New in the Hastings Constitutional Law Quarterly, from Capital’s Mark Brown: a review of recent ballot access battles in Ohio. I suspect there’s even more to add to the “major-party monopoly” argument if you add the legislature’s all-out gerrymandering war with the state Supreme Court, and the attempt to raise the threshold for citizen amendments.
The lawsuit filed today in state court by Rep. Zephyr – Montana’s first openly transgender lawmaker — and several of her constituents contends that her censure and subsequent barring from Capitol grounds violates the Montana state constitution.
I’m still hoping this isn’t a trend.
Zachary Roth on efforts targeting a younger segment of the electorate.
A deep dive on language access in New York.
In advance of next week, Politico offers a thorough preview of the two election law cases on the Supreme Court’s docket this term. Both cases, it notes, are appeals from lower court decisions that threw out political maps drawn by GOP-controlled legislatures. Doctrinal nuances aside, as a practical matter, “the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots.”
Senator Klobuchar summarized the Build Back Better plan on Twitter, “Millions of good-paying jobs. New roads and bridges. Broadband access for everyone. Lower costs for childcare, elder care, and community college. We’re going to get this bill to the President’s desk. That’s how we build back better.” She might have added, “This is also how we build back faith in American democracy.”
Passing government programs that address the needs of everyday Americans is itself an important part of the process of restoring both faith in our democratic institutions and functionality to our democratic processes. The basic lesson of the so-called policy feedback literature is that the choices we make in how we govern the economy, health, and education can either reverse or reinforce inequities in civic and political capacity.
As Pete Buttigieg remarked awhile back, “a lot of the mistrust in our country right now is the result of policy failure. And that policy failure is largely about a generation of intentional disinvestment in the things that we share and need together.” He is right. Policymaking has second-order effects on citizens’ attitudes about, and relations to, democracy—effects that can either instill civic and political engagement or breed endemic apathy. The specific direction of the policy feedback depends not only on the generosity and universality of those policies, but also on their visibility and the efficiency of their implementation.
Laws regulating election procedures are not the only, or even the most important, influences on enhancing political participation, fostering political capacity, or restoring faith in our democratic institutions. A government that gets things done for its people, and broadcasts clearly when it has done so, is another. Thus, while today’s announcement that a group of Democratic Senators, including Amy Klobuchar, have a new, paired down voting rights bill is promising, we should all note that the Build Back Better plan is itself a “democracy-reform” package—an opportunity to demonstrate policy responsiveness and an important step toward restoring faith in our democratic institutions.
Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.
The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.
But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.
Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.
Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.
The latest on the restoration of voting rights in Iowa.
A piece in the Atlantic on the governance options available to billionaires:
When people think about the political relevance of Michael Bloomberg’s money, they tend to think about how his massive spending helps his campaigns: the record $261 million he spent on his three successful mayoral runs, the billions he could end up spending on his quest for the presidency. What people often miss is that Bloomberg actually spent more of his own money boosting his policy efforts in city hall than he did to get there.
Part of Bloomberg’s presidential sales pitch is that his personal wealth—he’s worth an estimated $56 billion—makes him incorruptible. Not only is he unbribeable; being rich enough to never take political contributions, he can assume office unbeholden to donors. But Bloomberg is so rich that he shifts the direction of potential influence: Donors may not be able to buy influence, but he can use his wealth to push things in the directions he wants.
At the same time as the Thursday hearing on voting system security that I’d mentioned, House Oversight will be holding a hearing on “Reaching Hard-to-Count Communities in the 2020 Census.” The witness list is still TBD, as far as I know.
[UPDATE: Here’s the witness list. And it’s a doozy. They’re not fooling around.]
While I’m at it, there’s a magnificent map of hard-to-count communities here, laying out the Census Bureau’s contact strategies in each location. The Census Bureau also has an interactive map for hard-to-count communities with a lot of demographic and socioeconomic information here; California’s complete count committee has distilled the info in California to show the top-three reasons why any particular census block makes it harder to count.
A bill has passed the state Senate, and is working its way through the state Assembly. If it gets signed into law, that would make New Jersey the seventh state to change where incarcerated individuals are counted for representational purposes.
And in related news, the Orlando Sentinel digs into the local impact of the status quo in Florida.
Bertrall Ross and Doug Spencer have a new paper out in the Northwestern Law Review: “Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor.” The abstract:
A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.
We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression — one that operates to effectively disfranchise an entire class of people, just as the old form did for African Americans. This form of suppression excludes the poor.
To account for the effective disfranchisement of the poor, we develop a more robust theory of voting than currently exists in the legal literature. Drawing on rational choice and sociological theories of voting, we show how information, affiliation with formal organizations, and integration into social networks of politically active individuals are far more important to the decision to vote than the tangible costs of voting associated with the new voter suppression.
Using this expanded account of voting, we identify the role of political parties and their mobilization activities in the effective disfranchisement of the poor. Relying on the same proprietary data as the Obama campaign in 2008 and 2012 (and hundreds of campaigns since), along with other public sources of data, we show how campaigns employ a “calculus of contact” to decide whom to mobilize. That calculus leads campaigns to disproportionately neglect the poor when canvassing, calling, and sending political mailers to potential voters — mobilization activities that have a sizeable turnout effect. In our view, the most significant voter suppression tactics of the twenty-first century are therefore not what legislatures are doing, but what campaigns are not doing.
We argue that a first step in combating this passive voter suppression should involve changing the information environment of campaigns: the amount and type of information about potential voters that the state makes available to campaigns. Such a change could force campaigns to adjust their calculus of contact and contact more low-income people during election season. Including the poor as targets of campaign mobilization would be an important first step toward a more egalitarian democracy.
I learn something every time I read work by either Bertrall or Doug – and so I’m really looking forward to checking out the product of the collaboration.
A recap of recent action on the enfranchisement of people with convictions, from Stateline.