Monthly Archives: June 2023

“2024 presidential election poses new tests for guardians and guardrails of American Democracy”

election subversion risk, The Voting Wars

Steven Rosenfeld:

The baseline for 2024 is not as reliable as one might hope because 2020’s election was during a pandemic where emergency measures were implemented. For example, in the general election, 46 percent of voters nationally cast mailed-out ballots. That rate was about twice the volume of 2018. In 2022, a third of voters cast mail ballots. (That decline was due, in part, to red states reeling in the option.) These fluctuations underscore the difficulties with planning for 2024.

These nuts and bolts—high turnover and planning challenges—will lead to some errors with setting up or running elections. In 2020 and 2022, a handful of administrative mistakes occurred and fueled some of the most widely disseminated misleading and false claims. It did not matter that the administrative mistakes were very rare, corrected, and many occurred in counties won by Trump. The snafus became starting lines for narratives and conspiracies where what was being described and broadcast nationally was not how elections work. 

  • In 2020 in Antrim County, Michigan, for example, officials did not check if the candidates on their paper ballots matched the configurations on their tabulators—they did not. That led some Trump votes to be tallied for Biden, which, in turn, was portrayed as an inside job stealing votes and the tip of a nefarious national iceberg.
  • In 2020 in Mesa County, Colorado, a back-office manager did not know how to use software that examined screenshots of sloppily marked ballots to determine the voter’s intent. Her confusion initially caused thousands of ballots to be counted twice, which morphed into a sweeping attack on using computers in elections.
  • In 2022’s midterms in Maricopa County, Arizona, officials did not notice that some ballots were too poorly printed to be read by precinct scanners. That error became a narrative that county officials wanted to sabotage Trump-aligned candidates in Election Day voting.

In each of these examples, Trump’s allies mischaracterized errors as election theft plots. In most instances, officials explained what went wrong and was fixed in their local press. But nationwide social media platforms used by Trump supporters, right-wing infotainment, and pro-Trump TV networks spent days, then weeks, and then months, telling other stories that misrepresented the snafus. These same forums downplayed the January 6 insurrection and derided the House January 6 Committee hearings and report.

The jingoistic drumbeat was so persistent and persuasive that many election deniers won 2022’s Republican Party primaries for governor, secretary of state, and attorney general. Though most of these candidates lost in the fall’s general election, some have since become state Republican Party officers or are running for U.S. Senate.

The mindset and ingredients that run through this political dysfunction are not new. In 1971, Hannah Arendt, a refugee of Nazi Germany who was one of last century’s foremost political philosophers, wrote an essay, “Lying in Politics,” that described the way authoritarians have always had to subvert facts to sway public opinions. That template—mixing “deception, self-deception, image-making, ideologizing and defactualization”—is rampant among election deniers and shows no sign of abating.

If anything, it may get worse. Trump’s dominance of the 2024 GOP field intersects with the emergence of a powerful communications tool—language-generating artificial intelligence….

Share this:

More from the Hersh/Grimmer Paper on Election Laws and Turnout

Uncategorized

I’ve started reading the new paper Rick H. links to a few posts below. This paper is going to be pored over by those interested in voting laws and policies. Here’s another paragraph from the paper:

[W]e believe that the public debate on nearly every aspect of election policy is clouded by incorrect assumptions about how the laws affect partisan election outcomes, and on this point we hope our essay is clarifying. The caustic rhetoric that suggests the partisan stakes for election administration reform are very high is detached
from empirical reality. Even very close elections are decided by margins larger than the magnitude of election reforms we examine in this paper. Further, the party that
benefits from changes is often unclear. In all but the absolute closest elections, modest electoral reforms cannot affect partisan outcomes.

Share this:

“Brazil Votes to Bar Bolsonaro From Office for Election-Fraud Claims”

election subversion risk

NYT:

A majority of judges on Brazil’s electoral court have voted to block former President Jair Bolsonaro from seeking public office for the next eight years, removing a top contender from the next presidential contest and dealing a significant blow to the country’s far-right movement.

The judges ruled that Mr. Bolsonaro had violated Brazil’s election laws when, less than three months before last year’s vote, he summoned diplomats to the presidential palace and made baseless claims that the nation’s voting systems were likely to be rigged.

By late Friday morning, four of the court’s seven judges had voted that Mr. Bolsonaro had abused his power as president when he convened the meeting with diplomats. One other judge voted that Mr. Bolsonaro had not abused his power, while two other judges were yet to vote. The ruling was expected to be made final later on Friday.

The decision would be a sharp and swift rebuke of Mr. Bolsonaro and his effort to undermine Brazil’s elections. Just six months ago, Mr. Bolsonaro was president of one of the world’s largest democracies. Now his career as a politician is in jeopardy.

Share this:

Grimmer and Hersh: “How Election Rules Affect Who Wins”

The Voting Wars

New provocative paper draft by Justin Grimmer and Eitan Hersh, that I look forward to reading closely. Abstract:

Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes. We offer an analytical framework to explain why. Contrary to heated political rhetoric, election policies have small effects on outcomes because they tend to target small shares of the electorate, have a small effect on turnout, and/or affect voters who are relatively balanced in their partisanship. After developing this framework, we address how the findings bear on minority voting rights. We then show that countermobilization from political parties cannot explain the small effects of election laws. We explain that even when a state passes multiple policies at the same time, the reforms will still only have a marginal effect on turnout and an ambiguous effect on who wins. Finally, we explain what policies should raise alarm about affecting outcomes.

Share this:

Mike Parsons: “Moore v. Harper and the ‘Anti-Arrogation Principle'”

legislation and legislatures, Supreme Court

The following is a guest post from Mike Parsons, Senior Counsel at ERN and Principal at Parsons Law PLLC:

In this post, I offer some comments on what Moore v. Harper definitively resolved; why it’s time to move beyond the “independent state legislature” moniker; and how the future of the decision’s new “anti-arrogation principle” will depend on which of three paths the federal and state courts take next.

Continue reading Mike Parsons: “Moore v. Harper and the ‘Anti-Arrogation Principle’” →
Share this:

Breaking: Over the Dissents of Justices Jackson and Sotomayor, Supreme Court Will Not Review Mississippi Felon Disenfranchisement Law Adopted Long Ago with Discriminatory Purpose

felon voting, Supreme Court

From today’s final order list of the term, this dissent from Justice Jackson from a cert denial in Harness v. Watson:

The President of the 1890 Mississippi Constitutional Convention said it plain: “Let us tell the truth if it bursts the bottom of the Universe . . . We came here to exclude the negro. Nothing short of this will answer.” To further that agenda, the Convention placed nine crimes in §241 of the State’s Constitution as bases for disenfranchisement, believing that more Black people would be convicted of those crimes than White people. See Williams v. Mississippi, 170 U. S. 213, 222–223 (1898) (acknowledging that purpose, but expressing “no concern” regarding the Conventioneers’ objective); Ratliff v. Beale, 74 Miss. 247, 265, 20 So. 865, 868 (1896) (similar); 47 F. 4th 296, 300 (CA5 2022) (per curiam) (en banc) (case below) (recognizing §241’s discriminatory aim).

Eight of those crimes have remained in §241 since 1890, without interruption. Thus, the Convention’s avowed goals continue to be realized via its chosen mechanism: Today (just as in the Convention’s aftermath), thousands of Black Mississippians cannot vote due to §241’s operation. Petitioners brought this legal action to challenge §241’s continued use of the eight crimes as bases for felon disenfranchisement. 47 F. 4th, at 302.

The Court of Appeals for the Fifth Circuit properly recognized that, under this Court’s settled precedent, the mere passage of time cannot insulate from constitutional challenge a law that was invidious at its inception. See id., at 300, 304. That court could not escape acknowledging the similarities between this case and Hunter v. Underwood, 471 U. S. 222 (1985) (Rehnquist, J., for the Court), in which this Court unanimously invalidated an Alabama constitutional provision passed in 1901 because its “enactment was motivated by a desire to discriminate against blacks on account of race” and it “continue[d] to th[at] day to have that effect.” Id., at 233. But en route to affirming the District Court’s grant of summary judgment against petitioners, the Fifth Circuit proceeded to make two egregious analytical errors that ought to be corrected….

Share this:

“Former Trump campaign official cooperating with special counsel in 2020 election interference probe”

chicanery, election subversion risk

CNN:

Former Donald Trump campaign official Mike Roman is cooperating with prosecutors from special counsel Jack Smith’s team in the ongoing criminal probe related to efforts to overturn the 2020 election, two sources familiar with the matter told CNN.

One of the sources said that the agreement, known as a proffer agreement, means that Roman may not have to appear before the grand jury but could instead speak to prosecutors in a more informal setting. Under such an agreement, prosecutors generally agree not to use those statements against them in future criminal proceedings.

Roman, who received a grand jury subpoena months ago and had his phone seized, was involved in efforts to put forward slates of fake Trump electors following the 2020 election.

Investigators have recently zeroed in on the efforts to put forward alternate slates of electors in seven states Trump lost and the role of lawyers who were working for the former president after the 2020 election, multiple sources have said.

Until recently, Roman had little substantive contact with the Justice Department since his phone was seized and only recently began to engage in conversations about his possible cooperation, according to one of the sources.

The timing of those discussions coincides with last week’s grand jury appearance by Roman’s former deputy, Gary Michael Brown.

Share this:

A brief follow-up on Moore v. Harper

Uncategorized

Carolyn Shapiro has written a thoughtful response to my previous post. I offer a couple of quick additional points:

First, my characterization of how the majority of SCOTUS perceives what the Pennsylvania Supreme Court did in 2020 (in extending the deadline for returning absentee ballots) isn’t necessarily how I would perceive it. But if lower courts and litigants want to understand the implications of Moore v. Harper, my own view of whether or not the Pennsylvania Supreme Court went too far in its invocation of the state constitution in that case isn’t relevant. What is relevant is what the majority of SCOTUS thinks about this.

Second, Carolyn is correct that the problem in Pennsylvania was insufficient time between (1) the deadline for absentee ballot applications and (2) the deadline for returning completed ballots. And, as she notes, the three dissenters on the state Supreme Court would have altered the earlier deadline on the ground that doing so would have been less intrusive upon the state legislature’s clear policy preference that completed absentee ballots be returned on Election Day itself. Carolyn asks what the state supreme court should have done given the insufficient time. The approach of the three dissenting justices was clearly one option. Another option, even less intrusive on the policymaking choices would have been to render a ruling saying that the insufficient time was unconstitutional, and the legislature could have fixed the unconstitutionality by altering whichever way it wished (or, state administrators could have exercised authority delegated from the legislature to make the policymaking choice of which deadline to alter, which also would have involved less policymaking by the judiciary itself).

Share this:

Rob Yablon: “Moore v. Harper and the Purcell Principle”

election administration, legislation and legislatures, Supreme Court

The following is a guest post from Rob Yablon:

Commentary on Moore v. Harper has not yet focused on how the Purcell principle might shape what comes next. Litigants will no doubt soon be arguing that state courts (and potentially other state actors) have “transgress[ed] the ordinary bounds of judicial review” in ways that encroach upon the Elections Clause authority of state legislatures. The destabilizing effect of Moore will depend in substantial part on how the Supreme Court ultimately chooses to distinguish the “ordinary” from the out-of-the-ordinary. But it will also depend on how the Purcell principle is applied (or not applied) to Moore claims. There are no guarantees, but if existing practice is a guide, Purcell should limit the extent to which federal courts countermand the pre-election rulings of state courts. 

Purcell, in short, discourages federal courts from enjoining state election rules shortly before an election. In recent years, the Supreme Court has applied Purcell expansively (if unevenly). Last year, for example, it invoked Purcell to stay the district court’s ruling in Milligan (the Alabama Voting Rights Act case). In 2020, the Court stayed multiple district court injunctions that would have required states to change their election practices ahead of the election. According to the Court, the Purcell principle serves to minimize pre-election confusion and disruption and embodies the idea that running elections is primarily a matter for states, not for federal courts. 

Some of the Court’s most extensive discussions of Purcell have come in opinions from Justice Kavanaugh concurring in stay orders. In Merrill, Kavanaugh described states as having an “extraordinarily strong interest in avoiding late, judicially imposed changes to [their] election laws and procedures.” Plaintiffs thus face a heavy burden when they seek equitable relief from a federal court close to an election. According to Kavanaugh, they must “establish[] at least the following: (i) the underlying merits are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction; (iii) the plaintiff has not unduly delayed bringing the complaint to court; and (iv) the changes in question are at least feasible before the election without significant cost, confusion, or hardship.” 

So what might Purcell mean for post-Moore litigation?

Continue reading Rob Yablon: “Moore v. Harper and the Purcell Principle” →
Share this:

Carolyn Shapiro: “Moore v. Harper and state courts”

legislation and legislatures, statutory interpretation, Supreme Court

The following is a guest post from Carolyn Shapiro:

As others have already noted, the Supreme Court’s opinion in Moore v. Harper fortunately eliminated the most chaotic possible outcome and reiterated what has always been understood to be true — state legislatures are subject to the constraints of state constitutions and the oversight of state courts when they regulate federal elections. But as also been noted, the Court did not eliminate the possibility of federal court oversight of decisions made by state courts construing and applying their own constitutions and statutes. Nor did the Court provide much insight into what standard would apply to determining when a state court has gone too far.

This aspect of the decision means that uncertainty and lack of clarity persist, but I don’t think that any of us should be surprised. It was, in my view, implausible that the Court would disavow any role for federal judicial oversight of state court decisions involving federal elections, nor do I think that it should have. And while I would have preferred the Court to use narrower language, I think that the majority’s invocation of Justice Souter’s Bush v. Gore opinion is somewhat reassuring. In that opinion, Justice Souter stated expressly that disagreement over the interpretation of a statute is well within the bounds of ordinary judicial review and thus should not give rise to federal judicial intervention.

But I want to elaborate on the suggestion by Derek Muller and Ned Foley that the opinion puts “state courts on notice,” and in particular respond to Ned’s argument that what state courts should now know that they can’t do is “judicial alteration of an unambiguous state legislative rule, based on nothing more than a vague provision of a state constitution unambiguous statutory language” the way, he says, the Pennsylvania Supreme Court did in 2020.

I disagree with Ned’s characterization of what the Pennsylvania Supreme Court did in 2020 as an obvious overreach, and I think that if state courts (and the Supreme Court) follow this path, it could have consequences for the development of state law. Explaining that requires a bit of a deep dive into the Pennsylvania opinion and the history of the relevant statute, which I discuss in detail in my article on the ISLT in the University of Chicago Law Review and will summarize here.

Continue reading Carolyn Shapiro: “Moore v. Harper and state courts” →
Share this:

“Tens of thousands of Pa. mail ballots will be thrown out in the 2024 presidential election”

absentee ballots, election administration

Philly Inquirer:

Tens of thousands of Pennsylvania ballots will be thrown out in next year’s presidential election as mail voting continues to evolve.

And those rejected votes — coming disproportionately from Democrats, older voters, and Black, Latino, and low-income neighborhoods — can be hugely impactful in a tightly contested swing state.

Voting behaviors have begun to settle since the mass expansion of mail voting in 2020, and data from recent elections are clear: Ballots of thousands of voters continue to be rejected in every election because of errors such as not properly signing and dating the envelope.

In Philadelphia alone, more than 5% of mail voters saw their ballots thrown out in last month’s election, and those reasons continue to shift. The most common error in recent elections, undated ballots, didn’t cause ballots to be thrown out in 2020. But the second-biggest issue, ballots arriving late, has been a prominent issue for years.

And the likelihood of voting by mail — and of being rejected — is unequal across different groups of voters, according to an Inquirer analysis….

Share this: