On August 29, eight cartons of notarized paperwork challenging 25,000 voter registrations were delivered by pro-Donald Trump “election integrity” activists to Gwinnett County’s election offices in suburban Atlanta. They were accompanied by additional paperwork claiming that 15,000 absentee ballots had been illegally mailed to voters before the county’s 2020 presidential election.
Two days later, the activists held a briefing on the filings. It was led by Garland Favorito, a soft-spoken retired information technology professional who has been agitating in Georgia election circles for 20 years and heads a non-profit called VoterGA. Favorito began by citing six lawsuits the group has filed against state and county officials – claiming counterfeit ballots, untrustworthy or illegal voting systems, and corrupt 2022 primary results. Then he turned to Gwinnett County.
“We are delivering today 37,500 affidavits challenging voter rolls and handling of the 2020 election,” said Favorito. “As a reminder, the presidential spread for the entire state of Georgia was 11,000 and change, not quite 12,000 [votes]. And we have 20,000 [allegedly improper voter registrations] just in Gwinnett alone. This number will increase as our analysis is ongoing.”
The Gwinnett challenges are not unique. In Georgia’s Democratic epicenters, Trump backers have been filing voter roll challenges since last winter targeting upwards of 65,000 voters. The state’s post-2020 election “reform” bill, S.B. 202, authored by its GOP-led legislature, allows an unlimited number of challenges.
While most of the claims put forth by Voter GA are easily refuted, the challenges individually targeting voters could have an impact in suppressing some number of votes this fall in Georgia, where polls find some statewide contests are very close.
Even though federal law guaranteed the two women the right to have someone help them vote, Coley-Pearson knew too well that this right was under attack. For all of the recent uproar over voting rights, little attention has been paid to one of the most sustained and brazen suppression campaigns in America: the effort to block help at the voting booth for people who struggle to read — a group that amounts to about 48 million Americans, or more than a fifth of the adult population. ProPublica analyzed the voter turnout in 3,000 counties and found that those with lower estimated literacy rates, on average, had lower turnout.
“How the system is set up, it disenfranchises people,” said Coley-Pearson, who blames Southern political leaders for throwing up hurdles. “It’s by design, I believe, because they want to maintain that power and that control.”
Conservative politicians have long used harsh tactics against voters who can’t read — poor, often Black and Latino Americans who have been failed by the U.S. education system and who conservatives feared would vote for liberal candidates. Some states have required voters who needed help to sign an affidavit explaining why they need assistance; some have prevented voters who couldn’t read from bringing sample ballots to the polls and limited the number of voters that a volunteer could help read a ballot. Time and again, federal courts have struck down such restrictions as illegal and unconstitutional. Inevitably, states just create more.
Over the last two years, the myth of election fraud, supercharged by former President Donald Trump in the wake of his 2020 loss, has fueled a barrage of new restrictions. While they do not all target voters who struggle to read, they make it especially challenging for voters with low literacy skills to get help casting ballots.
Last year, Georgia passed a law limiting who can return or even touch a completed absentee ballot. Florida expanded the radius around election locations in which volunteers are prohibited from asking people if they need help. Texas passed a law prohibiting voters’ assistants from answering questions or paraphrasing complicated language on the ballot; a federal judge struck down several sections of the law in June. But the court left other provisions in place, including ones that increase penalties for helping voters who don’t qualify and require people who assist voters to fill out more paperwork. Texas did not appeal the decision.
Why has it gotten harder rather than easier to vote in the United States over the past decade?
What can be done about the risk of stolen elections in the United States?
How have the Supreme Court’s decisions on redistricting, voting rights, and gerrymandering affected the quality of American democracy?
On season 3, Episode 8 of the ELB podcast, we speak with Wendy Weiser, Vice President for the Democracy Program at the Brennan Center for Justice at NYU Law School.
[This the final episode of Season 3 of the podcast.]
A pair of Carson City judges struck what appeared to be fatal blows to proposed GOP-backed voting initiatives on Monday, invalidating efforts to roll back the Democrat-backed universal vote by mail law passed in 2021 and a measure implementing voter identification requirements.
In separate rulings, Senior Judge Frances Doherty blocked the effort to file a referendum against AB321, the measure passed by lawmakers in 2021 to permanently implement universal mail-in ballot. In a separate case, Senior Judge William Maddox ruled that the voter ID initiative’s description of effect — a 200-word summary — was argumentative and ordered a new description be written, effectively scrapping all signatures collected at this point.
“On both proposed initiatives, the courts agreed with us that the descriptions provided to potential Nevada voters were deceptive and inaccurate, and could not go forward,” Wolf Rifkin attorney Bradley Schrager, who represented the plantiffs, said in a statement. “In both instances, people with agendas undermining confidence in our elections were found to be misleading the voters about their ballot measures. Today the justice system made clear that such tactics are not tolerable.”
Both measures were sponsored by Repair the Vote, a political action committee led by former Nevada Republican Club President David Gibbs. In a brief interview Monday, Gibbs said there was virtually no chance of getting the signatures needed to qualify the measures for the ballot by a deadline in the next few weeks.
The Harvard Law Review Forum has posted my new Essay, Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States (see also this more readable version). Here is the Introduction:
The United States faces a serious risk that the 2024 presidential election, and other future U.S. elections, will not be conducted fairly and that the candidates taking office will not reflect the free choices made by eligible voters under previously announced election rules. The potential mechanisms by which election losers may be declared election winners are: (1) usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority, possibly with the blessing of a partisan Supreme Court and the acquiescence of Republicans in Congress; (2) fraudulent or suppressive election administration or vote counting by law- or norm-breaking election officials; and (3) violent or disruptive private action that prevents voting, interferes with the counting of votes, or interrupts the assumption of power by the actual winning candidate.
Until recently, it would have been absurd to raise the possibility of such election subversion or a stolen election in the United States. Few cases have emerged in at least the last fifty years of actual election sabotage by election officials, leading to an election loser being declared the election winner, despite other unique pathologies of American election administration.
The conduct of former President Donald Trump in repeatedly and falsely claiming that the 2020 election was stolen has markedly raised the potential for an actual stolen election in the United States. Millions of Trump’s Republican supporters now believe the false claim of a stolen election, and some Republican elected officials have pursued sham “audits” and taken other steps that undermine voter confidence in the fairness of the election process. States have passed new laws not only restricting the vote but also making it easier to sabotage election results. Threats of violence and intimidation have led to unprecedented attrition among election administrators, and some exiting officials are being replaced by those who may not have allegiance to the integrity of the election system. Those Republican election officials who stood up to President Trump in 2020 and saved the United States from a potential constitutional and political crisis have been censured, stripped of power, and challenged for office by those embracing the “Big Lie.” Together, these actions serve both to delegitimate the election of Democrats, including President Joe Biden in 2020, and to open the door to election manipulation in future elections. Elected officials, election officials, and others believing or purporting to believe the false claim that the 2020 presidential election was stolen may seek to justify subverting future election results in response to earlier purported fraud.
The solutions to these problems are both legal and political. Legal changes should include: (1) paper-ballot, chain-of-custody, and transparency requirements, including risk-limiting audits of election results; (2) rules limiting the discretion of those who certify the votes, including Congress, through reform of the Electoral Count Act; (3) rules limiting the overpoliticization of election administration, especially by state legislatures; (4) increased criminal penalties imposed on those who tamper with federal elections or commit violence or intimidation of voters, election officials, or elected officials who certify candidates; and (5) rules countering disinformation about elections, particularly disinformation about when, where, and how people vote. In addition, it will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.
Part I of this Essay describes the path to this unexpected moment of democratic peril in the United States. Part II explains the three potential mechanisms by which American elections may be subverted in the future. Part III recommends steps that can and should be taken to minimize this risk. Preserving and protecting American democracy from the risk of election subversion should be at the top of everyone’s agenda. The time to act is now, before American democracy disappears.
The author of this post sends along this follow-up:
This week’s New Yorker profile of Marc Elias was another entry in the ongoing media coverage about the role of the court system in resolving very live disputes concerning voting and the health of our democracy, and the wisdom of the serial seeking of judicial involvement. The New Yorker piece helpfully notes disagreement within the election law community. What it omits or does not get quite right is worth noting.
First, social media has had an adverse effect on general understanding, including in the press, of the actual state of play in the fight over voting rights. Part of that is the ephemeral nature of the medium, which makes the filing of a case appear just as consequential as its resolution. Another part is Elias’s uniquely active social media presence. While his effective use of social media is not without benefit (e.g., rallying an audience to his cause), it also has created a narrative that judicial avenues are likely to reach successful destinations. In the world of Twitter, the average consumer of political news would miss that the sober consensus is precisely the opposite: judicial relief in voting rights cases is increasingly hard to achieve, with skeptical courts, and an evolving and problematic body of law, particularly but not exclusively at the federal level, requiring careful navigation. And the one area of the law that has shown promise—the use of state constitutional provisions to thwart partisan gerrymandering—has drawn the close attention of 4 Supreme Court Justices, who, if joined by one of their two conservative brethren, may not let it last beyond June 2023.
Like most lawyers, athletes, and, for that matter, politicians whose profession depends on future success, Elias is inclined to play up past successes; and to play down past failures. So, we hear from his eponymous Twitter feed about the latest trial court victory; and a bit less about the fate of the appeal. We hear, for example, about an N.D. Fla. decision on Section 2 vindicating last summer’s loss before the Supreme Court in Brnovich. The readers are not warned about the rough waters ahead in the 11th Circuit—or even the trial court judge’s seeming expectation that he will be reversed.
We hear, for example, that the Supreme Court’s April 2020 decision staying orders affecting the Wisconsin primary, RNC v. DNC, — U.S. —, 140 S.Ct. 1205 (2020) was not a harbinger of things to come, but an “endorsement [of] a post-marked by Election Day standard (rather than received by),” sure to “enfranchise thousands of voters in November. Politico, 4.7.20. The Supreme Court had different ideas; presented with the same issue months later, it affirmed the stay of a district court order that otherwise would have extended the mail ballot deadline in Wisconsin for the general election. DNC v. Wisconsin State Legislature, — U.S. —, 141 S.Ct. 28 (2020).
This approach has been consistent throughout the emergence of the Democracy Docket. In 2020, it was especially striking. Prior to the election, Elias and other groups litigated voting access rules around the country, and more than most were lost. Many of the losses occurred on appeal, with the federal courts effectively closed to relief on Purcell grounds beginning in mid-summer (just as RNC v. DNC had indicated they would be). Still others occurred in state courts, like Maine, that on balance might be more solicitous of voting rights arguments than other venues (e.g., Arizona and Georgia) where such cases might be litigated. E.g., Alliance for Retired Americans v. Secretary of State, 240 A.3d 45 (Maine 2020). But on social media, it appeared that the victories were piling up, one after the other, in a crescendo of voting rights successes.
Meanwhile, on the actual docket, whatever victories had been achieved at the lower court level were being stayed or, if rendered in state court, collaterally attacked—not just by more conservative circuits like the 5th (Texas), 7th (Wisconsin), 8th (Minnesota), 11th (Georgia and Florida), but by the 9th Circuit as well (Arizona).
This narrative of success before the courts was carried forward into 2022 in the New Yorker, as it is in other contexts by Elias and others, as evidence that a willingness to fight begets victories; and that an unwillingness to file case after case should be seen as professorial aversion from the fray.
But the record pains a different picture. In the past 18 months, the terrain before the Supreme Court has grown only less favorable, following Brnovich and certain of its actions in redistricting cases over the past several months. In addition, the states with Republican trifectas that are enacting regressive voting laws—most prominently, Arizona, Georgia, Florida, and Texas—have judiciaries at least as unwelcoming to voting rights claims as the Supreme Court.
An effective litigation strategy takes these facts as a given and asks how they can be addressed. With at least a plurality of the Supreme Court willing to entertain claims that state legislatures have some special provenance over federal and presidential elections—separate, apart from, and even in addition to the powers afforded them by their respective state constitutions—how should voting rights advocates comport themselves? With a Court apparently intent on chipping away at the Voting Rights Act, section-by-section and context-by-context, how best can that trend be countered?
These are real strategic questions. While it makes sense in politics to contest every race, it makes substantially less sense in law to file every potential case. And that is all the more true if those cases are filed predominantly to challenge laws in red states.
In evaluating these issues, it is essential to understand the role the courts are willing to play, and to strategize accordingly. All of us who care about the vitality of American democracy are on edge; but litigation is no outlet for our primal scream. If, in Elias’s phrase, democracy is on the docket, then strategy is essential. We must ask whether it has been put there in the manner most likely to succeed and, if not, whether the risk of loss has been calibrated properly. And if democracy is to be on the docket, more consideration must be given to how it gets there, so that the final entry is a judgment in its favor, rather than still more precedent making the next case more difficult.
Moreover, in this setting, declarations that: (1) democracy is on the docket, but (2) democracy protection must be a partisan endeavor of the Democratic party are at odds with one another. Justices appointed by Republican presidents; and jurists appointed by Republican governors (or elected by Republican voters) will be reticent to join such an avowedly partisan cause. The judiciary is not a partisan branch; and, if it were, it would not be a partisan Democratic branch.
The question is less about “saving laws on bookshelves,” than about making sure the next entry in the U.S. Reports, or those of judiciaries in battleground states, advances the health of our democratic enterprise, rather than giving license for its further deterioration. This a critical question that will need to be addressed in the months ahead. And debate over this question will benefit from fewer social media-driven claims and “PR” and more clarity about the experience to date and its implications for litigation strategy.
A Democratic candidate recruiting group is pitching donors on an ambitious three-year program to find, train and support 5,000 candidates for local offices in charge of election administration, a sprawling national effort intended to fight subversion of future election results.
The program would recruit candidates in 35 states for everything from county probate judges in Alabama to county clerks in Kansas and county election board members in Pennsylvania — all offices that handle elections and will be on voters’ ballots between now and 2024. Spearheading the effort is Run for Something, a Democratic group that launched soon after Donald Trump’s 2016 presidential victory to recruit candidates for local elections. Now, the group plans to raise $80 million over the next three years for this push, which would include at least a hundred staffers to support those candidates in-state, according to details and donor memos first shared with POLITICO.
Amanda Litman and Ross Morales Rocketto, Run for Something’s co-founders, call the project “Clerk Work” — a way-down-the-ballot effort of the type that Democratic donors and national groups have traditionally struggled to focus on. But as Trump continues to promulgate election conspiracy theories, the role of little-known election administrators — charged with planning, implementing and certifying election results in a hyper-localized system — has suddenly emerged as a key part of safeguarding American democracy. The move is part of a broader Democratic Party shift toward increasingly prioritizing state-based races, a shift from the massive attention and financing that go toward federal campaigns.
“Election subversion in 2024 is not going to be a mob storming the Capitol, it’s going to be a county clerk in Michigan or a supervisor of elections in Florida who decides to fuck the whole thing up,” Litman said. “The only way to make long-term democracy protection is by electing people who will defend democracy.”
For months, Georgia voting rights advocates and faith leaders warned that a new state law would drastically suppress minority turnout and pleaded with Congress to enshrine protections.
But with no signs of progress in President Biden’s push for voting rights bills, those groups are now confronting a new challenge: How to turn out voters despite the restrictions passed by state Republicans in the wake of Biden’s upset win there.
On Tuesday, more than a dozen voting rights groups, spearheaded by faith leaders, will gather at The KingCenter in Atlanta to rally their organizations in the run-up to the midterms — and plot their strategy to outmaneuver new regulations they see as limiting access to the ballot. The groups, which are mostly nonpartisan but also aligned with Democratic efforts, aim to show GOP leaders that their work will continue in the face of the law….
The summit in Atlanta comes as Democrats have failed to advance voting rights legislation, a key campaign promise for Black voters who helped deliver Georgia. Since then, Republicans in numerous states have enacted restrictive new voting laws, driven in part by false claims of a stolen 2020 election from allies of former president Donald Trump.
Biden won Georgia by almost 12,000 votes, the first time a Democrat has won the state since 1992. Democrats also won two Georgia Senate runoffs in 2021 that handed Democrats unified control of Congress for the first time in a decade. Consequently, many Georgia voting rights activists are dismayed at Democrats’ lack of progress in expanding access to the ballot, especially among communities of color.
One of the most prominent voting rights cases in years is going to trial Monday, testing allegations that Georgia’s election policies illegally obstructed voters from casting their ballots.
The long-awaited trial will highlight complaints about voting problems in the 2018 and 2020 elections, bringing a parade of voters and election officials to federal court to testify under oath about their experiences.
The case has been building for 3 1/2 years since it was filed by Fair Fight Action, a group Democrat Stacey Abrams founded following her loss to Republican Brian Kemp in the 2018 election for governor. Now it will be decided by a judge as both candidates are running again.
The lawsuit targets Georgia’s “exact match” voter registration rules and inconsistent absentee ballot cancellation practices, which the plaintiffs say created difficulties that disproportionately affected Black voters.
The defendants in the case — Georgia Secretary of State Brad Raffensperger and state election officials — say they’ve already defeated many of the claims in earlier court rulings, leaving a narrow and flimsy case.
Two organizations that represent hundreds of Michigan clerks called on state lawmakers Monday “to set aside their agendas” and make bipartisan improvements to voting policies ahead of the November statewide election.
Mary Clark, president of the Michigan Association of Municipal Clerks, and Marc Kleiman, president of the Michigan Association of County Clerks, made the request in a two-page letter addressed to “state and legislative leaders.”
Clark, who’s the Delta Township clerk, said her organization’s members are feeling frustrated about the lack of action 15 months after the November 2020 election threw the battleground state’s policies into the national spotlight.
“The things that we need are not happening,” Clark said in an interview.
Democrats and Republicans in Lansing have struggled to find common ground on how to change the state’s election laws. Former President Donald Trump’s supporters have leveled unproven claims that widespread fraud cost him the 2020 vote in Michigan.
You can find the letter at this link.
A new front is opening in Michigan’s voting wars that raises fundamental questions about how far defenders of fact-based elections and representative government must go to protect voting rights in an era marked by Republicans who deny results and spread lies about elections.
Republicans have launched ballot initiatives to bypass a gubernatorial veto and enact laws that would complicate voting, and sanction outside inquiries into close results. Voting rights groups and Democrats, in turn, are using the initiative process to amend Michigan’s constitution to close the veto loophole, and to affirmatively enshrine voting rights and balloting options.
There are three pro-voter proposed amendments. The first would close the veto dodge. The other two, affirming voting rights and options, would, if passed, lay the groundwork to strike down the GOP’s initiative-sparked legislation. But the latter two proposed amendments go to different lengths to block legislators and even the courts from rolling back voting rights.
“They’re all interested in what the ground rules all are,” said Sean Morales-Doyle, acting director of the voting rights and elections program at the Brennan Center for Justice at New York University School of Law, speaking of Michigan’s five competing ballot initiatives to enact laws or amend its constitution. “They’re also all interested in how these different political actors have power relative to one another, and how to restrict or expand that power.”
Michigan’s initiatives are responses to ongoing fights over its 2020 election, where Joe Biden officially beat Donald Trump by 154,000 votes out of 5.5 million cast. On February 11, its Board of State Canvassers finalized the 100-word summaries describing the latest measures to initiate legislation or amend its constitution. The next step is gathering signatures by July 11 to advance the GOP’s proposed laws or to put the amendments before voters in November.
The initiatives are part of a surge of more restrictive or permissive voting measures that have flooded state legislatures since the 2020 presidential election. But unlike states such as Arizona and Nebraska, where single ballot measures have emerged in addition to many bills proposed by legislators, Michigan offers the broadest spectrum of ballot initiatives that may complicate elections or construct guardrails against antidemocratic power grabs.
The faction seeking more onerous rules for voters, led by pro-Trump Republicans, wants to adopt legislation that was vetoed last October by Gov. Gretchen Whitmer, a Democrat. They have turned to Michigan’s ballot initiative process, where signatures from 8 percent of the votes cast for governor (340,000) would refer the measure to the GOP-led legislature, which could then enact the law. (Laws initiated this way are exempt from vetoes.) A second potential law proposed by Trump allies would empower private contractors to audit election results, like Arizona’s much-maligned 2020 review that concluded Biden won after spending months casting doubt on the election’s results.
The GOP proposals have been met by countermeasures to amend Michigan’s constitution from proponents of more expansive voting rights. Amending a state constitution supersedes new law and establishes a basis to challenge existing laws. (The amendments need 425,000 signatures to get on Michigan’s November 2022 ballot.) Center-left groups are behind the three proposed amendments. The first would close the veto loophole. The other two proposals overlap in their enumeration of voting rights and voting options, but they differ in how far each goes to restrain conspiracy-driven legislation and courts from upholding laws based on unproven threats….
Democratic secretaries of state say they’re at the vanguard of protecting democracy, pushing back against election disinformation and attempts to suppress the vote.
But while the party’s base has largely rallied behind them, its biggest donors have not.
During the last six months of 2021, just one person, Democratic financier George Soros, gave more than $25,000 to the main association involved in electing the party’s candidates for secretaries of state, according to a review of the group’s filings. Four other individuals gave $25,000 precisely.
The absence of more big checks is notable considering that the Democratic Association of Secretaries of State, a 527 organization, has no limit on the size of the donations it can receive.
“I was operating under the assumption that people were recognizing this problem and we’re going to be flooding them with cash,” said Doug Edwards, one of those four individuals who gave $25,000. “That’s clearly not the case. … I’m going to start worrying about DASS again.”
DASS’ executive director, Kim Rogers, said that 2021 was a record fundraising year, with the group touting $4.5 million in donations. That figure included money given to “affiliated organizations” including a 501(c)(4) nonprofit voting rights group known as Every Eligible American, the organization’s PAC (which reported $124,663.60 in contributions), and the allied DASS Victory Fund. The amount that DASS itself took in, according to IRS filings, was $2.4 million.
Direct comparisons to what Republicans are doing are inexact, since the group’s GOP counterpart, the Republican State Leadership Committee, fundraises for other state races as well as candidates for secretary of state. But, over the same time period, that group and its subsidiary for state courts reported raising $28 million, according to IRS filings. The RSLC and “its strategic policy partner” the State Government Leadership Foundation together raised $33.3 million, the RSLC said.
Democrats’ failure to energize large-dollar donors behind the association directly involved in electing state election administrators threatens to undermine whatever momentum the party had been hoping to build around protecting voting rights heading into the midterms and the 2024 campaign. The right to vote has emerged as a rallying cry among the party’s base. But the lack of attention on DASS underscores that Democrats have struggled to turn that rhetoric into action and big checks, even as a number of battleground states — including Georgia, Arizona, and Michigan — will elect their secretary of state in 2022.
I have written Research Note: Record Election Litigation Rates in the 2020 Election: An Aberration or a Sign of Things to Come? for the Election Law Journal (free access to full article). Here is the abstract:
Election litigation rates in the United States have been soaring, with rates nearly tripling from the period before the 2000 election compared to the post-2000 period. In 2020, election litigation rates increased al-most 26 percent over rates in 2016, the year of the immediately prior United States presidential election. But future trends are uncertain. This short Research Note describes and analyzes new data through 2020 on trends in U.S. election litigation, explains whether litigation rates are likely to continue to rise in the future, and briefly discusses whether this trend is normatively good or bad.