Monthly Archives: October 2022

What Worked Before May Work No Longer

An astute reader of my previous blog post, The Problem with Pendulum Politics, inquired why it might be necessary to abandon America’s longstanding electoral system of partisan primaries followed by plurality-winner general elections, when that system served the country well for decades without causing the kind of calcification-plus-parity that characterizes the nation’s politics today. If the electoral system is not responsible for the current problem, and functioned satisfactorily before the current problem materialized, why not seek some other cure to the current problem besides altering the longstanding electoral system?

The question is a fair one, and I cannot address it fully here. But I can point towards a potential answer. There may be developments in America’s overall political system that require modifications to aspects of that system that functioned in an appropriate equilibrium prior to pressures from other sources that knocked the system out of balance. One recent piece of political science along these lines is the essay Madison’s Constitution Under Stress: A Developmental Analysis of Political Polarization by Paul Pierson and Eric Schickler. They argue that changes in various social and cultural forces–including how interest groups interact with parties, how state parties interact with national parties, and the new media environment–make electoral competition within the Madisonian system no longer work as it previously did. Because it’s not possible to undo the external forces that destabilized the system, it’s necessary to adjust the system in order to restore its previous equilibrium.

Schickler also co-authored a separate essay with Nolan McCarty, On the Theory of Parties, which likewise emphasizes the importance of the changing relationship of state and national parties within the overall federalist system. For example, if voters increasingly base their votes for US Senator not on which candidate on the ballot they prefer, but which national party they would prefer to be in the Senate majority, that type of electoral behavior might reinforce the kind of calcification described in The Bitter End, because voters would be less persuadable by the attributes of the specific candidates competing for their Senate seat. Senate elections might differ from gubernatorial elections, for example, in this regard even though both types of elections are statewide races involving the same election. (We’ve arguably seen some evidence of less partisan tribalism in gubernatorial elections than US Senate elections in recent years, and it will be interesting to see if this year’s midterms follow that pattern.)

Ultimately, the merits of an electoral reform proposal must be based on an overall assessment of pros and cons. In conducting that assessment, it’s necessary to acknowledge that just because the cost-benefit analysis would have yielded one outcome under previous conditions does not mean it yields the same outcome under new and significantly changed conditions. Just like climate change may require novel mitigation measures that would have been unthinkable previously because the climate change itself is irreversible, so too may larger social forces that are irreversible require novel electoral reforms that previously would have been considered unwarranted.

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Divergent strategies may yield divergent outcomes in Arizona drop box voter intimidation cases

Earlier here at ELB, Rick H. linked to a federal district court’s ruling refusing to issue an injunction against groups for patrolling ballot drop box locations, balancing the risks of voter intimidation with First Amendment interests. That case then saw an emergency appeal to the Ninth Circuit.

That case, with lead plaintiff Arizona Alliance for Retired Americans and brought by lead attorneys from the Elias Law Group, sought the fairly broad remedy as follows, from the TRO: “The Court should therefore enter a temporary restraining order and preliminary injunction prohibiting Defendants from gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do those activities.” That broad relief is what the district court rejected and is now on appeal.

But that’s not the only voter intimidation case pending in Arizona, and there’s another that (in my judgment) is on a more sustainable foundation for success. That case, with lead plaintiff League of Women Voters of Arizona and attorneys at Protect Democracy, pointed out that the League was not seeking “a blanket injunction to halt anything that might loosely be labeled poll monitoring,” as the other case did, but “specific components of Defendants’ operation, which include time-tested and highly effective methods of voter intimidation,” including “spreading specific false information about voting and voters,” “threatening and harassing ‘monitoring’ of voter behavior,” and “false public accusations of voter fraud and disclosure of personal information (‘doxing’).” Specific instances are listed in supplemental brief in support of the TRO.

Relatedly, the United States Department of Justice has weighed in on the League of Women Voters case with a statement of interest brief (with Civil Rights Division AAG Kristen Clarke on the brief, among others).

There are challenging questions, to be sure, about how to even identify the parties responsible here (some loose organizations and individuals to appear to be leading the efforts), and the fine line between “free speech” and activities that rise to voter intimidation under federal law. (The United States brief helpfully explains what conduct, especially in prior precedent, falls on the intimidation side of the line.)

But the League of Women Voters case has already seen early promise of success, as the district court had a hearing today and has scheduled an evidentiary hearing for tomorrow (November 1) on these specific issues. While one case with an overbroad request for relief languishes in an emergency appeal, the other is fast tracked for an evidentiary hearing. We’ll see what happens as the case proceeds, but it’s worth emphasizing that the details of litigation matter, as is playing out in these two cases.

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“Two Years After Election Turmoil, GOP Voters Remain Skeptical on Elections, Vote Counts”

Pew Research Center:

Two years ago, shortly before the 2020 presidential election, Republicans’ trust in the nation’s election system had eroded considerably. Today, with the midterm elections approaching, widespread GOP distrust persists – and in some cases has deepened.

Chart shows partisan gap in views of election administration in the U.S. wider than in 2020, much wider than in 2018

A majority of registered voters who support Republican candidates for Congress in their districts (56%) say they think the midterm elections in the U.S. will be administered very or somewhat well, with just 11% saying they will be run very well. That represents a modest increase from 2020, when 50% of Republican voters expected the presidential election to be run well (9% very well). But it is much lower than the 87% of GOP voters who said this in October 2018, shortly before the last midterm election.

Democratic voters, by contrast, have become more confident that elections will be administered well. An overwhelming share of voters who support Democratic House candidates (88%) say the midterm elections will be conducted very or somewhat well, up from 72% in 2020 and 79% four years ago. The partisan gap in these opinions, which was just 8 percentage points in 2018, has widened to 32 points in the current survey.

Among all voters, 70% say the elections will be administered very or somewhat well; that is higher than the share saying this shortly before the 2020 election and lower than in October 2018 (81%).

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“Two leaders of True the Vote jailed by federal judge for contempt of court”


Federal marshals escorted two leaders of True the Vote out of a Houston courtroom on Monday morning and into a holding cell. Catherine Engelbrecht and Gregg Phillips have been held in contempt of court for refusing to release the name of a person of interest in the defamation and computer hacking case against them, who they claim, without proof, is a confidential FBI informant. 

They will remain in jail until they release the name of the man. 

It is the latest surprise development in the strange story, which concerns — depending on who’s describing it — a right-wing elections group allegedly defaming a small technology company, or a small technology company whose alleged security flaws were exposed by a right wing elections group. 

Konnech, the election management software company at the center of those claims, filed a federal lawsuit in September alleging that True the Vote’s viral social media campaign targeting the company’s founder and CEO, Eugene Yu, led to personal threats to him and his family and damaged his company’s business. 

In podcasts and interviews, Phillips described a dramatic night in early 2021 in a Dallas hotel, where a man he later identified as Mike Hasson revealed what True the Vote has said was hard evidence of Konnech’s alleged influence on the 2020 election. 

The involvement of a third man was unknown until a Thursday hearing, when Konnech’s attorney’s pressed Phillips for additional information about what Phillips claimed was an hours-long Konnech research session in Dallas that night. On the stand, Phillips revealed that another “analyst” was present in the room when Hasson allegedly offered evidence he’d uncovered about Konnech, showing the company had stored American poll worker data on a server in China. Neither he nor Engelbrecht would release the third man’s name, saying he was in danger from “drug cartels.” 

While True the Vote’s former attorney on the matter, Brock Akers, released Hasson’s name after U.S. District Judge Kenneth Hoyt demanded he do so earlier in the month, True the Vote’s new legal team has chosen a different path. Akers has not  appeared in court since providing Hasson’s name. Last week, Engelbrecht and Phillips were represented by Michael Wynne, a different Houston attorney, who told the court Akers was on vacation “on the Mediterranean” and would be withdrawing from the case. Wynne said Akers remained away, on a cruise, on Monday morning. 

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“After voter fraud arrests, Florida issues new forms that could bolster future cases”

Tampa Bay Times:

A week after Gov. Ron DeSantis announced the arrests of 20 people for alleged voter fraud, his administration quietly made a change that some say could help the state go after more people.

Starting in August, Floridians on probation have been required to sign an updated form placing the burden on them to determine if they’re eligible to vote.

Beneath warnings about remaining drug-free and reporting to their probation officer is the new message:

“By signing this letter,” the updated form states, “you agree that you are solely responsible for determining if you are legally able to register to vote and that you must solely determine if you are lawfully qualified to vote.”…

But the timing of the changes — just eight days after DeSantis held a news conference accusing felons of voting illegally — has some questioning the state’s motives.

Each of the people arrested in August had previously been convicted of murders or felony sex offenses, making them ineligible to vote, even under the 2018 constitutional amendment giving most felons that right after they have finished their sentences. The Departmentof State, which reports to DeSantis, allowed them on the rollsanyway, and they voted in 2020.

To break the law, the voters’actions had to be “willful,” a high legal burden. Many of those arrestedhave said they thought they could vote because they were issued voter ID cards.

The new probation forms — which those on probation are required to sign — could be used as evidence to show future actions were “willful,” said Alex Saiz, a lawyer for the Florida Justice Center, a Broward County-based nonprofit that provides legal aid and reentry services.

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“In 5 key battlegrounds, most GOP state legislative nominees are election deniers, report finds”

NBC News:

Nearly 6 in 10 Republican state legislature nominees in five key battleground states deny the results of the 2020 election, according to an analysis by a group tracking the races.

Of those 450 Republican nominees — including incumbents running for re-election and nonincumbents — in Nevada, Pennsylvania, Arizona, Michigan and Minnesota, 58% of them have echoed former President Donald Trump’s lies that the 2020 election was stolen from him, according to research shared exclusively with NBC News by The States Project, a left-leaning group that tracked state legislative races in battleground states.

Experts warn that if enough of these election-denying nominees are elected, Republican majorities in the state houses of these crucial battlegrounds could have the power to rewrite election laws and affect future elections, including in 2024 when Trump might run again.

“When election deniers are in control, they will do whatever they can to undermine free and fair elections,” said Daniel Squadron, The States Project’s executive director.

“We know that the rules for elections and determining the winners are set through the legislative process, so what these folks do would have enormous impact” on “everything from who can register and who can vote to how the results are counted,” Squadron added.

Those five states (and many others) also feature election deniers as the Republican nominees in races for governor and secretary of state — offices that have the power to oversee, administer and certify elections. If election deniers in those races win, their ability to affect future elections could be made more robust by having cooperative election deniers in their state houses to help push legislation remaking certain election laws in those states.

“People who have such extreme views about the last election might push for changes to the voting process that would both make it harder to vote for eligible voters and make it much harder to administer elections,” said elections expert Rick Pildes, a New York University School of Law professor.

Pildes pointed to various proposals in states like Arizona and Nevada that would mandate counting ballots by hand and cut back on mail-in and absentee voting. Kari Lake, Arizona’s Republican nominee for governor, suggested last weekend that she would support efforts to curtail early voting if elected.

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“A QAnon Democrat? Fierce 2022 Warfare Erupts in Deep-Blue California”


The mailers and online ads vividly paint David Kim as a right-wing extremist, accusing him of running for a House seat in California “with QAnon-MAGA support” from “QAnon Republicans.”

But Mr. Kim is not a Republican. He’s a progressive Democrat who supports “Medicare for all” and a Green New Deal. And the attacks come from a fellow progressive Democrat, Representative Jimmy Gomez, who is fighting to keep his seat in Congress.

The vitriol in what is normally a quiet race for a decidedly safe Democratic seat illustrates how liberal California, of all places, has become home to some of this year’s most vicious political mudslinging — and not across party lines.

Unlike a vast majority of the country, where voters are mulling the yawning ideological gaps between Republicans and Democrats on their midterm ballots, California has a top-two open primary system, which means two Democrats can — and often do — square off against each other in general elections. And in many cases, those candidates prove strikingly similar on policy, forcing them to dig deep to distinguish themselves.

Lately, it’s grown pretty nasty.

Democrats are running against Democrats in six House races, 18 state races, and dozens of municipal and local elections around California in November. In many contests, the candidates have resorted to extreme and divisive language, in a reflection of the growing polarization of American politics.

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“Election denier Mark Finchem’s sleeper campaign closes in on MAGA prize; The Oath Keeper hoping to run Arizona’s elections is getting outspent 40 to 1 and makes few press or campaign appearances. He still might pull it off.”

WaPo reports:

The stakes are enormous, as it would elevate Finchem to second in line of succession for governor andhand himthe power to upend how elections are run in a key swing state that decided the 2020 election and could tip the electoral college again in 2024. Finchem, who has repeatedly denied the legitimacy of the 2020 election results, has already said he would not have certified Biden’s win in 2020 and suggested he might use his power to reject Democratic victories in the future.

As secretary of state, Finchem could refuse to certify vote counting machines in use across the state, forcing counties to conduct hand counts that experts say would take longer and be less accurate. He could also rewrite the guidelines on where to place voting locations, side with litigants trying to restrict ballot access and work with allies in the state legislature to curtail early voting and voting by mail.

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Must-Listen David Folkenflik for NPR: “Right-wing ‘zombie’ papers attack Illinois Democrats ahead of elections”

Great report from NPR on something I wrote a lot about in Cheap Speech: the rise of political propaganda masquerding as local news, filling the gap left open by the decline in local newspapers brought on by economic and technological change:

among the people quoted in that front-page story in West Cook News: conservative talk show host Dan Proft.

Proft runs a political action committee called People Who Play By the Rules PAC that has spent millions aiding Pritzker’s Republican opponent, state Sen. Darren Bailey.

“These newspapers that are circulating the state are full of fact and truth – and Gov. Pritzker has the gall to call it a lie,” Bailey said on Proft’s radio show in early September.

Proft’s PAC also helps to underwrite the papers, which he conceded on the air recently.

Yet nowhere in the publications themselves is there any disclosure of the papers’ pro-Republican agenda, its source of funding, or even its point of view – except of course, in the relentless punching of hot-button issues for the right, including trans rights, Covid restrictions and taxes.

Proft did not respond to NPR’s efforts to seek comment, nor did cardboard shipping magnate Doug Uihlein, a major party activist who falsely argues the 2020 presidential race was fixed and who has financed the PAC with more than $40 million this year, according to the Center for Illinois Politics. He did speak to the Chicago-based NewsNation television broadcast, telling anchor Leland Vittert that his readers do not trust mainstream news organizations.

“We provide angles to stories and information that you don’t get from left leaning or left – or not so leaning, just hard left — news outlets,” Proft said on NewsNation. “They’re all sharing a brain and we’re providing a different perspective on some of the issues that are salient in people’s lives.”

In Profit’s recounting, the Illinois papers put out by the Local Government Informational Services — their publisher — sound like a throw-back to an earlier age, when papers were openly partisan and ideological on their news pages as well as their opinion section. And there’s a school of thought that that’s a more intellectually honest way than reporters saying they shelve their own points of view.

What and how those issues are presented in these papers, however, constitutes a sharp departure on the way journalists at more mainstream news outlets, even point-of-view journalists, have covered the news for decades. For one thing, at least in the hard copy editions reviewed by NPR, the papers make no such clear and overt disclosures about their agenda in print, other than the overwhelming thrust of their articles.

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