Monthly Archives: June 2021

“Common Cause/NY Statement on BOE Issues”


Responding to the series of events today regarding the Board of Elections, Common Cause/NY Executive Director Susan Lerner, issued the following statement:

“The BOE has now clarified that the discrepancy in the count was due to human error, not any problem with the technology or ranked choice voting. We are not at all happy that it happened, but it was a mistake that the BOE is moving to correct. We appreciate all the campaigns’ consistent pro-democracy message that fair and accurate results are worth waiting for. The long time opponents of RCV seizing this moment to attack a more democratic system of elections — that exit polling shows voters overwhelmingly support — are misguided, and misleading the public. We remain focused on moving forward to ensure the responsible and reliable results New Yorkers demand”

On Monday Common Cause/NY and Rank the Vote NYC released the results of exit polling conducted by Edison Research.

Highlights include:

New Yorkers embraced Ranked Choice Voting at the ballot box.

83% of voters ranked at least two candidates on their ballots in the mayoral primary. The majority of those who opted not to rank did so because they only had one preferred candidate.

42% of voters maximized their newfound power and ranked five candidates.

New Yorkers understand the promise and the power of Ranked Choice Voting….

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Just in Time for SCOTUS Election Cases, Welcome to the All-New ELB–and Some Thank Yous

I’m so thrilled about the all-new ELB, with new contributors, a broader diversity of voices, ELB Book Corner, and much more.

Getting this site, which has been around since 2003, into shape for the current moment and expansion, took a tremendous amount of work. ELB takes no advertising, and is supported by UCI Law. Kristine McGuire of our IT department spent weeks getting the new website ready. It is clean, sharp, easy to navigate, and—once we move to a new server next week—faster and more nimble, especially on mobile devices. Kristine’s work was backed by Patty Furukawa and the UCI Law IT department, as well as UCI’s OIT. I so appreciate their excellent work!

Thanks as well to my son Jared Hasen-Klein for design of the new ELB logo and the logo for ELB Book Corner.

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“The University of Michigan Guide to Gerrymandering”

Former Michigan Supreme Court justice Stephen Markman recently published this op-ed in the Wall Street Journal on proposals around Michigan’s redistricting process. It begins:

Michigan is on the verge of adopting what proponents describe as a “new theory of representation,” in which the state’s redistricting process would be built not on actual communities—counties, cities, townships and villages—but on so-called communities of interest. If the proposal goes forward, these new electoral districts will be based on concepts like identity and affiliation groupings. The result will be a representative system increasingly unresponsive to “we the people,” the one grouping to which all Americans belong and in whose name our constitutions were ratified.

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“The Meaning, History, and Importance of the Elections Clause”

Eliza Sweren-Becker and Michael Waldman have posted this draft on SSRN (forthcoming, Washington Law Review). Here is the abstract:

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving as the primary constitutional basis for democracy reform legislation that passed the U.S. House of Representatives in 2019 and was reintroduced in 2021. Increased interest heightens the need for a deeper understanding of the intent and meaning of the Elections Clause. This Article fills a gap in the literature by providing a comprehensive analysis of the purpose, meaning, and interpretation of the Elections Clause by the Framers, early Congresses, and federal courts.

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“New York Mayor’s Race in Chaos After Elections Board Counts 135,000 Test Ballots”


The New York City mayor’s race plunged into chaos on Tuesday night when the city Board of Elections released a new tally of votes in the Democratic mayoral primary, and then removed the tabulations from its website after citing a “discrepancy.”

The results released earlier in the day had suggested that the race between Eric Adams and his two closest rivals had tightened significantly.

But just a few hours after releasing the preliminary results, the elections board issued a cryptic tweet revealing a “discrepancy” in the report, saying that it was working with its “technical staff to identify where the discrepancy occurred.”

By Tuesday evening, the tabulations had been taken down, replaced by a new advisory that the ranked-choice results would be available “starting on June 30.”

Then, around 10:30 p.m., the board finally released a statement, explaining that it had failed to remove sample ballot images used to test its ranked-choice voting software. When the board ran the program, it counted “both test and election night results, producing approximately 135,000 additional records,” the statement said. The ranked-choice numbers, it said, would be tabulated again.

The extraordinary sequence of events seeded further confusion about the outcome, and threw the closely watched contest into a new period of uncertainty at a consequential moment for the city.

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“Arizona ballot audit shows signs of backfiring on GOP”

Marc Caputo for Politico:

When Arizona Republicans first pushed for a partisan audit of the 2020 presidential ballots cast in the Phoenix metropolitan area, they argued that they needed to know if any irregularities or fraud caused President Trump to lose this rapidly evolving swing state.

But the audit itself could be damaging Republican prospects, according to a new Bendixen & Amandi International poll, which shows roughly half of Arizona voters oppose the recount effort. In addition, a narrow majority favors President Biden in a 2024 rematch against Trump….

It’s a failure. It’s a joke,” said Sean Noble, a top GOP operative in the state, advising Republicans elsewhere to “avoid it. The election is long over, time to look forward.”

Noble said public opinion surrounding the audit is just too baked in to change, even though the firm that conducted the effort, Cyber Ninjas, hasn’t finished its work. On Friday, Cyber Ninjas announced its team had finished photographing and recounting the 2.1 million Maricopa County ballots.

The final report is widely expected to make claims about election fraud, reflecting the politics of Cyber Ninja’s founder — he appeared in a conspiracy theorist’s documentary film rife with falsehoods, according to Arizona press reports.

By 49-46 percent, Arizona voters are opposed to the audit, which puts the result within the poll’s margin of error. But the survey of 600 likely voters found that the intensity of opposition to the audit exceeded the intensity of support, with those strongly opposed to it outnumbering those strongly in favor by 5 percentage points. And while Democrats and Republicans broke along familiar partisan lines, independent voters upon whom the state pivots in close elections opposed the audit by 18 percentage points.

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If CJ Roberts Has the Opinion in Americans for Prosperity v. Bonta, Will He Pull the Same Switcheroo on Exacting Scrutiny as He Did in McCutcheon?

Some reading the tea leaves believe Chief Justice Roberts has the Court’s opinion in AFP v. Bonta, on donor disclosure. I’m interested in the case because the decision may affect the constitutionality of campaign finance disclosure laws, even though AFP involves disclosure of donors to the government that is not supposed to be shared with the public (but was shared because CA did not do a good job protecting the security of its website).

A key legal issue, in the face of AFP’s claims that the requirement to disclose violates the First Amendment, is the standard of scrutiny to apply to laws requiring disclosure. The doctrinal answer is “exacting scrutiny,” but what exactly that means is the subject to some debate. There are some who believe the Court should apply strict scrutiny to donor disclosure laws, which would render most such laws unconstitutional.

The situation here reminds me of what happened in the 2014 McCutcheon v. FEC case, involving the constitutionality of aggregate contribution limits. Those too have been subject to “exacting scrutiny,” though its application in the contributions context has been different than in the disclosure context.

Here at Slate is how I described what Roberts did with the “exacting scrutiny” issue when he wrote McCutcheon:

But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply “strict scrutiny” of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation…..

Second, Roberts makes that laxer level of scrutiny applicable to review of contribution limits somewhat stricter. Buckley established that contribution limits get judged under something called “exacting scrutiny,” which in practice in the past has led the court to uphold a large number of contribution limits based upon very little evidence of corruption. Today Roberts tightens that standard, requiring more evidence (to be judged against the new strict “corruption” definition). He had no need, then, to adopt “strict scrutiny” for contribution limits. Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?

Watch for this possibility tomorrow. There could be some subtle awfulness coming here too.

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