Monthly Archives: January 2021

“After Record Turnout, Republicans Are Trying to Make It Harder to Vote”

Michael Wines for the NYT:

In Georgia, Arizona and other states won by President Biden, some leading Republicans stood up in November to make what, in any other year, would be an unremarkable statement: The race is over. And we lost, fair and square.

But that was then. Now, in statehouses nationwide, Republicans who echoed former President Donald J. Trump’s baseless claims of rampant fraud are proposing to make it harder to vote next time — ostensibly to convince the very voters who believed them that elections can be trusted again. And even some colleagues who defended the legitimacy of the November vote are joining them.

According to the Brennan Center for Justice at New York University, state legislators have filed 106 bills to tighten election rules, generally making it harder to cast a ballot — triple the number at this time last year. In short, Republicans who for more than a decade have used wildly inflated allegations of voter fraud to justify making it harder to vote, are now doing so again, this time seizing on Mr. Trump’s thoroughly debunked charges of a stolen election to push back at Democratic-leaning voters who flocked to mail-in ballots last year.

In Georgia, where the State House of Representatives has set up a special committee on election integrity, legislators are pushing to roll back no-excuse absentee voting. Republicans in Pennsylvania plan 14 hearings to revisit complaints they raised last year about the election and to propose limitations on voting.

Arizona Republicans have subpoenaed November’s ballots and vote tabulation equipment in Maricopa County, a Democratic stronghold that includes Phoenix. Legislators are taking aim at an election system in which four in five ballots are mailed or delivered to drop boxes.

Those and other proposals underscore the continuing power of Mr. Trump’s campaign to delegitimize the November election, even as some of his administration’s top election experts call the vote the most secure in history. And they reflect longstanding Republican efforts to push back against efforts to expand the ability to vote.

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“The Gerrymander Battles Loom, as G.O.P. Looks to Press Its Advantage”

NYT:

With the election over and Democrats in control of the White House and both chambers of Congress, officials in both parties are bracing for a bruising new battle with a different balance of power: the redrawing of congressional maps, where Republicans hold the advantage in many state legislatures across the country, including in key battlegrounds.

Republicans hold total control of redistricting in 18 states, including Florida, North Carolina and Texas, which are growing in population and expected to gain seats after the 2020 census is tabulated. Some election experts believe the G.O.P. could retake the House in 2022 based solely on gains from newly drawn districts.

Already, Republicans are discussing redrawing two suburban Atlanta districts held by Democrats to make one of them more Republican; slicing Democratic sections out of a Houston district that Republicans lost in 2018; and carving up a northeastern Ohio district held by Democrats since 1985.

“I would say that the national vote could be the same as this year two years from now, and redistricting by itself would easily be enough to alter who controls the chamber,” said Samuel S. Wang, the director of the Princeton Gerrymandering Project. He estimated that reapportionment alone could net the Republicans three seats, and gerrymandering in North Carolina, Georgia and Florida another five seats.

With Democrats holding a 222-211 edge, Republicans would probably need to flip just six seats to win back the majority. But Dr. Wang and other good-government experts cautioned that other factors could determine the majority.

Democrats will try to redraw districts in their favor in states like New York, Illinois and Maryland, they said. Some battleground states have adopted nonpartisan independent redistricting commissions. And President Biden did not create a wave of downballot victories for Democrats in the November elections, so there are fewer surprise winners who could easily lose their seats in 2022.

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“Trump raised $31.5 million in the weeks after Election Day for his new leadership PAC, filing shows”

WaPo:

Former president Donald Trump’s new political action committee raised $31.5 million in the weeks after Election Day through a flurry of fundraising appeals purporting to fight election fraud and help Republicans maintain their majority in the Senate, new filings show.

But by Jan. 1 — two weeks after the electoral college certified President Biden’s victory and days before the two Senate elections in Georgia that tipped the chamber’s control to Democrats — he spent no money on either endeavor, according to disclosures made public Sunday evening.

Instead, Trump had held on to the majority of that money in the coffers of Save America, his new leadership PAC, which carries few restrictions on how the money can be spent and can now be used to finance his post-presidential political career.

In all, the official committees supporting Trump and the Republican Party raised more than $290 million since his Nov. 3 electoral defeat — a staggering amount by an outgoing president that highlights Trump’s lasting influence on the party and its fundraising apparatus.

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“Trump names two new lawyers for impeachment trial a day after his defense team collapsed”

CNN:

Former President Donald Trump’s office announced that David Schoen and Bruce L. Castor, Jr. will now head the legal team for his second impeachment trial, a day after CNN first reported that five members of his defense left and his team effectively collapsed.

One point of friction with his previous team was Trump wanted the attorneys to focus on his election fraud claims rather than the constitutionality of convicting a former president.

Trump has struggled to find lawyers willing to take his case as he refuses to budge from his false claims. Trump’s advisers have been talking to him about his legal strategy and he keeps bringing up election fraud for his defense, while they have repeatedly tried to steer him away from that, according to a source familiar with those discussions.It’s unclear whether Schoen and Castor will go along with what Trump wants.

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“Facebook Knew Calls for Violence Plagued ‘Groups,’ Now Plans Overhaul”

WSJ:

Facebook Inc. FB -2.52% in 2019 redesigned its flagship product to center on what it called Groups, forums for like-minded users. Chief Executive Mark Zuckerberg called them the new “heart of the app.”

Now the social-networking giant is clamping down on Groups. The effort began after Facebook’s own research found that American Facebook Groups became a vector for the rabid partisanship and even calls for violence that inflamed the country after the election.

The changes, which Facebook escalated after the Jan. 6 riot at the U.S. Capitol, involve overhauling the mechanics of a product that was meant to be central to its future.

Facebook executives were aware for years that tools fueling Groups’ rapid growth presented an obstacle to their effort to build healthy online communities, and the company struggled internally over how to contain them.

The company’s data scientists had warned Facebook executives in August that what they called blatant misinformation and calls to violence were filling the majority of the platform’s top “civic” Groups, according to documents The Wall Street Journal reviewed. Those Groups are generally dedicated to politics and related issues and collectively reach hundreds of millions of users.

The researchers told executives that “enthusiastic calls for violence every day” filled one 58,000-member Group, according to an internal presentation. Another top Group claimed it was set up by fans of Donald Trump but it was actually run by “financially motivated Albanians” directing a million views daily to fake news stories and other provocative content.

“Our existing integrity systems,” they wrote, “aren’t addressing these issues.”

In response, Facebook ahead of the election banned some of the most prominent problem Groups and took steps to reduce the growth of others, according to documents and people familiar with its decisions. Still, Facebook viewed the restrictions as temporary and stopped short of imposing measures some of its own researchers had called for, these people said.

In the weeks after the election, many large Groups—including some named in the August presentation—questioned the results of the vote, organized protests about the results and helped precipitate the protests that preceded the Jan. 6 riot. After the Capitol riot, Facebook took down more of the Groups and imposed new rules as part of what it called an emergency response.

Facebook has canceled plans to resume recommending civic or health Groups, said Guy Rosen, Facebook’s Vice President of Integrity, a role that oversees the safety of users and discourse on the platform. Facebook will also disable certain tools that researchers argued had facilitated edgy Groups’ rapid growth and require their administrators to devote more effort to reviewing member-created content, he said….

In a 2016 presentation about Facebook’s halting efforts to combat polarization, which the Journal reported last year, a researcher noted that extremist content had swamped large German political Groups and that “64% of all extremist group joins are due to our recommendation tools.” The presentation concluded that “our recommendation systems grow the problem.”

In response to the article, Facebook said it had fixed the recommendation problems.

The August 2020 internal presentation showed U.S. Groups tied to mercenary and hyperpartisan entities using Facebook’s tools to build large audiences. Many of the most successful Groups were under the control of administrators that tolerated or actively cultivated hate speech, harassment and graphic calls for violence, it said, noting that one top Group “aggregates the most inflammatory news stories of the day and feeds them to a vile crowd that immediately and repeatedly calls for violence.”

Administrators had designated most of the Groups as private, so only members could read them. Some were secret—people outside Facebook wouldn’t know they existed, much less that they were garnering millions of views a week.

Americans didn’t run some of the most popular Groups, the August presentation noted. It deemed a Group called “Trump Train 2020, Red Wave” as having “possible Macedonian ties” and of hosting the most hate speech taken down by Facebook of any U.S. Group. The Group grew to more than a million members within two months of its creation last summer, according to data archived by the fact-checking website Snopes, before Facebook took it down in September.

The Journal wasn’t able to contact the administrators of the Group, whose personal pages, some with dubious English, were also removed. A request for comment to a purported successor Group didn’t receive a response.

Most of the Groups were on the right end of the political spectrum, but “Suburban Housewives Against Trump” appeared near the top of the charts, too, the August presentation said. Conservative or liberal, the Groups shared a common thread: They had harnessed passionate super-users and Facebook recruitment tools to achieve viral growth.

Content from the top 10 civic Groups was seen 93 million times over the course of seven days late in the summer. Large groups’ intent to break Facebook’s rules was often overt, the August presentation noted, with administrators coaching users on how to post offensive material in ways that would escape Facebook’s automated filters.

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New CA Secretary of State Shirley Weber to Participate in USC Panel Thursday

This looks to be important:

Every Vote Counts: What’s Next After the 2020 Election? Part 4: 2020’s Record Voter Turnout—Is this the new norm?

 Thursday, February 4 at 12:00pm to 1:00pm Virtual Event

The USC Sol Price School of Public Policy and the Center for Inclusive Democracy present Every Vote Counts: What’s Next After the 2020 Election?, a four-part series examining what happened in the 2020 general election and where we’re going next. Join us on Thursday, February 4 at noon for the final session: 2020’s Record Voter Turnout—Is this the new norm?

Featuring:

California Secretary of State, Dr. Shirley N. Weber, First Black Secretary of State and fifth African American to serve as a state constitutional officer 

Dr. Bernard L. Fraga, Political scientist, author, and associate professor in the Department of Political Science at Emory University

Dan Schnur, Professor at the University of California – Berkeley’s Institute of Governmental Studies, Pepperdine University’s Graduate School of Public Policy, and the University of Southern California’s Annenberg School of Communications

Mindy Romero, Founder and Director of the Center for Inclusive Democracy and research assistant professor at the USC Sol Price School of Public Policy


REGISTER HERE >>

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“Political process theory and institutional realism”

The International Journal of Constitutional Law (ICON), perhaps the top peer-reviewed journal on comparative constitutional law, has a lead article in its forthcoming issue by Stephen Gardbaum, entitled Comparative Political Process Theory. Drawing on challenges to democracy in a number of countries, Gardbaum’s provocative piece seeks to apply and extend American style political-process theories of judicial review to the modern age.

ICON is also publishing a series of replies to Gardbaum’s important piece, including a short one of mine entitled Political Process Theory and Institutional Realism, here. Here is a brief excerpt:

Many democracies now suffer from new-found political fragmentation, with the long-dominant major parties or coalitions shattering into many splinter parties. That makes forging governing coalitions together more difficult; the resulting governments more unstable; and weakens the ability to craft the political programs that might address the very economic and cultural stresses fueling that fragmentation. The rise of social media, with its many political benefits, also undermines political authority and the ability of democratic governments to respond effectively to policy challenges; as soon as difficult policy choices begin to be discussed, political opposition can be mobilized virtually overnight, whether within the political realm, in the political culture more generally, or in the streets. The challenges today also include not just political overreaching, but political underreaching —in the longest-established democracies in particular, the pandemic has highlighted the risks of political abdication, the unwillingness of executives or legislatures to exercise their powers to address urgent public needs. Pooled-sovereignty structures and globalization can weaken the ability of domestic governments to respond to their citizens’ demands. Governments are too strong and too weak, sometimes in the same country. Indeed, current populism is itself a response to the perceived failure of democratic governments to be able effectively to address the economic and cultural anxieties of many citizens. . . .

Put more generally, on several of the problems he identifies, Gardbaum’s approach asks courts to open up the black-box of the legislative process, to make a realistic assessment of matters such as whether particular legislation is the product of special-interest politics or sufficiently deliberative. His approach thus implicates the broader tension in judicial review between what I have called “institutional formalism” and “institutional realism”—a tension that runs beneath the surface of much of public-law adjudication. Public law regularly entails courts reviewing the actions of other governmental institutions. When courts do so, an implicit but always present question is whether judges should treat the institution in a more formal sense and simply review its output, or whether they should examine the nature and quality of the process and decision-making underlying the institution’s action.. . .

Confronted with the array of challenges and threats to democracy today, constitutional scholars, perhaps understandably, turn to courts and legal doctrine. But the challenges democracies face today are so much more profound than those at the time of Democracy and Distrust (or at least than the problems on which Ely’s work focused) that we must turn to matters of democratic institutional design as well. More effective than judicial review might be hard-wiring into the design of political institutions themselves more structures and sites from which oppositional political parties have the right and the tools with which to investigate, audit, oversee, and challenge the party in power. Indeed, as David Fontana has written, “[t]he spread of government in opposition rules as a means of dividing power among political groups is one of the most consequential innovations in constitutional design in the past several decades.”…

To be sure, no institutional design can ensure that dominant political forces, with enough time and power, will not be able to capture control and subvert the democratic order for their own purposes. Institutional buffers and mediating forces can at best slow that process down, perhaps long enough that new, more democratic forces gain power. But in the transition from John Hart Ely’s America of the 1980s to the challenges democracies across the globe confront today—including in the United States—courts will not be enough.

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“Amazon’s Cynical, Anti-Union Attack on Mail Voting”

 Craig Becker and Amy Dru Stanley NYT oped:

The campaign against mail balloting in union elections is Amazon’s latest assault on industrial democracy. And it is one corrosive to political democracy as well.

Following the lead of state legislatures and courts during the pandemic, the National Labor Relations Board authorized mail voting. Since Covid’s onset, about 90 percent of union elections have been conducted by mail.

“A mail-ballot election is warranted,” as a decision of an N.L.R.B. regional director explained in Amazon’s case, citing “the undeniable presence of COVID-19 both inside and outside the Employer’s facility” and the “high and still-rising positivity rate” in Bessemer.

“The most important factors,” the decision stated, “are the safety of all election participants and the enfranchisement of all voters.”

Amazon appealed that decision last week to the N.L.R.B., which is still controlled by a Trump-appointed majority hostile to unions. The company contends that it could ensure the safety of onsite voting at the warehouse by offering health protections, including a heated tent, free coronavirus testing, disposable pencils, gloves and masks.

But Amazon’s arguments have repercussions beyond the pandemic. In its anti-union campaign lies a more sweeping condemnation of mail voting.

Ominously, Amazon echoes Mr. Trump’s false claims about electoral fraud to demand an in-person union election at the company warehouse, warning of “party fraud and coercion that is characteristic of mail-ballot elections.”

In the political sphere, it’s only too clear that falsehoods about mail voting laid the groundwork for inflammatory allegations of a rigged presidential election. Why, then, is Amazon clinging to these falsehoods in the labor sphere?

Because union elections held in the workplace give employers an advantage. Onsite balloting allows companies to deliver anti-union messages while the polls are open, even when employees are at work, while keeping the union off employer property. Except in extraordinary circumstances, this type of voting was the rule before the pandemic. But it’s equivalent to states holding presidential elections in one party’s headquarters.

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Arizona Legislator (and Spouse of AZ Supreme Court Justice) Introduces Bill That Would Allow State Legislature to Overturn Voters’ Choice for President

Oh my:

Republican legislators, still steamed about Joe Biden winning Arizona, have been furiously scheming various ways to make it more difficult for people to vote.

There’s a bill that would allow only the most faithful party voters to automatically get early ballots and one that would require early voters to get their signatures notarized. There’s even a bill to all but eliminate early ballots, given the convenience they provide and their role in propelling Biden to victory.

It’s all very confusing and time consuming to keep track of the assorted schemes by which our leaders hope to rein in who is voting (and thus who is winning).

Now comes state Rep. Shawnna Bolick, R-Phoenix, who has figured out a way to cut through all the fog — basically by eliminating the need for presidential elections.

House Bill 2720 would allow the Legislature to veto your vote.

I am not kidding….

Bolick is proposing that our leaders be allowed to override the state’s certification of election results and appoint presidential electors of their own choosing.

“The Legislature retains its legislative authority regarding the office of presidential elector and by majority vote at any time before presidential inauguration may revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election,” the bill says.

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“The Illiberalization of American Election Law: A Study in Democratic Deconsolidation”

Very much looking forward to reading this from Jim Gardner:

For many years, the dominant view among American election law scholars has been that the Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century, but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the U.S. Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection – a kind of superspreader of populist authoritarianism.

There is, sadly, nothing unusual these days about an apex court reinterpreting a formerly liberal constitutional jurisprudence to support a populist authoritarian regime. Typically, however, constitutional courts pivot toward authoritarianism suddenly, after they have been captured through aggressive court-packing or coercive threats and intimidation. In the United States, however, federal courts retain real independence, and the process of illiberalization has been correspondingly slower and less immediate. In particular, the U.S. Supreme Court has slowly illiberalized American election law in a two-stage process: first, by deconsolidating a liberal jurisprudence into incoherence; and then by reconsolidating it into a form more conducive to authoritarianism. The main strategy by which this has occurred has been an increasingly aggressive deployment of an ever narrower palette of individual rights, gradually narrowing a complex and conceptually rich jurisprudence to a single dimension – a judicial strategy that, in its radical anti-pluralism, is deeply populist, fundamentally illiberal, and profoundly destructive of the inherited liberal democratic settlement of the late twentieth century.

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“Extremists Emboldened by Capitol Attack Pose Rising Threat, Homeland Security Says”

NYT:

Warning that the deadly rampage of the Capitol this month may not be an isolated episode, the Department of Homeland Security on Wednesday said publicly for the first time that the United States faced a growing threat from “violent domestic extremists” emboldened by the attack.

The department’s terrorism alert did not name specific groups that might be behind any future attacks, but it made clear that their motivation would include anger over “the presidential transition, as well as other perceived grievances fueled by false narratives,” a clear reference to the accusations made by President Donald J. Trump and echoed by right-wing groups that the 2020 election was stolen.

“D.H.S. is concerned these same drivers to violence will remain through early 2021,” the department said.

The Department of Homeland Security does not have information indicating a “specific, credible plot,” according to a statement from the agency. The alert issued was categorized as one warning of developing trends in terrorism, rather than a notice of an imminent attack.

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“Democrats consider one-week impeachment trial, censure resolution after GOP signals likely acquittal of Trump”

WaPo:

Bracing for the prospect of a likely acquittal, Senate Democrats are eyeing a rapid-fire impeachment trial for former president Donald Trump — as short as one week — while also contemplating alternatives such as censure that could attract more support from Republicans.

The rethinking of the plan to try Trump on the charge that he incited the violent Jan. 6 Capitol riot reflects a growing desire among most Democrats to move forward with President Biden’s governing agenda in light of a test vote Tuesday that saw all but five Republican senators back Trump in a constitutional challenge to proceeding with the trial.

After the 55-to-45 tally fell short of the 67 votes needed to convict Trump and possibly bar him from holding office in the future, several Democratic senators said Wednesday that they were eager to move on to coronavirus pandemic relief, climate legislation, Cabinet confirmations and other items on the party’s to-do list….

Kaine is pitching his censure resolution to Republicans as a potentially more politically palatable alternative to convicting Trump and barring him from future office. But he is also making the case to Democrats that his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment.

Section 3 of the amendment holds that no government official can hold office “who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The provision, ratified in 1868, was written to keep avowed Confederates out of government office. It has been unevenly and infrequently applied since, and there is scant precedent or case law to determine who has the authority to disqualify a president or any other non-congressional official.

Kaine said his resolution would echo the amendment’s language, calling the Capitol attack “an insurrection against the Constitution of the United States” and finding that Trump “gave aid and comfort” to it.

“It’s more than just a censure, saying, ‘Hey, you did wrong,’ ” he said. “It makes a factual finding under the precise language of the 14th Amendment that would likely put an obstacle in Donald Trump’s path if he were to run for office again.”

Laurence Tribe, a Harvard Law professor, said invoking the 14th Amendment provision is “much more complex than some people assume” and said simply passing a resolution as Kaine is proposing would not be sufficient to bar Trump from office.

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“One GOP legal claim failed in 2020 but could change how future elections are run”

Jordan Wilkie for Carolina Public Press:

Each expert to whom CPP talked for this story said that, in election litigation in the United States, the motivation is always driven at least in part by the pursuit of power, and that is not limited to one political party over another. 

“In the history of battles over voting in this country, you’re going to find it’s rare that any of these actors have pure motives,” said Roberts, the UNC political science professor. 

“It’s almost all motives based on what’s going to help them in the short run, and that’s certainly the case here.” 

But Justin Levitt, law professor at Loyola Marymount law school, is not convinced that Republicans actually want to win their Elections Clause arguments. 

“It would not be the first time that hubris and lack of forethought caused a political party to take a whole bunch of moves that turned out to bite them in the rear a couple years down the line,” Levitt said. 

While the independent state legislature doctrine could help Republicans control federal election rules in states like North Carolina and Pennsylvania, it could actually be more harmful to the party’s national authority. 

“Believe me, the tradition and the history in both New York and California, says that, if unleashed, Democrats will have absolutely no trouble figuring out how to abuse their power,” Levitt said. 

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