Ned Foley has posted this very important draft on SSRN. Here is the abstract:
Congress could face a disputed presidential election triggered, not necessarily by foreign interference, but by the ballots counted after Election Night that cause the initial apparent winner to fall behind. If Congress receives conflicting submissions of electoral votes from the same state, the existing statutory and constitutional provisions for handling this conflict are ambiguous and vulnerable to partisan posturing. Bicameral deadlock, in which the Senate claims one presidential winner while the House claims the other, would resemble the disputed Hayes-Tilden election of 1876 in a way that Bush v. Gore in 2000 did not. This kind of bicameral deadlock, if it lasted until noon on January 20, 2021, would cause serious difficulties in the capacity of the nation to transition from one presidential term to the next pursuant to the rule of law. It is in the nation’s best interest to confront this vulnerability now, in order to be in the best possible position to handle this kind of situation if it should arise.
Ned tells me this is still very much a draft in progress and that he welcomes comments.
Fresh off a settlement involving Ohio’s voter purge process comes a new lawsuit and request for TRO from the Ohio Democratic Party.
As people filed in and out of the massive driver license office in Southwest Houston on Tuesday morning, two workers at a tent affiliated with a conservative advocacy group asked if the passersby would sign a petition or register to vote.
A follow-up question as two women filled out the forms: Are you conservative or liberal?
“Conservative means you believe in less government and less taxes,” one of the workers – wearing a lime green T-shirt with the group’s name, Engage Texas — asked them. “Liberal means you believe in more government and more taxes.”
State Rep. Chris Turner, who leads the Democratic Caucus in the Texas House, said he witnessed something similar Monday outside Department of Public Safety driver license offices in Fort Worth and in Hurst, a suburb of Dallas, where people who signed a petition to ‘ban late-term abortion’ were asked to register to vote.
“The taxpayers of Texas have a right to expect that their hard-earned dollars are not subsidizing political activity, as is the case here,” Turner wrote Tuesday in a letter to DPS. “And Texans who are trying to renew their driver licenses, already forced to wait hours – sometimes outside in the heat – are enduring enough already without having to deal with political operatives while stuck in line.”
But DPS said in a statement that public spaces outside driver license offices are available for “political speech,” and it appears that Engage Texas is just beginning to ramp up its efforts to register voters ahead of the 2020 elections in which the GOP faces more competitive races than it has in over a decade.
Engage Texas, a super PAC backed by many of the state’s top Republican contributors, has already accumulated nearly $10 million since it was created about a month ago with the goal of registering more Texans to vote. The group’s executive director Chris Young was the former national field director for the Republican National Convention in 2016.
Rather than complain, Democrats should be setting up their own tables.
San Antonio Express-News:
As the first U.S. census to be conducted mainly online gets underway in the coming months, warnings from the Government Accountability Office about “substantial cybersecurity challenges” and disinformation campaignsraise concerns about how such a massive operation – collecting the names, addresses and birth dates of more than 300 million people – could be undermined by malicious actors on social media.
You can watch the CSPAN video of this APSA panel here. The panelists were Josh Chafetz, Matt Glassman, Henry Olsen, Ilya Somin, Victoria Nourse, and me, with David Karol moderating.
The video in question raises issues of voter registrations and redistricting.
[Bumped to the top with corrected link]
At the most recent FEC meeting last week, commissioners punted—for the fourth meeting in a row—on the question of how to attach the same kind of disclosures that appear in television political ads to digital political ads. The commission’s lone remaining Democrat, Ellen Weintraub pressed the other three members to address the issue and complained that she hadn’t been able to get any response from Petersen’s staff.
“I can’t say that I have anything new,” Petersen told Weintraub. “I don’t have a lot to add other than that this particular time I have not been able to develop the formulation I think will bring us to consensus. I wish I had more to say but that is about the extent of it right now.”
Any further discussion on how to increase the transparency of internet ads—on which campaigns are expected to spend as much as $1.2 billion this cycle—was tabled. Thanks to Petersen’s resignation, the tabling will continue for the foreseeable future. Commission members are appointed by the president, and although Trump has made one nomination to the commission since his inauguration, the Senate has not scheduled any confirmation hearings.
Bob Egelko for the SF Chronicle:
Forty-seven years ago, California’s voters opened the state’s presidential primaries to all nationally recognized candidates. That ballot measure could determine the fate of a new state law requiring President Trump and his competitors to release their tax returns in order to run in next year’s primaries.