All posts by Justin Levitt

A brief return to DOJ’s suit in NC

Department of Justice, election administration, voter registration

Hi, all.  Justin again.

Last week, I blogged the Civil Rights Division’s first voting case of the new Administration: the  suit alleging that North Carolina violated HAVA when it didn’t require driver’s license numbers or Social Security digits for some voters’ registrations.

I also mentioned that despite some early reports to the contrary, DOJ has not sought to remove any voter from the rolls as a result of the alleged violation.  (Here’s the complaint.)  The new Executive Director of the North Carolina State Board of Elections confirmed this past week that “nothing in that complaint compels that folks are kicked off the voter rolls,” and indicated that the real focus is to get the information and not invalidate any registrations.

Indeed, in that earlier post, I said that I thought that DOJ couldn’t ask to kick any of the impacted NC voters off of the rolls, because DOJ doesn’t have that authority.  And I’ve gotten a few questions asking why.

The easiest reason is a straight-up interpretation of the Help America Vote Act.  52 U.S.C. 21083 is the operative provision.  21083(a)(5)(A)(i) says that states can’t accept voter registration applications unless a person with a current and valid driver’s license number submits that number, or a person without that submits the last 4 of their Social Security number, or a person without either is assigned a unique number. 

But clause (iii) of that same subparagraph very clearly says that it’s up to the state to decide whether any individual submitted sufficient info.   (“The State shall determine whether the information provided by an individual is sufficient to meet the requirements of this subparagraph, in accordance with State law.”)  And that’s doubly confirmed by 52 U.S.C. 21085: “The specific choices on the methods of complying with the requirements of this subchapter shall be left to the discretion of the State.”

So if North Carolina decides that the fact that an individual submitted Social Security digits means that they didn’t have a current and valid driver’s license number, that decision is unreviewable.  And if North Carolina decides that the fact that an individual left the space blank means they didn’t have either driver’s license or Social Security digits, and thereby assigns a unique number, that decision is unreviewable.  In either case, accepting the form and registering the voter is effectively the answer that the state has decided the submitted information sufficed, and for any individual voter, that’s the end of the story.

As I understand it from the Griffin/Riggs contest, there are a bunch of records in the North Carolina database that don’t have either driver’s license number or Social Security digits readily visible for the corresponding actively registered voter.  That fact doesn’t mean that the voters in question violated HAVA.  It just means that there aren’t digits currently visible in the system (and a bunch of potential reasons why).  But whether those voters presented the right numbers on the form or not, there’s no indication that any of them were put into the system without a unique identification number (pursuant to state law).  There’s no indication that any of them failed to have their registration accepted by the state (pursuant to state law).  There’s no indication that any of them failed to present HAVA-compliant ID before voting for the first time (pursuant to state law). 

All of which means that all of these voters were properly registered (and validated) pursuant to state law.  And given 21083(a)(5)(A)(iii), that definitionally means the end of the inquiry pursuant to federal law, in deciding whether the absence of a number in the database creates a question about any individual’s registration status. 

So there’s no reason under federal law to think that any of these registrations is invalid, and hence no basis to toss anyone off the rolls.

More generally, HAVA’s statutory deference to the State in making determinations of invalidity gibes with the general authority DOJ has in enforcing federal election statutes.  There are some federal statutes that speak to the maintenance of the voter rolls (NVRA, HAVA) in ways designed to prevent ineligible voters from voting.  But those all speak to general programs of list maintenance, with ample deference to the states; DOJ enforcement of these provisions is limited to broader state structures. 

When it comes to individual voters, there’s a pretty clear division of authority.  As far as individual voters are concerned, DOJ criminal authority is reserved for intentional misconduct with respect to allegedly ineligible registrations or ballots.  And DOJ civil authority is reserved for allegedly eligible voters unlawfully denied the ability to register or vote.  That is, the statutes granting DOJ civil authority dealing with individual registrations or ballots are usually written in one direction only: the direction of enfranchisement.  That’s clearest in most applications of the Voting Rights Act, where 52 U.S.C. 10308 calls out DOJ ability to permit voters to vote and to count their votes, without the converse.  But it’s also the structure of the vast majority of the individual provisions of the substantive statutes – when the Civil Rights Act, the VRA, NVRA, HAVA, UOCAVA, etc. mention individual registrations or ballots, it’s generally to protect the eligible through civil litigation or punish the knowingly ineligible through criminal prosecution. 

(State law or federal constitutional provisions might provide for the invalidation of individual ballots through civil process in some circumstances, but the DOJ’s not authorized to bring those suits in the first instance.)

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Good night, and good luck

election law biz

As always, when Rick loans the blog for a bit, I’m inevitably surprised by how much work it can entail, and humbled by the fact that he’s at the helm day in and day out. So I’ll close my guest stint with another note of profound thanks for his regular stewardship.

And thanks as well to Derek Muller, whose steady hands will be steering for the week to come. I’m sure he’ll welcome the tips and suggestions as well.

Derek, she’s all yours.

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“Noem urges Poles to elect Trump ally as CPAC holds its first meeting in Poland”

Uncategorized

I somehow missed this AP report from Tuesday, about the current U.S. Secretary of Homeland Security (with a cameo by John Eastman) expressly campaigning in Poland for a particular candidate in tomorrow’s Polish presidential election.

(While OLC has interpreted the Hatch Act to exempt foreign elections, it still strikes me as significant to have U.S. cabinet officials actively campaigning abroad. If this is a more frequent thing by gov’t officials other than stray statements from POTUS and VPOTUS, I’d welcome the correction.)

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“Judicial Candidates Try TikTok and Tinder in Mexico’s Sprawling Elections”

campaign finance, campaigns, cheap speech, judicial elections

I mentioned Mexico’s historic upcoming judicial elections a few days ago, but hadn’t then focused on the campaign finance regime.  Now the NYT digs a little deeper:

They weren’t allowed to buy ads on television, radio, billboards or online. Mexico barred them from public funding or receiving campaign contributions. National debates were difficult, if not impossible, to mount.

So people running to be judges across Mexico were largely left with social media.

In one widely seen video, one Supreme Court candidate argued that he was as well seasoned as the fried pork sold on the streets. Another Supreme Court candidate styled herself Dora the Transformer, a spin on the cartoon character Dora the Explorer. Another Supreme Court candidate used dating apps so that, in his words, prospective voters could match with justice and then chat about the issues.

The strict campaign limits, in contrast to traditional rules for presidential or congressional elections, are part of Mexico’s sprawling, first-ever elections on Sunday. Voters will choose nearly 2,700 federal and state judicial positions at every level of the courts, with federal seats, like those on the Supreme Court, chosen at the national level and a host of officials elected locally.

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“Tarrant County Judge Tim O’Hare Speaks on Redistricting Effort, Partisanship Claims”

election law and constitutional law, political parties, redistricting,

A coming vote on new mid-decade maps for Tarrant County, Texas (where Ft. Worth is the county seat) has been quite controversial, with charges of racial and partisan impropriety, and likely litigation on the horizon.

County Judge Tim O’Hare has initiated the redistricting process.  (In Texas counties with fewer than 225,000 people, the “county judge” is a judicial official, but in counties like Ft. Worth, the “county judge” is both a member of the legislature and the chief executive; the policymaking body consists of four commissioners elected from precincts and the county judge elected at-large.)

And Judge O’Hare has been in the news quite a bit this week based on the rationale for the new maps.  Per The Texan: “The only reason O’Hare said he is looking for three Republican precincts in the county is because he can’t figure out a way to have four.”   And CBS recounts: “O’Hare said, ‘This is about partisan politics. You can legally in this country, according to the U.S. Supreme Court, draw maps for partisan purposes. So for me, it’s 100% about partisan politics.’”

O’Hare’s dead wrong about that latter point, but his confusion is understandable, and that’s absolutely the Supreme Court’s fault.  In Rucho v. Common Cause, citing dicta from racial gerrymandering cases and improperly conflating “partisan” and “political,” the Supreme Court did say that securing partisan advantage to some degree is constitutionally permissible.  (I still think that was both unnecessary and wrong, but I’m not the one in the robes.) 

But – and this is a critical point that some legislators of both parties have willfully misunderstood — the Court did NOT say that excessive partisan gerrymandering was legal.  Quite the opposite: the Court recognized as “fact” that “excessive partisanship in districting” is “incompatible with democratic principles.”  Rucho held only that the federal courts were unavailable to hear claims of excessive partisanship. 

That’s a big difference.  Or, at least, it should be to anyone who takes an oath to uphold the Constitution.  If local law enforcement won’t arrest or prosecute you for shoplifting, that forbearance doesn’t make shoplifting legal.  (See, e.g., federal appropriations riders preventing federal prosecution of some marijuana-related crimes; federal executive orders temporarily declining to enforce a very clear statutory social media ban) 

So while O’Hare’s correct that blatant use of government power to punish opposing partisans represents a weird lacuna in the redistricting context for federal court enforcement, it’s not true that 100% partisanship in the drawing of district lines is “legal.”

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“Why On-And-Off Voters Who Backed Trump May Be GOP’s Midterm Silver Bullet”

election administration, The Voting Wars

The Daily Caller calls out low-propensity Republican voters. 

Given that restrictions on access to the ballot generally hit low-propensity voters harder, I’ve been wondering for a while whether the political incentives on election administration issues might be changing.  (And that’s probably a jurisdiction-by-jurisdiction question.)

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“School Choice and Household Participation in School District Politics”

voting,

A fascinating new Annenberg Institute paper from three MSU researchers on the connection between school choice and voter turnout in local bond elections.  Theoretically, I can understand why sending your kid to a different school might change incentives to vote for or against a local bond, but it’s a more interesting question why it might change the incentive to vote at all.

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“US government is investigating messages impersonating Trump’s chief of staff, Susie Wiles”

Uncategorized

This AP story is presented as a cybersecurity issue.  And it is.

But one of the dangers of running government without any regard for standard administrative process is that it makes fraud so much easier to perpetrate.  If government action is based on a phone call or a text with a request or a threat or a purported order, it’s much easier to fake the initial outreach.  It’s harder to fake a notice in the Federal Register.

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“Oklahoma parents fight new curriculum on 2020 election ‘discrepancies’”

election subversion risk,

The WaPo subhead: “A lawsuit alleges that state superintendent Ryan Walters added a provision on election questions without notifying some board members before they voted.”

A further excerpt from the article:

The draft shown to the public only mandated that high-schoolers “examine issues related to the election of 2020,” according to the lawsuit.

The version that was approved says students will “identify discrepancies in 2020 elections results” and will be instructed to analyze information including “the sudden halting of ballot-counting in select cities in key battleground states, the security risks of mail-in balloting, sudden batch dumps, an unforeseen record number of voters, and the unprecedented contradiction of ‘bellwether county’ trends.”

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