Category Archives: political parties

The Election Law Issues Surrounding a Potential Biden Withdrawal from the Presidential Race

Candidate replacement, political parties

I think after last night’s dismal debate performance, the odds that Joe Biden will drop out of the presidential race are now greater than 50 percent. Just look at where the columnists in the New York Times are.

How would this happen and what are the election law implications?

First, how would this happen? The most likely scenario is that the people around Biden whom he trusts would have to convince him to drop out. It’s going to be his choice. The alternative is a fight at the convention over delegates, which would be very ugly. I think that’s really an unlikely scenario given the leadership of the Democratic Party. But people who saw that performance last night in Democratic leadership appear united in thinking it was not the performance of someone who could go on for four more years, so the pressure on Biden’s inner circle would be intense.

Assuming Biden voluntarily withdraws, there are two main election law questions: the rules of the convention, and the rules of ballot access. The rules of the convention are pretty simple in that delegates would be free to vote their consciences. See Rule C7e on page 19. (That would be true even if Biden stayed in the race.) Presumably, if Biden announced a withdrawal soon, a number of candidates would put their names in the ring. There might even be debates before the convention so that each of these people could be seen in prime time.

We are also early in terms of ballot access. Most state rules for major party candidates point to the convention winner as the presidential candidate. There could be some timing glitches in some places which could lead to litigation. There could be questions if Biden is on the ticket about presidential electors who under state law would have to vote for the candidate they were listed for. But I think we are early enough that most of the kinks would be worked out early.

So the bottom line is that there is unlikely to be an election law impediment to replacing Biden, should Biden choose to withdraw.

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“The Ground Is Shifting Under Biden and Trump”

political parties, political polarization

Tom Edsall NYT column:

How has the ascendance of well-educated, relatively affluent liberals among Democrats, alongside the dominance of non-college voters in the Republican coalition, altered the agendas of the two parties?

Are low-turnout elections and laws designed to suppress voting now beneficial to Democrats and detrimental to Republicans? Would the Democratic Party be better off if limits on campaign contributions were scrapped?

Nicholas Stephanopoulos, a law professor at Harvard, contends that the answer to these last three questions is changing from no to yes.

In a paper posted last week, “Election Law for the New Electorate,” Stephanopoulos argues that “the parties’ longstanding positions on numerous electoral issues have become obsolete. These stances reflect how voters used to — not how they now — act and thus no longer serve the parties’ interests.”…

The column adds a number of reactions from election law scholars, including me, to Nick’s provocative paper. I’ll have more to say on this broader topic in a big piece posting soon.

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“The Ballot Measures Aim to Reduce Partisanship. Can They Fix American Politics?”

alternative voting systems, political parties, primaries

Michael Wines for the NYT:

Americans of both parties routinely express deep concern about the state of the country’s democracy. This fall, many voters may have a chance to do something about it, by voting on state ballot measures related to the nuts and bolts of elections and governance.

Eight states, including Ohio and seven others largely in the West, appear all but certain to field ballot measures that would either overhaul redistricting or rewrite election rules to discourage hyper-partisanship and give voters a greater voice in choosing candidates.

Redistricting ballot measures are not uncommon, but since the advent of citizen-backed ballot initiatives in the early 1900s no other year has had more than three election-system initiatives, according to the online elections database Ballotpedia….

Closed primaries, the argument goes, rob independent voters — a growing segment of the electorate, and in some states now the largest one — of a voice in choosing general election candidates. Candidates in open primaries have an incentive to court not only independents but also voters of the opposing party, which, in theory at least, should steer them closer to the political center.

And gerrymandered maps make elections so lopsided that parties with little chance of winning often don’t bother to field general-election candidates. (Nationally, about four in 10 state legislative races have only one candidate.) In those cases, the general election winner only has to win over primary voters, not the broader electorate that turns out in November.

Advocates of ranked-choice elections say they not only give voters a greater say in choosing the ultimate winner of a political contest, but also reward candidates who try to win over a broad swath of the electorate.

It is no accident that electing more moderates would change the conditions that have made the G.O.P. a hothouse for far-right extremists, said Richard L. Hasen, an election-law expert and director of the Safeguarding Democracy Project at the University of California, Los Angeles, School of Law.

“So much of this has to do with the battle for the soul of the Republican Party,” he said.

Not everyone buys the logic. Academic research suggests that ending gerrymandering and adopting certain versions of ranked-choice voting can indeed dampen hyper-partisanship and promote cooperation. But the evidence favoring open primaries is more mixed….

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.”…

Ned Foley responds to Nate’s comments here.

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“Far-right gains in EU election deal stunning defeats to France’s Macron and Germany’s Scholz”

political parties, political polarization

EU parliamentary elections took place yesterday, with some significant wins by “far-right” parties — sufficiently significant in France to drive President Macron to dissolve the parliament and call a snap national election.  (Counterpart: in Hungary, Prime Minister Orbán’s party earned a plurality of EU parliament seats, but actually slipped from its prior level of support.)

Meanwhile, Mexican elections show the country heading in the opposite direction.

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Republican Party of Nebraska Fails to Oust Incumbents

political parties, political polarization, primaries

AP News reported recently that after being taken over by loyalists to Trump, “[t]he Nebraska GOP . . . refused to endorse any of the Republican incumbents who hold all five of the state’s congressional seats.” In three instances, it endorsed challengers. In two, it simply declared it would not be endorsing the incumbents. Its efforts, however, have failed: All the incumbents won their seats, including Don Bacon, whose congressional district is “purple-ish” having gone for Obama in 2008 and Biden in 2020.

“It’s not a good look,” [Political Science Professor] Hibbing said. “You’d like the faces of your party, who would be your elected representatives, and the state party leaders to be on the same page.”

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Candidate-Centered Top-Two Non-Partisan Primary Vulnerable to Manipulation

political parties, primaries

UPDATE: Two of the three Bob Fergusons have since withdrawn their papers.

This obscure but fascinating story from the Seattle Times reveals the vulnerability of top-two non-partisan primaries to partisan manipulation. Democratic Governor Jay Inslee is stepping down, leaving Washington’s governorship an open race for the first time since 2012. A leading contender for the seat is Bob Ferguson, the state attorney general. Presumably concerned about his prospects, “conservative activist Glen Morgan recruited two people who share a name with the Democratic front-runner for governor to also seek the state’s highest office. ” These two Bob Fergusons officially filed to run last Friday, leaving Washington’s election officials scrambling about how to address the potential voter confusion. Obviously, in a party-centered primary, the party label would be the solution. The law leaves the Secretary of State the option of otherwise differentiating between candidates, such as by occupation or incumbency status. Apart from the question of how effective that will be, I wonder if that would raise bases for challenging the primary election results.

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“Judge kills NJ’s controversial ballot design for Senate primary”

ballot access, political parties

Politico:

New Jersey’s controversial ballot design that gives party-backed candidates an advantage will be scrapped in the June primary, a federal judge ruled on Friday.

U.S. District Judge Zahid Quraishi granted the preliminary injunction sought by Rep. Andy Kim and two Congressional candidates to eliminate the so-called county line, a feature unique to New Jersey elections that’s given local party bosses inordinate influence over elections. In 19 of 21 counties in the state, candidates backed by county political parties appear in a single column or row, placing them more prominently on the ballot and giving them a nearly insurmountable edge.

The judge ordered the use of office block ballots for the June primary, where candidates are placed together by the office they are seeking. His ruling applies to all offices on the ballot.

The decision is likely to be appealed, but until then it takes away a key tool wielded by political bosses in the state. …

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“Murkowski Won’t Vote for Trump and Declines Ruling Out Leaving the G.O.P.”

political parties, political polarization

NYT:

Senator Lisa Murkowski, Republican of Alaska, said in an interview released on Sunday that she would not vote for former President Donald J. Trump. She also did not rule out the possibility of leaving the Republican Party.

In the interview, which Ms. Murkowski gave to CNN, she said that she would “absolutely” not support Mr. Trump in the general election in November. She said that she wished Republicans had nominated someone whom she could vote for, but that she “certainly can’t get behind Donald Trump.”

Asked whether she might leave the party and become an independent, she said that she considered herself “very independent-minded” and added, “I just regret that our party is seemingly becoming a party of Donald Trump.” But she did not give a yes-or-no answer, saying: “I am navigating my way through some very interesting political times. Let’s just leave it at that.”

If Ms. Murkowski left the Republican Party, it would be welcome news for Democrats facing a brutally difficult map in the Senate elections in November. Three of their current seats are up for election in red states, and several more are up for election in swing states. There are almost no opportunities to pick up seats currently held by Republicans, and there’s no room for error, given their very narrow majority.

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“Share of Democratic Registrations Is Declining, but What Does It Mean?”

political parties

Nate Cohn for NYT’s “The Tilt:”

Newly registered voters, who are disproportionately young and nonwhite, have tended to lean Democratic.

That’s been less and less true during the Biden era.

A majority of states ask people to select a party affiliation when they register, and last year newly registered Democrats made up only about 53 percent of those who chose a major party — beating Republican sign-ups by a narrow margin of 26 percent to 23 percent of total registrations — according to data from L2, a nonpartisan voter data vendor.

The tepid Democratic numbers among new registrants are a small but surprising part of Donald J. Trump’s narrow early lead in the polls. Taking the last two national New York Times/Siena College polls together, President Biden leads by less than a percentage point among voters who say they voted in 2020, but he trails by 23 points among those who say they didn’t vote in 2020 — and about one third of those nonvoters are new registrants, who aren’t offering Democrats their usual support.

The party’s underperformance among newly registered voters is all the more striking given the demographic makeup of the new registrants. Half are younger than 30, and half are nonwhite. Yet they’re less Democratic than the older and whiter voters already registered in these same states with party registration.

And those states with party registration are more Democratic than the nation as a whole — they voted for President Biden by nine percentage points on average in 2020. So if Democratic registrations have only a three-point edge in those states, that might not bode well for the party nationwide.

Why are Democrats doing so poorly among newly registered voters? Unfortunately, it’s hard to say. Voter registration data can be weird. It can be influenced by events that spur new registrations, like the run-up to a presidential primary or a Supreme Court decision like the overturning of Roe v. Wade. In those cases, shifts in voter registration might not have any longer-term meaning….

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“Bloodbath at RNC: Trump team slashes staff at committee”

political parties

Politico:

Donald Trump’s newly installed leadership team at the Republican National Committee on Monday began the process of pushing out dozens of officials, according to two people close to the Trump campaign and the RNC.

All told, the expectation is that more than 60 RNC staffers who work across the political, communications and data departments will be let go. Those being asked to resign include five members of the senior staff, though the names were not made public. Additionally, some vendor contracts are expected to be cut….

The overhaul is aimed at cutting, what one of the people described as, “bureaucracy” at the RNC. But the move also underscores the swiftness with which Trump’s operation is moving to take over the Republican Party’s operations after the former president all but clinched the party’s presidential nomination last week.

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“Michigan Republicans vote to remove chair Kristina Karamo as she promises not to accept result”

chicanery, political parties

Politico:

Michigan Republicans have voted to remove state GOP Chair Kristina Karamo during a meeting Saturday after many of the party’s leaders called for her resignation following a year of leadership plagued by debt and infighting.

A large majority of those present voted to oust Karamo, said Bree Moeggenberg, District 2 state committee member.

Karamo did not attend the meeting and has made it clear she will not recognize the vote if removed, claiming the meeting was not official and had been illegally organized. The unfolding situation could set the stage for a court fight to determine control of the highest position within the Michigan GOP.

The internal dispute takes place as Michigan Republicans look to rebound from 2022 midterms in which they suffered historic losses. The party is aiming this year to flip an open U.S. Senate seat while also helping the Republican presidential nominee win the battleground state.

Michigan is among several swing states where parties overtaken by far-right leadership have struggled to overcome infighting and money issues. Similar situations have unfolded in Georgia and Arizona, which pose a significant issue in the 2024 presidential election where those states are poised to play pivotal roles.

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German Constitutional Court decision on state subsidies to political parties

campaign finance, comparative election law, political parties

Sam Issacharoff passes along this interesting January ruling from the German Constitutional Court. It found unconstitutional an increase in state subsidies to political parties on the grounds that the parties had an obligation to prove commitment from their constituents.  The hear of the holding:

The challenged provision does not satisfy the constitutional requirements for state financing of political parties. It violates the principle that political parties be sufficiently free from state interference because the legislator did not sufficiently substantiate during the legislative process that the parties’ need for additional funding that could not be met by their own funds necessitated an almost EUR 25 million increase in the absolute limit.

The case addresses a growing European concern that political parties living off of state funding become a bureaucratic extension of the state, rather than independent political organizations. The opinion is Parteienfinanzierung – Absolute Obergrenze 2 BvF 2/18 (24 January 2023).  The English summary and translation is available here.

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