Monthly Archives: April 2021

A Debate over Race-Blind Redistricting

In an important earlier piece, Jowei Chen and Nick Stephanopoulus took advantage of modern technology to explore what a system of race-blind districting would generate in terms of the number of minority-opportunity election districts. Moon Duchin and Doug Spencer have now published a long critique of that earlier piece, and here is the abstract from their piece:

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But if we focus only on major technical flaws, we might miss the fundamental fact that race-blind districting would devastate minority political opportunity no matter how it is deployed, just due to the mathematics of single-member districts. In the end, the Article develops an extreme interpretation of a dubious idea proposed by Judge Easterbrook through an empirical study that is unsupported by the methods.

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“Florida Republicans Pass Voting Limits in Broad Elections Bill”


Republicans in the Florida Legislature passed an election overhaul bill on Thursday that is set to usher in a host of voting restrictions in one of the most critical battleground states in the country, adding to the national push by G.O.P. state lawmakers to reduce voting access.

The bill makes Florida the first major swing state won by former President Donald J. Trump to pass significant voting limits and reflects Republicans’ determination to reshape electoral systems even in states where they have been ascendant. Mr. Trump carried the state last year by more than three percentage points, other Republicans also performed strongly, and the party raised new hopes of its ability to appeal to Latino voters.

But Republicans in Florida argued that its elections needed to be more secure, despite the fact that voting unfolded smoothly in 2020 and arguments by Democrats and voting rights experts that some of the new measures would disproportionately affect voters of color. Now the state is on the verge of weakening key parts of an extensive voting infrastructure that was slowly constructed after the state’s chaotic 2000 election and was rapidly enlarged last year because of the coronavirus pandemic.

The new bill would limit the use of drop boxes; add more identification requirements for those requesting absentee ballots; require voters to request an absentee ballot for each election, rather than receive them automatically through an absentee voting list; limit who could collect and drop off ballots; and further empower partisan observers during the ballot-counting process. The legislation would also expand a current rule that prohibits outside groups from providing items “with the intent to influence” voters within a 150-foot radius of a polling location.

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“‘A lot of confusion’: Virginia Republicans stumble over their own voter ID requirement”

NBC News:

As Republicans across the country insist more laws are needed to protect election integrity, Virginia Republicans have found themselves in a bit of a voter ID quagmire.

At issue is a decision to quietly allow voters to participate in their complicated primary process even if they left blank parts of the application, including required fields that asked for their state-issued voter ID number and a signature, according to documents and an audio recording of a call obtained exclusively by NBC News.

Republicans in the state say the nominating contest has been a logistical nightmare.

And it comes as the Republican Party has largely embraced President Donald Trump’s baseless rallying cry that rampant fraud cost him the election. He has insisted that every signature on a mailed ballot in Georgia be verified, for instance.

Now, Virginia Republicans are facing questions from their own party about their enforcement of voter security measures — fueled by their decision to run their convention themselves, which required them to design their own applications and approval systems.

“It’s ‘Lord of the Flies’ in the Virginia GOP right now,” said former Republican Congressman Denver Riggleman, who lost a state Republican convention last year that he and allies felt was rigged against him after he came under criticism because he officiated a same-sex wedding. “It’s all very ironic.”

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“As Trump seizes on Arizona ballot audit, election officials fear partisan vote counts could be the norm in future elections”


More than five months after the 2020 presidential election, and after numerous failed attempts to overturn the results, former president Donald Trump has seized on a new avenue to try to call the outcome into question: a hand recount of 2.1 million ballots cast in Arizona’s largest county.

Several advisers said the former president has become fixated on the unorthodox process underway in Phoenix, where the GOP-led state Senate took ballots and voting equipment from Maricopa County and turned them over to Cyber Ninjas, a private contractor whose chief executive has echoed claims that the election was fraudulent but has now promised a fair review of the November results.

Ensconced at his private club in Florida, Trump quizzes aides for updates about the process multiple times a day, advisers said, expressing particular interest in the use of UV lights to scrutinize Maricopa’s ballots — a method that has bewildered election experts, who say it could damage the votes.

“He talks about it constantly,” said one person who recently visited Mar-a-Lago and listened to Trump discuss the recount for about 45 minutes,speaking on the condition of anonymity to describe private conversations.

Trump’s embrace of the Arizona effort — which he and his allies claim will prove that the election was stolen — has come amid mounting anxiety among election officials that similar partisan vote counts could become the norm.

“I’m very concerned this has ramifications for every state in the country,” Kim Wyman, a Republican who serves as secretary of state in Washington state, said in an interview. “This is politicizing an administrative process with no real structure or laws or rules in place to guide how it goes.”

She added: “Every time in the future the party in control loses, they will use some post-election administrative process to call it into question, and people will no longer have confidence that we have fair elections.”

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“Abrams Institute Conversations”: The Internet, Elections and the First Amendment” (May 4, Yale Law, Online)

I’m really looking forward to participating in this event:

As speech on the Internet increasingly dominates public discourse, the decision-making within Facebook, Google and the like about what to carry and what not is of ever-increasing import. The impact of Facebook and its competitors on our elections, the nature of their content moderation policies, the impact of the Internet on First Amendment values and law is the topic of this conversation led by Floyd Abrams between evelyn douek, a leading scholar of content moderation and platform governance, Professor Noah Feldman, whose concept of an internal equivalent of a Supreme Court within Facebook has been adopted by that company, and Professor Richard Hasen, the nation’s leading legal expert on election law.

Please use this link to make your reservation now, and join us on May 4:

Abrams Institute Conversations are made possible through the generous support of the Stanton Foundation.

evelyn douek is a Lecturer on Law and S.J.D. candidate at Harvard Law School, Associate Research Scholar at the Knight First Amendment Institute at Columbia University, and Affiliate at the Berkman Klein Center for Internet & Society. She studies online speech regulation and platform governance. Before coming to Harvard to complete a Master of Laws, evelyn clerked for the Chief Justice of the High Court of Australia, the Hon. Justice Susan Kiefel, and worked as a corporate litigator. She received her LL.B. from UNSW Sydney, where she was Executive Editor of the UNSW Law Journal.

Noah Feldman is the Felix Frankfurter Professor of Law and Director of the Julis-Rabinowitz Program on Jewish and Israeli Law. He specializes in constitutional studies, with a particular emphasis on the relationship between law and religion, free speech, constitutional design, and the history of legal theory. Felix Frankfurter Professor of Law at Harvard Law School, he is also the Chairman of the Society of Fellows at Harvard. In 2003 he served as senior constitutional advisor to the Coalition Provisional Authority in Iraq, and subsequently advised members of the Iraqi Governing Council on the drafting of the Transitional Administrative Law or interim constitution. Noah Feldman proposed what became the Facebook Oversight Board; helped design it; and advises FB and other social media clients on free expression issues.

Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. Hasen is a nationally recognized expert in election law and campaign finance regulation, writing as well in the areas of legislation and statutory interpretation, remedies, and torts. He is co-author of leading casebooks in election law and remedies. He served in 2020 as a CNN Election Law Analyst. From 2001-2010, he served (with Dan Lowenstein) as founding co-editor of the quarterly peer-reviewed publication, Election Law Journal. He is the author of over 100 articles on election law issues.

Floyd Abrams is senior counsel at Cahill Gordon & Reindel LLP, a Visiting Lecturer at Yale Law School and a Lecturer in Law at Columbia Law School. He is the author of three books about the First Amendment of which the most recent was “The Soul of the First Amendment“ (2017). Mr. Abrams has argued numerous cases involving the First Amendment in the Supreme Court and lower courts. Among others, he was co-counsel to the New York Times in the Pentagon Papers case, counsel to the Brooklyn Museum in its litigation against  New York City Mayor Rudolph Giuliani, and counsel to Senator Mitch McConnell in the Citizens United case. Former Yale Law School Dean Robert Post has observed that “no lawyer has exercised a greater influence on the development of First Amendment jurisprudence in the last four decades.”

The Floyd Abrams Institute for Freedom of Expression at Yale Law School promotes freedom of speech, freedom of the press, access to information and government transparency. The Institute’s activities are grounded in the belief that collaboration between the academy and the bar will enrich both scholarship and practice.

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“In California, voter suppression starts in high school”

Laura Brill oped for Cal Matters:

Today, the news about youth voting points in two opposite directions. On the one hand, young people turned out in record numbers in 2020, overcoming enormous obstacles to do so. On the other hand, a significant and persistent gap exists between youth voter registration rates and rates for older voters. This gap stifles the voice of young voters. 

Four million young people turn 18 every year, and the vast majority are eligible to register to vote before they graduate from high school. A study at USC’s Center for Inclusive Democracy recently reported an astonishing 30-percentage point gap in voter registration rates between 18- and 24-year-olds and 25- and 34-year-olds in California. The Civics Center recently reported that as of February 2021, only 11% of 16- and 17-year-olds in California are preregistered to vote. 

Gaps like these typically result from voter suppression. We’re accustomed to applying that term to Georgia, Arizona and Texas, but it’s fair to use the term to describe how our high schools here in California treat young voters, as well. If that sounds provocative, hear me out.

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“Election Experts Send Letter to the Department of Justice on Arizona Audits”

Letter: (Brennan Center, Protect Democracy, and Leadership Conference)

We write to request that you deploy federal monitors to the Arizona Veterans Memorial Coliseum, where agents of the Arizona Senate are reviewing ballots as part of a so-called audit of votes cast for federal office in the 2020 general election in Maricopa County. This work is being conducted by Cyber Ninjas, a firm retained by the state senate, along with its subcontractors, as part of a review of election results, or “audit,” commissioned by the state senate. It includes the handling and review of approximately 2.1 million ballots and other election materials, which a court compelled Maricopa County election officials to transfer into the senate’s custody after the senate issued a subpoena for them.

We are very concerned that the auditors are engaged in ongoing and imminent violations of federal voting and election laws. Specifically, we believe that the senate and its agents, including Cyber Ninjas, are violating their duty under federal law to retain and preserve ballots cast in a federal election, which are and have been in danger of being stolen, defaced, or irretrievably damaged. They failed to ensure the physical security of ballots by keeping doors unlocked and allowing unauthorized persons to access the ballot storage facility. They also risk compromising the integrity of the ballots themselves, using materials and technologies that will cause the ballot paper and marks to deteriorate, such as holding ballots to ultra-violet light without gloves. And, by restricting access to the audit by nonpartisan observers, election administrators and voting machine experts, they are failing to ensure that the audit is transparent….

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“Opinion: California, let’s make the Newsom recall the last one run like this”

Thad Kousser WaPo oped:

California confirmed Monday that recall backers had collected the 1.5 million validated signatures needed to recall Gov. Gavin Newsom (D). Now begins a months-long drama that will be driven not only by voters weighing whether Newsom deserves to stay but also by the state’s quirky, flawed recall rules. It’s too late to fix them now, but the state should ensure that the 2021 recall is the last one run this way.

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“Biden-aligned nonprofit launches voting rights initiative”


A nonprofit group founded by allies of President Joe Biden is launching a voting rights initiative, the latest sign that the White House views the issue as a key part of Biden’s early agenda.

Building Back Together said its voting rights program would be led by Bob Bauer, who advised Biden’s presidential campaign and was White House counsel during the Obama administration.

“A broad-based coalition is required to expose the serious and continuing disinformation about the 2020 election, and to defend against the use of that disinformation to advance wholly unjustified and all too often flatly illegal restrictions on access to the polls,” Bauer said in an announcement shared with POLITICO. “We also need to stand behind the election administrators of both parties now under attack for their dedicated non-partisan service to voters.”

Bauer will be joined by Rubén Lebrón, who will be the program’s voting rights director. The group promised to promote federal legislation, “support pro-voter advocacy groups in analyzing and developing strategic responses to state election laws and practices,” and coordinate with voting rights groups on data sharing and messaging. It said it would partner with organizations including Fair Fight — which is led by Georgia Democrat Stacey Abrams — the ACLU and Common Cause.

The group listed nine states as its “initial priority states”: Arizona, Georgia, Florida, Michigan, New Hampshire, North Carolina, Pennsylvania, Texas and Wisconsin.

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“Extremists Find a Financial Lifeline on Twitch; QAnon adherents and other far-right influencers are making thousands of dollars broadcasting election and vaccine conspiracy theories on the streaming site.”


Twitch comes with a bonus: The service makes it easy for streamers to make money, providing a financial lifeline just as their access to the largest online platforms has narrowed. The site is one of the avenues, along with apps like Google Podcasts, where far-right influencers have scattered as their options for spreading falsehoods have dwindled.

Twitch became a multibillion-dollar business thanks to video gamers broadcasting their play of games like Fortnite and Call of Duty. Fans, many of whom are young men, pay the gamers by subscribing to their channels or donating money. Streamers earn even more by sending their fans to outside sites to either buy merchandise or donate money.

Now Twitch has also become a place where right-wing personalities spread election and vaccine conspiracy theories, often without playing any video games. It is part of a shift at the platform, where streamers have branched out from games into fitness, cooking, fishing and other lifestyle topics in recent years.

But unlike fringe livestreaming sites like Dlive and Trovo, which have also offered far-right personalities moneymaking opportunities, Twitch attracts far larger audiences. On average, 30 million people visit the site each day, the platform said.

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WaPo Fact Checker Gives Stacey Abrams Two Pinnochios for Claims About New Georgia Law Eliminating “Hours of Voting”


This is a good example of how different phrasing can change the Pinocchio count. Abrams tried to make the same general point as Biden, but she did it more artfully, especially in the clip that went viral. She made clear that she was talking about early-voting rules and she used words such as “may,” “optional” and “can,” avoiding the certitude of Biden’s statements.

At the same time, Abrams leaves the impression that the previous hours were 7 a.m. to 7 p.m. and avoids saying the previous law had a vague “normal business hours” standard that sometimes meant even less than 9 a.m. to 5 p.m. For ordinary people not attuned to the debate over the Georgia law, her language misleadingly implies that voting is restricted to 9 a.m. to 5 p.m., especially when she says the law “eliminates hours of voting.”

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