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The Independent State Legislature Doctrine

Hayward Smith has posted this detailed article on the independent state legislature doctrine, which also responds to arguments defending certain versions of the doctrine. Back in 2001, when Hayward was a student of mine at NYU, he published a law review note on this issue. Now in private practice, Hayward returned to the issue and dug in more deeply into the historical evidence and arguments concerning whether the Constitution, properly understood, contains such a doctrine.

Here is the abstract:

In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” during the nineteenth century (before it was abandoned in the twentieth century).

This article debunks the Substance/Procedure Thesis. Previously unreviewed historical evidence, including that arising from a review of the 1776 drafting history of the predecessor language of Article V of the Articles of Confederation, confirms that the founding generation understood that “legislatures” would be subject to substantive state constitutional restrictions as well as constitutionally-mandated lawmaking procedures. The evidence shows that the framers of the Elector Appointment and Elections Clauses — including in particular John Dickinson and James Madison — expected that state constitutions would impose substantive limitations on “legislatures.” The evidence also demonstrates that the Framers’ subjective expectations were shared by other members of the founding generation. State constitutions adopted in the years immediately following the Founding contained substantive restrictions on election law that, although they did not explicitly refer to federal elections (as did the Delaware constitution of 1792), were understood to apply to all elections, including federal elections.

This article also debunks the Prevailing View Thesis. It cannot be sustained on any objective view of the evidence. A review of every state constitution adopted during the 1800s reveals that both explicit and non-explicit limitations on “legislatures” were widespread before, during, and after the Civil War. On the other hand, apart from the House of Representatives contested election case of Baldwin v. Trowbridge (1866), the doctrine was little more than a lawyer argument episodically invoked in House contested election cases or state courts, without prevailing in either forum. Suggestions to the contrary are based on mischaracterizations of the cases.

Finally, this article argues that the episodic invocations of the doctrine that did occur in the nineteenth century are irrelevant under any form of argument from history relevant to constitutional interpretation. In particular, Baldwin v. Trowbridge should not be treated as if it were judicial precedent — and not only because it has been overtaken by subsequent Supreme Court decisions. In deciding contested election cases in the late nineteenth century, and particularly in the 1860s, the House of Representatives was acting in a demonstrably non-judicial manner. Courts should not afford its decisions respect under the doctrine of stare decisis.

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“CNN Poll: Most Americans feel democracy is under attack in the US”


Most Americans feel democracy is under attack in this country (56%), according to a new CNN Poll conducted by SSRS, as 51% say it is likely that elected officials in the US will successfully overturn the results of a future election because their party did not win.

Nearly all Americans feel that democracy in the US is at least being tested: 93% total say that democracy is either under attack (56%) or being tested but not under attack (37%). A scant 6% say that American democracy is in no danger.Republicans are far more likely than Democrats to say that democracy is under attack, and that view is most prevalent among those who support former President Donald Trump. All told, 75% of Republicans say democracy is under attack, compared with 46% of Democrats. Among Republicans and Republican-leaning independents, those who say Trump ought to be the leader of the party are much likelier to see democracy as under threat: 79% in that group vs. 51% among those who say Trump should not be the party’s leader.

And Republicans who support Trump continue to drive belief in the big lie that the 2020 election was stolen from him. Although there is no evidence of widespread voter fraud in the 2020 election, 36% of Americans say that President Joe Biden did not legitimately get enough votes to win the presidency. That 36% includes 23% who falsely say there is solid evidence that Biden did not win, and 13% who say that is their suspicion only.

Among Republicans, 78% say that Biden did not win and 54% believe there is solid evidence of that, despite the fact that no such evidence exists. That view is also deeply connected to support for Trump. Among Republicans who say Trump should be the leader of the party, 88% believe Biden lost — including 64% who say there is solid evidence that he did not win — while among those Republicans who do not want Trump to lead the Party, 57% say Biden won legitimately.

Looking to future elections, 51% of all Americans say it’s at least somewhat likely that an election in the next few years will be overturned by elected officials because their party lost, while 49% say that is unlikely.

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The Rebuttable Presumption of Gerrymandering

The new Freedom to Vote Act has many interesting pieces, but I want to focus here on the rebuttable presumption of gerrymandering that’s at the core of the Act’s redistricting provisions. In a nutshell, this presumption kicks in if a court finds that an enacted plan (1) exceeds a certain quantitative threshold (2) with respect to certain prior elections (3) according to certain measures of partisan fairness. If the presumption is triggered, a plan can’t be used unless a court ultimately concludes that, actually, the plan was not “drawn with the intent” and does not have “the effect of materially favoring or disfavoring any political party.”

Threshold: I’ll now unpack the different parts of the rebuttable presumption, starting with the quantitative threshold. It’s defined as “partisan advantage or disadvantage in excess of 7 percent or one congressional district, whichever is greater.” A bias score can be converted from a percentage to a number of seats simply by multiplying it by the size of a state’s congressional delegation. For example, Washington has 10 congressional seats. So if a Washington congressional plan has a pro-Democratic bias of 7%, that’s equivalent to a pro-Democratic bias of 0.7 seats.

In practice, the one-seat threshold will be the binding constraint for smaller states (those with 14 or fewer congressional seats). That’s because, in those states, a bias of one seat is always larger than a bias of 7%. On the other hand, the 7% threshold will be the binding constraint for larger states (those with 15 or more congressional seats). That’s because, in those states, a bias of 7% is always larger than a bias of one seat. Note also that these thresholds don’t allow for any rounding. A bias of 1.1 seats (in a smaller state) or 7.5% (in a larger state) exceeds the limit.

Prior elections: Of course, partisan bias doesn’t exist in the abstract. It has to be calculated using particular election data. The Act specifies exactly what data should be employed for this purpose: the two most recent presidential elections and the two most recent Senate elections in a state. An enacted plan’s bias has to be computed with respect to each of those four elections. The plan is presumptively unlawful if it exceeds the applicable threshold (7% or one seat) in “2 or more of the 4 elections assessed.”

Consider Washington again. Its recent presidential and Senate elections have been remarkably consistent. In 2016, Hillary Clinton and Patty Murray each won 59% of the two-party vote. In 2018, Maria Cantwell won 58% of the two-party vote. And in 2020, Joe Biden won 60% of the two-party vote. These four elections provide the data to be used to evaluate any new Washington plan. Any new plan can exceed a bias of one seat in at most one of the four elections. Any new plan that exceeds a bias of one seat in two or more of the four elections is presumptively invalid.

Partisan fairness measures: This leaves the question of how to measure partisan bias. The Act states that the only metrics that can be consulted are “standard quantitative measures of partisan fairness that relate a party’s share of the statewide vote to that party’s share of seats.” The term “standard” does the work of excluding newfangled metrics that aren’t accepted in the academic literature and may even have been devised for litigation purposes. More significantly, the other italicized phrase excludes metrics that don’t specify an optimal seat share for a party’s given statewide vote share. Partisan asymmetry is thus excluded as a metric since it permits any vote share to result in any seat share (as long as, if the parties’ positions were flipped, the same seat share would follow from that vote share). The mean-median difference and the declination are also excluded because they’re not calculated using a party’s seat share.

On the other hand, the efficiency gap is plainly included. In its preferred form, it’s calculated using the formula S – (2 * V), where S is the difference between a party’s seat share and 50% and V is the difference between a party’s statewide vote share and 50%. Also included, at least as long as it’s considered a “standard” measure, is a plan’s deviation from proportional representation. That deviation is computed by simply subtracting a party’s seat share from its statewide vote share.

In situations where the efficiency gap and disproportionality both point in the same direction, consulting two metrics instead of one is unproblematic. What about when they disagree—when a plan’s efficiency gap in a given election is above (below) the threshold but a plan’s disproportionality is below (above) that line? This is where the Act, admirably detailed as it is, finally runs out of steam. In my view, the better approach is to count a strike against a plan only when it exceeds the applicable threshold under both the efficiency gap and disproportionality. If a plan is above the threshold using one measure, but below it using another, I wouldn’t call that a strike. In effect, this approach lets states choose whether they prefer to aim for a low efficiency gap or for low disproportionality. States wouldn’t be compelled to achieve a low efficiency gap and low disproportionality simultaneously—an impossible goal in certain circumstances.

Return to Washington one more time. As noted above, Democratic candidates in the four reference elections received about 60% of the two-party vote. Given this statewide Democratic vote share, minimizing the efficiency gap would entail Democrats winning seven of ten seats, while minimizing disproportionality would entail Democrats winning six of ten seats. Under my preferred reading of the Act, Washington could use either of those benchmarks depending on whether the state wanted a modest winner’s bonus for the majority party (provided by the efficiency gap) or no winner’s bonus at all (per disproportionality). Many outcomes—like nine or more, or four or fewer, Democratic seats—would result in both efficiency gaps and disproportionality values above the applicable threshold. But a considerable range of other outcomes would be allowed because they would produce a sufficiently low score on at least one metric.

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“Wisconsin election clerks say GOP investigator’s inquiry landed in junk folders”


Instead, Vos hired Gableman, at a cost to taxpayers of nearly $680,000, to lead another investigation.

But it’s off to a rocky start.

Two retired police detectives Vos initially hired  to assist Gableman quit this summer, saying the job would take more time than they anticipated. Vos then revised the contract with Gableman, giving him authority to hire whoever he wants.

Gableman has already traveled to Arizona and attended a conference in South Dakota led by MyPillow founder Mike Lindell, where election conspiracy theorists made presentations. Gableman is also consulting with Shiva Ayyadurai, a losing U.S. Senate candidate who appeared in a conspiracy theory-fueled film and falsely claimed a million ballots were destroyed in Massachusetts, the Milwaukee Journal Sentinel reported on Tuesday.

The Gableman probe has drawn bipartisan criticism.

On Monday, an email signed by Gableman was sent to at least 25 of the state’s 72 counties, based on the AP tally. The email included an attachment addressed to clerks, asking them to preserve “any and all records and evidence” related to the 2020 presidential election. It also asks the county clerks to share the email with more than 1,800 municipal clerks who run elections.

Even though Gableman’s name was in the body of the email and on the attached letter, the email itself came from someone named “john delta” at a address. The pdf attachment lists “Andrew Kloster” as the author. He is a former Trump administration official and an attorney who describes himself as an “ecumenical rightist” on Twitter. Neither he nor Gableman responded to a request for comment.

Shortly after the AP sent Kloster a message on Twitter asking if he had written the email attachment, his old tweets were deleted.

Gableman has not said who, if anyone, he has hired to assist with the investigation and as of Tuesday morning he had not submitted any invoices for reimbursement.

The format of the email raised concerns in several Wisconsin counties.

“The sender was not the person signing the email and a PDF attachment from an unknown sender is considered suspicious,” said Liz Otto, Green Lake County clerk. “Our IT Department has advised deleting any and all suspicious emails and/or attachments. Since this email falls into that category, I did not open it and will not be forwarding it on to any of our municipal clerks.”

Trump won Green Lake County with 67% of the vote.

Ashley Reichert, the Washington County clerk, said she got the email but won’t open the attachment until her IT department verifies that it is safe to do so. Trump won that county with 68% of the vote.

Clerks in the two largest counties of Milwaukee and Dane said Gableman didn’t understand how elections work because he asked for information retained on voting machines, but all data is kept on memory cards and then loaded onto servers.

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Elder Campaign Wipes Voter Fraud Allegations from the Recall Website, for Now

See here:

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Larry Elder Voter Fraud Website for California Recall Borrowed from Lin Wood’s Claims Bogus Against Georgia


The Elder campaign promoted fraud claims over the weekend, pointing to a website that urges people to sign a petition saying he’s lost an election that isn’t over yet. The language in the initial paragraph and final sentence of the petition is identical to that on petitions circulated online by attorney Lin Wood backing his lawsuit to overturn Biden’s win in Georgia last year.

Wood, who was recently sanctioned by a federal judge for his role in a separate lawsuit challenging Biden’s win in Michigan last year, said those petitions were drafted by staff at his organization and that he had no role in the petition that Elder circulated. “I had no knowing involvement in the California petition,” Wood said.

Wood’s Georgia lawsuit was dismissed, but the conspiracy theories in that complaint and dozens of other unsuccessful pro-Trump litigation helped fuel the Jan. 6 attack on the U.S. Capitol.

Critics argue Elder is continuing to fan distrust of the foundations of democracy.

“They are trying to throw battery acid on our Constitution, on our electoral norms,” Newsom strategist Sean Clegg said.

Not all Republicans are embracing the claims. John Cox, a businessman running to replace Newsom, said voter fraud concerns are “another distraction.”

“Frankly, all this talk about the election not being valid is a cul de sac because it’s going to result in some people deciding not to vote,” Cox said as he campaigned Monday outside the Capitol.

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“Biden Tells Top Democrats He’s Preparing Lobbying Blitz on Filibuster Reform, Voting Rights”

Andy Kroll for Rolling Stone:

With a make-or-break vote looming in the Senate on a sweeping voting-rights and anti-corruption bill, President Joe Biden and his advisers have said in recent weeks that Biden will pressure wavering Democrats to support reforming the filibuster if necessary to pass the voting bill.

According to three people briefed on the White House’s position and its recent communications with outside groups, Biden assured Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi that he was ready to push for filibuster reform. Biden’s pressure would aim to help Schumer convince moderate Democrats to support a carveout to the filibuster, a must for the party if it’s going to pass new voting protections without Republican votes. According to a source briefed on the White House’s position, Biden told Schumer: “Chuck, you tell me when you need me to start making phone calls.”

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“Larry Elder prepares for California recall loss with lawyers, voter fraud website”

Sacramento Bee:

With less than a week to go until the California recall election, some Republicans are falsely claiming that votes are rigged in favor of Democrats and suggesting, without evidence, that Gov. Gavin Newsom can only win with fraudulent votes.

The claims are unsubstantiated, and echo similar false messages promoted by Republicans last year following the election of President Joe Biden.

Elder told reporters in Los Angeles on Wednesday that he believes “there might very well be shenanigans” in the recall election, but that he expects to win anyway because “so many Californians are angry about what’s going on,” according to CNN.

Elder said his campaign nevertheless is ready to file lawsuits and encouraged people to report any issues.

“We have a voter integrity board all set up – most of these are lawyers,” Elder said Wednesday, according to CNN. “So, when people hear things, they contact us. We’re going to file lawsuits in a timely fashion.”

A link on Elder’s campaign website, labeled as “report election incident,” takes users to a form to report incidents of voter fraud and sign a petition to investigate the results of the recall.

Some of the language on the site is written as though Newsom has already won. The page invites them to sign a petition to investigate the “twisted” results of the recall.

“We implore you…to join us in this fight as you are able, primarily by signing our petition demanding a special session of the California legislature to investigate and ameliorate the twisted results of this 2021 Recall Election of Governor Gavin Newsom,” the website says.

The petition states that voters who use “improperly formed ballots” have an advantage over those who vote at the polls and that instances of “undocumented ballots” were discovered prior to Sept. 14. It offers no evidence for either of those claims.

It also states that, if there is an audit of the recall election, county election officials should not be a part of the recount, because doing so would be similar to “allowing an alleged criminal to examine the crime scene,” the petition says.

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“New Texas voting bill deepens growing disparities in how Americans can cast their ballots”


Red and blue states are increasingly moving in opposite directions on how millions of Americans can cast their ballots, exacerbating a growing divide as Republicans in states across the country — most recently Texas — impose new voting restrictions while Democrats in others expand access.

The conflicting trends are widening the disparities in election policy in the wake of the 2020 election — with Republicans heeding former president Donald Trump’s calls to tighten election rules and Democrats moving to make permanent voting policies that helped turnout soar during the pandemic.

At least 18 states enacted 30 laws restricting access to voting this year as of mid-July, according to an analysis by the nonpartisan Brennan Center for Justice.

That includes 11 states — nine of which supported Trump in 2020 — that only imposed restrictions, and seven other states that both restricted and expanded voting access. Separately, an additional 18 states — nearly all of which backed President Biden — enacted laws that solely expanded access, the analysis shows.

Roughly 55 million voters live in states that tightened election rules, while about 70 million live in states that made voting easier, according to a similar analysis last week by the nonpartisan Voting Rights Lab, which tracks developments in state election law. The report assumes that Gov. Greg Abbott (R) will sign Texas’s contentious voting bill into law, which he has vowed to do.

As of Sept. 1, 45 states had passed 221 election bills into law this year, according to data provided by the Voting Rights Lab — a cascade of new policies that is reshaping Americans’ options for casting ballots.

The next fight is brewing in Ohio, where Republican lawmakers have introduced two competing bills to change election practices in the state — which Trump won by eight points amid the record-breaking turnout of 74 percent.

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