This change is almost certainly in response to the fact that Michael Bloomberg now appears to be fourth in the national polls, even though he is not soliciting contributions from anyone. As the DNC has recognized, keeping a candidate with that level of voter support off the debate stage, simply because his support is not expressed in one particular form — the number of small donors — would not have made a whole lot of sense. Democratic primary voters will now get a chance to see him on the same stage with others polling at the top and make their own decisions.
Election officials are striking a confident tone about digital security at their final summit before caucus and primary season begins. But they’re also planning for the worst, war-gaming how to handle any major hacks from Russia or other adversaries.
“We’re planning as if they’re coming back,” Chris Krebs, the Department of Homeland Security’s top cybersecurity official, said on the sidelines of the conference hosted by the National Association of Secretaries of State. “The playbook’s out there. It’s not just about Russia. It’s about anyone else that may want to get into this space.”
Krebs led more than 200 officials through a series of worst-case scenarios during the conference, testing how they’d respond and work together during a cyberattack or misinformation campaign targeting a primary or general election. Among the participants were representatives from 44 states, 15 election vendors and 11 federal departments and agencies, a DHS spokeswoman said.
The conclusion: Officials are far better prepared than in 2016 when Russian hackers probed election infrastructure across the nation and upended Hillary Clinton’s campaign by hacking and releasing emails and flooding disinformation onto social media.
Secretary of State Brad Raffensperger has repeatedly said paper ballots will give Georgia voters “a physical recount.”
But under a proposed elections rule, the only physical part of the recount would occur when poll workers feed ballots into the machines.
The rule calls for recounts to be conducted by ballot scanning machines that read votes encoded in bar codes. Election officials won’t review the ballot text to check the accuracy of vote totals until the state develops auditing rules.
Election integrity organizations say recounts of paper ballots should be done by hand to help ensure that the printed text matches votes tabulated from the bar code.
“You have to have a manual process to confirm a computerized process,” said Marian K. Schneider, the president of Verified Voting, a nonpartisan organization that promotes accurate and verifiable elections. “The best way is to do a hand recount that can look at the human-readable text on the paper output.”
As with every presidential election cycle when the Iowa caucuses approach, voters elsewhere have been left to wonder why such an unrepresentative state plays an outsize role in American democracy. Iowa voters are more rural than the national average, but the most notable demographic difference is Iowa’s whiteness: 90.7 percent of the population is white, compared with 76.5 percent nationally.
Yet the Democratic caucuses on Feb. 3 are going to be even whiter than that disparity suggests, because the state practices a de facto form of racial disenfranchisement: a lifetime voting ban for anyone ever convicted of a felony.
Just 4 percent of Iowa’s population is black, but blacks make up 26 percent of the state’s prison population. In 2016, a study by the Sentencing Project ranked Iowa third worst in the nation for its 1 in 17 incarceration rate of adult black males; the white/black differential was 11 to 1, also third worst nationally. (The disenfranchisement of Latinos is less pronounced; they make up 6.2 percent of Iowa’s population, and the Latino/white imprisonment ratio is 1.7 to 1.)
In my posts this week, I’ve made the case for treating the Fifteenth Amendment as an independent constitutional provision and why the colorblind approach developed in equal protection jurisprudence is an ill-fit in voting rights cases.
For my final post, I’ll address the en banc Ninth Circuit’s serendipitously timed decision in DNC v. Hobbs, holding that Arizona violated the Fifteenth Amendment. In case you who haven’t read the 432-page opinion, here’s the basic facts as they relate to the Fifteenth Amendment holding. For brevity’s sake, I’m skipping over another invalidated Arizona law concerning out-of-precinct ballots and the court’s analysis of Section 2 of the VRA.
For years, Arizona permitted third parties to collect early ballots and deliver them by mail or to a polling place. Historically, minority voters were far more likely than white voters to rely on third-party ballot collectors due to unreliable mail service, inflexible work schedules, and transportation problems. And like in many jurisdictions, voting in Arizona is racially polarized.
In 2011, Arizona passed a law requiring a third-party ballot collector to provide a photo identification if they turned in more than ten ballots and that, after each election, a statewide public report be issued listing ballot collectors’ information. Back in 2011, Arizona was still a covered jurisdiction and had to apply for preclearance. After the DOJ requested more information about Arizona’s law, the state legislature repealed it and the preclearance request was withdrawn.
A week before Shelby County was decided in 2013, Arizona adopted another law that totally banned partisan ballot collectors and required non-partisan ballot collectors to complete an affidavit stating that they had returned the ballot. After more than 140,000 voters signed a petition to hold a referendum on the law at the next election, the state legislature repealed it.
Then, in 2016, Arizona passed H.B. 2023, the statute at issue in Hobbs. H.B. 2023 criminalizes the collection of another person’s early ballot, with certain exceptions for family members and postal workers. Arizona passed H.B. 2023 notwithstanding the absence of “evidence of any fraud in the long history of third-party ballot collection in Arizona” and “despite the extensive statutory provisions already criminalizing fraud” related to ballot collection.
As the Ninth Circuit explained, two incidents motivated the Republican state legislators who supported H.B. 2023. The first was “unfounded and often farfetched allegations of ballot collection fraud” made by a former state senator who had introduced the 2011 bill “following a close, racially polarized election” in his district. The second was a “racially tinged video” produced by the Maricopa County Republican Party Chair showing “a man of apparent Hispanic heritage appearing to deliver early ballots.” The video included voice-over commentary stating that “the man was … stuff[ing] the ballot box” and that, although it was unknown whether the man “was an illegal alien, a dreamer, or citizen,” he was a “thug.” There was no evidence that the man delivering the ballots was engaged in illegal activities.
In a 6-1-4 decision, the en banc Ninth Circuit held that H.B. 2023 was enacted with discriminatory intent and therefore violated the Fifteenth Amendment. In his opinion for the en banc court, Judge William Fletcher highlighted several factors revealing a racially discriminatory intent: the “false, race-based claims of ballot collection fraud,” Arizona’s history of racial discrimination in voting, the unsuccessful attempt to pass similar laws while Arizona was a covered jurisdiction, the degree of racially polarized voting, and the “substantial increase in American Indian and Hispanic voting attributable to ballot collection that was targeted by H.B. 2023.” Judge Watford joined the majority’s statutory holdings but wrote a short concurrence stating—without elaboration—that he did not join its constitutional holding.
Judges O’Scannlain and Bybee each wrote dissenting opinions, which largely focused on the statutory issues in the case. As relevant here, O’Scannlain faulted the Ninth Circuit for failing to distinguish between partisan and racial considerations in H.B. 2023’s passage and for giving short shrift to Crawford’s statement that States can pass prophylactic measures even in the absence of voter fraud. For his part, Bybee emphasized that H.B. 2023 is similar to laws in many other States and was a legitimate anti-fraud measure.
A few things to highlight about the Ninth Circuit’s decision. First, the Ninth Circuit stressed that racial discrimination need only be a motivating factor in H.B. 2023’s passage and that its decision does not mean that a majority of the Arizona state legislature harbored racist beliefs. Is so doing, the Ninth Circuit relied heavily on the Fourth Circuit’s decision in North Carolina State Conference of NAACP v. McCrory, which struck down North Carolina’s post-Shelby County voter suppression law on intentional-discrimination grounds. As I’ve explained before, McCrory reflects a resurgence of intent-based claims being litigated in the wake of Shelby County. Unfortunately, we are still confronting vote-denial cases 150 years after the Fifteenth Amendment’s ratification, but these cases have underscored the Fifteenth Amendment’s continuing relevance.
Second, the Ninth Circuit held that H.B. 2023 also violated Section 2’s discriminatory effects standard. The constitutional ruling was thus unnecessary to the judgment, though it does qualify Arizona for bail-in under Section 3(c) of the VRA.
Third, Arizona plans to file a cert petition. The fact-bound constitutional holding will likely be of less interest to the Supreme Court than the application of Section 2 to vote-denial claims. However, given the way the Ninth Circuit wrote its decision, the Court would need to grant cert on the constitutional question to reverse the decision. This wrinkle somewhat insulates the decision from review, but Hobbs could be the rare case where the Court elaborates on the meaning of the Fifteenth Amendment.
Finally, Hobbs is yet another example of how the VRA’s preclearance regime deterred discriminatory laws and why bail-in is an important part of the voting rights toolkit. After all, H.B. 2023 was not Arizona’s first attempt to pass a law restricting a third party’s right to collect early ballots. But after Shelby County, Arizona had a freehand to enact H.B. 2023, which was more restrictive than the predecessor bills. Once the dust has settled on the liability questions, it is possible that Arizona could be bailed-in to stop similar discriminatory measures in the future. Given Arizona’s pre-Shelby County attempts, it seems likely that it may do so again.
Brendan Fischer for CLC.
Senate Intelligence Committee Chairman Richard Burr (R-N.C.) said on Thursday he has “no problem” with a White House lawyer’s argument that American politicians can accept damaging information on their opponents from a foreign country — a proposal that shocked Democrats.
White House Deputy Counsel Patrick Philbin told senators during Wednesday’s session of President Donald Trump’s impeachment trial that it was a “mistake” to believe that any information about a political opponent that originates from a foreign country amounts to improper interference in a U.S. election.
“I have no problem with what Philbin said,” Burr told reporters.
Philbin, responding to a question about whether Trump believes foreign interference in an American election is “illegal,” told senators that as long as the information is credible, it is relevant to American voters.
“I think that the idea that any information that happens to come from overseas is necessarily campaign interference is a mistake,” he said. “Information that is credible that potentially shows wrongdoing by someone who happens to be running for office, if it’s credible information, is relevant information for the voters to know about.”
The argument outraged Democrats — including Burr’s counterpart on the Intelligence Committee, Vice Chairman Mark Warner (D-Va.), who said “my head exploded” when he heard the remark. Burr and Warner have worked closely on the issue of election interference in the aftermath of Russia’s efforts to meddle in the 2016 election — perhaps the only bipartisan duo in Congress still working closely together on the issue.
“God help us,” Warner told POLITICO, referring to Republicans who were defending Philbin’s argument.
Jack Santucci and Benjamin Reilly blog.
Illinois elections officials disclosed fresh problems Wednesday with the state’s automatic voter registration program, saying at least one eligible voter who declined to register to vote was signed up anyway.
The program is already under fire for mistakenly registering over 500 people who indicated they weren’t U.S. citizens, of which 15 people voted in 2018 and 2019 elections. Officials in the Illinois secretary of state’s office said at least eight of the people have long voting histories and were likely U.S. citizens, leaving seven voters in question. The individuals involved were applying for standard drivers’ licenses at secretary of state’s offices.
You can read the interview here.