Monthly Archives: August 2021

“Republican bill tightening Texas election laws is headed to Gov. Greg Abbott’s desk”

Texas Tribune:

A wave of changes to Texas elections, including new voting restrictions, is headed to Gov. Greg Abbott’s desk.

Three months after House Democrats first broke quorum to stymie a previous iteration of the legislation, Republicans in the House and Senate on Tuesday signed off on the final version of Senate Bill 1 to further tighten the state’s voting rules and rein in local efforts to widen voting access. Abbott, a Republican, said he will sign it into law.

The bill was delayed one more time as its Republican author, state Sen. Bryan Hughes, disapproved of language added by the House to address the controversial conviction of Crystal Mason, a Tarrant County woman facing a five-year sentence for a ballot she has said she did not know she was ineligible to cast. Hughes’ objection triggered backroom talks to strip the Mason amendment before the bill could come up for a final vote.

The votes mark the end of a legislative saga that encompassed two sessions of legislative overtime and featured marathon hearings, a dramatic decampment to Washington, D.C., and escalating tensions between the Democrats who fled in protest of what they saw as a danger to their constituents’ votes and the Republicans left behind unable to conduct business.

Republicans pushed for SB 1 citing their desire to further safeguard elections from fraud — for which there is no evidence of a widespread problem — and to standardize election procedures. The legislation establishes new ID requirements for voting by mail, enhances protections for partisan poll watchers and sets new rules, and possible criminal penalties, for those who assist voters.

It also makes it a state jail felony for local election officials to proactively distribute applications for mail-in ballots, even if they are providing them to voters who automatically qualify to vote by mail or groups helping get out the vote.

Throughout the last few months, Republicans also strived to leave intact provisions of the bill that will ban drive-thru voting and set new limits on early voting hours to outlaw overnight voting. They were clear they were targeting initiatives carried out by Harris County last year, which county officials have said were disproportionately used by voters of color.

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Grofman & Cervas: “Fracking: A Contiguity-Related Redistricting Metric”

Bernie Grofman and Jonathan Cervas:

The aim of this short blog is to add a useful term, fracking, to the list of geographically defined redistricting criteria. Fracking is defined as a situation in which a county or city or other well-established political subunit is found in two or more discontiguous pieces within the same legislative or congressional district. This criterion has been identified by some courts and legislatures but had never been given a name. For example, in Common Cause v. Rucho No. 1:16-CV-1026 (U.S. District Court, Middle District of North Carolina, 2018, slip op at p. 105 [p. 194]) the North Carolina legislature is quoted as asserting that one of the districting criteria that it implicitly relied upon was that “a district line should not traverse a county line more than once.” This criterion was first labeled “fracking” by Bernard Grofman in his special master report in the Bethune-Hill racial gerrymandering case. Fracking can be used as a gerrymandering tool, with fracking that involves pieces whose racial or partisan composition differs from that of the geographic area between the fracks. The name was chosen to resonate with other terms in the redistricting literature that have been applied in the gerrymandering context: namely, cracking, stacking, and packing….

You can find the entire analysis at this link.

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“FEFS | Is the U.S. Constitution Up to the Task of Preserving American Democracy?” Conversation with Jack Balkin, Mike Klarman, Michele Goodwin (I’ll Moderate): Sept. 9 at 12 pm PT on Zoom

Looking forward to moderating this event at the Fair Elections and Free Speech Center at UCI Law (registration required):

FEFS | Is the U.S. Constitution Up to the Task of Preserving American Democracy?

 Thursday, September 9 at 12:00pm to 1:15pm Virtual Event

This virtual event hosted by the Fair Elections and Free Speech Center at UCI Law brings together three provocative and deeply thoughtful constitutional scholars pondering the question, “Is the U.S. Constitution Up to the Task of Preserving American Democracy?”

Yale Law School’s Jack Balkin, UCI Law’s Michele Goodwin, and Harvard Law School’s Michael Klarman join in conversation and dialogue with UCI Law professor and Center co-director Richard L. Hasen.

About the Speakers

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies. He also directs the Abrams Institute for Freedom of Expression, and the Knight Law and Media Program at Yale.

Professor Balkin is a member of the American Academy of Arts and Sciences and the American Law Institute. He is the author of over a hundred and forty articles in different fields, including constitutional theory, Internet law, freedom of speech, reproductive rights, jurisprudence, and the theory of ideology. He founded and edits the group blog Balkinization, and has written widely on legal issues for such publications as the New York Times, the Washington Post, the New England Journal of Medicine, the American Prospect, the Atlantic, Washington Monthly, the New Republic, and Slate.

Michele Bratcher Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. She is the recipient of the 2020-21 Distinguished Senior Faculty Award for Research, the highest honor bestowed by the University of California. She is also the first law professor at the University of California, Irvine to receive this award. She is an elected member of the American Law Institute as well as an elected Fellow of the American Bar Foundation and the Hastings Center (the organization central to the founding of bioethics). She is an American Law Institute Adviser for the Restatement Third of Torts: Remedies.

Professor Goodwin’s constitutional law scholarship appears in or is forthcoming in the Harvard Law Review, California Law ReviewChicago Law Review, Cornell Law Review,  Michigan Law Review, New York University Law Review,  Northwestern Law Review,  University of Pennsylvania Law Review, and Yale Law Journal, among others.  This dossier addresses legal questions related to freedom of speech; religious exercise; equal protection; due process; race and sex discrimination; reproductive rights; slavery; and LGBTQ equality. Her scholarship has been referenced by national media, legislators, and civil society organizations. Professor Goodwin is also a sought after public commentator and has been featured in print, radio, and television news.

Professor Michael J. Klarman is the Charles Warren Professor of Legal History at Harvard Law School, where he joined the faculty in 2008.  He received his BA and MA (political theory) from the University of Pennsylvania in 1980, his JD from Stanford Law School in 1983, and his DPhil. in legal history from the University of Oxford (1988), where he was a Marshall Scholar.  After law school, Professor Klarman clerked for the Honorable Ruth Bader Ginsburg on the United States Court of Appeals for the D.C. Circuit (1983-84).  He joined the faculty at the University of Virginia School of Law in 1987 and served there until 2008 as the James Monroe Distinguished Professor of Law and Professor of History. 

Klarman’s first book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, was published by Oxford University Press in 2004 and received the 2005 Bancroft Prize in History.  He published two books in 2007, also with Oxford University Press: Brown v. Board of Education and the Civil Rights Movement and Unfinished Business: Racial Equality in American History, which is part of Oxford’s Inalienable Rights series.  In 2012, he published From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. In 2016, Oxford University Press published his comprehensive history of the Founding, The Framers’ Coup: The Making of the US Constitution, which was a finalist for both the George Washington Book Prize and the American Bar Association’s Silver Gavel Award.  In 2020, he authored the Harvard Law Review Foreword on “The Degradation of American Democracy—and the Court.”

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UPDATED: Redistricting roundup

August 31: I have updated some of the links and resources in this post and have bumped it to the top.

Ahead of the Census release:

ABC News

Associated Press


NBC News


New York Times


Roll Call

Wall Street Journal

And there are many resources in 2021! A few resources to consider:

All About Redistricting (Loyola Law School)

Daily Kos

Dave’s Redistricting App



NAACP Legal Defense Fund

National Conference of State Legislatures

PlanScore (Campaign Legal Center)

Princeton Gerrymandering Project

Redistricting & You

Redistricting Online

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“Rep. Cawthorn talks of ‘bloodshed’ over future elections as he pushes voting lies”


Republican Rep. Madison Cawthorn on Sunday suggested there could be “bloodshed” over future elections as he pushed false claims about election security and voter fraud.

Speaking at a North Carolina county GOP event, Cawthorn repeated the lie about US election systems being “rigged” and “stolen,” something he said would “lead to one place, and that’s bloodshed” if it continued.

“And I will tell you, as much as I am willing to defend our liberty at all costs, there’s nothing that I would dread doing more than having to pick up arms against a fellow American. And the way that we can have recourse against that is if we all passionately demand that we have election security in all 50 states,” the North Carolina Republican continued.

There is no evidence of mass voter fraud, as Republican election officials around the country and Trump-appointed former Attorney General William Barr have acknowledged.

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ELB Book Corner: Primo and Milyo (Post 2 of 4): The Cynical Public

I am pleased to welcome to ELB Book Corner David Primo and Jeff Milyo, writing about their new book, Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters (U Chicago Press 2020). Here is their second of four posts:

ELB Book Corner

In our first blog post about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we explained that the public is uninformed and misinformed about campaign finance. Today, we delve into what the public thinks about campaign finance.

Cynical is perhaps the best word to describe American attitudes toward money in politics—and politics generally. In our 2015 and 2016 surveys of the American public, 81% believe the campaign finance system is corrupt, and 89% believe there is too much money in politics. (Think about how hard it is to get that many Americans to agree on anything!)

These cynical attitudes may seem to create an open-and-shut case for campaign finance reform. But, as we document in chapter 5 of our book, Americans see corruption everywhere—so much so that it raises questions about how campaign finance reform could ever improve attitudes toward government. We asked respondents about nine factors that may affect a politician’s policy positions, such as personal financial advantage or wanting to secure favorable media coverage. Reassuringly, 84% of Americans think that it’s corrupt to adopt a policy position for personal financial advantage. Less reassuringly, nearly two-thirds of Americans think it’s corrupt to adopt policy positions under pressure from party leaders or to secure favorable media coverage—suggesting the term “corruption” has become a catchall for a broad distaste for politics.

Perceptions of corruption also have an ideological bias—what we call contingent cynicism. Chapter 5 of the book presents the results of some survey experiments in which we vary question wording in a random fashion to see whether views about corruption depend on the actors involved. For example, 47% of liberals believe that it is likely corrupt for an elected official to meet with a corporate lobbyist, but only 20% of liberals view a meeting with a union lobbyist as corrupt. Is a campaign contribution from the NRA or Planned Parenthood corrupt? The answer, it turns out, depends heavily on whether you support the NRA or Planned Parenthood’s policy positions.

As with many other policy issues, Americans are divided in their support for campaign finance reform, with disclosure being the most widely supported of the reforms we ask about. Yet, even as some reforms have majority support (masking a partisan divide we discuss in chapter 6 of the book), Americans don’t expect much to come of them. Perhaps sensing the futility of reform given their cynical state, Americans are skeptical that campaign finance reforms will make much of a difference in reducing corruption. On a scale from 1 to 7, with 1 being “the right package of reforms will greatly reduce corruption” and 7 being “reforms are ineffective and politics will always be corrupt,” only a third of Americans come down anywhere on the side of reforms having a positive impact.

These findings raise serious questions about the reform enterprise. If Americans see corruption everywhere, and especially when observing the behavior of political opponents, is there really hope for campaign finance reform to reduce the appearance of corruption? To put a finer point on it, does the Court’s famous “appearance of corruption” standard have any meaning in light of our findings?

Reformers, however, might reasonably point out that just because Americans say they don’t think reforms will work doesn’t mean that reforms are ineffective in addressing the appearance of corruption. In our next blog post, we’ll delve into whether public trust and confidence in government is improved by tightened restrictions on campaign contributions.

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“Michigan Republicans launching petition drive to require IDs for voting”

Detroit News:

Michigan Republicans unveiled Monday a petition campaign to try to impose new identification requirements for voters and go around Democratic Gov. Gretchen Whitmer to put the policies into law.

A committee called Secure MI Vote planned to turn in its proposed petition language to Secretary of State Jocelyn Benson’s department, the first step toward pursuing an initiative. The group wants to mandate that voters present photo ID to cast their ballots in person and those wishing to use absentee ballots submit their driver’s license number, state personal ID number or the last four digits of their Social Security number.

The ideas have been at the center of a controversial 39-bill package Senate Republicans introduced in May, and their inclusion in the initiative is likely to prompt heated debate in the battleground state that is expected to spill into the 2022 gubernatorial election.

The new petition campaign came amid GOP efforts in multiple states to change voting laws after Donald Trump’s loss in November. The Republican former president has levied unsubstantiated claims that voter fraud cost him his race against Democrat Joe Biden.

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Greg Sargent on Electoral Count Act Reform: “How to prevent the next Jan. 6, as revealed in an important new analysis”

WaPo column:

We cannot say we weren’t warned.

As the select committee examining the Jan. 6 violence ramps up, one of its lesser-known goals is to offer “recommendations” to prevent a future effort to overthrow U.S. democracy through violence.

As it happens, there is a critical way Congress can minimize the possibility of another Jan. 6 — by addressing glaring legal vulnerabilities in the presidential electoral process that encouraged Donald Trump’s movement to try to overturn his loss, creating the conditions for the worst outbreak of U.S. political violence in recent times.

We’re talking about revising the Electoral Count Act of 1887. That may sound dry and unexciting, but it would shore up hidden weaknesses that made the 2020 breakdown possible.

This week, a coalition of pro-democracy experts will release a new blueprint laying out a way to revise the Electoral Count Act (ECA) along those lines. The report from the National Task Force on Election Crises — which includes dozens of experts in election law and voting rights — outlines major fixes….

The ECA’s language, which sets the process for Congress to count presidential electoral votes, is vague and prone to abuse.

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NY Lost One Seat in Congress Due to Covid-Related Deaths

That’s the conclusion of this new article by Bernie Grofman and Jonathan Cervas. From the abstract:

It is well understood that even small differences in population can have a disproportionate impact on representation in the U.S. House of Representatives after a decennial census because of the peculiarities of rounding rules that require integer allocations. While the COVID-19 pandemic can be held responsible for accelerating the trend toward the increased use of mail-in balloting, and it affected the ability of the census to collect in-person information, here we call attention to an unanticipated effect of the pandemic on the electoral process that, as far as we are aware, has never previously been identified. By rerunning the apportionment numbers for all states under the assumption that deaths from COVID-19 prior to the start of the Census had not occurred, we show that New York’s congressional delegation would not have lost a seat. New York was the only state whose House seat allocation was affected by disproportionate COVID-19 deaths.

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“Are Censures of Politicians a Form of Free Speech or a Threat to It?”

Adam Liptak in the NYT:

Last summer, the City Council in River Falls, Wis., censured a member for calling an opponent of wearing masks during the coronavirus pandemic “a rancid tub of ignorant contagion.”

A few days later and a hundred miles away, the City Council in St. Cloud, Minn., censured one of its own for saying mask mandates were like requiring that “Covid-positive people wear some sort of identification badge, maybe like a bright yellow star.”

Censures, which are formal reprimands and a kind of punishment, seem to be on the rise in these divisive times. The Supreme Court will hear arguments this fall on whether the First Amendment has anything to say about when elected bodies can impose them on their members.

The justices will have to decide whether censures condemning politicians’ statements are a threat to free speech that chills expression or a form of free speech responding to one set of views with another.

The case before the justices was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the system’s board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived.

He was, a federal appeals court judge wrote in a dissent, a “gadfly legislator.”

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