Republicans have made suburban areas a recruiting ground for their army of Election Day poll monitors, with plans to deploy some into urban, Democratic epicenters that have remained the focus of conservatives’ erroneous claims of voter fraud.
The strategy has the potential to be uniquely disruptive to voters and election staff this fall, nonpartisan elections experts say, given that the volunteers would be dispatched to monitor areas with different political and demographic makeups than their own — and potentially different protocols for casting and counting ballots.
“In addition to voter intimidation risks, I think that the strategy also poses the potential to be just disruptive to the election process in general,” said Jonathan Diaz, the director of voting advocacy at the nonpartisan Campaign Legal Center.
Category Archives: election administration
I Spoke with CNN’s Abby Phillip About Election Law Issues Related to a Possible Joe Biden Withdrawal from Presidential Race (link to video)
Bottini: “Is there still a judge in Paris? French legislative elections proceed with minimal constitutional check”
The following is a guest post from Eleonora Bottini, Professor of Public Law, University of Caen Normandy:
On June 20th and 26th, 2024, the French Constitutional Council, unsurprisingly, authorized the legislative snap elections in France to proceed as planned. Following the unexpected dissolution of the National Assembly on June 9th after the polarized results of European elections, President Emmanuel Macron’s decisions faced a significant number of constitutional complaints – a total of 25 to date. Complaints challenged the two presidential decrees—one for the dissolution and one for organizing the election—based on Article 12 of the Constitution, which grants the President the authority to dissolve the National Assembly under certain conditions and mandates that elections be held within 20 to 40 days following dissolution.
Regarding the former, the Constitution requires the President to “consult” the Prime Minister and the Presidents of the two chambers before dissolving the lower chamber. According to various press articles, President Macron merely informed the President of the Senate and the National Assembly, and the Prime Minister discovered the dissolution only a few moments before it was announced. Without addressing the merits of the significance of the required consultation, the Constitutional Council reaffirmed a well-established precedent: no constitutional review can be performed due to lack of jurisdiction over the presidential power of dissolution. Similarly, the supreme administrative court, the Council of State, concluded that the dissolution decree is “an act related to the relationship between the President and the National Assembly,” and thus outside the court’s jurisdiction, following a doctrine similar to the political question doctrine known as the “government’s acts theory.” While the actual decisions are in line with past precedents, they provoked a somewhat astonishing thought for constitutional lawyers: if any of the other rules about the powers of the President in case of political crisis, such as the prohibition to dissolve the Assembly twice in one year, are broken, no judge would be able to control and sanction such a violation.
On the other hand, the Constitutional Council has jurisdiction over the elections decree, as it is considered a preliminary act to a national election. Under Article 59 of the Constitution, the Council serves as the election judge, a role that is parallel to but distinct from its function as a constitutional review body. Complaints argued that the minimum delay of 20 days between the dissolution and the first round of elections was not respected since the dissolution would only enter into force the day after its pronunciation (therefore on June 10th) and since some overseas territories would start voting earlier than mainland France, on June 29th. In its decision, the Council concluded for an opposite interpretation: the specific timing of snap elections should be interpreted not as 20 full days but as the possibility for elections to be organized on the 20th day, which applies to the early elections in overseas territories, since the dissolution entered into force on the same day as the presidential decision was announced (at 9pm on a Sunday night).
Beyond the technical aspects of the Council’s decision, one must consider what else this body, which is neither an actual constitutional court nor a fourth branch institution, could have done given the advanced state of the political campaign and the time constraints on the President. The dates of the vote were influenced by French national holiday weekend (July 14th) which risked increasing voter abstention, and the upcoming Olympic Games in Paris (starting July 26th). Critics tried to argue that such a hasty election process violates the broader principle of voting sincerity and fairness, guaranteed by both the French Constitution (Article 3) and the European Convention on Human Rights (Article 3 of addition Protocol 1). However, once the Constitutional Council had interpreted the constitutional time-frame in the way it did, there was no chance that such timing could be considered anything but respectful of voting rights. Still, by rejecting these arguments with minimal explanation, stating only that “since the sole purpose of Article 1 of this decree is to set the date for convening the electorate within the framework provided by Article 12 of the Constitution, the complaint alleging disregard for the freedom and sincerity of the vote must be dismissed,” the Council left unclear why a decree setting the election date could not by itself impact the fairness of the vote. This is especially pertinent when the short preparation time for national legislative elections was the core of the complaints. But it was also an important part of the President’s political strategy to provoke the consolidation of an anti-extremes vote, one that no judge felt legitimate enough to discuss.
“Fixing Texas’ ballot secrecy problems won’t be easy, experts say”
On the Fulton County certification lawsuit
Rick H. posts the Washington Post story about the lawsuit from an official trying to guarantee the right to refuse to certify election results in Fulton County, Georgia. I confess, I have a somewhat different reaction to the litigation, a little different from the concerns about what the litigation might yield.
When I spoke to Rolling Stone about this litigation earlier this month, here was my take:
Adams’ lawsuit could also backfire and prove that the certification process — a previously mundane and “ministerial” task that election deniers have hijacked in recent years — is not up to the discretion of officials like Adams, says Derek Muller, a professor at Notre Dame Law School who has written about the issue of local certification of elections.
“[Adams] had no basis in law to refuse to certify the results,” Muller tells Rolling Stone and American Doom. “If anything, this lawsuit is likely to result in a legal decision that shuts down claims like hers well before the election in Georgia.”
You can see the complaint here. The complaint rightly notes that one portion of the Election Code empowers the Board to “inspect systematically and thoroughly the conduct of primaries and elections . . . to the end that primaries and elections may be honestly, efficiently, and uniformly conducted.” The complaint also rightly notes elsewhere that the Code allows refusal to certify in some circumstances: “If, upon consideration by the superintendent of the returns and certificates before him or her from any precinct, it shall appear that the total vote returned for any candidate or candidates for the same office or nomination or on any question exceeds the number of electors in such precinct or exceeds the total number of persons who voted in such precinct or the total number of ballots cast therein, such excess shall be deemed a discrepancy and palpable error and shall be investigated by the superintendent.”
But the complaint tries to conflate the two things. It asserts that if there is some dispute about the ability to “inspect” the election, then the board is empowered to refuse to certify and investigate. That’s not what the Code allows. The board might have power in other circumstances (e.g., in the months and years ahead of an election) to develop procedures about how to inspect conduct. But when it comes to certification, the scope of discretion is quite limited. To borrow an analogy I used in Election Subversion and the Writ of Mandamus:
Certifying an election is something like an automotive worker at the end of an assembly line, affixing windshield wiper blades to a vehicle. That worker might be able to stop the assembly line if the car has only three tires or if the doors are missing. But the worker is not permitted to stop the assembly line to investigate whether the inmost parts of the engine were fitted together to that worker’s satisfaction. Other workers are responsible for other stages in the process. There are other checks in the process—other managers and other supervisors tasked with those responsibilities; workers must know their roles and what responsibilities reside with someone else.
This complaint, filed well before Election Day, may actually serve to establish the kind of precedent that would help expedite certification in the event that disputes later arose, because I view it as exceedingly unlikely that a court grants the relief the plaintiff here seeks. And if there’s an affirmative order from Georgia courts well before Election Day that certification is a largely ministerial task and that refusal to certify can only occur under limited, enumerated terms, it would make any disputes this fall less likely and any resolution much faster. Perhaps I’m wrong, of course, and a court issues relief for the plaintiff or an adverse judgment doesn’t deter later actors. But I wanted to suggest it as a possible alternative way forward.
“Racist slurs and death threats: The dangerous life of a Georgia elections official
When Milton Kidd leaves work at the end of the day, he slips out the back door of the domed Douglas County Courthouse, avoiding the public entrance where people might berate him or demand his home address.
He never takes the same route home two days in a row, and he makes random turns to avoid being followed.
Kidd, a Black man, has a very dangerous job: He is the elections and voter registration director for Douglas County.
“Milton Kidd is a nasty n***** living on tax money like the scum he is,” one voter wrote in an email Kidd shared with Stateline. “Living on tax money, like a piece of low IQ n***** shit.”
Another resident from Kidd’s county of 149,000 west of Atlanta left him a voicemail.
“I don’t know if you’re aware, Milton, but the American people have set a precedent for what they do to f***ing tyrants and oppressors who occupy government office,” the caller said. “Yep, back in the 1700s, they were called the British and the f***ing American people got so fed up with the f***ing British being dicks, kind of like you, and then they just f***ing killed all the f***ing British.”
Kidd smiled incredulously as he shared his security routine and the hate-filled messages that inspired it. He is dumbfounded that he’s the target of such vitriol for administering elections in 2024 — but he knows where it originated.
The lies told by former President Donald Trump, who faces state felony charges for trying to pressure Georgia officials to change the 2020 results, have resonated with many Douglas County voters, Kidd said. Now this nonpartisan official, like many others across the country, is forced to face their ire.
“Wisconsin judge to weigh letting people with disabilities vote electronically from home in November”
A Wisconsin judge on Monday is expected to consider whether to allow people with disabilities to vote electronically from home in the swing state this fall.
Disability Rights Wisconsin, the League of Women Voters and four disabled people filed a lawsuit in April demanding disabled people be allowed to cast absentee ballots electronically from home.
They asked Dane County Circuit Judge Everett Mitchell to issue a temporary injunction before the lawsuit is resolved granting the accommodation in the state’s Aug. 13 primary and November presidential election. Mitchell scheduled a Monday hearing on the injunction.
Questions over who can cast absentee ballots and where they can do it have become a political flashpoint in Wisconsin, where four of the past six presidential elections have been decided by less than a percentage point….
They also point out that military and overseas voters are permitted to cast absentee ballots electronically in Wisconsin elections. People with disabilities must be afforded the same opportunity under the Americans with Disabilities Act and the federal Rehabilitation Act, which prohibits all organizations that receive financial assistance from discriminating on the basis of disability, they argue.
“Georgia becomes first state to require election law training for police”
Georgia is the first state to mandate training in election law in order for police to become state certified, a reflection of lessons learned in the aftermath of the state’s 2020 race.
The new requirement for police trainees to take a one-hour course on election laws is meant to keep officers from trying to guess at how to enforce the law on election day, said Chris Harvey, deputy executive director for the Georgia peace officer standards and training council.
“Cops just really need to know what are some of the basic ground rules around elections and voting, because they’re very specific,” he said. “In my opinion, the worst thing that can happen is if you have a partisan person or partisan force trying to manipulate the police, and have the police not have any idea what they’re supposed to be doing.”
Harvey’s long career as a police officer took a side road in 2015 when then-secretary of state, Brian Kemp, named him Georgia’s director of elections. He carried the experience from 2020 into his recent appointment to the state body certifying police officers.
“Having seen the threats to election officials, having seen things happen to polling places, having myself been threatened during the 2020 election, I know that … it was likely that election officials were going to be calling the police,” Harvey said.
In the worst case, police may have to respond to threats of violence or actual violence at a polling place. More likely, they will be responding to a cranky individual who refuses to take direction from a poll officer who has asked someone to turn a campaign shirt inside out or refuses to get off their phone in the polling place.
“Recommendations for Improving Election Data Transparency”
Gordon-Rogers, Liza, Michael Latner, and Christopher Williams. 2024. Recommendations for Improving Election Data Transparency. Cambridge, MA: Union of Concerned Scientists:
Many in the United States currently lack access to electoral information that could improve our ability to vote, increase trust in elections, and help communities better organize under-represented groups.
The report reviews current policies across multiple states, including Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin, and offers recommendations for best practices in maintaining voter lists and files, processing ballots, “curing” and certifying ballots, and increasing access to election information in order to spot potential problems and boost public trust in election results.
“Guide to Laws Against Intimidation of Voters and Election Workers”
New from the Brennan Center.
“If Everyone Voted, Would Biden Benefit? Not Anymore.”
Nate Cohn at The Upshot with evidence supporting the dynamic I’d mentioned a few days ago: incremental restrictions on voting may be disproportionately impacting Trump supporters.
“Documents detail Republican push to force hand counts in Arizona election”
A Guardian report about the press for hand counts, the product of election denialism that led to criminal charges when supervisors refused to certify results.
I’m old enough to remember when it was the hand counting that was causing the dispute.
“Despite gains, Native Americans still face voting barriers”
An update from Voice of America that still points to an awfully long way to go.
“Fulton election board puts limits on voter eligibility challenges”
Specifically, requiring substantial evidence of the basis for the challenge before effectuating the challenge, which strikes me as a very good thing.
Here’s the current Fulton County page on voter challenges, and the video of the board meeting (conversation starts at 1:11:32).