Politico has a fascinating read on the infighting among Michigan Republicans between Trump supporters, for whom belief that 2020 election was stolen from Trump remains the focus of attention, and traditional Republicans who (like Bill Barr) recognize that this stolen election claim is nonsense. For Michigan, the question is whether this GOP infighting will prevent them from being successful in 2022, especially in the key gubernatorial election.
For those who remember the Tea Party movement of 2010 and 2012, if the GOP veers too far right, Democrats can win November elections that they otherwise would lose in battleground states. Michigan right now would seem an example of this. In their competition with Democrats, it matters what kind of profile the GOP presents to voters. Presumably, the same is true in a state like Pennsylvania.
Conversely, in states that are more right-of-center (like Ohio has become), the dynamic is different. If the GOP there becomes overtaken by obsession over the stolen election claim, there is less likelihood that the GOP will suffer consequences in the November elections. Thus, the consequence of Trump’s takeover of the GOP may differ state to state. One obvious state to watch, given its potential implications for 2024, is Wisconsin.
“This is the first time the two parties haven’t agreed on a 13th member for congressional redistricting.” That, for me, is the key quote from this report on the need for the state’s Supreme Court to pick the thirteenth member of the state’s redistricting committee. It’s one more data point on just how polarized the nation’s politics have become, and thus how difficult it is for the two parties to work together on anything relating to the basic structure of the electoral process.
I have written this analysis for SCOTUSBlog. It begins:
Brnovich v. Democratic National Committee is a strange voting rights case. Rather than the typical case, in which a voting rights group representing minority voters sues a state or locality for engaging in electoral discrimination, this case pits the two major political parties against each other, and Republican officials in Arizona against Democratic officials. Amicus briefs from voting rights groups filed in Brnovich exhibit strong concern about preserving Section 2 of the Voting Rights Act as a tool to tackle discriminatory voting laws. Doing so will be tough before a new conservative supermajority on the Supreme Court….
Generally speaking, voting rights lawyers have been reluctant to push the use of Section 2 too aggressively, likely worried that if a case got to the Supreme Court, the increasingly conservative body would weaken Section 2 protections or even find aspects of it unconstitutional. The Democratic Party seemed to have no such worry, and in Brnovich, the party challenges two Arizona policies that are far from the most egregious voting rights violations. One policy prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting”).
The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways. From an enhanced “proximate causation” requirement suggested by the United States, to a carve-out from Section 2 for laws that affect voter “qualifications” or “time, place, and manner” restrictions for voting, the briefs filed by Republicans look for ways to drain Section 2 of all of its powers to be used in the vote denial context.
It is no wonder then that the brief filed by Arizona’s Democratic secretary of state makes arguments for part of the case to be dismissed on standing grounds and to reject the stingy Section 2 tests proposed by Republicans. A group of prominent election scholars filed a brief asking for the petition to be dismissed as improvidently granted, leaving the lower court opinion in place without making new law. Voting rights amicus briefs argue for preservation of a meaningful Section 2 test for vote denial, and spend little time defending the 9th Circuit’s decision that these particular Arizona laws violate Section 2. Even the Biden administration, in a new letter to the court, does not defend the 9th Circuit’s result; it only seeks to distance itself from the Trump administration’s stingy test for vote denial under the Voting Rights Act.
New white paper from SSN working group:
The 2020 election season offers extraordinary opportunities for local parties to welcome new members, grow their ranks, and serve as networks of civic connection. This self-assessment document provides a set of diagnostic questions to help parties to play those important roles. COVID-19 presents unprecedented challenges: contagious disease, economic crisis, and restrictions on face-to-face contact. With these realities in mind, the final section specifically addresses party-building during a time of pandemic crisis and social distancing, presenting strategies that local groups have innovated to carry forward the community-based work that is more urgent now than ever. . . .
The order is here. An opinion to follow is promised. “After reviewing the record, we affirm the order granting the application for preliminary injunction for substantially the reasons given by the District Court in its thorough May 5, 2020 Opinion and Order. See Yang v. Kellner, No. 20-cv-3325 (AT), —F. Supp. 3d—, 2020 WL 2129597, at *1–14 (S.D.N.Y. May 5, 2020).”
Update: New York is not appealing the ruling.
Quite a story in the Denver Post.
Eugene Mazo has posted this draft on SSRN. Here is the abstract:
Why do we have an Election Day but not a Primary Day? No aspect of the presidential nomination process causes as much controversy as the primary calendar. The calendar starts off in January or February and ends in June of each election year. A total of 57 jurisdictions hold their primaries and caucuses over the course of these months. The Iowa caucuses always start off the calendar, followed by the New Hampshire primaries. The results of these contests invariably eliminate some candidates while they bestow momentum on others. More candidates participate in the first few nomination contests than in the last ones. Disproportionate power is thus given to voters whose states hold early nomination contests, while the citizens of states with later primaries are provided with less or sometimes no voice in choosing their party’s presidential nominee. In some years, a party’s presidential nomination contest has ended before citizens in late-voting states have even had a chance to cast their ballots. To gain more influence and a greater voice, states have consistently attempted to move their primaries forward in a process that has come to be known as “front-loading.” The dynamic repeatedly leads to calls for reform, as politicians, journalists, scholars, and citizens all try to rethink the primary calendar.
This chapter examines the primary calendar and what can be done to change it. It begins by explaining why Iowa and New Hampshire always hold their nomination contests first, as well as how other states have tried to match their power through front-loading. The chapter then briefly looks at the 2020 primary calendar. It then turns to examine the one reform that a majority of voters consistently support: holding all primaries and caucuses on a single day. Scheduling a national Primary Day is important not only because the current staggered nature of the calendar privileges some candidates over others, but also because it favors voters and party members in some states over those in other states. The way to remedy this problem and to ensure all voters are treated equally is to hold our 57 nomination contests on the single day.
While scheduling a national Primary Day would appear to be a simple, direct, and fair way of selecting a party’s presidential nominee, a national primary also comes with its own challenges. A national primary would change the nature of presidential campaigns by shifting the resources and spending of candidates from low-population states like Iowa, New Hampshire, and South Carolina to high-population states like California, Texas, and Florida. It would also diminish the aspirations of candidates with less money and name recognition by denying them the opportunity to build momentum in the early states. A related concern has to do with how the votes would be tallied and added in a national primary when the list of candidates running in the 57 different primaries and caucuses could potentially be very large, as well as what should happen if no single candidate manages to wins a majority of these votes. Finally, there is the thorny issue of how a single primary date could ever be imposed on the states. Whether Congress has the power to set the date on which the states hold their primaries is a constitutional question that remains unresolved. Whether the national parties would ever have the willpower to impose a national primary also remains in doubt. As a result, while the benefits of a national Primary Day may be substantial, the path to getting there comes with its own challenges.