters to a single polling location is no longer necessary, thereby allowing for larger precincts. The registrars further noted that being able to assign more voters into one precinct would be helpful in avoiding the splitting into multiple precincts of certain high-density population areas, such as larger apartment complexes or certain neighborhoods. Finally, it was noted that since the proposed increase sets forth a maximum number of active voters per precinct, jurisdictions such as rural counties could continue to create smaller precincts as needed, or leave existing precincts unchanged.

Is this an “Anti-Voter” bill, as labeled by the “Voting Rights Lab” website?

Another is Utah’s House Bill 197, which changes the date that voters may switch parties ahead of a primary from the end of the registration deadline period, to March 31. The sponsor of the bill explained they chose this date, which comes after the filing deadline (so voters know all the candidates) and after precinct caucuses, but it reduces “gamesmanship” of voters who switch parties very late in the process. The bill also does not apply to unaffiliated voters or new voters, only those who previously registered with a party and seek to switch very late. They can vote–they simply must vote in their previously-registered party’s primary.

I could go on elsewhere, but digging into the text of the bills reveals, I think, a much more nuanced portrait than reporting some aggregate number of “anti-voter” bills.

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“Electoral Votes Regularly Given”

I’ve posted a couple of brief items already, but I want to take a moment to join the other new contributors in thanking Rick for his kind invitation to join the Election Law Blog. This site has been an extremely valuable resource for me since I was a law student (!), and it’s a tremendous privilege to join so many thoughtful scholars in the field here.

I have a late-stage draft of an essay forthcoming in the Georgia Law Review entitled “Electoral Votes Regularly Given.” Here’s the abstract:

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not “regularly given.” That language comes from the Electoral Count Act of 1887. But the phrase “regularly given” is a term of art, best understood as “cast pursuant to law.” It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase “regularly given,” articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

I anticipate a great deal of academic and legislative interest in the Electoral Count Act ahead of the 2024 election, and I hope this essay offers a small but meaningful contribution toward those efforts.

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Analysis of the federal court challenge to Illinois’s redistricting plan

Dean Vik Amar and Professor Jason Mazzone, both of the University of Illinois, have a two part series (one, two) at Justia’s “Verdict” on McConchie v. Illinois State Board of Elections, a challenge to Illinois’s redistricting plan. From the opening of the second piece:

In this—the second—installment in our series on McConchie v. Illinois State Board of Elections, in which Republican Minority Leaders in the Illinois General Assembly (in their official capacity and as registered voters) challenge in federal court the constitutionality of the apportionment of state legislative districts that the General Assembly and the Governor recently enacted, we focus on remedies. Our prior discussion flagged standing and ripeness hurdles the plaintiffs will need to overcome in order to get to the merits of their claim. And as to the merits themselves, we expressed doubts about whether the plaintiffs should and will prevail in their argument that because the Illinois legislature used a population survey rather than (traditionally) more reliable but not yet available decennial census results based on the 2020 national count, the enacted redistricting plan violates the one-person, one-vote requirement of the Fourteenth Amendment.

Yet even if the federal courts were to agree that the plaintiffs have overcome the justiciability hurdles and that they have established a violation of the Fourteenth Amendment, we are skeptical that it would be proper for the courts to grant the remedies the plaintiffs are seeking.

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“The University of Michigan Guide to Gerrymandering”

Former Michigan Supreme Court justice Stephen Markman recently published this op-ed in the Wall Street Journal on proposals around Michigan’s redistricting process. It begins:

Michigan is on the verge of adopting what proponents describe as a “new theory of representation,” in which the state’s redistricting process would be built not on actual communities—counties, cities, townships and villages—but on so-called communities of interest. If the proposal goes forward, these new electoral districts will be based on concepts like identity and affiliation groupings. The result will be a representative system increasingly unresponsive to “we the people,” the one grouping to which all Americans belong and in whose name our constitutions were ratified.

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