Monthly Archives: March 2019

“Even Liberal Democrats Can’t Quit Wealthy Donors and Their Big Checks”

Smart Shane Goldmacher and Jontahan Martin in the NYT:

The race for cash in the 2020 Democratic presidential primary is reaching a frenetic peak this weekend with a dozen fund-raisers on both coasts, as presidential hopefuls rush to vacuum up $2,800 checks — the maximum amount individuals can give for the primary by law — before the first quarterly fund-raising deadline of the campaign at midnight on Sunday.

But the candidates don’t want to discuss any of this.
They are instead trying to pull off a delicate balancing act. Publicly, the 2020 hopefuls are all about attracting low-dollar donors, trying to prove their grass-roots appeal and populist bona fides by touting large numbers of small donations — an ascendant force in Democratic politics. But privately, most Democrats also badly need the big checks and are still going behind closed doors to woo the wealthy, whose money is critical to pay for campaign staff, travel and advertising.

As a result, a traditional part of presidential races early on — candidates trumpeting big-money and well-connected contributors as a show of political strength — has gone virtually underground, the invisible primary turning truly invisible. The jockeying for major donors remains as intense as ever, but the usual campaign announcements of powerhouse finance committees and boldfaced bundler lists have all but disappeared. Even some online R.S.V.P. pages for fund-raisers don’t identify the wealthy backers anymore.

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Are Congressional Action, Voter-Established Redistricting Commissions, or State Courts Good Substitutes or Supplement for Federal Court Review of Partisan Gerrymanders?

At the recent oral argument in the partisan gerrymandering cases, both Justices Gorsuch and Kavanaugh raised the question whether partisan gerrymandering is a problem that could solve itself without federal court intervention. One possibility is through congressional action establishing state redistricting commissions for congressional elections. (This would only apply to congressional gerrymandering and not for state or local elections, and as Mark Joseph Stern pointed out, a requirement of states to establish commissions may be unconstitutional.) Another possibility raised by Gorsuch is independent commissions established by voter initiatives in states that have it. That’s less than half the states, and that too may be unconstitutional, as I explained at The Atlantic.

Well what about state courts, such as North Carolina’s state Supreme Court, which recently flipped into Democratic hands? Ben Williams suggests they could be the answer, but the issue is complicated.

On the state court question, see this recent discussion on Twitter (click on the link and follow the thread for responses).

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Is It Possible to Do Reliable Post-Election Audits on Ballots which Print a Scannable Bar Code Rather than Human-Readable Voter Choices?

This is one of the hottest issues right now among election integrity advocates.

Important piece from Steven Rosenfeld:

The critics believe there are too many hidden or hackable parts that can be targeted by malevolent actors to steal votes and rig results – in short, resurrecting old criticisms of DREs. But stepping back, examining these latest charges can illustrate how much has changed in voting technology, and that counting votes and verifying results could be more precise than ever – if best practices were more widely used.

To start, there are big differences between DREs and the newest BMDs. As Ben Adida, a cybersecurity expert and voting system engineer who created a non-profit to build an inexpensive and open-source voting system, recently tweeted, “equating Ballot-Marking Devices with paperless voting machines is an exaggeration.” Yes, these devices could be better, he added, noting that their bar codes and printed voter choices could be larger and more readable. But the newest BMD systems do produce a secondary record of the vote cast that can be verified and compared to its internal electronic tabulation, he said.

“Paper is there. Mismatched barcodes can be discovered with auditing. And improving paper verification is doable,” Adida tweeted. “It’s easy to be a security maximalist while ignoring other requirements. We need to do better than that, be more subtle, take other requirements into account.”

The maximalists to whom Adida was referring are a mix of academic computer scientists and grassroots election integrity experts, such as those cited recently in Politico who have been equating BMD systems (that may soon be acquired in Georgia, Pennsylvania, New York and elsewhere) with DREs. In short, the critics are firmly rejecting the prospect of any technological progress or better verification of the first unofficial vote counts. As Adida observed, there’s no middle ground …

Maryland’s approach has not gained wide attention. But it is doing what critics allege cannot be done – and arguably is a model for verifying vote counts. It is independently double-checking the accuracy of all of its initial results before announcing the official winners in its elections. This involves auditing both ink-marked paper ballots and the computer-generated ballot summary cards.

“I understand that we are the only state to have done it,” said Nikki Charlson, Maryland State Board of Elections deputy administrator. “It works very well for us. And provides lots of other information that helps us improve election administration.”

To verify its first unofficial vote totals, Maryland has been working with Clear Ballot. The firm pioneered a system that analyzes ballot image files produced by the scanners to independently verify the individual votes cast and audit the reported totals. Initially, Clear Ballot’s system focused on counting the ink-marked paper, but because Maryland also used BMD systems it wrote additional software to analyze whether those electronic totals matched the ballot summary card’s bar codes and printed voter choices…..


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“Florida Republicans aim to take away the best weapon progressive groups have left. Here’s how.”

Tampa Bay Times:

Republicans in Tallahassee control both chambers of the Legislature and the governor’s mansion, and they’ve appointed every member of the Florida Supreme Court.

Now, they’re taking aim at the last realm outside their grasp: Voters’ access to amending the Florida Constitution through ballot initiatives.
Two bills Republicans introduced this week would make it far more difficult to gather the signatures needed to get constitutional amendments before voters.

And they would thwart two major amendments that could appear on the 2020 ballot, one raising the minimum wage and the other allowing “energy choice,” advocates for those ideas say.

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“Why This Voting Expert Is Really Optimistic About The Future Of Voting Rights”


At a moment when the national conversation about voting rights is wrapped up in brutal partisan warfare, Josh Douglas, a law professor at the University of Kentucky who focuses on election law, sees hope. For Douglas, that optimism is driven by several voting reform successes already in place at the state and local level.

In his new book, Vote for Us: How To Take Back Our Elections and Change The Future of Voting, Douglas chronicles those changes and the activists responsible for making them happen. He focuses on things like a successful Michigan ballot initiative to limit excessive partisan gerrymandering, automatic voter registration, establishing vote centers and lowering the voting age to 16 (a proposal that failed in the Democratic-controlled U.S. House recently). Instead of focusing on what he calls the “doom and gloom” of voting, Douglas thinks activists can use these stories to expand access to the ballot.

HuffPost spoke with Douglas about his optimism for voting rights and how frustrated Americans can slowly work to make changes in their election laws.

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“The Democratic Presidential Primary Needs the Democratic Party”

From Brendan Nyhan, at Medium:

For anyone concerned about democratic norms and the rule of law, the 2016 election offered a clear lesson: Parties need to exercise more control over candidate selection. In this era of high partisanship, the official party nomination puts any candidate within striking distance of the presidency. This great power thus carries a profound responsibility: to deny the party endorsement to would-be demagogues. So why are Democrats reducing the role of party elites in the primary process this time around? …

Democrats also yielded to pressure to open access to presidential debates. In fact, they’ve now promised to include any candidate with 65,000 donors on the debate stage, in addition to those with qualifying levels of polling support. Not surprisingly, this rule is already being gamed: Recently, the Washington Postreported that John Delaney, a wealthy former member of Congress, is matching $1 donations with $2 contributions to charity to try to attract enough support to be included despite having no measurable support in polls. ..

Democrats see what is happening to democracies across the world; they should know better than to diminish their control over their own nomination process.

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“Equality, More or Less: How the Supreme Court Might Fix Gerrymandering”

Michael Latner:

The lower equality standard reflected in current Constitutional interpretations is well understood among both election law experts and political scientists. Justice Breyer has noted the tension between single-seat districts and proportional representation. The most prominent metric of partisan advantage in political science, Gelman and King’s partisan asymmetry statistic, is a measure of vote dilution that accounts for disproportionalities inherent in our single-seat, winner-take-all elections. Asymmetry measures the difference in seat shares that each party’s voters receive in a plan for the same statewide vote share, say 50%. A second component of the Gelman and King model, responsiveness, captures that inherent disproportionality that emerges when voters shift support from one party to another, typically resulting in a “winner’s bonus.” A system that is less responsive to shifts in support is evidence of a more durable gerrymander.

And it is within this asymmetry framework that we find a test that parallels the three-prong approach established for deciding racial gerrymandering cases in Thornburg v Gingles. It is described in the Amicus Brief submitted in the North Carolina case (in favor of neither party) by professors Bernard Grofman and Keith Gaddie. Their proposed test requires that plaintiffs first demonstrate that the opposition party has been deprived of partisan advantage in at least one district in the enacted plan in the same manner as Gingles: targeted voters must be a large and compact enough group to create a majority district without diluting their advantage in other districts. Second, the opposition voters must exhibit polarized partisan voting. Voters who regularly shift support between parties would not provide an advantage to either.

Third, plaintiffs must demonstrate vote dilution at the district level, through either a district where the opposition party regularly loses, or in a majority district where voters could be allocated more efficiently across districts. Finally, because changing parties is an option whereas changing race is not, the responsiveness statistic can be used to demonstrate the durability of a partisan gerrymander.

Justice Kagan’s expressed concern that the Maryland plan “flips the composition of the district from 47 percent Republicans and 36 percent Democrats to, instead, 45 percent Democrats and 34 percent Republicans, effectively ensuring that Republicans will never win this seat again…” and is excessive can be answered by including durability in the test.

Using responsiveness as a means of estimating durability is especially appealing as it is distinct from proportional outcome expectations. In fact, this final element of the test could require that very disproportional plans be upheld. Consider an extreme hypothetical where the difference in party affiliation in Maryland’s eight districts is only one person in each district. That is, each district is nearly perfectly split 50/50. In such a case, one person changing their vote changes control of the district, and if each pivotal voter in the district votes Democratic, Democrats win all eight seats, which is the least proportional plan. However, responsiveness is also maximized if it only takes eight people to flip every district, demonstrating that the plan is not a durable gerrymander.

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“What Are the Prospects for an Initiative on Rights Restoration in Mississippi?”

Daniel Nichanian:

The success of Amendment 4, Florida’s 2018 initiative to expand voting rights, may have boosted efforts to reform felony

disenfranchisement nationwide. But Mississippi’s Republican lawmakers were ultimately unmoved. The last of the rights restoration billsthat was still standing in Mississippi’s legislative session died last week.
This also killed the possibility that 2019 might bring legislative reform to a state that permanently disenfranchises nearly 10 percent of its voting-age population.

With the legislative path sidelined once more, what are the prospects and obstacles for the state to emulate Florida in pursuing a popular initiative?

Mississippi advocates to whom I asked this question mentioned an arduous qualifying process and a need for national attention and funding, among other factors. They also emphasized that they would support such an effort and believed it could succeed. “The will of the public is there, our lawmakers are just not paying attention to what the citizens want,” said Nsombi Lambright, executive director of the Jackson-based civic engagement organization One Voice. A statewide poll, conducted by Tulchin Research and released by the Southern Poverty Law Center in January, found that 68 percent of registered voters support a reform similar to Amendment 4, which curtailed the lifetime nature of disenfranchisement in Florida by allowing people to regain their voting rights once they complete a sentence for most felony convictions.
Reforming Mississippi’s system in a manner similar to Florida would require amending the state constitution, a step that must be approved by the state’s already-enfranchised residents.

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“In Ukraine, Russia Tests a New Facebook Tactic in Election Tampering”


Campaigning for Ukraine’s presidential election had just begun to heat up when the authorities announced they had thwarted a Russian plot to use Facebook to undermine the vote.

Unlike the 2016 interference in the United States, which centered on fake Facebook pages created by Russians in faraway St. Petersburg, the operation in Ukraine this year had a clever twist. It tried to circumvent Facebook’s new safeguards by paying Ukrainian citizens to give a Russian agent access to their personal pages.

In a video confession published by the S.B.U., Ukraine’s domestic intelligence service, a man it identified as the Russian agent said that he resided in Kiev, Ukraine’s capital, and that his Russian handlers had ordered him “to find people in Ukraine on Facebook who wanted to sell their accounts or temporarily rent them out.”

“As I learned,” said the man, who was not identified by name, “their goal was to use those accounts to publish political ads or to plant fake articles.”

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“Neil Gorsuch’s Bad-Faith Ploy to Save Partisan Gerrymandering and Doom American Democracy”

Mark Joseph Stern for Slate:

As Talking Points Memo’s Tierney Sneed has observed, Gorsuch’s question effectively weaponizes redistricting reform as an argument againstfederal court intervention. His solution—let the people solve the problem—is absurd for at least two reasons: The court may well strike down independent redistricting commissions, andeven if it doesn’t, at least 24 states bar citizens from circumventing the legislature to enact gerrymander reform. In response to this problem, Paul Clement, the conservative attorney defending gerrymanderers, pointed on Wednesday to H.R. 1, the Democratic measure that would compel each state to adopt an independent redistricting commission. But as Clement hinted, there is a good chance that the Supreme Court would also strike down this central provision of H.R. 1. The upshot is that without the support of the federal judiciary, millions of Americans will be powerless to stop partisan redistricting….

That’s true in theory, even though the bill has no chance of passing the Republican-controlled Senate. But Clement added a caveat. H.R. 1, he said, “was an effort to essentially force states to have bipartisan commissions. Now, query whether that’s constitutional.”
Wait—what? Remember, the elections clause states that Congress can “make or alter such regulations” regarding the “manner” of congressional elections. So why can’t Congress compel states to adopt independent redistricting commissions? The probable answer, as a white paper by Pack the Courts points out, is that this requirement could be struck down under the Supreme Court’s “anti-commandeering doctrine.” Under that principle, Congress can’t force state legislators to adopt or enforce a federal law. SCOTUS could easily cite the amorphous and ambiguous doctrine to justify invalidating the anti-gerrymandering provision of H.R. 1 on constitutional grounds.

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