The women’s political organization Red Wine and Blue has sued Ohio Secretary of State Frank LaRose over changes to the voter registration process at the Bureau of Motor Vehicles.
Thanks to the federal “motor voter” law, car registration agencies around the U.S. have offered voter registration services to applicants since the early 1990s. New state law in Ohio requires applicants provide proof of citizenship before the bureau registers them or updates their registration.
Red Wine and Blue argued the change, passed as part of Ohio’s two-year transportation budget, “makes it harder for lawful, eligible Ohio citizens to exercise their fundamental right to vote.”
“Frank LaRose and Republicans in the state legislature should not be able to disenfranchise anyone,” she continued. “Especially not the rural Ohioans, elderly voters, students, and women who have changed their legal names through marriage and divorce who are disproportionately affected by this legislation.”
In a press release LaRose dismissed the case as a “baseless” and “activist” lawsuit. He added the state of Wyoming instituted similar changes and courts there have already upheld the policy.
“It’s common sense that only U.S. citizens should be on our voter rolls,” LaRose said. “I won’t apologize for, or back down from the work we do to ensure the integrity of our voter rolls.”
“We will win this case,” he insisted, “just like we’ve fought off the other baseless actions that such groups have brought against us.”
At root, the changes shift the burden from state agencies to individuals.
Under prior law, registrants had to attest under penalty of perjury that they are a citizen. Verification then happened behind the scenes with elections officials at the state and local level.
Brad Smith, former FEC Commissioner and (retired) professor of law at Capital University, has long been one of the major advocates for the view that much of campaign-finance regulation violates the First Amendment. In an amicus brief in the NRSC v. FEC case on party-coordinated expenditures, the Institute for Free Speech, which Brad founded and chairs, along with the Manhattan Institute, now takes the position that the Elections Clause, which is the source of Congress’ power to regulate campaign finance, does not permit Congress to regulate political campaigns at all, as opposed to the voting process itself.
The Elections Clause, located in Article I, Section 4 of the Constitution, states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators”. Brad argues that the “time, place, and manner of holding Elections” does not include the campaign process.
I want to point some of the consequences, were this position to be accepted. Because states only have power to regulate national elections through the Elections Clause, this position would mean no government would be able to regulate the campaign process for federal elections. It would seem to mean that even congressional regulation that requires disclosure of the source of large (or any) campaign contributions would be unconstitutional. Legislatures could not ban or regulate direct contributions of unlimited amounts from the general treasury of corporations or unions (current federal law bans those contributions in federal campaigns).
I don’t think there’s much the chance the Court would endorse this position. But it’s worth considering the consequences were the Court to do so.
President Trump took to Truth Social on Wednesday afternoon to attack a Utah court ruling that ordered new congressional maps pursuant to an anti-gerrymandering lawsuit.
What they’re saying: Trump claimed Monday’s order by state judge Dianna Gibson is “absolutely” unconstitutional.
“How did such a wonderful Republican State like Utah, which I won in every Election, end up with so many Radical Left Judges?” he continued. “All Citizens of Utah should be outraged at their activist Judiciary, which wants to take away our Congressional advantage, and will do everything possible to do so,” Trump added.
“This incredible State sent four great Republicans to Congress, and we want to keep it that way,” Trump concluded. “The Utah GOP has to STAY UNITED, and make sure their four terrific Republican Congressmen stay right where they are!”
Brendan Schneiderman in Slate on the potential of cumulative voting to curb gerrymandering:
It doesn’t have to be like this. There is a way to avoid line drawing altogether, and to do it constitutionally. Yes, the Constitution requires that the number of House seats be apportioned among the states according to their respective populations, but it says nothing of congressional districts—and nothing about line drawing. . . .
Fortunately, there’s a readily available solution to address this: Congress could also enact what’s known as cumulative voting. Under a cumulative voting scheme, rather than having Texans merely fill in ovals next to their 38 favorite candidates (i.e., giving each candidate one vote apiece), voters would have 38 votes to assign however they see fit. If there is only one candidate a voter supports, that voter could give the candidate all 38 votes, improving the odds that they get elected, but leaving the remaining seats up to other voters. Or imagine that a non-major party, like the Libertarian Party, endorsed a slate of 10 candidates; then, pro–Libertarian Party voters could allocate three or four votes apiece across those 10. This reform would protect party minorities, like Democrats in Texas, because it would allow Democratic voters to distribute their votes across a smaller but mightier group of candidates. . . .
And although it may sound grandiose, Congress can enact just such a multimember-district, cumulative voting model: The Constitution grants that the body “may at any time” enact voting regulations, something it has done occasionally, most prominently with the Voting Rights Act of 1965. Indeed, multimember districts have already been introduced in Congress by Virginia Democrat Donald Beyer via a bill that, while not eliminating line drawing altogether, would mitigate its worst effects. And cumulative voting already exists at the county level. Together, they provide a comprehensive, pro-democracy reform for electing members of the House—without drawing a single line.
I was honored to be a Miegunyah Distinguished Visiting Fellow at the University of Melbourne this summer (well, winter in Australia). The fellowship was a wonderful opportunity to get to know members of the university’s superb faculty, especially at its law school, and to discuss with them and their students matters of mutual interest on the nature and sustenance of democracy. The main event associated with the fellowship was delivery of a public lecture. The video of the lecture is now available.
The specific focus of the lecture concerns the work of Edward Nanson, a professor at the University of Melbourne, who was the one to rediscover Condorcet’s analysis of elections, which had been lost to history after Condorcet’s death during the Reign of Terror in the French Revolution. Nanson also significantly improved upon Condorcet’s work, and the main point of the lecture was to explain how America could benefit from Nanson’s ideas. As Australians themselves no longer know of Nanson’s important contributions, the lecture’s audience at the University of Melbourne appreciated learning about one of their own. The rest of us can, and should, appreciate what Nanson did to advance the modern understanding of electoral democracy and majority rule.
In preparing for a class on presidential powers I’ll be teaching this fall with Bob Bauer, I made this chart of the average number of executive orders per year each President has issued over the course of their presidency. The data comes from the American Presidency project. Having made it, I thought it would be interesting to share:
Troubling story out of Hawaii, hat tip to Charles Stewart for flagging this:
The next meeting of the Hawaiʻi Elections Commission on Wednesday is expected to be dominated by recent findings of discrepancies in the number of drop box and mail-in ballots cast on Kauaʻi during the 2024 general election.
That the state’s official count of those ballots exceeded the number that the county said it collected and submitted is not in dispute.
But accounts of just how great that discrepancy was vary — a lot.
The numbers range from 25 according to the state’s chief elections officer to 39 according to the Hawaiʻi Supreme Court to 661 according to an Elections Commission permitted interaction group and up to 3,772 based on the initial Kauaʻi County ballot envelope count.
Civil Beat has reviewed the tranche of public records, correspondence and court submissions and confirmed there were inconsistencies that raise questions about the management of mail-in ballots in Hawaiʻi.
However, gaps in the chain of custody records during the county’s ballot collection all the way through the state’s counting make it impossible to say with certainty who’s right about how big the difference really was.
Hawaii's difficulties reconciling mail ballots in the 2024 election will undermine confidence in mail-balloting nationwide and illustrate the reality that a skeptical world is watching. Jen Morrell has good quotes in this article. I hope this leads to serious reforms.…
To begin with, the surprise announcement and the sudden, if ambiguous, turnabout suggested once again that Mr. Trump is governing in his second term without advisers who can or even try to help him discipline his impulses. The episode exposes, as well, his renewed obsession with exerting control over election machinery. And it offers a vivid glimpse of his inclination to regard his powers as all but limitless.
No competent lawyer could have counseled Mr. Trump in good faith that “the States are merely an ‘agent’ for the Federal Government in counting and tabulating the votes,” as the president asserted in his post. Nor would such a lawyer have dreamed of advising him that state election officials “must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do.”
Who, if anyone, told Mr. Trump that he could take command of state elections this way? Possibly he made up the authority himself. Some former Trump staff members believe he may not engage at all with questions about whether something he wants to do is lawful or something he wants to say is true. Those questions, they tell me, do not even occur to him.
Others who have worked for Mr. Trump say he seems to believe sincerely, if that is the word for it, that anything is permitted to him. Still others insist that he knows very well when he is crossing a line but presses on until obliged by an opposing force to stop.
Whatever the origins, Mr. Trump has now staked out a fundamentally illegitimate claim to authority over the conduct of American elections. He has yet to repudiate it. If he continues to press the claim, then the foundational mechanisms of our democracy may be in genuine danger. It is more than hypothetically possible that Mr. Trump, when frustrated, will try to compel the obedience of state election officials by throwing the weight of the executive branch against them.
Mr. Trump’s deployment of the National Guard in Washington and active duty Marines in Los Angeles, accompanied by threats that he might do the same in other Democratic urban strongholds, suggests another risk. Could he use some pretext to take control of voting machinery? If he dispatches troops or federal law enforcement agents to disrupt blue-city voting or ballot counting in swing states — Atlanta, say, or Milwaukee or Philadelphia — the midterm elections could be in real peril.
With or without the deployment of force, Mr. Trump’s fusillade of baseless claims about election fraud shakes public confidence in the integrity of the vote — and provides excuses for his dishonest efforts to delegitimize the outcomes. For all his political life, he has waged war against the proposition that he or his party could ever lose a legitimate election. He and his allies are preparing the ground for their next battle, in 2026….
Bart concludes with a note very consistent with my NYT oped on this topic earlier this week:
The ultimate safeguard of constitutional government is the great mass of citizen voters who decide by the tens of millions what kind of government they want. We hold the power, whatever our partisan preferences, to defend checks and balances and the rule of law. We cannot lose that power unless we surrender it.
A judge in Texas denied, on Wednesday, Elon Musk’s request to dismiss a class action lawsuit against him and his political action committee brought by a group of voters who participated in his $1-million-a-day “giveaway” leading up to the 2024 election.
Over the last few months, lawyers for Musk and America PAC have sought to get rid of the lawsuit brought by voters in battleground states who claim they were defrauded when the tech mogul and his PAC misled them to believe that if they signed a petition and gave away personal information, they could “randomly” win $1 million.
In reality, Musk and his PAC had pre-selected people to win the $1 million in exchange for a spokesperson contract – meaning those who signed the petition had no chance of winning.While lawyers for Musk and the PAC argued that there were “red flags” in their petition announcement that should have tipped people off that they were unlikely to win $1 million, the Texas judge disagreed.
“The Court finds it is plausible that [the plaintiff] would rely on Musk’s assertion that $1 million would be given out randomly notwithstanding his or America PAC’s later statements,” Judge Robert Pitman, appointed by former president Barack Obama, said in his order.
