Monthly Archives: August 2019

“Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management”

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.

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“DNC recommends scrapping Iowa’s virtual caucuses, Iowa Democratic Party chair insists Iowa will still be first”

Des Moines Register:

Democratic National Committee officials said Friday they will recommend scrapping Iowa’s plan to hold virtual caucuses in 2020, citing substantial security threats. 

“We concur with the advice of the DNC’s security experts that there is no tele-caucus system available that meets our standard of security and reliability given the scale needed for the Iowa and Nevada caucuses and the current cyber-security climate,” DNC Chair Tom Perez and Rules and By-Laws Committee Co-Chairs Lorraine Miller and Jim Roosevelt said in a joint statement. “For these reasons, we are recommending to the committee that virtual caucus systems not be used in the Iowa and Nevada 2020 caucus processes, and unless compliance can be met through other means, that the committee consider a waiver.”  

In a news release, the DNC cited a July report of the Senate Intelligence Committee which outlined Russian interference in U.S. elections. 

Iowa Democratic Party Chairman Troy Price told reporters that while he didn’t know the path forward he was confident Iowa’s first-in-the-nation place will not be shaken.

“Iowa will be a caucus. And Iowa will be first,” Price said multiple times when he met with the media Friday afternoon. 

But Price gave no timeline for how the party will proceed with allowing people who cannot attend in-person caucus locations to cast their preferences next year or a timeline on a solution.

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“Democrats cry foul as GOP group solicits voters at Texas driver’s license offices”

Houston Chronicle:

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.

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“Advocates push Census Bureau to prepare for security breaches, disinformation ahead of 2020 count”

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.

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“Florida Supreme Court Set To Clarify Voting Rights For Felons”


Florida’s high court waded into the legal wrangling over the voting rights of felons, agreeing Thursday to examine whether the state can continue restricting voting privileges to felons who have unpaid fines and fees.
Voters last year overwhelmingly approved a constitutional amendment restoring voting rights to as many as 1.4 million felons who have completed their sentences.

But the Republican-controlled Legislature then stipulated that to complete sentences, felons must pay all fines and fees before getting their voting rights restored. DeSantis signed the bill into law.

Voting rights groups immediately sued in federal court and likened the requirement to an illegal poll tax.

Gov. Ron DeSantis then asked the state Supreme Court for an advisory on the issue, which the court has agreed to consider….To be clear, the governor’s request does not ask the state’s justices to determine the constitutionality of the legislatively enacted law. Instead, the governor is asking the court to make a determination as to the meaning of a key phrase in the voter-approved measure known as Amendment 4.

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Moderating Event on Supreme Court’s Upcoming Term at the Hammer Museum Sept. 19

Looking forward to this:

Supreme Court Preview
THURSDAY SEP 19, 2019 7:30PM 
The Supreme Court’s new term begins Monday, October 7 and promises to be a momentous one.  Not only does the term overlap with a presidential election year, the court is also expected to review the Deferred Action for Childhood Arrivals (DACA) program, a New York City gun control law, and cases involving workplace rights of LGBTQ employees. Abortion cases and voting rights may also be on the docket. Loyola Law School professor Kimberly West-Faulcon, Pepperdine law professor Derek T. Muller, and UCLA law professor Jennifer Chacon join moderator Rick Hasen, UC Irvine political science and law professor, to preview the potential cases. 
Ticketing: Free tickets are required and available at the Box Office one hour before the program. One ticket per person; first come, first served.  

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Donor Threatens to Sue Candidate for Not Spending Money During Election

Orlando Sentinel:

John Morgan, a political rainmaker, on Wednesday threatened to sue Andrew Gillum, if the Florida Democratic gubernatorial candidate runs for office again.

Morgan’s remarks to the Tiger Bay Club in Tallahassee were an escalation of a public tirade over Gillum’s decision to sit on more than $3 million ahead of the November election, which the Democrat narrowly lost to Republican Gov. Ron DeSantis.

In October 2018, Morgan contributed $250,000 to Gillum’s political committee, Forward Florida. When the powerful Orlando trial lawyer asked Gillum for his money back, Morgan said he was told “no.”

“If he does decide to run again, I do believe I have a cause of action,” Morgan told the crowd of political insiders on Wednesday. “I do believe I will sue him to get that $3.7 million back to the ones that gave at the end. I do believe that.”

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“Ohio Agrees To Let Ballots Of Certain Purged Voters Count In Upcoming Elections”


One of the disputes fueling the war over Ohio’s purge process was resolved Thursday, with the announcement of a settlement in years-long litigation related to the purge regime.

Under the settlement, some voters who were removed from the rolls this year and in purges going back to 2011 will still be able to cast provisional ballots and have those ballots counted. The settlement covers votes cast through 2022.

Voting rights advocates cheered the settlement, even as they vowed to continue their outreach to 200,000-plus individuals who are on the list to be purged next month.

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“Trump’s revival of claim of voting fraud in New Hampshire alarms some state Republicans”


It was one of the first claims President-elect Donald Trump made about voter fraud in the wake of his 2016 victory: that his whisker-thin loss in New Hampshire was propelled by thousands of illegal ballots cast by out-of-state voters.
Trump’s revival of that false assertion as he ramps up his reelection campaign is now alarming some New Hampshire Republicans, who fear that the president’s allegations could undermine confidence in next year’s election.
“People hold riots after their favorite football team loses the Super Bowl,” said Fergus Cullen, a former New Hampshire GOP chairman and Trump critic. “There’s just no telling what people will do when they’re incited to it. We’ve never been in a situation like this, where there’s so much dry kindling across the landscape and we’ve got someone all too willing to light the match.”

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FEC Commissioner Petersen Intentionally Left Internet Disclosure Regulations Hanging, Knowing He Was Leaving

[Bumped to the top with corrected link]

Mother Jones:

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. 

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