Category Archives: Uncategorized

“Chuck Schumer’s Daunting Quest to ‘Restore the Senate'”

Behind the scenes, could there be progress on the FTVA and the JLVRAA? With respect to redistricting, note that it’s immaterial that some states have already enacted district plans. Under its near-plenary authority over congressional elections, Congress is free to impose new redistricting requirements. Enacted congressional plans that fail to comply with those requirements would simply be unlawful.

December is a jam-packed month for the Senate, with the legislative Advent calendar including such treats as must-pass government funding and defense authorization bills and President Joe Biden’s social spending, tax, and climate bill. But in the midst of considering these priorities, Senate Democrats are also mulling how they can pass critical voting rights legislation without destroying the filibuster.

This search for some middle ground between “doing nothing at all” and “going nuclear on a long-standing procedural rule” has been euphemistically referred to as “restoring the Senate” by Senate Majority Leader Chuck Schumer, harkening backto a bygone era of functionality in the upper chamber. In his November letter to Democratic colleagues outlining the hefty end-of-year to-do list for the Senate, Schumer said that the fight to pass voting rights legislation remained one of his top priorities. Republicans have blocked several bills related to voting and elections brought by Democrats this year, a feat made possible by their persistent use of the filibuster.

“Even if it means going at it alone, we will continue to fight for voting rights and work to find an alternative path forward to defend the most fundamental liberty we have as citizens. To that end, a number of our colleagues—with my full support—have been discussing ideas for how to restore the Senate to protect our democracy,” Schumer said.

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“‘Time is running out’: can Congress pass a voting rights bill after months of failure?”

Sam Levine on the ticking clock for Congress to pass election reform legislation.

There was already simmering frustration from voting advocateswho believe Biden has not taken strong action, especially as several states enacted sweeping new voting restrictions.

That frustration is now turning into escalating alarm that time is running out to pass meaningful voting rights legislation ahead of the 2022 midterm elections, amid a crammed congressional agenda that is already backed up for December. More than 200 civic action groups urged Congress on Thursday to postpone its December recess until it passes voting rights legislation.

“All of the experts and lawyers are telling us the same thing: time is running out. We are not out of time yet, but we are running out of runway to get this bill passed, get it signed into law, be able to clear any legal challenges and actually get it implemented for 2022,” said Tiffany Muller, the president and executive director of End Citizens United/Let America Vote, which strongly supports both bills.

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“Trump-tied group pushing for voting changes in Wisconsin”

Efforts being made to circumvent Wisconsin’s governor in order to make voting more difficult, especially in the state’s urban areas.

A group formed to support former President Donald Trump’s agenda is working with Wisconsin Republicans on a ballot measure that would bypass the state’s Democratic governor to change how elections are run in the battleground state.

The effort represents a new escalation in the ongoing Republican campaign to alter voting laws in response to Trump’s false claims of widespread fraud in the 2020 election. It comes as Wisconsin has become the epicenter of this year’s voting wars, with Republicans trying to dismantle the election system they themselves put in place several years ago — and figure out how to do that with a Democratic governor still in office.

The backing for a possible route around Gov. Tony Evers was revealed during a private meeting on elections hosted by the American Legislative Exchange Council, which advocates conservative policies to state lawmakers in voting and other areas. Trump’s former White House spokesman Hogan Gidley told attendees that his new organization, the Center for Election Integrity, was working with elected officials and business leaders in Wisconsin “to figure out the best path” around Evers, who has said he will block GOP-backed election measures.

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“Are We Doomed?”

George Packer on the end of American democracy and how to avoid this grim scenario:

If the end comes, it will come through democracy itself. Here’s one way I imagine it could happen: In 2024, disputed election results in several states lead to tangled proceedings in courtrooms and legislatures. The Republican Party’s long campaign of undermining faith in elections leaves voters on both sides deeply skeptical of any outcome they don’t like. When the next president is finally chosen by the Supreme Court or Congress, half the country explodes in rage. Protests soon turn violent, and the crowds are met with lethal force by the state, while instigators firebomb government buildings. Neighborhoods organize self-defense groups, and law-enforcement officers take sides or go home. Predominantly red or blue counties turn on political minorities. A family with a biden-harris sign has to abandon home on a rural road and flee to the nearest town. A blue militia sacks Trump National Golf Club Bedminster; a red militia storms Oberlin College. The new president takes power in a state of siege. . . .

Another, likelier scenario is widespread cynicism. Following the election crisis, protests burn out. Americans lapse into acquiescence, believing that all leaders lie, all voting is rigged, all media are bought, corruption is normal, and any appeal to higher values such as freedom and equality is either fraudulent or naive. The loss of democracy turns out not to matter all that much. The hollowed core of civic life brings a kind of relief. Citizens indulge themselves in self-care and the metaverse, where politics turns into a private game and algorithms drive Americans into ever more extreme views that have little relation to reality or relevance to those in power. There’s enough wealth to keep the population content. America’s transformation into Russia is complete.

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“Trump’s Next Coup Has Already Begun”

Deep dive by Barton Gellman into developments that could enable future election subversion.

Technically, the next attempt to overthrow a national election may not qualify as a coup. It will rely on subversion more than violence, although each will have its place. If the plot succeeds, the ballots cast by American voters will not decide the presidency in 2024. Thousands of votes will be thrown away, or millions, to produce the required effect. The winner will be declared the loser. The loser will be certified president-elect.

The prospect of this democratic collapse is not remote. People with the motive to make it happen are manufacturing the means. Given the opportunity, they will act. They are acting already.

Who or what will safeguard our constitutional order is not apparent today. It is not even apparent who will try. Democrats, big and small D, are not behaving as if they believe the threat is real. Some of them, including President Joe Biden, have taken passing rhetorical notice, but their attention wanders. They are making a grievous mistake.

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“After Success in Seating Federal Judges, Biden Hits Resistance”

N.Y. Times‘ Carl Hulse offers an update on where the Biden administration efforts to appoint federal judges stand.

“In contrast to the administration’s struggle on its legislative agenda, the lower-profile judicial push has been one of the highlights of the first year of the Biden presidency. Democrats say they intend to aggressively press forward to counter the Trump judicial juggernaut of the previous four years, and they may have limited time to do so, given the possibility of losing control of the Senate in next year’s midterm elections.”

In particular, the article emphasizes that having largely exhausted opportunities in states that are represented by two Democratic Senators, the process will be slower going forward.

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Republican Legislative Efforts to Curb the Vote Ongoing

Nick Corasaniti at the N.Y. Times is predicting that 2022 will bring even more efforts by Republican-led legislatures to make voting harder.

“After passing 33 laws of voting limits in 19 states this year, Republicans in at least five states — Florida, Tennessee, South Carolina, Oklahoma and New Hampshire — have filed bills before the next legislative sessions have even started that seek to restrict voting in some way, including by limiting mail voting. In over 20 states, more than 245 similar bills put forward this year could be carried into 2022, according to Voting Rights Lab, a group that works to expand access to the ballot.”

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Supreme Court’s decision in Dobbs likely to shake up state elections in 2022.

The Washington Post correctly notes the electoral implications of the forthcoming decision to gut Roe v. Wade.

“Now, normally low-profile state legislative races and less-prominent gubernatorial contests suddenly hold the potential to become national flash points in the polarizing debate, while state legislative activity will become more significant in shaping abortion laws. Advocates on both sides say they anticipate a grueling, expensive and fierce fight.”

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Challenge to Minnesota’s Procedures for Restoring Voting Rights to Felons Heard in State Supreme Court

Minnesota Public Radio

Minnesota’s Supreme Court heard arguments this week in a case that may determine whether continuing to disenfranchise voters on parole or on probation violates the state’s constitution. The case turns on the fact that, under the Minnesota precedent, statutes and policies that have a racial disparate impact must meet heightened scrutiny to survive a constitutional challenge.

“It seems to me when you were disenfranchising just huge swaths of the population, particularly when that population are primarily people of color, who the Equal Protection Clause was a design to the very people it was designed to protect,” Hudson said. “How is that the tight fit that Russell [the Minnesota precendent] requires?”

50,000 Minnesotans with active felony records will be affected by the Minnesota Supreme Court’s decision.

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New Civic Center Study–“In Arizona’s two largest counties, fewer than 15% of 18-year-olds are registered to vote

New research by Laura W. Brill at the Civics Center shows struggles to register young voters in Arizona.

“[F]ewer than 15% of 18-year-old residents of Arizona’s most populous counties, Maricopa County and Pima County, have registered to vote.”

These trends are concerning insofar as registration remains a key predictor of voter turnout. Arizona is no exception.

“Census records show that in the 2020 presidential election, 88% of registered Arizonans ages 18-24 cast ballots. That was 327,000 voters, and the margin of victory was just 10,457 votes in the Arizona presidential election.”

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Young Voters Disillusioned

Harvard Public Opinion Project 

“A national poll of America’s 18- to 29-year-olds released today by the Institute of Politics at Harvard Kennedy School indicates that a majority of young Americans believe that our democracy is “in trouble” or “failing.” While most young Biden voters are satisfied with their vote, President Biden’s job approval (46%) has dropped 13 percentage points among young Americans since the IOP’s Spring 2021 Poll, including a 10-point drop among young Democrats and 14-point drop among Independents.”

Two tidbits:

7. More than half of young Americans believe that the federal government is not doing enough to address climate change

  • A solid majority (55%) of young Americans believe the U.S. government is not doing enough to address climate change, including 68% of college graduates, 56% of college students, and 50% of those without a college degree. More than seven-in-ten (71%) Democrats don’t think the government is doing enough, compared to 27% of Republicans, and 56% of independents. Fourteen percent (14%) say that the government is doing “too much to address climate change,” while 12 percent think it is “just about the right amount.”

9. By a margin of more than 2-to-1, young Americans value compromise over confrontation

  • A plurality across every major subgroup measured preferred that “Elected officials meet in the middle –– at the expense of my preferred policy priorities,” compared to “Elected officials pursue my preferred policy priorities –– at the expense of compromise.
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Dec. 15 virtual event: “Protecting Our Constitutional Democracy”

Looking forward to participating in this event of the NYC Bar:

Protecting Our Constitutional Democracy
Wednesday, December 15 | 6:00 p.m. – 7:15 p.m. 

Program Fee:
Free for City Bar Members, NYSBA Members and Non-Lawyers | $15 for Non-Member Lawyers
NYSBA Members please call Customer Relations at 212-382-6663 to register.
Non-Lawyers please CLICK HERE to register.

Please Note: A final confirmation containing the Zoom link and Access Code to join the event will be sent to ALL registrants 2 hours prior to the start of the event. 

The 2020 election was fraught with attacks on the rule of law. Our panel featuring leading election and constitutional scholars will examine the ongoing challenges, including the strengths and weaknesses of the Electoral Count Act as well as other statutes; how various states are passing laws to restrict voting and supersede election officials with partisan actors and criminalizing otherwise normal conduct by election officials; and how we can protect our elections and ensure peaceful succession through legal and non-partisan civic efforts in accordance with the rule of law.

Sheila S. Boston, President, New York City Bar Association

Jerry H. Goldfeder, Special Counsel, Stroock & Stroock & Lavan LLP; Adjunct Professor, Fordham Law School; Chair, NYS Bar Association Voting Rights & Democracy Task Force

Richard L. Hasen, Chancellors Professor of Law and Political Science, UC Irvine School of Law; Co-Director, Fair Elections and Free Speech Center
Derek T. Muller, Bouma Fellow in Law and Professor of Law, University of Iowa College of Law
Deborah Pearlstein, Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy, Cardozo Law School; Member, NYS Bar Association Voting Rights & Democracy Task Force

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