Category Archives: The Voting Wars

Will Mitch McConnell Save America from the SAVE Act?

Votebeat:

Lane, one of four congressional staff members on the panel, said the SAVE Act will be a priority for the House this time. He acknowledged a push to consider what a voter identification requirement would look like and potentially revisit at least parts of other voting laws. Among them is a provision in the National Voter Registration Act that requires states to stop systematic cleaning of voter rolls 90 days before a federal election, a sticking point in ongoing litigation against Virginia.

It is far less clear what legislation might be able to draw the 60 votes necessary to overcome a filibuster in the Senate, where Republicans have 53 seats. Tiffany Ge, the majority staff director for the Senate Rules Committee, chaired by Sen. Mitch McConnell, R-Ky., stressed during the panel that federalism is fundamental to election administration, and said it’s important for states and localities to have the flexibility to do things in ways that make sense for them.

During the last Congress, McConnell was an original co-sponsor of Senate legislation that would have let states include a requirement on mail voter registration forms that applicants provide proof of citizenship, though the bill didn’t pass. That could suggest a legislative route he, at least, might support.

Speaking from the audience, Arizona Secretary of State Adrian Fontes, a Democrat, raised several concerns about the SAVE Act, pointing out that not everyone has documents showing proof of citizenship, and said he objected to the part of the legislation that establishes criminal penalties for an election administrator who registers someone lacking the documentation. “They’re doing their best out there,” he said.

Arizona is currently the only state enforcing a requirement for voters to provide documented proof of citizenship. Other states, including New Hampshire and Louisiana, have now passed legislation requiring it, and several state legislatures are considering it or intend to do so, including in Texas and Michigan. Arizona voters who don’t provide it cannot vote in state and local elections….

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Pam Bondi, the 2020 election, Project 2025, and the Ku Klux Klan Act

Pam Bondi’s hearings start today.  She’s applying for the job of Attorney General: the lawyer for the United States.  Given the shifting loyalties and vindictive proclivities of the President-elect who has put her forward, every Senator has both an obligation and a very personal stake in ensuring that she understands who her prospective client is.

In that process, one piece of the Project 2025 playbook should be front and center.

There’s no shortage of material in the DOJ section of Project 2025. It calls outright for abolishing the independence of the FBI (and all other independent agencies), prosecuting DAs who use their prosecutorial discretion, enforcing an 1873 law against mailing abortion drugs, and on and on. It implies still more, with goals that would be well within elections-have-consequences bounds in responsible hands (including past Attorneys General of both parties), but deeply concerning in others.

But there’s one bit of Project 2025’s section on DOJ that hasn’t gotten anywhere near the attention it should.  On pp. 562-564, there’s a portion suggesting shifting responsibility for prosecuting election-related offenses from the DOJ’s Civil Rights Division (CRT) to the Criminal Division (CRM).

The problem here isn’t actually the suggestion to shift responsibility. As a factual matter, the authority to prosecute most election-related offenses, including most versions of the particular statute mentioned in the chapter, already lives where Project 2025 wants it to live (with CRM). The Project 2025 chapter seems to have gotten this wrong based on the author’s misunderstanding of a single out-of-context table

The problem here also isn’t the fact that when the Project 2025 chapter gives an example of the reason to “shift” to CRM, the example relates to a relitigation of the 2020 election.  I mean, it’s a problem we’re still fighting that fight, yes.  But it’s far from the biggest problem with the example.

The problem is that the particular example that the Project 2025 authors chose to make their point — the example they were aiming for as a paradigm case — is crazypants.  And Bondi should be asked whether she agrees with it.

In 2020, PA’s chief election official, the Secretary of the Commonwealth, sent guidance to counties saying that a voter showing up at the polls but listed on the books as voting absentee should vote a provisional ballot, not a regular ballot.  If the mail ballot counted, the provisional wouldn’t.  If the mail ballot didn’t count for some reason, but the voter was actually eligible, the provisional ballot should count.  One ballot counted and only one ballot counted, for one eligible voter.

Whether the Secretary’s guidance was correct is a matter of state law.  In 2024, in a slightly different context, the Pennsylvania Supreme Court endorsed the guidance’s approach.  But whether you agree or disagree with that interpretation, either way around, this is a fight about the meaning of state law.

And, to be clear, this is a state law fight about whether the ballot of an _eligible_ voter should be counted in the event of a procedural error (which might have been the state’s mistake).  Absolutely no part of this fight, under any reading of the guidance, even remotely suggests that an ineligible voter will be able to vote.

The Project 2025 chapter — in the example they chose to highlight as the paradigm case of DOJ enforcement — says that for issuing this guidance, the PA official “should have been (and still should be) investigated and prosecuted”  (emphasis added).  For conspiring to deprive Pennsylvanians of their civil rights UNDER THE KU KLUX KLAN ACT  (emphasis emphatically added.)

It’s worth saying again. The Project 2025 chapter thinks that a matter of heartland federal prosecution is that the DOJ should send a state official to prison — under the Klan Act — based on a disagreement about whether state law allows an eligible voter to cast a ballot that will be counted. When the state official was trying to ENfranchise the voter.

The reason this case hasn’t been prosecuted isn’t because the authority is with the wrong DOJ division.  The reason this case hasn’t been prosecuted is because that prosecution would be insane. I know plenty of conservative federal prosecutors who take their oaths of office quite seriously. I don’t know one who would think this case is proper.

This is an unrecognizable criminal prosecution.  So much so that it’s hard to describe how out of bounds this suggestion is.  The best I can do is a bad balls-and-strikes metaphor. 

Some legal arguments are strikes.  Some are balls.  (And sometimes the line between depends on the judge.)

Some are wild pitches.

This one is a pitcher completely ignoring the plate and the batter, and trying to fire a fastball as hard as he can directly into the face of a spectator in the stands.

And over the next two days, Pam Bondi should be asked whether she agrees that this is a valid use of DOJ authority.

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Announcing the Winter/Spring Lineup of Safeguarding Democracy Project Events

We’ve got a great lineup of in person, online, and hybrid events!

Alternate text   Tuesday, January 28 
Fair Elections and Voting Rights: What’s Ahead in the Next Four Years? Image   

Register for the webinar here. In-person registration here. Lunch will be provided.
Tuesday, January 28, 12:15pm-1:15pm PT Room 1327 at UCLA Law and online
Amy Gardner, The Washington Post, Pamela Karlan, Stanford Law School, and Stephen Richer, former Recorder of Maricopa County, Arizona. Moderated by Richard L. Hasen (Director, Safeguarding Democracy Project)   

Thursday, February 13 
Finding Common Ground on Modernizing Voter Registration Image   

Register for the webinar here.
Thursday, February 13, 12:15pm-1:15pm PT, Webinar
Christina Adkins, Director of Elections, Texas Secretary of State’s Office, Judd Choate, Director of Elections in Colorado, and Charles H. Stewart III, MIT. Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   

Tuesday, March 4 
What do Documentary Proof of Citizenship Requirements for Voter Registration Accomplish? Image   

Register for the webinar here. In-person registration here. Lunch will be provided.Tuesday, March 4, 12:15pm-1:15pm PT at UCLA Law School Room 1327 and online
Adrian Fontes, Arizona Secretary of State, Walter Olson, Senior Fellow at the Cato Institute, and Nina Perales, Vice President of Litigation, MALDEF (Mexican American Legal Defense and Educational Fund) Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   

Monday, March 31 
Combatting False Election Information: Lessons from 2024 and a Look to the Future 
Image   

Register for the webinar here.
Monday, March 31, 12:15pm-1:15pm PT, Webinar
Alice Marwick, Director of Research, Data & Society, UNC Chapel Hill, Kate Starbird, University of Washington, and Joshua Tucker, NYU. Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   

Thursday, April 10
 Partisan Primaries, Polarization, and the Risks of Extremism
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Register for the webinar here.Thursday, April 10, 12:15pm-1:15pm PT, Webinar
Julia Azari, Marquette University, Ned Foley, Ohio State University, Moritz College of Law, Seth Masket, Denver University, and Rick Pildes, NYU Law School  Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)   
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“Trump has pressed for new voting requirements. Republicans in Congress will try to make that happen”

AP:

Republicans plan to move quickly in their effort to overhaul the nation’s voting procedures, seeing an opportunity with control of the White House and both chambers of Congress to push through long-sought changes that include voter ID and proof-of-citizenship requirements.

They say the measures are needed to restore public confidence in elections, an erosion of trust that Democrats note has been fueled by false claims from President-elect Donald Trump and his allies of widespread fraud in the 2020 election. In the new year, Republicans will be under pressure to address Trump’s desires to change how elections are run in the U.S., something he continues to promote despite his win in November.

The main legislation that Republicans expect to push will be versions of the American Confidence in Elections Act and the Safeguard American Voter Eligibility Act, said GOP Rep. Bryan Steil of Wisconsin, chair of the Committee on House Administration, which handles election-related legislation. The proposals are known as the ACE and SAVE acts, respectively.

“As we look to the new year with unified Republican government, we have a real opportunity to move these pieces of legislation not only out of committee, but across the House floor and into law,” Steil said in an interview. “We need to improve Americans’ confidence in elections.”

Republicans are likely to face opposition from Democrats and have little wiggle room with their narrow majorities in both the House and Senate. Steil said he expects there will be “some reforms and tweaks” to the original proposals and hopes Democrats will work with Republicans to refine and ultimately support them….

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Jan. 28 Safeguarding Democracy Project Live and Online Event with Amy Gardner, Pam Karlan, and Stephen Richer: “Fair Elections and Voting Rights: What’s Ahead in the Next Four Years?”

The UCLA Law Safeguarding Democracy Project will be announcing its spring speaker series in January, but here’s our first event for you to put on your calendars:

Tuesday, January 28
Fair Elections and Voting Rights: What’s Ahead in the Next Four Years?
Register for the webinar here. In-person registration will open in January.Tuesday, January 28, 12:15pm-1:15pm PT Room 1327 at UCLA Law and online
Amy Gardner, The Washington Post, Pamela Karlan, Stanford Law School, and Stephen Richer, Recorder of Maricopa County, Arizona (until Jan.1, 2025).
Moderated by Richard L. Hasen (Director, Safeguarding Democracy Project)
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“After Trump’s Victory, Republicans Trust the Election System Again”

NYT:

Americans are more confident in the country’s election system than they have been at any time since the 2020 election, according to a new study — a shift owed to a sea change in Republican sentiment since Donald J. Trump’s election.

The findings, which echo other post-election polling, underscore the role Mr. Trump played in encouraging Republican suspicion of unwelcome results, and reveal stark differences in how Republican and Democratic voters have handled recent losses.

“The increase is heartening,” said Brendan Nyhan, a professor of government at Dartmouth College and a director of Bright Line Watch, which commissioned the survey from YouGov. The group is a consortium of political scientists that has conducted regular polls on democracy issues since 2017. “But there’s also bad news, which is we now have to wonder if Republicans will only trust the system if they win,” Mr. Nyhan said.

Eighty-nine percent of all respondents recognize Mr. Trump’s victory in last month’s election as legitimate, according to the Bright Line Watch survey. Only 65 percent said the same of Joseph R. Biden Jr.’s victory in 2020 in the group’s survey that November….

The shift highlights the two parties’ differing response to losses. Eighty-three percent of Democrats view the outcome of the 2024 election as legitimate, according to the survey of 2,750 Americans, which was conducted in mid- to late November and has a margin of error of about 2 points. By contrast, only 27 percent of Republicans viewed the outcome of the 2020 election as legitimate at the time.

Pew Research Center post-election poll released this month found similar results. Eighty-four percent of Democratic respondents polled last month said they believed the 2024 election had been run “very” or “somewhat” well, a decline of only 10 percent from 2020. But the share of Republicans saying the same jumped to 93 percent from 21 percent in November 2020….

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“Restricting the Vote: Inside the Right-Wing Push to Rewrite Election Rules in 2025; Cleta Mitchell offered ALEC state lawmakers a list of restrictive voting policies”

Documented:

In the immediate aftermath of Trump’s 2024 election victory, the right’s “election fraud” claims magically disappeared—but only temporarily. The fraud narrative is already reemerging to justify a wave of restrictive new voting laws in 2025, according to audio obtained by Documented from a December meeting of the American Legislative Exchange Council, or “ALEC.”

ALEC is an influential organization that brings together state legislators, private-sector corporations, and right-wing advocacy organizations. Former Trump attorney Cleta Mitchell led a December 4, 2024 panel at the ALEC meeting, where she pitched state lawmakers on a menu of restrictive new voting laws.

“We’re going to begin a real effort next year to educate state legislatures and legislators, as well as members of Congress, to identify the problems” in elections, Mitchell said, according to a recording of the session.. “We’re going to be talking to legislators and staff about the things that need to be done to restore voter confidence.”

Mitchell offered state lawmakers a lengthy policy wish list, with calls for limiting early and mail-in voting, creating stringent new proof of citizenship and identification requirements, and making it easier to purge voters from the rolls.

It also calls for eliminating “ballot curing,” which allows eligible voters to fix technical mistakes on their ballot. The document was titled the “Voters’ Election Integrity Bill of Rights,” and which has since been updated online as the “U.S. Citizens Elections Bill of Rights.” The metadata for the online version shows it was created by an employee of the Conservative Partnership Institute, which employs Mitchell….

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“Selling Americans a ‘lie’: How election integrity attorneys battled left-wing efforts to upend voting laws”

Fox News presents a view of pre-election litigation as “rife with repeated legal battles to protect the voting processes from left-wing attorneys leveraging the courts to strip election safeguards.” 

I have to say, I’m still waiting for an explanation of the substantive rationale for a “safeguard” that disenfranchises a voter who’s otherwise eligible to vote but messed up a ballot envelope date that election officials don’t use for any administrative purpose.

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“‘Bunch of bull.’  NC voters furious to learn candidates want to disqualify them.”

There’s a challenge to the eligibility of 60,000 voters in the NC Supreme Court race decided by just a few hundred votes.  Among the challenged voters: the incumbent justice’s parents

Any mass challenge to voter registration is going to involve some mistakes.  (That’s why real safeguards for mass list maintenance are so important at any point in the calendar, and why hurried and high-stakes post-election procedures are significantly more problematic than procedures before the 90-day NVRA cutoff, with time to address the errors.)

This Carolina Public Press piece interviews some of the people on the challenge list in the NC Supreme Court race, with a welcome reminder that there are real people behind the big numbers.

More real people here from the Asheville Watchdog and here from Popular Information.

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“Will NC Republicans have the votes to override Cooper’s veto of powers-stripping bill?”

The story above was about how well the North Carolina elections process works.  Jury’s still out on the state’s democracy process, though.

This News & Observer piece reviews the legislation tacked on to a Helene relief bill, stripping state executive officials’ powers in Democratic hands that might check the Republican-supermajority legislature.  The legislation was passed largely on party lines, vetoed by the Governor, and now needs every Republican legislator in the state House and Senate in order to override the veto.  The Republican Senate has already moved to override.  But that “largely on party lines” statement is really important: three Republican members of the House voted no as the bill was on its way to passage, and there are a lot of eyes on them as the House sets up an override vote for next week.

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