All posts by Rick Hasen

“Voting under the Federal Constitution”

Travis Crum has posted this draft on SSRN (forthcoming, Oxford Handbook of American Election Law). Here is the abstract:

There is no explicit, affirmative right to vote in the federal Constitution. At the Founding, the franchise was largely limited to property-owning White men and States had total discretion to choose their electorate. But over the course of two centuries, the United States democratized, albeit in fits and starts.

A series of constitutional amendments prohibited discrimination in voting on account of race (Fifteenth), sex (Nineteenth), inability to pay a poll tax (Twenty-Fourth), and age (Twenty-Sixth). These amendments were worded as anti-discrimination provisions with nearly identical language. Although they vastly expanded who was eligible to vote, these constitutional amendments’ negative framing permits States to disenfranchise voters through facially neutral requirements, such as felon disenfranchisement laws.

Starting in the 1960s, the Supreme Court relied on the Equal Protection Clause—rather than the voting rights amendments themselves—to protect the “fundamental” right to vote, applying strict scrutiny to voting qualifications. This line of cases comes closest to recognizing an affirmative right to vote that receives protection even absent an invidious facial classification. These decisions, combined with the Voting Rights Act of 1965 (VRA) and the civil rights movement, helped eradicate Jim Crow.

This chapter charts how the United States democratized, and its focus is on voting qualifications under the federal Constitution. As this chapter demonstrates, democratization has been accomplished through federal constitutional amendments, state-law changes, judicial decisions, and popular mobilization, often in response to a major war.

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“Cochise County, after disregarding state elections law, may go to court without attorney”

Arizona Republic:

Cochise County officials may go to court Thursday without an attorney to represent them against charges that they broke the law by failing to certify the results of the Nov. 8 election.

County supervisors on Tuesday voted to hire attorney Bryan Blehm to defend them and the county government against two lawsuits, even though they had not discussed the matter with him. On Wednesday, they were caught flat-footed when Blehm declined the offer, as did another attorney he had recommended.

The three supervisors are due in a Bisbee courtroom at 1 p.m. as a judge considers requests from Secretary of State Katie Hobbs, as well as a retiree group, to order the board to certify election results. That certification, by law, was due Monday. But on a 2-1 vote, the board voted to delay a decision until week’s end.

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“Manchin and Klobuchar: Omnibus likely place for electoral count overhaul”

Roll Call:

Legislation to overhaul how Congress counts presidential electoral votes should hop on the must-pass spending omnibus on its way out of the Senate, Sens. Joe Manchin III and Amy Klobuchar said Wednesday.

Speaking at a National Council on Election Integrity event, Manchin said the Electoral Count Reform Act was “ready.”

“I would think the omnibus bill is the appropriate place to put it,” the West Virginia Democrat said.

Speaking later, Klobuchar, who chairs the Senate Rules Committee, said the National Defense Authorization Act was another option, but “the omnibus is ​​looking more and more promising.”

“That’s coming out of the meeting at the White House,” the Minnesota Democrat added. She said Senate Majority Leader Charles E. Schumer is “hopeful.”

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“The Jolt: Finger-pointing starts over long waits for Georgia voters”

AJC:

Voters are having to wait in line for more than two hours at some crowded voting locations before casting a ballot in the U.S. Senate runoff, a consequence of both high turnout and a shorter early voting period, The Atlanta Journal-Constitution’s Mark Niesse reports.

As a part of Senate Bill 202 last year, the Georgia General Assembly shortened the runoff period from nine weeks to four. Although the lengthy nine-week window got complaints from Democrats and Republicans alike, the shorter runoff period this year has also meant cutting the number of statewide early voting days from 17 to five.

Turnout remained elevated Wednesday, the third-highest day of early voting in Georgia history — behind only Tuesday and Monday. There were 281,000 ballots cast on Wednesday after each of the previous two days breached the 300,000 mark, according to the secretary of state’s office.

With long lines and just five days of statewide early voting before the runoff, many voters haven’t yet gone to the polls. Two days of early voting remain before election day Tuesday.

A total of over 1.1 million voters have already turned out through Wednesday, leaving nearly 2.9 million voters who showed up for the general election last month but haven’t yet participated in the runoff….

As pictures of voters waiting in lines spread around social media, Republicans pointed to county staffing decisions for the delays, but Democrats blamed the Republican-sponsored law.

“These wait times result from bad policy choices,” state Sen. Michelle Au wrote on Twitter, adding, “The burden on voters to wait more than two hours to vote midday during the work week is not trivial.”

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“The Bottom-Up Election-Denial Strategy; It’s wrong, it seems illegal, and it’s probably not going to work. For now.”

Elaine Godfrey for The Atlantic:

Something that became very clear in 2020 is that America’s election system relies not on spelled-out rules and regulations, but on human beings acting honestly. Before 2016, the certification process was not used as a weapon to fight back against a disappointing result. “That’s not how healthy democracies function,” Tammy Patrick, the program CEO for the election center at the National Association of Election Officials, told me. And American democracy is only as healthy as its weakest link.

What happens next in Cochise County may have little significant effect on the rest of the country. But Cochise serves as a reminder that the election-fraud myth persists. And in places where its believers have unchecked power, they will do their utmost to flex it.

The hope was that, after major midterm losses and continued rebukes from the courts, the election-denial movement would peter out—that Stop the Steal types might simply grow tired of failing. But if Trump is a viable candidate for president in 2024, you can expect him to sing from the same songbook he used in 2016 and 2020. Other candidates will amplify those lies, too, if they can benefit from doing so. Whether election denialism will survive independently of Trump is hard to anticipate. But Republicans “have seen that while it may not be the way to gain office, it is certainly the way to drive donations and fundraising and elevate your stature in the party,” Patrick said.

Cochise is a useful stress test for America’s electoral system “in terms of demonstrating the continued dangers to our democracy”—and what can be done about them, Rick Hasen, the director of the Safeguarding Democracy Project at UCLA, told me. Congress should pass reforms to the Electoral Count Act, Hasen said. States can also try to prevent what’s happening in Cochise County from recurring in 2024. Colorado passed legislation this year clarifying its rules about certification. But state leaders are similarly well positioned to make the waters of democracy muddier. In 2021, Arizona Republicans tried and failed to pass legislation that would allow the state legislature to reject the results of an election it didn’t support. An upcoming Supreme Court decision on the authority of state legislatures in administering elections will be incredibly consequential to any future election-subversion efforts.

Over the past six years, millions of people in this country have been encouraged by political leaders on the right to see themselves as the real Americans—the nation’s true rulers—who are in danger of being cheated out of their political inheritance by voter fraud on the left. They’ve been trained to respond to electoral losses with deflection, conspiracy, and dishonesty. They don’t need Trump around to keep doing that.

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“Why the voting machines failed in Mercer County”

Andrew Appel:

On Election Day, November 8, 2022, every voting machine in every polling place in Mercer County, New Jersey failed to work.  Voters in each precinct filled in the ovals in their preprinted optical-scan paper ballots, but the voting machines couldn’t read them.  So voters were instructed to put their ballots into “slot 3” of the voting machines, that is, directly into the ballot box.  The Mercer County Board of Elections collected the ballots at the close of the polls on election night, using their usual chain-of-custody procedures.  Then they counted those ballots using the county’s central-count optical-scan voting machines, which are normally used for mail-in ballots.  This took two or three days.  All the votes got counted – but it’s still an embarrassing screw-up that deserves scrutiny.

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“Georgia GOP chairman singled out by judge for central role in fake elector plot”

CNN:

A state judge singled out Georgia Republican Party chairman David Shafer, one of the fake electors for Donald Trump, for the unique role he played in efforts to overturn the 2020 presidential election in the Peach State as part of a ruling on Wednesday.

Judge Robert McBurney, who is overseeing the special purpose grand jury investigation into 2020 election interference in Fulton County Superior Court, ruled that two attorneys for 11 of the so-called “alternate electors” in Georgia can’t represent all of them. McBurney cited Shafer’s central role as an organizer in efforts to overturn the election results.

Fulton County District Attorney Fani Willis, a Democrat, has already informed the entire group of 16 Republicans who served as pro-Trump electors – even though Trump lost the state in 2020 – that they are targets of her probe. The new ruling puts a spotlight on Shafer’s role in particular.

Willis, who is spearheading the investigation into efforts by Trump and his allies to overturn the election, had attempted to disqualify Holly A. Pierson and Kimberly Bourroughs Debrow, who are representing the subset of 11 fake electors, saying their “simultaneous” representation is “rife with serious ethical problems” and conflicts of interest that violate the Georgia state bar’s rules of professional conduct.

In Wednesday’s ruling, McBurney said that Shafer is the “exception” and should be viewed differently than the other electors, and so it is “impractical and arguably unethical for Pierson and Debrow to represent all eleven together.”

“Given the information before the Court about his role in establishing and convening the slate of alternate electors, his communications with other key players in the District Attorney’s investigation, and his role in other post -election efforts to call into question the validity of the official vote count in Georgia, the Court finds that he is substantively differently situated from the other ten clients jointly represented by Pierson and Debrow,” McBurney wrote.

The judge cites evidence – including emails and other records in the case – that underscores Shafer’s unique role, but the nature of those supporting documents remains unclear as they were not detailed in the ruling itself.

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“Election certification delays few, but a ‘test run’ for 2024”

AP:

Before November, election officials prepared for the possibility that Republicans who embraced former President Donald Trump’s lies about voter fraud would challenge the verdict of voters by refusing to certify the results.

Three weeks after the end of voting, such challenges are playing out in just two states, Arizona and Pennsylvania, where Democrats won the marquee races for governor and U.S. Senate.

Legal experts predict the bids are doomed because local governmental bodies typically don’t have the option to vote against certifying the results of their elections. It also reflects the limited ability of election conspiracy theorists to disrupt the midterms. One rural Arizona county has drawn court challenges after its refusal to certify, but another flirting with blocking certification backed off amid legal threats.

In Pennsylvania, a handful of the state’s 67 counties have delayed certification because of recounts demanded by local conspiracy theorists in scattered precincts. But in most states, certification has gone smoothly.

“Before Election Day, I thought Republicans would exploit the certification process to undermine election results,” said Marc Elias, a Democratic attorney who has sued to compel the lone Arizona county to certify.

That there’s only one county delaying so far in that important battleground state, where Republican candidates who denied Joe Biden’s victory in the 2020 presidential race ran unsuccessfully for governor and secretary of state, is “good news, and a bit of a surprise,” Elias said.

The outcome is a reflection of the diminished opportunities election conspiracy theorists have to control elections after a number of their candidates were routed in statewide elections for positions overseeing voting. They’re largely left with a growing footprint in conservative, rural counties. Still, that’s enough to cause headaches for having the election results certified on a statewide basis, raising concerns about how rural counties might respond after the next presidential election.

“It is one of the few places where election deniers have a lever of power,” Rick Hasen, a law professor at the University of California, Los Angeles, said of the local political bodies charged with certifying election results in most states. “It’s a good test run for 2024, showing state courts they’re going to have to step in.”

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“FEC scales back digital ad transparency rule after backlash”

Axios:

Federal election regulators are scaling back a major digital ad transparency measure after an effort to speed it through the regulatory process drew intense internal and external pushback, records show.

Why it matters: A little-noticed, two-word change to a proposed Federal Election Commission regulation could exempt wide swaths of digital ads from new rules designed to step up disclosure in a fast-growing segment of political advertising….

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“Oath Keepers Leader Convicted of Sedition in Landmark Jan. 6 Case”

NYT:

Stewart Rhodes, the leader of the far-right Oath Keepers militia, and one of his subordinates were convicted on Tuesday of seditious conspiracy as a jury found them guilty of seeking to keep former President Donald J. Trump in power through a plot that started after the 2020 election and culminated in the mob attack on the Capitol.

But the jury in Federal District Court in Washington found three other defendants in the case not guilty of sedition and acquitted Mr. Rhodes of two separate conspiracy charges.

The split verdicts, coming after three days of deliberations, were nonetheless a victory for the Justice Department and the first time in nearly 20 trials related to the Capitol attack that a jury decided that the violence that erupted on Jan. 6, 2021, was the product of an organized conspiracy.

Seditious conspiracy is the most serious charge brought so far in any of the 900 criminal cases stemming from the vast investigation of the Capitol attack, an inquiry that could still result in scores, if not hundreds, of additional arrests. It carries a maximum penalty of 20 years in prison.

Mr. Rhodes was convicted of sedition along with Kelly Meggs, who ran the Florida chapter of the Oath Keepers at the time of the Capitol attack. Three other defendants in the case — Kenneth Harrelson, Jessica Watkins and Thomas Caldwell — were found not guilty of sedition.

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Greg Sargent: “New Trumpist threats in Arizona make electoral college reform urgent”

Greg Sargent WaPo column:

At first glance, the spectacle of the Incredible Shrinking Kari Lake might be cause for optimism. Lake is contesting her loss in the Arizona governor’s race, but in so doing, she’s shriveling into an almost cartoonish figure with no hope of prevailing — a sign, along with the defeat of other key election deniers, that this year’s outcome has sharply diminished the denialist threat.

But on closer inspection, the efforts by Lake and other Republicans allied with her — which include refusing to certify election results — show that the threat of Trumpist election denialis very much alive. This strengthens the case for fixing the Electoral Count Act of 1887, which would safeguard against such threats in the future.

Unfortunately, some election reformers are worried that mending the ECA might not get done in the lame-duck session. That would mean it doesn’t get done at all once Republicans take control of the House next year.

“I’m deeply concerned,” Matthew A. Seligman, a legal scholar and longtime proponent of ECA reform, tells me. “It’s getting late. I’m concerned that things are slipping.”

Election law scholar Richard L. Hasen adds that he’d like to see Democratic leaders “affirmatively” declare that ECA reform is a lame-duck “priority.”

“There’s no way Republicans in the House are going to move anything changing the rules that Donald Trump tried to exploit,” Hasen told me. Trump’s 2020 election-theft effort tried to exploit many of the ECA’s flaws, and thereform under considerationwould close off those pathways to a future stolen election.

Versions of ECA reform have advanced in the Senate and the House, but it’s hard to see either passing as a stand-alone bill with only a few weeks left in the lame-duck session. That would chew up valuable floor time with much else left to do, including funding the entire government.

So, the most likely option at this point, a congressional aide tells me, is for ECA reform to get attached to thatend-of-year spending bill. It’s reasonable to worry this might not happen, or to remain vigilant until it gets done.

The case for attaching ECA reform to a spending bill is complicated. Right now, 10 GOP senators support the Senate version of reform — the number required to overcome a filibuster. Yet even ifECA reform were to geta stand-alone vote, Trumpist GOP senators — such as Josh Hawley of Missouri or Ted Cruz of Texas — could seek to derail it with poison-pill amendments.

What’s more, a stand-alone vote could raise the profile of ECA reform, subjecting it to attacks from Trump and others. That could drive away some of those 10 supportive GOP senators. Attaching reform to a spending bill might get it through with less attention.

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“Pennsylvania county deadlocks on certifying election results”

Philly Inquirer:

Officials in a northeastern Pennsylvania county where paper shortages caused Election Day ballot problems deadlocked Monday on whether to report official vote tallies to the state, effectively preventing their certification of the results.

Two Democratic members of the Luzerne County Board of Elections and Voter Registration voted to certify, both Republicans voted “no” and the fifth member, Democrat Daniel Schramm, abstained.

Schramm said in a phone interview several hours later that after the meeting he received assurances that few if any voters were unable to cast ballots and that all provisional ballots had been counted. He said he planned to vote in favor of certifying the results at a board meeting set for Wednesday.

“I wanted to research to see exactly how many people were just not allowed to vote. I couldn’t find any,” Schramm said.

He said elections officials contacted 125 judges of elections from the county’s 187 precincts “and they reported nobody being turned away.”

A judge extended voting in Luzerne by two hours, to 10 p.m., during the Nov. 8 election after the supplies ran short at some polling places.

Monday is the deadline for counties to certify general election results to the state. In a statement, the Department of State said it was contacting Luzerne officials “to inquire about the board’s decision and their intended next steps.”

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