Category Archives: The Voting Wars

“Fears mount that election deniers could disrupt vote count in US swing states”

election administration, election subversion risk, The Voting Wars

Ed Pilkington in The Guardian:

Fears are rising that the vote count in November’s presidential election could be disrupted as a result of the proliferation of Donald Trump’s lies about stolen elections and rampant voter fraud in the key swing states where the race for the White House will be decided.

A new survey of eight vital swing states reveals that at least 239 election deniers who have signed up to Trump’s “election integrity” conspiracy theories – including the false claim that the 2020 election was rigged against him – are actively engaged in electoral battles this year. The deniers are standing for congressional or state seats, holding Republican leadership positions, and overseeing elections on state and county election boards.

The report by the Center for Media and Democracy (CMD), a watchdog group focusing on special interests distorting US democracy, reveals the extent of denial in the eight critical states: Arizona, Georgia, Michigan, Nevada, New Mexico, North Carolina, Pennsylvania and Wisconsin. It shows that corrosive efforts to damage public confidence in elections have proliferated there despite the drubbing the election denial movement received in the 2022 midterms.

Among the deniers identified by CMD are: 50 Republicans running for Congress; six vying for state executive offices; 81 leaders of local Republican organizations; and 102 current members of state and county election boards. They have all backed attempts to delegitimize elections even to the point, in some cases, of participating in the 6 January 2021 insurrection at the US Capitol.

“What was striking to us about our research is how much election denialism and the voter fraud lie have infiltrated and taken over the Republican apparatus in each of these critical states,” said CMD’s executive director Arn Pearson….

CMD’s most disturbing finding is that there are more than 100 election deniers currently sitting on election boards that can influence the way the vote is counted and certified. The boards span 61 counties across all eight swing states.

Deniers wield majority power on the election boards in 14 of those counties. Six are concentrated in just one state – Pennsylvania, the swing state which perhaps more than any other is seen by both campaigns as the path to the White House….

Rick Hasen, an authority on election law at UCLA law school, said that the new research highlighted how election denial had become an article of faith on the right. “To show you are a loyal Trumpist Republican, you have to claim the last election was stolen.”

Hasen added that though there was potential for chaos and delays in the vote count as a result of the proliferation of conspiracy theories, the electoral system was now better prepared. The 2022 Electoral Count Reform Act has clarified the process of certifying electoral college votes in the presidential race, making it more difficult for trouble to be sowed either at the state level or in Congress.

“Trump is laying the groundwork to contest the election and deligitimize a Democratic victory, but it’s going to be harder for him to mess with the rules this time,” Hasen said.

You can find the CRM report here.

Share this:

Sept. 17 Live Event from Safeguarding Democracy Project at UCLA Hammer Museum: “Democracy and Risks to the 2024 Elections”

election subversion risk, The Voting Wars, Voting Rights Act

Very much looking forward to moderating this event (recording will be made available after the event):

Sept. 17: Democracy and Risks to the 2024 Elections
Image
 
Tuesday, September 17, 7:30pm PT at the UCLA Hammer Museum, (Recording to Follow)
Co-presented with the Hammer Forum and the David J. Epstein Program in Public Interest Law & Policy, UCLA Law
Can the United States conduct a free and fair election in November in which the public will have confidence? Are concerns about foreign interference, deep fakes, and disinformation serious or overblown? Is participation equally open to minority voters? What are the risks to U.S. democracy if significant portions of the public do not accept the election results as legitimate?
Moderated by Rick Hasen, UCLA Law.
Panelists: Leah Aden, NAACP Legal Defense and Education Fund; John Fortier, American Enterprise Institute; Justin Levitt, Loyola Law School, Los Angeles; Yoel Roth, The Match Group. 
Share this:

“GOP lawsuits set the stage for state challenges if Trump loses the election”

election subversion risk, The Voting Wars

AP:

Despite the flurry of litigation, the cases have tended to be fairly small-bore, with few likely impacts for most voters.

“When you have all this money to spend on litigation, you end up litigating less and less important stuff,” said Derek Muller, a law professor at Notre Dame University.

The stakes would increase dramatically should Trump lose the election and then try to overturn the result. That’s what he attempted in 2020, but the court system rejected him across the board. Trump and his allies lost more than 60 lawsuits trying to reverse President Joe Biden’s win.

Whether they could be successful this year depends on the result of the election, experts said. A gap of about 10,000 votes — roughly the number that separated Biden and Trump in Arizona and Georgia four years ago — is almost impossible to reverse through litigation. A closer one of a few hundred votes, like the 547-vote margin that separated George W. Bush and Al Gore in Florida in 2000, is much more likely to hinge on court rulings about which ballots are legitimate.

“If he loses, he’s going to claim that he won. That goes without saying,” Rick Hasen, a law professor at the University of California, Los Angeles, said of Trump. “If it looks like what we had last time … I expect we’ll see the same kind of thing.”

Trump has done nothing to discourage that expectation as he seeks his return to the White House. He has said he would accept the results of the election only if it’s “free and fair,” which raises the possibility it would not be, something he continues to falsely contend was the case in 2020. He also continued to insist that he could only lose due to fraud.

“The only way they can beat us is to cheat,” Trump said at a Las Vegas rally in June.

To be clear, there was no widespread fraud in 2020 or any election since then. Reviews, recounts and audits in the battleground states where Trump disputed his loss four years ago all affirmed that Biden won, and Trump’s own attorney general said there was no evidence that fraud tipped the election.

Share this:

“Federal appeals court says Montana’s ‘double voting’ law is vague, redundant”

The Voting Wars

Daily Montanan:

A three-judge federal appeals panel said that a law passed by Republicans in the Legislature to eliminate double-voting, something already illegal, violates the U.S. Constitution, siding with a federal judge in Montana who stopped the law.

House Bill 892 mandated that voters who remain registered in a different place show proof that they’ve removed themselves from their previous location or face criminal penalties. However, federal Montana District Court Judge Brian M. Morris said found the law was overly vague, could chill constitutionally protected activities like exercising the right to vote, and finally, was already on the books as illegal in Montana.

Since 1995, Montana has had a provision that outlaws double voting. Republicans who rallied around HB 892 said it was an additional necessary step to ensure the integrity of voting in Montana. They pointed out that there were a suspected 14 cases of double voting in Montana during the 2020 general election, according to court documents.

However, Morris said that HB 892 was overly broad and vague, leading to residents not being able to understand the law clearly, and risking criminal penalties if they didn’t comply.

Share this:

“Republicans Seize on False Theories About Immigrant Voting”

fraudulent fraud squad, The Voting Wars

NYT:

In late July, a group of Republican activists met on a Zoom call to discuss preparations for the November election. The topic was how to keep undocumented immigrants from voting in November, a problem they claim, inaccurately, to be a looming threat to a fair election.

One woman, a local party chair from Georgia, recommended scouring school enrollment figures to find neighborhoods with large numbers of migrants. Another, Darlene Hennessy, an activist from the Detroit area, recommended hanging up signs in “ethnic” neighborhoods warning people not to vote if they were not eligible. She also suggested searching voter rolls for certain types of surnames.

“I think it’s unfortunate, but sometimes the only way you can find out is to look for ethnic names,” Ms. Hennessy said, according to a recording of the call obtained by The New York Times.

“We don’t want to be doing anything illegal,” she added.

There is no indication that noncitizens are voting in large numbers. And yet the notion that they will flood the polls — and vote overwhelmingly for Democrats — is animating a sprawling network of Republicans who mobilized around former President Donald J. Trump’s false claims of a rigged election in 2020 and are now preparing for the next one.

Share this:

“GOP appeals date ruling on mail-in ballots to Pa. Supreme Court”

absentee ballots, election administration, The Voting Wars

Trib Live:

The Republican National Committee and Republican Party of Pennsylvania are appealing a Commonwealth Court ruling that mail-in ballots with incorrect or missing dates on their outer envelopes should be counted.

The appeal to the state Supreme Court was expected. It is being fast-tracked, like all elections cases this year.

Whatever is ultimately decided could have ramifications for the November election.

The appeal, filed Tuesday, challenges the findings of a 91-page opinion issued Friday by a Commonwealth Court panel that found it unconstitutional under state law to refuse to count those ballots.

Share this:

“Texas Attorney General Sues to Stop Voter Registration Push in San Antonio”

chicanery, The Voting Wars, Voting Rights Act

NYT:

Attorney General Ken Paxton of Texas went to court on Wednesday to try to stop county leaders in San Antonio from sending out more than 200,000 voter registration applications to unregistered residents of Bexar County.

The lawsuit by Mr. Paxton followed a letter he sent days earlier warning Bexar County officials, most of whom are Democrats, against proceeding with the mailing. The county’s governing commissioners voted 3 to 1 on Tuesday to approve the proposal anyway.

Mr. Paxton has also threated to sue Harris County, which includes the Democratic stronghold of Houston, where officials have been weighing a similar effort to expand the number of registered voters ahead of the registration deadline early next month for the November election.

The suit is the latest chapter in a yearslong conflict over voting and elections in Texas between Republicans, who dominate state government, and Democrats, who control most of the state’s largest urban areas.

Share this:

Announcement: UCLA Law’s Safeguarding Democracy Project Fall Calendar of Events

cheap speech, election administration, electoral college, social media and social protests, The Voting Wars, Uncategorized

As we prepare for another fall semester, we’re excited to bring you a robust series of events on the 2024 Elections, Election Law, and the risks facing democracy in the U.S.

This semester, we present a mix of live, online, and hybrid events. Please see below or click the link for details. We hope you can join us!

Sept. 12: From Here to There: How States Can and Should Certify the Results of the 2024 Elections (Webinar)
Image
Thursday, September 12, 12:15pm-1:15pm PT, Webinar, (Recording to Follow)
Webinar Registration
Ben Berwick, Head of Election Law & Litigation Team & Counsel (Protect Democracy), Lauren Miller Karalunas, (Brennan Center for Justice), and Michael Morley (Florida State University College of Law). Moderated by Rick Hasen
Sept. 17: Democracy and Risks to the 2024 Elections (in person at UCLA Hammer Museum)
Image
Tuesday, September 17, 7:30pm PT at the UCLA Hammer Museum, (Recording to Follow)
Co-presented with the Hammer Forum and the David J. Epstein Program in Public Interest Law & Policy, UCLA Law
Can the United States conduct a free and fair election in November in which the public will have confidence? Are concerns about foreign interference, deep fakes, and disinformation serious or overblown? Is participation equally open to minority voters? What are the risks to U.S. democracy if significant portions of the public do not accept the election results as legitimate? Moderated by Rick Hasen, UCLA Law. Panelists: Leah Aden, NAACP Legal Defense and Education Fund; John Fortier, American Enterprise Institute; Justin Levitt, Loyola Law School, Los Angeles; Yoel Roth, The Match Group.
 More information here.
Sept. 24: One Person, One Vote? (in person at UCLA Hammer Museum)
Image
Tuesday, September 24, 7:30pm PT at the UCLA Hammer Museum, live in person only
Co-presented with the Hammer Forum
Documentary film screening.
At a time when many Americans question democratic institutions, One Person, One Vote? unveils the complexities of the Electoral College, the uniquely American and often misunderstood mechanism for electing a president. The documentary follows four presidential electors representing different parties in Colorado during the intense 2020 election.2024. dir. Maximina Juson. Color. 78 minutes. 
More information here.
Oct. 8: The United States Electoral College and Fair Elections (in person at UCLA Hammer Museum)
Image
Tuesday, October 8, 7:30pm PT at the UCLA Hammer Museum, (Recording to Follow)
Co-presented with the Hammer Forum
Why does the United States use the Electoral College for choosing the President? Is the Electoral College a fair way to choose a President? What specific risks does the method for choosing electors pose for free and fair elections? How likely is the United States to adopt a national popular vote instead of the Electoral College? Moderated by Rick Hasen, UCLA Law. Panelists: Joey Fishkin, UCLA Law; Amanda Hollis-Brusky, Pomona College; Derek Muller, University of Notre Dame. 
More information here.
Oct. 9: Finding Common Ground in Election Law (in person and online)
Image
Wednesday, October 9, 12:15pm-1:15pm PT, Lunch will be provided, (Recording to Follow)
In person at UCLA Law School Room 1430 and online
In person registration
Webinar Registration
Co-sponsored by the Office of the Dean, UCLA Law
Lisa Manheim (University of Washington School of Law), Derek T. Muller (Notre Dame Law School), and Richard L. Hasen (Director, Safeguarding Democracy Project, moderator) 
Oct. 15: Are We Ready for a Fair and Legitimate Election? (in person at UCLA Hammer Museum)
Image
Tuesday, October 15, 7:30pm PT at the UCLA Hammer Museum, (Recording to Follow)
Co-presented with the Hammer Forum
Are election administrators up to the task of holding elections and fairly counting votes when they are subject to unprecedented public scrutiny and face possible harassment? Will delays in reporting vote totals undermine the public’s confidence in election results, regardless of how well the election is administered? What are the risks to acceptance of election results and peaceful transitions of power between election day and January 6, 2025, when Congress counts the states’ Electoral College votes? Moderated by Rick Hasen, UCLA Law. Panelists: Larry Diamond, Stanford University, Ben Ginsberg, Stanford University. Franita Tolson, USC Law. 
More information here.
Oct. 21: A.I., Social Media, the Information Environment and the 2024 Elections (webinar)
Image
Monday, October 21, 12:15pm-1:15pm PT, Webinar, (Recording to Follow)
Co-sponsored by the Institute for Technology, Law & Policy, UCLA Law
Danielle Citron (University of Virginia Law School), Brendan Nyhan (Dartmouth), Nate Persily (Stanford Law School). Moderated by Rick Hasen
Webinar Registration
Share this:

“Democrats grow concerned Republicans are planting seeds with legal suits to overturn a Trump defeat”

election subversion risk, The Voting Wars

Peter Nicholas for NBC News:

Republicans are setting off a slew of legal fights in the battleground states ahead of the November election, raising suspicions among Kamala Harris and her Democratic allies that the underlying goal is to gin up doubts about the result if Donald Trump loses.

Georgia’s Republican-controlled State Election Board is trying to give local officials the power to decide on their own whether something untoward happened during the balloting, which could slow the process of identifying the winner.

In Michigan, Republicans are suing over whether the city of Detroit hired enough GOP poll workers, and in North Carolina, they’re alleging that the state’s voter rolls could allow noncitizens to vote.

All those claims look different on the surface. But the Harris campaign says there’s a pattern tying them together: Trump and his Republican allies want to sow confusion about the outcome should he lose. Democrats have submitted legal filings in at least one case that convey their misgivings about what they contend is the true purpose of the GOP litigation.

A defeated Trump could invoke the cases to revive his unfounded claim that election procedures are tainted in ways that should nullify the result, Harris campaign officials say. Trump and his allies filed dozens of unsuccessful cases after the 2020 election in a drumbeat of false claims of election fraud that culminated in a mob’s attacking the U.S. Capitol on Jan. 6, 2021, to try to prevent the certification of Joe Biden’s victory.

“We believe that every case they’ve filed is a brick in the foundation of an argument that they will make in November to say that the election is rigged,” a Harris campaign official said on condition of anonymity. “That is fundamentally our view of what their litigation is about. That is why we are prepared, we are winning in court, and we will ensure this election is free and fair.”

The Trump campaign referred questions to the Republican National Committee.

Share this:

“Paxton’s election fraud charges upend lives but result in few convictions”

fraudulent fraud squad, The Voting Wars

WaPo deep dive:

The church leader’s case fits a pattern that has emerged in Texas under Paxton: Aggressive prosecutions for alleged election fraud crimes that upend lives but result in few cases that go to trial and end in a conviction. The Republican attorney general and his supporters believe election fraud is rampant, and point to the large number of charges filed as proof. Yet many of those charged have stories like Sanchez’s.

Civil rights groups say the charges tend to target Black or Latino voters and volunteers, many of whom are Democrats. The result has been a chilling effect on volunteers and community groups that for decades have worked to increase turnout in a state with one of the nation’s lowest voter participation rates. Critics say the charges are part of a wider effort by predominantly White, Republican state lawmakers to suppress votes in some of the fastest-growing parts of the majority-minority state: urban and suburban communities that lean Democrat.

“The goal isn’t to get a conviction,” said Chad Dunn, legal director of the UCLA Voting Rights Project, who has defended Texan clients against election-fraud claims and won a 2021 case that curbed the attorney general’s prosecutorial power. “It’s to set up a climate of fear around voting. He uses these witch hunts to gain attention and money.”

Paxton’s work in combating alleged voter fraud is back in focus after a recent spate of state raids on the homes of South Texas “abuelitas,” or older women known for their community work. One of the nation’s largest Latino civil rights organizations has called on the Justice Department to investigate. The department confirmed they are aware of the matter but declined to comment further.

Share this:

“Voting Rights Leaders Step Up Election Initiatives After Texas Raids”

chicanery, fraudulent fraud squad, The Voting Wars

NYT:

Republican officials in Texas in recent days have investigated a number of Latino voting activists and political organizers as part of an election fraud inquiry, conducting a series of raids that led one group to appeal to the federal government.

The searches have also prompted response from voting rights organizers far beyond the state’s borders.

Activists across the Sun Belt have criticized the raids as the latest in a string of efforts in Republican-led states aimed at curbing access to the ballot box. Those efforts often cite baseless claims over noncitizens voting that have proliferated in right-wing media.

Voting rights organizers now say they are stepping up efforts to counter what they call voter intimidation and attempts to criminalize their members and volunteers ahead of Election Day.

In interviews, leaders of organizations working to get voters to the polls in Alabama, Arizona, Texas, Georgia and Florida said they were increasing their training, building new lines of communication with local election officials and pre-emptively seeking legal support to prepare for challenges. That groundwork, they said, is critical because the presidential race is expected to be won at the margins in a handful of swing states.

“This has just increased our alert here at home,” said Hillary Holley, a longtime activist in Georgia, where battles over elections have raged in recent years.

Ken Paxton, the Republican attorney general of Texas, said the search warrants against Democratic operatives and members of the League of United Latin American Citizens, one of the nation’s oldest Latino civil rights organizations, were carried out as part of an “ongoing election integrity investigation” into allegations of election fraud and vote harvesting that began two years ago. His office declined to comment further on the cases. The civil rights group has asked the Justice Department to investigate the sweeps…..

Share this:

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.

Share this: