Monthly Archives: March 2021

“Arizona Senate hires a ‘Stop the Steal’ advocate to lead 2020 election audit”

AZ Mirror:

The audit team that Senate President Karen Fann selected to examine the 2020 general election in Maricopa County will be led by a company owned by an advocate of the “Stop the Steal” movement who repeatedly alleged on social media that the election was rigged against former President Donald Trump.

Fann announced on Wednesday that she’d selected four companies to participate in an extensive audit and recount of the election, led by Cyber Ninjas, an Florida-based cybersecurity company. Cyber Ninjas is owned by Doug Logan, who has been an active promoter of baseless conspiracy theories alleging widespread election fraud last year, including in Arizona.

“I’m tired of hearing people say there was no fraud. It happened, it’s real, and people better get wise fast,” read a tweet from a since-suspended account that Logan retweeted on Dec. 31. 

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UCLA Voting Rights Project Publishes Model Code for State Voting Rights Act

Release:

The UCLA Voting Rights Project has just released to the public its Model State-level Voting Rights Act for voting rights advocates, state legislators, and others involved in the law-making process to utilize in advocating for and drafting pro-voting rights legislation in their own states. For decades, the federal Voting Rights Act of 1965 (VRA) has protected the right to vote across the country. Unfortunately, in 2013 the Supreme Court gutted one of the most significant portions of the VRA in Shelby County v. Holder, when it struck down the coverage formula in Section 4(b). This means that states with a history of disenfranchising voters of color no longer have to seek approval from the Department of Justice or a federal court to enact changes to their voting laws.  Despite a weakened VRA, individual states have been slow to adopt legislation to guarantee the right to vote, and few states currently enshrine state level causes of action that enable individual voters or groups representing voters to challenge voting and election laws or schemes. As the right to vote faces increasing threats, it is clear that state level voting rights protections are necessary.

Legal Director Chad W. Dunn issued the following statement: “The goal of the model code is to provide states and advocates with policy options that fit best for an individual state and ensure that all voters have equal access to the ballot box. This is especially important because voters now need even more robust protections of the fundamental right to vote.”

To learn more about the code and download the code, please visit https://latino.ucla.edu/research/model-code/

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California Citizens Redistricting Commission Seeks Chief Counsel

Announcement:

he California Citizens Redistricting Commission (Commission) seeks a Chief Counsel with demonstrated experience and expertise in implementation and enforcement of Administrative or Constitutional law, combined with the background and knowledge to support the Commission’s redistricting mission.  The applicant should be a creative problem-solver with strong communication, negotiation, and relationship building skills.  A strong candidate for this position will have a background in the Bagley-Keene Open Meeting Act requirements and experience advising public commissions, boards, agencies or departments.  
THE JOB

This is an exempt executive assignment position, non-tenured, full time, and is appointed by the Commission. 

Employees of the Commission occupy non civil service positions serving at the pleasure of the Commission. 

This position is Limited Term 24 months. It will not become permanent; it may be extended or be canceled at any time.

The position will be located in Sacramento, California.  Frequent travel may be required.

THE COMMISSION

The Commission is a 14-member body created by the passage of the Voters FIRST Act, in 2008.  It is charged with redrawing the California State Senate and Assembly, State Board of Equalization, and Congressional districts based on information gathered during the 2020 census. The Commission must draw the districts in conformity with strict, nonpartisan rules designed to create districts of reasonably equal population that will provide fair representation for all Californians. It is a further mandate that this process be conducted in an open and transparent manner, allowing for participation by the public.

For further details, including salary range and instructions on the application process, visit the link at https://www.wedrawthelinesca.org/jobs_contracting

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“The Dynamics of Democratic Breakdown: A Case Study of the American Civil War”

Anthony Gaughan has posted this draft on SSRN (forthcoming, British Journal of American Legal Studies). Here is the abstract:

The United States emerged from the 2020 presidential campaign more profoundly divided than at any time since the Civil War. Donald Trump’s false claims of election fraud further inflamed those divisions. When Trump supporters stormed the United States Capitol Building to try to overturn the election results, it became undeniably clear that the nation had entered a dangerous new era of political violence. Since the election, experts on both ends of the political spectrum have warned of the possibility of a full-fledged democratic breakdown in the United States.

This article places America’s polarization in historical context by examining the only democratic breakdown in the nation’s history: the Civil War. When Abraham Lincoln and the Republican Party won the 1860 presidential election, the slaveholding South refused to be bound by the election results. Instead of looking ahead to the next presidential election campaign, eleven southern states chose to secede. The conflict that ensued remains the bloodiest war in American history. The Civil War cost over half a million lives and left one-half of the United States in physical and economic ruin.

More than 150 years later, the United States faces new threats of political violence from disgruntled election losers. Equally troubling, recent polling data finds a rising degree of support for secession among ordinary Americans, especially after their party loses a presidential election. Accordingly, the intense polarization of the 2020s has made the lessons of the Civil War more relevant than ever.

In placing the current democratic crisis in historical context, this article focuses on three questions: First, why did the South reject the results of the 1860 election? Second, what legal and quasi-democratic processes did Confederate states use to assert that most white southerners supported secession? Third, and most important of all, how did American democracy survive the Civil War, the greatest crisis in the nation’s history?

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“Texas court to hear appeal from woman sentenced to prison for voting while ineligible”

Sam Levine in The Guardian:

Texas’ highest criminal appeals court said Wednesday it would hear an appeal from a Texas woman who was sentenced to five years in prison for voting while inadvertently ineligible in 2016.

The case has attracted national attention because of the severity of the sentence and the woman, Crystal Mason, said she did not know she was ineligible to vote at the time.

Mason was serving on supervised release – which is similar to probation – for a federal felony conviction at the time, and Texas prohibits people with felony convictions from voting until they have completed their sentences entirely.

Officials overseeing Mason’s supervised release testified at her trial that they never informed her she was ineligible to vote.

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“Democrats Splinter Over Strategy for Pushing Through Voting Rights Bill”

NYT:

Democrats in Congress are quietly splintering over how to handle the expansive voting rights bill that they have made a centerpiece of their ambitious legislative agenda, potentially jeopardizing their chances of countering a Republican drive to restrict ballot access in states across the country.

President Biden and leading Democrats have pledged to make the elections overhaul a top priority, even contemplating a bid to upend bedrock Senate rules if necessary to push it through over Republican objections. But they are contending with an undercurrent of reservations in their ranks over how aggressively to try to revamp the nation’s elections and whether, in their zeal to beat back new Republican ballot restrictions moving through the states, their proposed solution might backfire, sowing voting confusion and new political challenges.

The hand-wringing demonstrates how urgent the voting issue has become for both parties since November, when President Donald J. Trump spread false claims of voter fraud that many Republicans believed. In the months since, Republican-led statehouses have advanced a wave of new laws clamping down on ballot access.

Democrats have coalesced around the idea that pushing back on such measures is a modern-day civil rights battle that the party cannot afford to lose. “Failure,” Senator Chuck Schumer of New York, the majority leader, said last week, “is not an option.”

But while few Democrats are willing to publicly say so, the details of the more than 800-page bill — which would radically reshape the way elections are run and make far-reaching changes to campaign finance laws and redistricting — have become a point of simmering contention. Some proponents argue that Democrats should break off a narrower bill dealing strictly with protecting voting rights to prevent the legislation, known as the For the People Act, from collapsing amid divisions over other issues.

“Democrats have a narrow opportunity. There is a window here that could close anytime,” said Richard L. Hasen, an election law expert at the University of California, Irvine. “I worry the kind of fights necessary to keep even the Democratic coalition together could blow up the whole thing and lose the chance to get anything done.”…

The most visible hurdle to date is the apparent opposition of Mr. Manchin, who said last week that he opposed allowing the federal government to wade into election law, which is typically left to the states. He signaled that he would be unwilling to vote for any elections bill that was not bipartisan, much less provide the 50th vote needed to change the Senate rules to get past an all-but-certain Republican filibuster….

Behind the scenes, two election lawyers close to the White House and congressional Democrats said Mr. Manchin was not the only one on their side with reservations about the measure. They insisted on anonymity to discuss the concerns because few Democrats want to concede that there are cracks in the coalition backing the measure or incur the wrath of the legion of liberal advocacy groups that have made its enactment their top priority.

Black House members, for instance, are deeply uneasy over the bill’s shift to independent redistricting commissions, which they fear could cost them seats if majority-minority districts are broken up, particularly in the South. Before the bill passed the House, its authors spent significant time reassuring members of the Congressional Black Caucus that there were adequate protections in place to preserve their districts. But a prominent committee chairman, Representative Bennie Thompson of Mississippi, remained so concerned that he voted against the bill, despite having sponsored it.

Some fixtures of the party establishment believe the small-dollar public financing plan, which sets a six-to-one matching program for donations under $200, could incentivize and turbocharge primary challenges, particularly from the far left, by allowing them to cut into incumbents’ usual fund-raising edge more quickly.

Then there is a more vexing political concern, voiced most clearly by Mr. Manchin but shared by others, that after Mr. Trump spent months falsely claiming that Democrats were cheaters trying to rig the 2020 election against him, some independent voters — fairly or not — will view the legislation as an attempt to do just that and punish the party in the 2022 midterms.

State elections administrators have raised their own complaints, too, quietly lobbying their senators to modify national voting requirements they say would be onerous or impossible to put in place by 2022. Some have complained they were simply not consulted on a major federal rewrite of the system they believe they have overseen effectively.

“I’ve been saying that no election administrators were harmed in the making of this bill,” quipped Charles Stewart III, a leading expert on elections at the Massachusetts Institute of Technology. “Running elections is detail-intensive, and it’s not just shifting stuff around. You’re adding new features and adding complexity, not just shifting complexity from one place to another.”

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“The bogus claim that Democrats seek to register ‘illegal aliens’ to vote” (Heritage Earns 4 Pinocchios)

WaPo Fact Checker:

In this ad, Heritage Action has taken a somewhat remote possibility that undocumented immigrants would be registered as voters under AVR and turned it into a Democrat desire — that they “want to register illegal aliens.”

First of all, it’s against the law for noncitizens to vote. Second, the proposed law contains numerous safeguards to prevent that from happening — safeguards that would not be in place if Democrats really planned to enlist noncitizens as voters.

Heritage Action can point to only one example when an AVR system inadvertently signed up people not eligible to vote — a computer glitch in 2018 that was quickly discovered and corrected, with the registrations canceled. Since then, no other such problems have emerged in California.

If Heritage had made the case that undocumented immigrants might inadvertently be registered, despite the proposed safeguards, this might have been a Three Pinocchio claim. Errors are always possible with new systems. But claiming, without evidence, that Democrats want to enlist illegal voters tips this claim to Four Pinocchios.

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Trump Sued for Directing Assault, Battery, and Intentional Inflection of Emotional Distress Brought By Two Capitol Police Officers Injured in Jan. 6 Riot; Chances of Success Slim

You can find the complaint here.

As a regular teacher and scholar of Torts, I am quite skeptical that the officers would be able to prove either the intent necessary for these intentional torts and get around proximate cause problems.

For battery, for example, one generally must intend (at least) to cause a contact with the person of another, which means that one acts with that purpose or with knowledge to substantial certainty that such contact will occur to plaintiffs or a third person. Trump’s actions in encouraging the riot, while despicable and impeachable, probably do not rise to the intent necessary to prove intent to cause a contact.

Here’s NYT’s coverage.

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“House GOP memo: Embrace of Trump agenda is only option for comeback”

Jonathan Swan for Axios:

On a flight Tuesday from Indianapolis to Fort Wayne, Ind., two leaders in the House Republican conference discussed a memo that argues that their party’s future demands they “embrace our new coalition” because “President Trump’s gift didn’t come with a receipt.”

Why it matters: The document, titled “Cementing GOP as the Working Class Party,” leaves no doubt that Republicans — at least in the House of Representatives — will be doubling down on Donald Trump for the foreseeable future….

When it comes to fundraising, Banks argues that members should effectively embrace their pariah status in corporate America and campaign against corporate fundraising.

“Members should use corporations’ preference for the Democrat [sic] Party to drive individual donations,” he writes. “It worked for me.”

“When Eli Lilly and several other corporate PACs blacklisted me” for objecting to the certification of President Biden’s victory on Jan. 6, “I reached out to individual donors, explained the situation, and asked for their support.”

“Once my supporters learned that liberal corporations blacklisted me because I refused to cave to their demands on January 6th, they were happy to make up the difference,” he writes. “That’s how, in the first quarter of this year, I regained every penny of the $241,000 I lost in corporate money through individual donations.

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“Georgia voter limits take root amid weakened Justice Department”

John Kruzel and Rebecca Beitsch in The Hill:

Biden said during the campaign he would “make voter protection a foundation of my administration” and added Friday that the White House and the Department of Justice (DOJ) are reviewing the Georgia law. 

But his promise comes with a caveat. The DOJ over the past decade has seen its menu of legal options whittled down, leaving Biden with diminished authority to test whether new Republican voting rules impermissibly harm people of color, as racial and partisan tensions coalesce around GOP voting rules now under discussion. And those powers went largely unused under former President Trump.

Given the heavy legal burden of proving a voting law was motivated by race, said Justin Levitt, a professor at Loyola Law School, the DOJ faces roadblocks in mounting a case, even if some parts of the Georgia bill are “needlessly cruel.” 

“There’s a big difference between feeling in your heart that you know why a bill was passed and being able to prove in court it was passed in order to discriminate based on race,” said Levitt, who served as deputy assistant attorney general in the DOJ’s Civil Rights Division during the Obama administration.

For nearly five decades, the DOJ had a powerful weapon in the fight against voting proposals that raised questions of racial bias. Derived from Section 5 of the Voting Rights Act of 1965, the department possessed a kind of veto power over state voting laws it deemed racially discriminatory. 

In Georgia alone, federal authorities drew on Voting Rights Act powers to review legislative proposals in more than 180 instances, according to a recent lawsuit filed against the latest Georgia law. 

But the DOJ’s authority to screen racially suspect voting laws under this so-called preclearance process was eliminated by a 2013 ruling by the Supreme Court. As a result, voting rights groups say the task has now fallen to minority voters themselves to test whether the laws in fact make it harder for them to vote in an actual election….

Georgia already faces three legal challenges from advocacy groups like the NAACP, with one lawsuit alleging that the new law leaves it “to Black [voters] and other voters of color to demonstrate which of these changes have discriminatory purpose or effect.”

But those suits brought by private groups raise legal issues that are generally thought to lie outside DOJ’s scope, arguing that the Georgia law violates not only the Voting Rights Act, but also the First and 14th Amendments, which protect voting rights and grant “equal protection of the laws.” DOJ, for its part, has been limited by courts to exercise only voting rights enforcement powers given to it by Congress, Levitt said, which excludes constitutional provisions that apply to voting.

“There are other private entities that have a lot more tools even if the tools that the DOJ has are pretty big and robust. There’s a more expansive tool kit available to private agencies being able to bring these claims directly under the Constitution,” he said.

“I think the things that people are most upset in the Georgia bill about are things that are much more natural claims under the Constitution than under the Voting Rights Act.”

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“The Fate of Biden’s Agenda Hangs in the Balance”

Tom Edsall NYT column on the upcoming round of redistricting and concerns about voter suppression:

All of the above suggests that continued Democratic control of the House in 2022 and 2024 may hinge on passage of HR1 — the For the People Act — which in turn requires the Senate to either eliminate the legislative filibuster or agree on a rule change making voting rights measures exempt from the filibuster.

“If the filibuster remains,” Stephanopoulos, the Harvard law professor, wrote by email,

the next round of redistricting will be a dogfight. It won’t be as bad for Democrats as the 2010 round, because numerous states that had egregious Republican gerrymanders back then now have some sort of impediment to that happening again” (commissions, Democratic governors, interventionist courts).

“My best guess,” Stephanopoulos continued,

is that the congressional playing field will be a little more tilted in a Republican direction than it currently is, but significantly less skewed than in the early 2010s.

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“Hyperbole aside, Georgia’s new rules go against global principles for election fairness”

Larry Garber and Kevin Johnson:

Georgia, having just emerged from close presidential and Senate elections, is ground zero in the voting rights debate. Last week Gov. Brian Kemp signed an election law overhaul passed by his fellow Republicans in charge of the General Assembly. Proponents see it as essential for ensuring ballot integrity. Voting rights activists see it as harkening to the spirit of the Jim Crow era.

While there has been an element of hyperbole in the vehement reaction of the law’s critics, their response is understandable in light of the measure’s origins in the highly partisan and baseless allegations of fraud in the November election. Those claims reflect a well-organized disinformation campaign and the conspiratorial delusions of a sore loser, former President Donald Trump, who is now under investigation in Georgia for possibly committing an election-related felony.

Furthermore, the new law falls short of international standards and democratic principles in several important ways.

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“Judge rules against Georgia’s limits on third-party House candidates”

AJC:

Georgia’s steep requirements for Libertarian and other third-party candidates to run for Congress are “overbroad,” shutting them out of the political process, a federal judge ruled Monday.

BAN:

On March 29, U.S. District Court Judge Leigh Martin May, an Obama appointee, issued an opinion in Cowen v Raffensperger, n.d., 1:17cv-4660. It invalidates the 5% petition for minor party and independent candidates for U.S. House, combined with the filing fee, which is 3% of the office’s annual salary. The opinion suggests that because Georgia has a 1% petition for non-presidential statewide petitions, the state would be hard-pressed to justify requiring a petition greater than 1%.

All of these petition percentages are based on the number of registered voters.

The opinion asks both sides to submit further briefs by the next three weeks, to discuss what the interim remedy should be. The legislature adjourns for the year on March 31, so obviously the legislature can’t write a new law this year.

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