Monthly Archives: September 2022

“Where Democrats’ Grip on Minority Voters Could Slip in Midterm Elections”

Unfortunately, behind a firewall, the WSJ offers an interesting and nuanced analysis of the likely impact of increased support among voters of color for the Republican Party. The bottom line is turnout next month will be key. As per usual, a low turnout election will benefit Republicans whereas a high turnout election offers the Democratic Party its best chance.

“Black voters are a prime example of the balance between voter turnout and party preference. The median shift toward Mr. Trump in heavily Black neighborhoods was 1.5 percentage points. But Democrats retained overwhelming support among Black voters, winning about 90% of their votes. That suggests that Democrats gained substantially more from higher Black turnout than the party lost in defectors to the GOP.”

The analysis is based on a study of census tracts in which 70% of residents are persons of color. The WSJ compared how those neighborhoods voted in 2020 as compared to 2016. The study– which includes charts if you have access–confirms the consensus that the Republican Party did make inroads with nonwhite voters in 2020. But it offers a nuanced analysis:

“National figures show that U.S. Latino, Asian-American and Black voters backed President Joe Biden in 2020, though by smaller margins than Democrats won four years earlier. At the same time, more of these voters turned out than in 2016, producing a net gain in votes in many places for Democrats.”

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“Trump allies have interviewed nearly 200 election officials to probe for weaknesses”

Jen Fifield at Vote Beat reports on “a coordinated, multi-state effort to probe local election officials in battlegrounds such as Michigan, Arizona, and Texas ahead of the November election” in an effort to exploit for vulnerabilities for political gain.

“The survey questions appear intended to detect potential weaknesses in local election systems and gather detailed information about how elections are run. Election experts say the information could easily be used to fuel misinformation campaigns, disrupt voting, or challenge results.”

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“Gerrymandering Isn’t Giving Republicans the Advantage You Might Expect”

Nate Cohn for The Upshot offers an intricate analysis of the 2022 congressional maps in historical perspective. Lots of interesting graphs to get to his basic take:

“In reality, Republicans do have a structural edge in the House, but it isn’t anything near insurmountable for the Democrats. By some measures, this is the fairest House map of the last 40 years.”

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Election Law is Local

In recognition of the fact that election laws vary by states, the Brennan Center for Justice at NYU Law and All Voting is Local have released 7 state-specific guides for election officials that explain the legal safeguards in place to prevent a poll worker from disrupting the voting process and the actions under the law that election officials can take to prevent or stop a poll worker from interfering in elections. These guides cover the following battleground states: ArizonaFloridaGeorgiaNevadaPennsylvaniaWisconsin, and Ohio. (A comparable guide for Michigan was published in June.)

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“Ginni Thomas claims 2020 election was stolen in meeting with House Jan. 6 committee”

U.S.A. Today reports on Ginni Thomas’ meeting with the January 6 Committee, where she “repeated claims the 2020 election was stolen, despite a lack of evidence.” The New York Times’ take on the hearing is here and the Washington Post’s is here. It adds the following:

“In an opening statement provided to the committee and obtained by The Washington Post, Thomas denied discussing her post-election activities with her husband, Supreme Court Justice Clarence Thomas. She also denied that her husband has ever discussed his work at the court with her.

“I can guarantee that my husband has never spoken with me about pending cases at the Court. It’s an iron clad rule in our home,” Thomas added. “Let me also add, it is laughable for anyone who knows my husband to think I could influence his jurisprudence – the man is independent and stubborn, with strong character traits of independence and integrity.”

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Previewing the democratic casualties sure to accompany SCOTUS OT 23

In advance of next week, Politico offers a thorough preview of the two election law cases on the Supreme Court’s docket this term. Both cases, it notes, are appeals from lower court decisions that threw out political maps drawn by GOP-controlled legislatures. Doctrinal nuances aside, as a practical matter, “the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots.”

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What impact did policy changes, the political environment, and voter outreach have on mail ballot rejection rates in 2020?

In a concise new paper published by Harvard’s Ash Center for Democratic Governance and Innovation, Tova Wang and Jose Altamirano analyze trends in mail ballot rejection rates in 2020. Were mail ballots rejected at a higher rate in 2020 compared to previous years? What impact did policy changes, the political environment, and voter outreach have on mail ballot rejection rates in such an extraordinary election year?

Key findings include:

• Mail ballot rejection rates decreased in most states in 2020 compared to 2018, and a number of states saw a consistent drop from 2016 through 2020.

• Certain states that adapted their voting laws to make mail voting more accessible in 2020, particularly in the South, saw especially pronounced changes in rejection rates.

• States that implemented mail ballot policies, including ballot curing, increased ease of access when returning mail ballots at Boards of Elections, early voting sites, drop boxes, and ballot tracking, saw lower rejection rates than those that didn’t.

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“Forget ‘polarization.’ The problem is right-wing extremism.”

Jennifer Rubin makes a key point in this Opinion piece in the Washington Post, arguing that the problem in American politics today is not polarization but “right-wing extremism”: Democrats are not selecting extreme candidates. For example, as of July, in “the 22 primaries in safe Democratic seats in which a progressive candidate challenged a more moderate one, the moderate candidate won 14 — or about two-thirds — of the races.”

“It’s not polarization when one party recognizes the results of a democratic election and the other does not. That’s radicalization of the GOP. Nor is it polarization when the GOP reverts to positions it has not held for decades (e.g., banning abortion nationwide, ending the protected status of entitlements) while the Democratic Party accommodates its most conservative members as it crafts popular legislation (e.g., paring back proposals to allow the government to negotiate prices for pharmaceutical drugs).”

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The long-arm of Texas’ 1876 White Supremacist Constitution–or the things you learn when you are curious

The Texas Court of Criminal Appeals, the court of highest resort in Texas for criminal cases, issued an order refusing to reconsider a decision from late last year that held that the “the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code.” The decision is curious—to say the least—but what is perhaps more remarkable is Judge Walker’s concurrence, which begins with a forthright acknowledgement of the risks of party polarization and rampant falsehoods to democracy

“My concern is the negative impact such a ruling could have on the fairness of elections in the future. It is possible that, in the not-too-distant future, a new politician could be elected as the Attorney General of Texas. If we ruled that the legislature could give the Attorney General the unfettered power to prosecute all election cases, we would be giving every future Attorney General the power to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the Attorney General’s political ideals.

While some individuals are likely to favor that kind of power when wielded by one who agrees with their political views, would these same people want an individual they disagree with to be able to use this power to prosecute for purely political reasons? I, for one, do not think so, and I thank God for the Separation of Powers Doctrine.”

Still, the whole thing seemed very curious, so I was very pleased to get the following backstory from Chad W. Dunn, Legal Director, Voting Rights Project at UCLA. The story of politically motivated prosecutions of election crimes starts with Greg Abbott. When Abbott was Texas AG, his office, according to Dunn, started an election crimes division that targeted almost exclusively people of color about various election related issues. The unit substantially grew when Ken Paxton became the state’s AG. It has “prosecuted people all over the state, almost exclusively racial minorities, for election actions, many of which were simple mistakes and some of which were not real crimes at all.” It is this division that is also anticipated to prosecute women who violate the state’s new abortion restrictions.

But what is most fascinating is that the attorneys were able to use Texas’ 1876 White Redemption Constitution to secure this victory in a case involving one of these prosecutions.

“Our argument was the state constitution adopted after Reconstruction in 1876 purposefully did not give statewide prosecution authority. This was so because when the federal Reconstruction Governor governed the state, slaveowners were prosecuted for not releasing their slaves. If only local officials could prosecute, those local officials would be responsive to the local (White) citizens that elected them. And thus, very little criminal action would take place to prosecute federal laws that protected against race discrimination and indentured servitude.”

The text of Texas’s Constitution is apparently quite clear that this was a central feature of the constitutional arrangement.

The upshot?

For Texas, the decision “means that people prosecuted by the AG for election crimes will have to be discharged from incarceration.” In future, election crimes—and other crimes, such as targeting women violating the abortion laws—can only go forward with the consent of local district attorneys.

For me, I have learned a great deal this afternoon about the idiosyncrasies of the Texas Constitution and the long-arm of those late nineteenth-century white-supremacist constitutions.

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“Michigan lawmakers agree on early absentee ballot processing”

AP News reports that legislators in Michigan have reached a deal to permit the pre-processing of absentee ballots in municipalities with populations of at least 10,000, starting two days before the Nov. 8 election. The deal does not change existing law that precludes vote counting from starting before 7 a.m. on Election Day and many election officials argue it does not go far enough. Nevertheless, it is an important step toward reducing delays in counting the vote in a state that has allowed no-excuse mail in ballots since 2018.

“Ann Bollin, House Elections and Ethics Committee chair, announced the agreement on election bills after months of negotiations. The bills are expected to pass the Republican-controlled Legislature on Wednesday and go to Gov. Gretchen Whitmer, a Democrat.”

3.3 million Michigan voters cast absentee ballots in the 2020 presidential election, and “over half of all votes cast in the August primary were absentee.”

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