Monthly Archives: July 2022

“Republicans’ next big play is to ‘scare the hell out of Washington’ by rewriting the Constitution. And they’re willing to play the long game to win.”

Interesting story about the effort by conservatives to call a constitutional convention. One wonders why conservatives are the ones pushing this idea, given the record of the current Court, and why progressives are so content with the constitutional status quo.

“You take this grenade and you pull the pin, you’ve got a live piece of ammo in your hands,” Santorum, a two-time GOP presidential candidate and former CNN commentator, explained in audio of his remarks obtained by the left-leaning watchdog group the Center for Media and Democracy and shared with Insider. “34 states — if every Republican legislator votes for this, we have a constitutional convention.” . . .

Some states have tried and tried — without result — to prompt a constitutional convention. They’ve together issued hundreds of pro-convention resolutions or calls over 200 years to reroute constitutional amendment powers away from Washington. What’s new now is the ever-evolving power coupling of a corporation-backed ideological juggernaut led by ALEC, a nonprofit organization with close ties to large tobacco and drug companies, and a determined Republican Party increasingly dominating many of the nation’s 50 statehouses.  . . .

Their goals include gutting federal environmental standards, nixing nationwide education requirements, and creating an incredibly high threshold for Washington, DC, or a territory to earn statehood. Some would like to make it difficult, if not impossible, for someone — National Institute of Allergy and Infectious Diseases Director Anthony Fauci, for example — to work for decades within the federal government.

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“American media wants to save democracy. Is it helping?”

Interesting LAT story on the role of the media in reporting on — and shaping — the debate about American democracy.

Top American journalism leaders have publicly argued that the continued existence of democracy in the U.S. is no longer something that can be taken for granted. Efforts to undermine voters’ choices across the U.S. have given way to new “democracy” beats, where newsroom editors and reporters no longer simply cover candidates and elections but voter registration laws, ballot access and election integrity. . . .

There are signs that some of those attitudes have also reached the newsroom rank-and-file. While 76% of American adults polled in a recent Pew Research Center study said that journalists should always strive to give every side equal coverage, a majority of journalists surveyed disagreed.

Andy Donohue, executive editor of projects for the publication Reveal at the Center for Investigative Reporting, who predicted the rise of the democracy beat in 2020, said in the journalism industry that there is “very broad recognition from everyone from newsroom leaders to reporters that we very much are in a red-alert threat for a real demise to our democratic system.” . . .

But in newsrooms, in books and on the air, journalists and experts are openly pondering how American democracy can win the argument for its own survival when the battle of persuasion is with a public skeptical of their authority. Americans’ trust in newspapers and TV news is at an all-time low. Many Republican politicians have simply stopped talking to mainstream reporters, preferring the company of friendlier conservative outlets and personalities.

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“The RNC ‘election integrity’ official appearing in DOJ’s Jan. 6 subpoenas”

Politico on the DOJ focusing on the involvement of the RNC’s director for “election integrity,” Joshua Findlay, in fake electors schemes in Arizona and Georgia.

In addition to a group of former President Donald Trump’s top lawyers, the Justice Department’s Jan. 6 probe is also seeking communications to and from a Republican National Committee staffer in a sensitive role.

At least three witnesses in DOJ’s investigation of so-called alternate electors in the 2020 election — two in Arizona and another in Georgia — have received subpoenas demanding communications to and from Joshua Findlay, who is now the RNC’s national director for election integrity. . . .

Findlay’s visibility into plans regarding alternate electors didn’t end on Election Day. POLITICO reviewed an email sent to him on December 12, 2020, showing David Shafer — head of the Georgia Republican Party, and himself an alternate elector — directing one of his subordinates to contact Findlay about the alternate elector plans.

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“Judge strikes down San Francisco law allowing noncitizen parents to vote in school elections”

San Francisco Chronicle:

A San Francisco law allowing noncitizen parents to vote in local school board elections was overturned Friday by a judge who said the California Constitution permits only citizens to vote.

The ordinance, the first of its kind in the state, was approved by city voters as Proposition N in 2016, took effect in 2018 and was extended indefinitely by the Board of Supervisors in 2021. It allows noncitizens, including undocumented immigrants and legal residents, to vote for school board candidates if they are a parent or guardian of a school-age child and are not in prison or on parole for a felony conviction.

A lawsuit by conservative organizations cited a provision of the state Constitution that declares, “A United States citizen 18 years of age and resident in this State may vote.” Lawyers for the city contended the “may vote” language did not prohibit a local government from authorizing others to vote, but San Francisco Superior Court Judge Richard Ulmer disagreed.

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“Russian national charged with U.S. political influence operation”


Federal authorities charged a Russian man Friday with a years-long malign influence campaign targeting American politics — alleging that he used American groups in Florida, Georgia and California to sow discord and push pro-Russia propaganda.

Aleksandr Viktorovich Ionov, who lives in Moscow, worked for nearly eight years with Russian officials to fund and direct the U.S. groups, according to the indictment filed in Florida. The 24-page indictment does not name the groups but charges that Ionov also advised the campaigns of two unidentified political candidates in Florida.

Ionov “allegedly orchestrated a brazen influence campaign, turning U.S. political groups and U.S. citizens into instruments of the Russian government,” Matthew Olsen, head of the Justice Department’s national security division, said in a written statement.

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“How Six States Could Overturn the 2024 Election”

Barton Gellman in The Atlantic on the potential implications of Moore v. Harper for presidential elections (if, a big if, any independent state legislature holding in the congressional election context extends to presidential elections, too).

To understand the stakes, and the motives of Republicans who brought the case, you need only one strategic fact of political arithmetic. Six swing states—Pennsylvania, Michigan, Wisconsin, Arizona, Georgia, and North Carolina—are trending blue in presidential elections but ruled by gerrymandered Republican state legislatures. No comparable red-trending states are locked into Democratic legislatures. . . .

If you give the legislature a blank check on the manner of appointing presidential electors, then a Republican majority could—in the most muscular version of ISL—simply disregard a Biden victory in the state’s popular vote and appoint Trump electors instead. . . .

But if the Supreme Court adopts the ISL doctrine in Moore, the argument that Texas made will become a model in 2024. The conditions that Texas cited in its argument are almost always present in contemporary elections. Legislatures pass laws on the conduct of the vote, but election administrators have to interpret those laws and set implementing rules such as precinct locations, polling times, and counting procedures. State courts sometimes mandate changes in the rules to comply with their state constitutions. It’s all but impossible to conduct an election without making rules or choices that the legislature did not specifically authorize.

The pernicious threat of ISL, wrote Richard L. Hasen, an election-law expert at UCLA, is that “a state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.”

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“Election conspiracies grip Nevada community, sowing distrust”

AP on a Nevada county commission that decided to recommend hand-counting all ballots for the odd reason that this would supposedly improve the security and accuracy of vote counts.

For months, conspiracy theories fueled on social media by those repeating lies about former President Donald Trump’s loss in 2020 inflamed public suspicions about whether election results could be trusted. In response, the commission put a remarkable item on its agenda: Ditch the county’s voting machines and instead count every vote on every ballot — more than 20,000 in a typical general election — entirely by hand.

Commissioners called a parade of witnesses, including three from out of state who insisted voting machines could be hacked and votes flipped without leaving a trace. They said no county could be certain their machines weren’t accessible via the internet and open to tampering by nefarious actors. . . .

Merlino’s departure and Nye County’s plans to scrap voting machines and hand-count every ballot open a window into the real-world consequences of unfounded conspiracy theories that have spread across the country since Trump’s defeat. The moves also raise questions about how local elections will be run when overseen by people who are skeptical of the process.

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“Election deniers are running to control voting. Here’s how they’ve fared so far”

NPR on how Republican candidates for secretary of state who lie about the 2020 election being stolen are faring.

Across the country, numerous Republican candidates for these positions — and others with some role in election administration, like governor and attorney general — have embraced the lie that widespread fraud affected the 2020 election results.

Of the 16 Republican secretary of state primaries that have been held so far this year, 12 featured at least one candidate who questioned the legitimacy of Joe Biden’s win in 2020, according to States United.

And four of those candidates won spots in November’s general election: in Alabama, Indiana, Nevada and New Mexico. A fifth candidate, Kristina Karamo in Michigan, won a party vote to become the Republican nominee there during an endorsement convention in April.

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“Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism”

My article, part of the AALS conference on Rebuilding Democracy and the Rule of Law, is now published. Here’s the abstract:

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that anti-democracy extremism currently poses in America.

Apart from reforming the Electoral Count Act, which I wholeheartedly advocate (as ELB readers know well), a new federal law that adopts this majority winner requirement for congressional elections is the reform that I would have Congress make its top election-related priority. Because it would help the Republican Party (as well as the nation as a whole) protect itself from far-right extremism, it ought to be able to secure 10 GOP votes in the Senate along with all 50 Democrats to overcome any filibuster. And because it lets states choose whichever form of majority winner elections they prefer, it’s the opposite of a one-size-fits-all federal micromanagement of how states run elections.

As the primaries in this year’s midterms have unfolded so far, the danger to democracy of plurality-winner elections has only become clearer. Winning a fractured plurality in a primary, then beating the opposition in a plurality-winner general election, is the way extremist candidates can come to power even though a majority of voters in November would have preferred a non-extreme alternative. If we don’t adopt a reform to counteract this problem, Congress soon may become populated with enough “election denialists” willing and able to repudiate the results of future elections that their party loses. Thus, if one is concerned about the risk of election subversion (as one should be), one ought to advocate for Congress to enact a majority winner requirement as the most direct means to safeguard against this threat. Even a well-reformed Electoral Count Act would be vulnerable to manipulation if election denialists control Congress.

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“Wisconsin anti-voting-fraud activist commits voter fraud to make a point”

WaPo. Only this activist’s point isn’t the one he thought he was making, since there’s no evidence of widespread absentee voting fraud in Wisconsin.

A Wisconsin man this week ordered absentee ballots for himself in the names of a mayor and top state lawmaker in what he says was an attempt to expose vulnerabilities in the state’s voting system.

Harry Wait, who leads a group in southeastern Wisconsin that has focused on voting issues, said Thursday that he was willing to go to jail to prove his point. The stunt angered many state elections officials, especially those who have spent the last several years fighting baseless claims of widespread voter fraud. . . .

Wait said he used the state’s online elections portal Tuesday to request absentee ballots for the Aug. 9 primary to be sent to his home in the names of Assembly Speaker Robin Vos (R) and Racine Mayor Cory Mason (D).Wait has clashed with both of the officialsrepeatedly as the president of the group HOT Government, which takes its name from an acronym for “honest, open and transparent.”

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“Constitutional Citizenship in the U.S. Territories”

This Lawfare essay by Irina Manta and Cassandra Burke Robertson discusses a pending cert petition that raises the issue of who exactly is entitled to birthright citizenship and offers the Court an opportunity to overrule the Insular Cases.

In the summer of 2021, the issue arose again in Fitisemanu v. United States. This time, a three-judge panel on the U.S. Court of Appeals for the Tenth Circuit issued three separate writings on the question, with two judges concluding that the Constitution did not extend citizenship to residents of the territories, and one concluding that it did. A cert petition is currently pending before the Supreme Court.

Will the Supreme Court grant cert in the Fitisemanu case? It is likely to. And it should. 

This problem is not going away. Citizenship is an issue of extreme importance to many American Samoans. And they deserve certainty about whether they are protected by the Constitution’s grant of birthright citizenship.

Also this constitutional question extends beyond American Samoa. Congress has already extended statutory citizenship to the other territories. But if citizenship is only a matter of “legislative grace,” then Congress could choose to retract it at will, in whole or in part. For example, many residents of Puerto Rico are questioning whether their citizenship is secure or whether only statehood can guarantee their status. Courts have so far not allowed residents to seek a declaratory judgment to determine their status, finding the claim to be unripe until Congress takes affirmative steps to limit the status of Puerto Ricans’ citizenship. Depending on the political winds, that could become a reality. 

Some of the justices have expressed an interest in reconsidering the Insular Cases with an eye toward overruling them. In a recent concurrence to United States v. Vaello Madero, Justice Neil Gorsuch called for the Insular Cases to be overturned. He explained that he joined the majority opinion upholding the government’s decision to exclude residents of Puerto Rico from full participation in the Supplemental Security Income program “[b]ecause no party asks us to overrule the Insular Cases to resolve today’s dispute.” However, he condemned the Insular Cases in strong terms, writing that “[t]he flaws in the Insular Cases are as fundamental as they are shameful” and that “they have no home in our Constitution or its original understanding.” Gorsuch concluded that “the time has come to recognize that the Insular Cases rest on a rotten foundation” and that he “hope[s] the day comes soon when the Court squarely overrules them.” Justice Clarence Thomas, in a separate concurrence, suggested that “the Fourteenth Amendment’s Citizenship Clause” might have offered a stronger argument against the government’s differential treatment of Puerto Rico and the states. Finally, Justice Sonia Sotomayor, writing separately in dissent, explicitly noted that she agreed with Gorsuch’s view that it “‘is past time to acknowledge the gravity’ of the error of the Insular Cases.” 

The cert petition in Fitisemanu offers the Court that chance.

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“He Ordered Celebrities’ Absentee Ballots. Now He’s Under Arrest.”

This New York Times article describes a criminal complaint filed in federal district court.  It alleged that a Manhattan resident, Louis Koch, requested absentee ballots in over one hundred people’s names.  They included notable lawyers, politicians, and journalists.  The New York City Board of Elections mailed them to Koch.  He did not cast the ballots but instead collected them as a hobby.  Koch was arrested and charged with identity theft and using false information in voting.  He was released on a $250,000 bond—and on the condition that he refrain from ordering any absentee ballots for himself or others.

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