AJC:

Some of Georgia’s most prominent bipartisan leaders are uniting behind an effort to bolster confidence in the state’s election system after years of damage from false claims and discredited conspiracy theories about widespread voting fraud in 2020.

The Democracy Defense Project launched its state-based program Tuesday helmed by two Democrats — former Gov. Roy Barnes and ex-Atlanta Mayor Shirley Franklin — and two Republicans — former Gov. Nathan Deal and ex-U.S. Sen. Saxby Chambliss.

The initiative is part of a nationwide effort to strengthen trust in election systems in politically competitive states. Organizers plan a media campaign in Georgia and other battlegrounds to “raise awareness of efforts to subvert elections across the country and help move us beyond polarizing rhetoric.”…

Nate Persily is one of our nation’s leading election law scholars (and a friend), with whom I usually agree on many specific matters in our field, but he is quoted today in the N.Y. Times (in an article today by Michael Wines) making a point with which I strongly disagree. The issue being discussed is whether a move from partisan to nonpartisan primaries, of the type used by California in its top-2 system or Alaska in its top-4 system, would significantly help curb the disproportionate strength of MAGA extremists within the Republican Party, leading to the election of more moderate Republicans whose views align more closely with the median voter in the relevant electorate.

Here’s the relevant passage of the article:

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”

I believe that Nate’s characterization of the potential significance of primary election reform is much more pessimistic than is warranted. Instead, I associate myself with Rick Pildes who in his important Dunwody lecture identified the adoption of nonpartisan primaries as the number one reform priority in order to reduce the distorted power of partisan extremists within government. The same priority is expressed in Nick Troiano’s book, The Primary Solution.

There is substantial evidence that partisan primaries (combined with “sore loser” laws, which prohibit candidates who lose partisan primaries from running as independents in the general election) cause voters in November to make a choice between an extreme MAGA Republican and a Democrat, when the median voter in November would prefer a non-extreme Republican over either of these two alternatives. When forced to choose between the extreme MAGA Republican and the Democrats, voters in red-leaning states and districts elect the extreme MAGA Republican rather than the Democrat. This causes voters to send to Congress more “insurrectionists” when the median voters in these congressional districts (and states) would prefer to elect a non-insurrectionist Republican. Replacing partisan primaries with nonpartisan primaries would be a significant step, contrary to Nate’s quote, in removing this distorting dynamic that causes Congress to be populated with many more insurrectionists than the voters actually want.

I have written extensively on this point, in both law review articles and public commentary, and I won’t repeat (or even cite) those writings here. I will offer two simple illustrations of the basic truth. Arizona’s second congressional district is represented by Eli Crane, a MAGA election denialist who was one of the eight extremists who brought Kevin McCarthy down. The only reason why Crane won his seat is because he defeated a more moderate Republican in the partisan GOP primary, and then went on to win the general election in his red-leaning district. There’s no doubt that Crane’s GOP primary opponent would have been preferred over him by his district’s median voter. (In other words, Crane’s primary opponent would have won the general election by an even greater margin than Crane did.) Indeed, at a recent symposium on primary elections research sponsored by Unite America and the National Institute for Civic Discourse, I saw a presentation of empirical analysis conducted by Georgetown University scholars that confirmed this truth.

A second example is J.D. Vance’s victory over Matt Dolan in the 2022 GOP primary for Ohio’s U.S. Senate seat, after Rob Portman declined to run for reelection. Vance is the ultimate insurrection-supporting politician, saying that if he had been Vice President on January 6 he would not have acted as Pence did, whose election to the Senate is a consequence of the distorting effect of partisan primaries. Ohio’s general election voters in November would have much preferred a non-MAGA alternative to J.D. Vance, like Dolan or Portman, but the institutional effect of partisan primaries prevented them from having that option, causing Congress to be more populated by insurrectionists that it otherwise would be based on the true preferences of the median voter of each state and district.

Thus, my view on this key point is exactly the opposite of Nate’s: I agree with him that it is a “hair-on-fire moment” because of the threat of “insurrectionists” and the “dysfunctional” nature of existing institutions under current conditions, but it is precisely because we are in a “hair-on-fire moment” that I think institutional reform to eliminate partisan primaries is such a high priority. To be clear, since January 6, I have repeatedly stated that I thought the two highest electoral reform priorities were (1) revising the Electoral Count Act of 1887, and (2) a requirement that members of Congress be elected by a majority, rather than a plurality, of votes–a reform that would functionally necessitate the kind of nonpartisan primary that both California and Alaska use. Thankfully, we accomplished the first reform before this year’s presidential election. Regrettably, we did not accomplish the second.

A further point of clarity: those familiar with my work in this area know that while I believe nonpartisan primaries are necessary part of the institutional reform to combat extremism, I also believe that in many circumstances nonpartisan primaries alone will not be sufficient and must be coupled with Convergence Voting (in technical terms, Condorcet-based electoral procedures). Depending on the degree of polarization within an electorate, candidates closest to the electorate’s median voter–like Dolan or Portman in Ohio–cannot win even if there is a nonpartisan primary, unless there is also a voting procedure geared to electing the candidate closest to the median voter, as Convergence Voting is. (For those interested in learning more about Convergence Voting and how it differs from the “instant runoff” form of Ranked Choice Voting, tomorrow’s webinar on this subject is very timely.) But to say that Convergence Voting must be part of the prescription to combat the ill of unrepresentative insurrectionism (along with nonpartisan primaries) is no reason to deny–as Nate apparently does–that the use of nonpartisan primaries is effective medicine. Instead, it just needs to be administered as part of an overall treatment plan.

This is why the Arizona reform effort, which the New York Times article describes, is so important (as I’ve written previously). If adopted, it will complete the first essential step of eliminating partisan primaries in that hyper-polarized state–where extremist Crane was able to win his congressional seat, despite his district’s voters preferring the more moderate Republican he beat in the primary–and leave open the next step of adopting Convergence Voting as the way to assure that insurrectionists disfavored by a majority of voters do not prevail.

Finally, it is worth noting (as the Times article does) that the extreme MAGA wing of the Republican Party is doing its best to hold on to partisan primaries. This is because the extremists instinctively know that they need the distorting effect of partisan primaries in order to be able win office. They don’t want any reform that will let voters have their true preference of non-extreme Republicans. Their behavior is additional reason to believe Nate incorrect on this crucial issue.

I won’t repeat all of the previous ELB post announcing this webinar on alternative electoral reforms to improve American democracy, especially in light of increasing partisan polarization. I will simply note that the French legislative elections, the first round of which is this coming Sunday, is a stark reminder of the stakes involved in the choice of an electoral system. The U.S. is hardly alone in facing the dangers of hyper-polarization. France, like the U.S., has tried since the late eighteenth century to make democracy work. Both countries have had their share of difficulties in this regard: France with its Reign of Terror when its revolution spun out of control, the U.S. with its Civil War and failed Reconstruction. The question for both countries now is whether they can draw upon their common heritage of political science about the design of republican government, a heritage stemming from the Enlightenment, to develop and implement to procedures for self-government in order to avoid its demise.

The webinar is on Wednesday at 3pm ET. Here, again, is the registration link.

This Washington Post story is full of examples of how extreme rhetoric turns on the spigot of small donations. This isn’t surprising; as I’ve noted, in the days of direct mail, consultants also understood that extreme rhetoric was a key to unlocking donations (Richard Vigurie, the architect of direct mail fundraising, told Jimmy Carter it would never work for him because he was too moderate).

The incendiary emails are part of a concerted strategy that has allowed the campaign to erase a financial lead that President Biden’s campaign had opened up in recent months, according to people close to the former president who spoke on the condition of anonymity because they weren’t authorized to speak for the campaign. But experts in small-dollar fundraising say the solicitations are aggressive even by the standards of Trump’s frequently hyperbolic and inflammatory language.

“I think those are clearly an escalation over and above some incredibly heated rhetoric and some irresponsible rhetoric we’ve seen over time,” said Matthew Hindman, a professor at George Washington University who studies digital emails. “The fact that those messages continue to be sent out tell us about something. The rhetoric has been driven by user response and user donations. If this extreme rhetoric continues to generate funds, it’s going to be rewarded with an even more extreme response next time.”…

Aides are planning an aggressive push around the sentencing, advisers said, betting his supporters will be especially motivated by a potential prison sentence….

One person with knowledge of the pitches said donations increase any time Trump seems to be under attack or argues that he is being treated unfairly. That’s particularly true when he is generating wall-to-wall news coverage during an event like the hush money trial in New York.

Some recent pitches have raised eyebrows even among longtime Trump observers and advisers. Emails falsely claimed that the FBI wanted to shoot Trump during a court-authorized search of his Mar-a-Lago Club in Florida for classified documents he allegedly unlawfully retained after leaving office. “Put Biden on Trial,” one read…

“Rhetorical gimmicks like this poison the well for every other Republican trying to raise money online,” one GOP consultant said, speaking on the condition of anonymity for fear of reprisal. “It burns out small-dollar donors. The Trump campaign is printing money on this, but when you’re already talking about the death penalty in June, what are you going to say in October?”

Hindman said the campaign is unlikely to dial back its rhetoric as long as the money was flowing.

Nevada Independent:

 A Clark County judge has dismissed the charges filed against the six Nevada Republicans who submitted an invalid slate of electoral votes for former President Donald Trump in 2020, ruling that the county was not the appropriate jurisdiction for the case. 

At a Friday morning hearing in Clark County District Court, Judge Mary Kay Holthus said she was unconvinced by state prosecutors’ arguments that Clark County was the appropriate county in which to hear the case. The electors’ attorneys had argued a more appropriate venue would be in Carson City, where the illegitimate signing ceremony took place, or in Douglas County, where the fake elector documents were originally mailed from. 

Clark County is more Democratic, meaning a jury could be less favorable to the Republican defendants.

“You have literally, in my opinion, a crime that has occurred in another jurisdiction,” Holthus said. “It’s so appropriately up north and so appropriately not here.”

Immediately after the ruling, Nevada Attorney General Aaron Ford said the “judge got it wrong” and that his office will appeal the ruling to the state Supreme Court. A trial set for January has been vacated pending the high court’s ruling.

The state is unable to refile the case up north because a three-year statute of limitations expired in December.

WaPo:

Arizona delegates to the Republican National Convention gathered this month in a Phoenix suburb, showing up to get to know each other and learn about their duties.

Part of the presentation included a secret plan to throw the party’s nomination of Donald Trump for president into chaos.

The instructions did not come from “Never Trumpers” hoping to stop the party from nominating a felon when delegates gather in Milwaukee next month. They instead came from avowed “America First” believers hatching a challenge from the far right — a plot to release the delegates from their pledge to support Trump, according to people present and briefed on the meeting, slides from the presentation and private messages obtained by The Washington Post.

The delegates said the gambit would require support from several other state delegations, and it wasn’t clear whether those allies had been lined up. One idea, discussed as attendees ate finger foods, was for co-conspirators to signal their allegiance to one another by wearing matching black jackets.

The exact purpose of the maneuver was not clear — and left some delegates puzzled and alarmed. People familiar with the meeting, who spoke on the condition of anonymity to discuss private conversations, said perhaps the intent was to block an undesirable running mate. Most of the dozen GOP officials or activists interviewed by The Post even ventured that the aim may have been to substitute former national security adviser Michael Flynn for Trump if the former president is sentenced to prison time. Among some on the far right, suspicions have intensified that the former president has surrounded himself with too many advisers beholden to the “deep state.”

New Common Ground Democracy essay with this subtitle: “The likelihood that extremist parties on the right and left will gain at the expense of the middle illustrates with hyper-polarization necessitates electoral reform.“

The essay begins: “France is facing a political crisis that it could have avoided if it had adopted an electoral system of the type advocated by its most prominent theorist of electoral system design, the eighteenth-century mathematician and philosopher Marquis de Condorcet.”

WaPo roundup.

Ohio Capital Journal:

Legislation in the Ohio House and Senate would make sweeping changes to the way Ohioans vote and how those votes are counted. Despite sterling post-election audits in Ohio and the arrival last year of strict new photo voter ID requirements, backers insist more must be done to secure the state’s elections.

Among their demands are provisions allowing hand-counted ballots, and new voting machine requirements that could force counties across the state to replace the voting machines they have. Moreover, certified voting machines don’t exist that would meet the bill’s standards, and hand-counting has been shown to be more timely and less accurate than the currently certified voting machines that do exist. The bill would also extend photo ID requirements to absentee voting — making voters include a photocopy of their ID with their completed ballot.

And the drafters have plans for in-person voting as well. The bill directs county boards to include a voters’ photograph in the pollbook, so poll workers won’t simply compare a photo ID to person standing in front of them, but also to a photo on file from the Bureau of Motor Vehicles.

The League of Women Voters of Ohio policy affairs manager Nazek Hapasha argued the measure is rooted in conspiracy theories about non-citizens voting in Ohio’s elections. Ohio’s secretary of state has referred more than 500 of cases of alleged non-citizen voter fraud since taking office. Only one of those cases led to charges.

“All of this together,” she said, “opens up the door to election deniers to cast doubt over our election systems, and the reliability and integrity of our election system.”

WaPo:

One rare area of agreement among observers chewing over the race: Almost everyone expects allies of 2020 election-deniers Good and McGuire to watch the counting and recounting like hawks.

“It’s not lost on us that these are two candidates who were highly critical of the administration of the 2020 election who are now locked in a much tighter overtime situation,” Wasserman said. “It could turn into a ‘Stop the Steal’ situation where Democrats are sitting back with popcorn, even if they don’t have a chance of winning this district.”

Bannon was already raising alarms in an interview with The Post on Wednesday.

“People have to be all over every one of these ballots, and we have to make sure chain of custody [is observed],” he said.

Those predictions were playing out Wednesday, with both campaigns dispatching observers to local elections offices around the district that were beginning the canvass process.

Unofficial figures so far indicate a margin of victory well within the threshold required to request a recount and just inside of what’s required for the state to cover the cost.

Release:

The ABA Task Force for American Democracy unveiled a letter signed by more than 100 deans from America’s law schools concerning the training necessary for the next generation of lawyers to sustain our constitutional democracy and the rule of law. 

In their letter, this distinct group of educators — charged with training our nation’s lawyers — affirms their commitment to preparing the next generation of legal advocates to uphold democracy and the rule of law. The message articulated by the deans urges students to champion the Constitution and the rule of law through avenues such as clinical work, public education and advocacy as well as makes a commitment on the deans’ part to teach our nation’s law students to disagree respectfully, be open to others’ arguments and engage across partisan and ideological divides.

Read the letter here.

Over at CAP:

CAP: Regrettably, even though it has been three years since we last discussed the fact that some political leaders peddled falsehoods about widespread election fraud and other matters designed to reduce faith in elections, this lamentable trend continues. Moreover, we are seeing increased threats of political violence—often aimed at election administrators or workers. What are your latest thoughts on these harmful dynamics and the challenges they pose to our system of free and fair elections? And how have election administrators and workers tried to rise above unnecessary partisanship and carry out their democracy duties, despite constant threats? 

Hovland: In the last several election cycles, there have been unprecedented levels of mis- and disinformation, from both foreign and domestic sources, about the integrity of U.S. elections and election results. These false narratives have led to threats and harassment against election administrators themselves, which is unacceptable. Since the 2020 elections, we have heard distressing stories about the threats and harassment election officials have faced with the increased politicization of election administration. These incidents have affected the individuals involved and the entire elections community, from volunteer poll workers to full-time elected officials.

While this has undoubtedly and understandably contributed to some of the election administrator turnover, I am continually amazed by the public servants who run our elections. Traveling around the country, I’m able to see the similarities and differences in how each state runs its elections. Across the country, the public servants who run our elections are focused on good governance and customer service. They have somehow renewed their already herculean efforts regarding administration of election processes, trainings, and contingency planning to ensure the smooth running of elections, as well as making sure transparency and accountability measures are in place so they can show their work if there are questions about the integrity of the election process or results.

Arizona Capitol Times:

Mark Finchem and his attorney can’t escape a court order that they pay more than $47,000 in legal fees in his unsuccessful attempt to overturn his 2022 loss in the race for secretary of state.

In a ruling Thursday, the state Court of Appeals said a trial judge got it right when she ruled that it was clear that the lawsuit he filed was “groundless.” Beyond that, appellate Judge Samuel Thumma, writing for the unanimous panel, said the lawsuit was not filed in good faith….

But Maricopa County Superior Court Judge Melissa Julian said Finchem “offered no tether between the machine malfunctions and the outcome of the election he challenged here.”

Thumma said there were other problems with his case.

One is that Finchem alleged there were 80,000 votes illegally cast, 60,000 from Maricopa County and 20,000 from Pima County.

“That number is still 40,000 votes less than what Finchem would have needed to challenge the results of an election he lost by more than 120,000 votes,” wrote Thumma in concluding that the lawsuit was groundless.

The appellate judge noted that Finchem subsequently called into question more than 261,000 votes. By that point, Thumma said, it was too late.

More to the point, he said, it’s legally irrelevant to whether there were grounds for him to sue in the first place.

“Claimed post-filing evidence … is not dispositive,” the judge wrote. “The question is whether Finchem brought his claim without substantial justification.”

The problems with the lawsuit, said Thumma, go beyond the finding that there were no grounds for filing it. He said it also ran afoul of provisions that bar cases from filing unless there is a “good faith” belief” there is a legal basis.

That, the judge said, did not occur here — and not only because the number of disputed votes, even if they had gone Finchem’s way, were not enough to alter the outcome.

You can find the opinion at this link. It’s notable that this opinion is not selected for publication and therefore is not precedential. It should be citable.

for his blogging stint last week. Firehose indeed!