Sharing a chapter I have written for The Oxford Handbook of American Election Law (Eugene Mazo, ed.) (2023, forthcoming). The chapter, among other things, stresses the ways that the U.S. Supreme Court’s current approach to the associational freedom of political parties significantly constrains party reform strategies. Given the manifest need for party regulation in the interest of a healthy democracy and the recent buzz around Lee Drutman’s report and op ed arguing for more and better parties, this seems a good time to share.
Like me, some of you may only recently have gotten interested in rank-choice voting. One-week out, I found myself curious: How is RCV playing out in Alaska? First, and foremost, the process seems to be working smoothly and the vast majority of voters are reporting the method is straightforward. With the caveat that final results will not be known until November 23, it also appears that the process this round, at least, is favoring incumbents for state-wide office. It should also be said that the incumbents appear significantly more moderate than the outside-challengers–so maybe RCV is doing what it is meant to do. Meanwhile, the Alaska statehouse appears likely to reconvene with a bipartisan majority coalition, as Alaska Democrats make gains.
Interestingly, voter turnout in Alaska this cycle appears to be “far below the high water mark set in the 2014 and 2018 midterm elections, when around 285,000 Alaskans cast their ballots.” Some are predicting that the number of Alaskans participating in this election may be the lowest since 2010. This could be a product of RCV. It could be election fatigue from the August special election. But is also could be an artifact of numbers. In 2016, Alaska adopted automatic voter registration, increasing the number of registered voters by more than 70,000. At the same time, the state has lost thousands of residents. That probably still leaves 2018 as a genuine high-water mark for midterm turnout, but it might problematize some of the other comparison points.
Steven Mulroy has posted this draft on SSRN (National Civic Review). Here is the abstract:
The Department of Justice has never explicitly stated a policy regarding the appropriateness of alternative, non-district electoral systems, such as limited voting, cumulative voting, or preference voting, to remedy minority vote dilution under the Voting Rights Act, except to say that they may be appropriate in certain circumstances to correct the problem of under-representation of minorities. However, an examination of the Department’s administrative preclearance determinations, and the position taken during litigation, reveals certain patterns in Department treatment of these issues. Specifically, the Department supports the use of such systems, provided that the minority group is sufficiently numerous to make use of them, and provided that a sufficiently ambitious voter education program is used to ensure that voters understand them.
The Second Circuit has held that Port Chester waived its appeal. Via email I received this statement from Mike Carvin, an attorney for the village:
Statement from Michael A. Carvin, Jones Day
Counsel for Village of Port Chester
Today, the U.S. Court of Appeals for the Second Circuit issued an order granting the Department of Justice’s motion to dismiss the Village of Port Chester’s appeal. Port Chester sought to appeal the District Court’s finding that Port Chester’s at-large voting system for electing its Board of Trustees violated Section 2 of the Voting Rights Act. In a two-sentence decision, the Second Circuit held that Port Chester had waived its right to appeal.
We obviously disagree with this ruling and are disappointed with this result. We will be consulting with the Board of Trustees concerning this decision.
Cindi Ross Scope has written this column for The State.