Category Archives: primaries

My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

authoritarian threats in US, ballot access, Bush v. Gore reflections, campaign finance, cheap speech, chicanery, Constitutional Right to Vote, election administration, election law and constitutional law, Election Meltdown, election subversion risk, First Amendment theory, legislation and legislatures, political equality, political parties, political polarization, primaries, Real Right to Vote, social media and social protests, Supreme Court, The Voting Wars, voting, Voting Rights Act

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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“Record number of open primary initiatives on the ballot”

political parties, primaries

Pluribus:

Voters in as many as half a dozen states will decide this year whether to open primary elections to independent and crossover voters in what supporters say is the broadest-ever assault on the traditional partisan primary process.

Ballot initiatives to open partisan primaries to all voters have qualified for November’s election in Nevada, South Dakota, Idaho and the District of Columbia. A Maricopa County judge ruled on Friday that Arizona’s version qualified for the ballot. Supporters of open primaries are waiting for final determinations in Colorado and Montana, too….

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Litigation Stalls Utah’s Republican Primary for 2nd Congressional District

primaries, recounts

AP News:

“Results of a recount completed Monday in the Republican primary for Utah’s 2nd Congressional District showed incumbent U.S. Rep. Celeste Maloy still narrowly leads her opponent, who preemptively filed a lawsuit contesting the results.

The Associated Press is not calling the race until the resolution of a pending legal challenge from Colby Jenkins that asks judges to decide whether 1,171 additional ballots that were disqualified for late postmarking should be counted.”

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More on the legal (and practical) issues around a presidential candidate’s withdrawal

primaries

Rick H. gets the heart of the issues right in his early post. I want to highlight some more wrinkles (but I put the odds of Biden stepping down much lower than 50%).

First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.” (Rick rightly notes, “That would be true even if Biden stayed in the race,” but this is not a politically likely option.)

Second, in the event of a vacancy in the ticket after the convention, the rules are a little different: “Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the
National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.”

Third, the DNC announced it would hold a “virtual roll call” before the convention. That was when there was some doubt about Ohio’s ability to amend its ballot access rules. But perhaps more interestingly, even though Ohio has amended its law, it appears the DNC might worry that other deadlines in other states might be a problem, or in states where a “provisional certification” previously was sufficient for a presumptive nominee that might be legally challenged in this election. Regardless, it’s not clear how this would work in the event of a contested convention, and the DNC might have to backtrack if that’s the case.

Fourth, “superdelegates” (or “automatic delegates”) are eligible only on the second ballot in the event no candidate has a pledged majority the first time around (IX.C.7.b). So the ground could shift from the first to the second ballot separate and apart from any jockeying after the first ballot and candidacies.

Fifth, and finally, recall that New Hampshire violated the DNC’s rules by going early with its primary. In eras of consensus (think to the 2008 Michigan and Florida fiasco, resolved only once Barack Obama secured a majority of the delegates and those states’ rule-breaking delegations could be seated), there is little dispute when some states violate party rules. But in a contested convention, the decision whether to seat a batch of rule-breaking delegates will be much more fraught. (UPDATE: I see the DNC voted to restore New Hampshire’s delegates earlier this year, a point I’d missed!)

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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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“What Is “Fusion Voting”? Just a Way to Save the Country, That’s All”

alternative voting systems, political polarization, primaries

Dan Cantor and Bill Kristol ask:

What in the world could possibly bring the two of us together? One of us is a slightly reformed Reaganite, the other a slightly chastened social democrat, each of us mugged by authoritarianism. In the 1980s and 1990s, one of us worked for Ronald Reagan and George H.W. Bush; the other worked in the presidential campaigns of the Reverend Jesse Jackson Jr. and co-founded a progressive third party.

And yet, here we are, collaborating on a project that we believe can help restore the political health of the country we both love.

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“One of the biggest changes ever proposed for Colorado elections is on a journey to this November’s ballot”

alternative voting systems, primaries, voter id, voter initiatives

Colorado Public Radio with more on the proposed initiative to implement a top-four primary with ranked-choice voting for the general election.

Meanwhile, there’s a signature campaign in Maine to get two initiatives on the ballot: voter ID and a repeal of participation in the national popular vote compact.

And don’t forget Arizona’s ballot measure to make ballot measures impracticable.

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“Kentucky Supreme Court disqualifies Kulkarni in state House race”

primaries

Ooooof.  An incumbent Democratic state representative was disqualified, because candidacy papers had to be witnessed by two Democrats … but one witness was registered as a Republican and changed her registration after the deadline.  (The representative testified that she thought both witnesses were Democrats.) 

That was the pre-election decision by the state court of appeals, but the courts allowed her to compete in the primary as her case went up to the state supreme court — and in the primary, she shellacked her opponent.  Then the state supreme court affirmed the disqualification.  There was no opposition for the general election.  And now, with no qualified candidate, there will likely have to be a special election, but there are apparently limitations on the incumbent’s ability to compete in that election not that she’s been disqualified. 

Hard to see how any of this serves the voters of the district.

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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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“Caucuses leave many Iowans out in the cold – and not just in bad weather”

primaries

Patrick Marley for WaPo:

To some here, the Iowa caucuses are an exemplar of democracy, binding communities together and allowing everyday voters to connect with candidates who, a year from now, may be running the country. To others, they are an antiquated system that excludes those who — due to a disability, a work shift, a flat tire, child care needs, extreme weather or any other factor — can’t turn up on the one night every four years when Iowa voters get a say in picking presidential nominees.

Voters must be at their precincts at 7 p.m. Central time on Monday, where they will hear speeches from representatives of the candidates, fill out ballots and, if they want, observe as the votes get tallied. No early or absentee voting is allowed, except for a tiny number of military service members.

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