All posts by Justin Levitt

“WV will NOT accept voter registrations collected by Biden Administration”

election administration, Elections Clause, military voting, NVRA (motor voter), The Voting Wars

Justin here.  The title of this post is the header of the email version of a press release issued earlier this week by the office of WV Secretary of State “Mac” Warner, currently running for governor.

I’m pretty sure the title’s not true. But we’ll get there in a sec.  (It’s not the only piece of inaccurate information in the release.)

The press release is a broadside against a fictional version of Executive Order 14019, the President’s directive that federal agencies review their authorities to “consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process.”  (Disclaimer: I had no part in drafting the EO, but in my role as a federal official, I had a hand in helping to implement it, including listening to state election officials — Secretary Warner among them — during consultative conversations that Secretary Warner asserts didn’t exist.)

The release claims that the EO is an unconstitutional direction to federal agencies to “take over voter registration processes from states.”  It cites, as support, half of the constitutional foundation for the EO, in noting that “Article 1 Section 4 of the U.S. Constitution says the times, places, and manner of holding elections, shall be left to the state legislatures.” 

There are other words after that snippet, of course: Congress may at any time change that default.  And Congress has.  The NVRA directs states to designate specific government offices as one-stop voter registration agencies — including federal recruitment offices for the armed forces, as a means to facilitate electoral participation by servicemembers.  Those recruitment offices are part of the Biden Administration.  And contrary to the Secretary’s email header, it’s hard to imagine that Secretary Warner, himself a veteran, plans to refuse the servicemembers’ voter registrations collected there.

The NVRA also permits states to designate as one-stop registration agencies other state offices, and offices of federal agencies with the agreement of those offices.  And it requires, to the greatest extent practicable, federal executive agencies to cooperate with states in effectuating those designations. 

The heart of the EO is just carrying out this congressional demand.  (There are other bits too, like explaining the proper and improper uses of agency funds, but the heart is effectuating the NVRA’s mandate.) 

Nobody’s taking over voter registration processes from the states.  Several states not attempting to turn customer service into conspiracy theory have worked with agencies to help constituents get registered to vote while they’re doing other government paperwork.  In 30 years of the NVRA’s existence, the first state to designate a federal entity’s office as a voter registration site was Kansas, when it designated Haskell Indian Nations University (operated by the Department of the Interior) in May 2022.  The second was New Mexico, designating the Southwestern Indian Polytechnic Institute (also operated by DOI), two months later.  Kentucky and Michigan and Pennsylvania have announced partnerships with the Department of Veterans Affairs to let veterans more efficiently register to vote.  Those federal agencies are ready to partner with red states and blue states and purple states in part because the executive order told them to be.

VA sites can only be designated as one-stop voter registration agencies if states step forward: without West Virginia’s blessing, no VA site in West Virginia will be acting as a designated site.  I think it’s great that veterans in Kentucky will have more opportunities to smoothly register to vote while they’re already filling out paperwork, and a shame that there’s resistance just over the border to offering other veterans the same — but no matter how politically convenient it may be to conjure into rhetorical existence a strawman federal takeover, EO 14019 in no way limits West Virginia’s continuing choices about how best to serve its would-be voters.  If the press release portends a fight, it’s a fight with nobody on the other side.

Share this:

“It Depends Who’s Doing the Jawboning”

authoritarian threats in US, cheap speech, election subversion risk, First Amendment theory, social media and social protests, Supreme Court

I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.

Or, if you prefer:

Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.

Share this:

New OMB race/ethnicity categories

redistricting, Voting Rights Act,

Justin here. This is a really big deal: the federal government’s got new standards for collecting data on race and ethnicity.

The Office of Management and Budget has a sneak preview today of tomorrow’s update of “Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” SPD 15 was initially developed in 1977 to help provide consistent data on race and ethnicity throughout the federal government, and drives all kinds of data collection in all kinds of contexts, including the Census, redistricting, and VRA claims. It was updated once in 1997, and this is a long-awaited version 3.0.

There are some big changes in the new standards, but the biggest include combining a question on Hispanic/Latino heritage along with other categories in one race-and-ethnicity question (the previous approach purported to separate race in one question and Hispanic/Latino ethnicity in another); adding a Middle Eastern or North African (MENA) category; and collecting detailed subgroup information within each category as a default.

Among other impacts, in applications like the Census and intercensal questionnaires, these standards will likely continue to help more accurately reveal how multiethnic we are. (Past methodology changes have already given us a far more accurate picture than we used to have: some of the country’s diversification is due to demographic change, but an awful lot is due to better capacity to recognize how diverse we already were, in ways hidden by our measurement instruments.) I’ve written a bit on this in the context of the Census, SPD 15, and the ways that our tools have changed over time.

There are variations available for specialty uses, but here’s what the standard new data collection will look like:

Share this:

Funding elections

election administration, voting

Justin here. The President’s 2025 budget dropped on Monday, and it once again includes a substantial, long-term, sustained investment in funding elections. $5 billion, this time around.

I continue to think that this is right at the top of the list of critical election issues. It’s not as juicy as mapping out the endless labyrinth of hypothetical post-election shenanigans, or repeatedly saying AI — the “blockchain” of 2024. But it’s profoundly important, and (with some notable exceptions) tragically undercovered.

You want voting systems that are secure and reliable? That costs money. You want officials who know what they’re doing? That costs money. You want a communications structure able to withstand information dysfunction? That costs money. You want an electoral process that’s accessible to eligible voters? That costs money. You want results that are fast and accurate? That costs money.

Election officials have been making stone soup for way too long now, even as our expectations have expanded, county budgets have tightened, and the environment has gotten more difficult. Jurisdictions have taken philanthropic options — a last resort in the first place — off the table without stepping up to cover the gap. At this rate, we’re asking to get the elections we pay for, rather than the elections we demand and deserve.

After a few collapses, America finally decided to invest in roads, bridges, sewers, and broadband. The election system is the infrastructure of infrastructure: everything else we do in this country builds on that substrate. The President has repeatedly (FY2023 here and here, FY2024 here, FY 2025 here) tried to add the election system to the infrastructure we actually maintain. Congress has completely ignored the call. The strategy appears to be “hope it all holds up again.” Which is not actually a strategy.

Funding local election infrastructure is a profoundly bipartisan issue. Every member of Congress got their current job through the elections process, which elects Republicans in Republican areas and Democrats in Democratic areas. The bridge every member takes to get to work is the same bridge they’ve stubbornly refused to maintain. Can we please shore it up before it breaks, this time?

Share this:

Digging in in the Badger State

redistricting

Justin here. There’s an oddity in the most recent round of Wisconsin’s redistricting travails.  Democratic legislators (and later, the Democratic Governor) seem to be voting against an ostensible olive branch extended by the Republican legislative leadership.  And I wonder if that’s because the olive branch isn’t what it seems.

(Caution: deep dive ahead.  If you’re already all caught up on the backstory, jump ahead here.)

***

A (necessarily) brief recap: the redistricting fight in Wisconsin has been bitter.  On a strict party-line vote, the 2021 Republican-controlled legislature passed a legislative map vetoed by the Democratic Governor; the state Supreme Court drew “least-change” maps preserving the extreme partisan gerrymander of the previous decade.  In the 2023 campaign for a state Supreme Court seat, the maps’ bias was a campaign issue, and when Justice Janet Protasiewicz won the seat and refused to recuse from a new legal challenge to the maps, the legislature threatened impeachment.

Much of the commentary portrayed that legal challenge as a partisan gerrymandering case under the state constitution.  But though plaintiffs presented that issue, the state Supreme Court never agreed to hear it.  Instead, the court focused on whether the new map obeyed state constitutional requirements of contiguity, and held that the map failed to ensure that all the parts of each district were connected.  In selecting a remedy from among plans that otherwise satisfied state constitutional criteria, the court also announced that it would decline to put its judicial imprimatur on a plan designed to confer extreme partisan advantage — including “gerrylaundering” that just locked in the existing extreme bias of past cycles.

Parties — including the Governor — have now submitted remedial proposals, which have been evaluated by the court’s consultants on multiple fronts, including a measure of “majoritarian concordance” that tracks how often the districts translate a statewide majority vote to a majority of legislative seats.   The current map, and the remedial plan that the legislature submitted to the court, both do exceedingly poorly on this and other measures of bias: the extreme partisan gerrymanders do what they’re designed to do.  Several other submissions — including the Governor’s — fix the contiguity problem without nearly as much skew.  The court’s remedial decision is likely on its way.

***

The legislature has howled about purported process violations throughout this case.  But their recent filings also claim that all of the other remedial submissions violate the federal constitution.  (The claim is based on a theory of “disenfranchisement” inherent in redrawing maps when state Senate terms are staggered.  If half of the voters choose a Senator in 2020, 2024, 2028, … and half of the voters choose a Senator in 2022, 2026, 2030, … then a voter moved from a district on the 2020 path to a district on the 2022 path will have to wait until 2026 to vote for state Senate (in California, at least, this is known as “deferral”).  A bunch of states stagger state Senate elections in this way, and I don’t know of any case finding a constitutional problem in the deferral that results from redistricting.)  That includes the Governor’s map.

Now we get to the weird part.  A few weeks ago, the Republican legislature tried to short-circuit the court case by passing a plan they claimed was “99% of the way” to the Governor’s map (including the purported constitutional violation).  No Democrat voted for it, and the Governor vetoed it (in part because it tinkered with the Governor’s proposal, offering additional protection for some Republican incumbents).  The legislative leadership has now floated the possibility of the extra 1%, passing the Governor’s proposal as is (including the purported constitutional violation).  And still there seems to be Democratic resistance.

Why would the Republican legislature fighting tooth and nail for advantage suddenly try to pass a Democratic Governor’s plan that they claim is constitutionally infirm?  And why would Democrats vote against it? 

It’s possible that this is just belated resignation: the legislators think that the state Supreme Court is likely to impose an alternative worse for them than the Governor’s map, and are trying to limit their losses by taking the decision out of the court’s hands.  (And it’s possible that Democrats would rather take their chances with the court.)  That’s certainly Ockham’s razor.

But hat-in-hands enlightened conciliation isn’t quite this legislature’s style.  I can’t help wondering whether Professor Ackbar has it right.  Specifically, I wonder whether the unusual behavior might be explained in part by the prospect of forum-shopping. 

An equally bitter redistricting fight has been proceeding in Louisiana, where the legislature just passed a map to remedy a VRA violation, while vehemently protesting that the map was unconstitutional.  (The legislature’s claims were mostly rejected by the Fifth Circuit (!), following last year’s SCOTUS case from Alabama.)  A new set of plaintiffs has just picked up the legislature’s arguments, challenging that new map as unconstitutional.  But they didn’t file that objection in the ongoing federal case — they filed in a different federal district, drawing a three-judge court with a conservative majority.  (The legislature asserts that the court ordering the VRA remedy no longer has jurisdiction over the case now that a new map exists.)  The legislature has already successfully stalled relief for the VRA claim through the 2022 elections, and the new lawsuit appears to bait a hook for further stalling through 2024.

What does any of this have to do with Wisconsin?  Well, if the state Supreme Court selects a map, refuting a fringe federal constitutional theory in the process, the natural avenue to contest that claim is to ask SCOTUS for relief.  That’d be a real longshot here.

But if the Governor signs a new map through the legislative process that resolves the state issues, the state Supreme Court case goes away.  And someone else would be free to forum-shop a federal constitutional claim in the Wisconsin federal district of their choice, with the remainder of a three-judge court appointed by Chief Judge Sykes of the 7th Circuit.  To be clear, I don’t think the ostensible constitutional objection has much merit.  But trying to sell two judges on a longshot claim — at least long enough to stall through the 2024 elections — may seem easier than trying to sell five of them.

Share this:

Cal. Supreme Court decides CVRA case

alternative voting systems, redistricting

The California Supreme Court is out with an important opinion today in Pico Neighborhood Ass’n v. City of Santa Monica: a ruling on the California Voting Rights Act and some of the ways in which it’s distinct from (and similar to) the federal VRA.

Most of the issues addressed by the court are, I believe, issues of first impression for a state supreme court construing a state voting rights act. That includes whether the Gingles 1 requirement (showing that the minority population is big enough and compact enough to constitute more than half of the voters in a single-member district) applies to the CVRA. (The court’s answer: “no.”)

Disclosure: I served as an expert witness in this case.

Share this:

“There’s only one way to fix gerrymandering (and it’s not through the courts)”

legislation and legislatures, redistricting

In The Hill, Grant Tudor and Beau Tremitiere highlight their report on the congressional single-member-district statute.  

I think various institutions in several states might want a word about the “only one way” in the headline (which op-ed columnists usually don’t write, despite the fact that their names are right underneath).

Share this:

“A group offered cities money to opt in to ranked choice voting. State elections office warns accepting that is likely illegal”

alternative voting systems, election administration, The Voting Wars

In response to a question at a city council meeting, an advocacy organization’s representative apparently noted that one county’s implementation of RCV might cost an extra $36,000 for software licensing, ballot design, and the like … and that the organization would be willing to cover the gap.  It’s not exactly an inducement to participate, but likely still violates Utah’s new law against accepting private donations.  (And the advocate, saying she wasn’t aware of the law, has since backed off of the suggestion.)

I think it’s likely that the laws restricting private funding are going to end up with more complicated impacts than the legislators have foreseen, and not in ways that help local officials administer elections.

Share this: