Allison Herren Lee and Bruce Freed oped in Forbes:
When the Cleveland Browns removed the scandal-tarnished name of FirstEnergy from their football stadium, it symbolized how far the Ohio utility’s good reputation had fallen. The name change followed guilty verdicts returned for Ohio’s former House speaker and former GOP state chair in a bribery-and-racketeering scheme fueled with almost $61 million from FirstEnergy. The company has admitted that it bribed state officials and relied on untraceable dark money to do it, in seeking a bailout for two failing nuclear plants.
FirstEnergy is the poster child of the risks and harms a company faces from failing to oversee and monitor its political spending. But corruption charges are infrequent; in today’s hyperpolarized climate, more companies run into problems when their political spending winds up in perceived conflict with their public stances. Just ask the blue-chip companies recently facing controversy over money funneled to legislators who upheld an abortion ban in North Carolina.
Corporations increasingly face risk from their political spending, and that risk is heightened when they have not charted where funds will actually go. When political spending is funneled through “dark money” groups used by candidates and officeholders or through third-party groups such as trade organizations or non-profit partisan groups, corporations (and their shareholders) often don’t know how their money will actually be spent. When discovered and spotlighted, such contributions can ultimately associate a company with controversial political figures, positions contrary to core company values and interests, or corruption.
There are proactive steps companies can and should take to mitigate the risk….
A new analysis from government watchdog Accountable.US found Fortune 500 companies and industry trade associations donated over $4.6 million in the second quarter of 2023 to members of Congress that voted against certifying the 2020 election results. Since the violent insurrection on January 6th, 2021, corporate interests have now contributed more than $45 million to the Republican lawmakers who have been dubbed the ‘Sedition Caucus’.
The latest data from the Federal Election Commission also shows that corporate giving to the election objectors in Congress increased by nearly $2 million in Quarter 2 of 2023 compared to Quarter 2 of 2021, the same period of the 2022 and 2024 election cycles respectively. In addition, the last quarter saw sixteen first-time corporate contributors to these lawmakers since the failed coup attempt at the U.S. Capitol – including Hershey, Albertsons, Best Buy, and Prudential Financial – totaling at least $31,000.
Fulton County District Attorney Fani Willis reaffirmed in a local news interview that she will announce charging decisions by September 1 in her investigation into efforts by Donald Trump and his allies to overturn Georgia’s 2020 presidential election result, while applauding the ramped-up security measures around the local courthouse. “The work is accomplished,” Willis told CNN affiliate WXIA at a back-to-school event over the weekend. “We’ve been working for two and half years. We’re ready to go.” Willis has previously signaled in letters to local officials and those providing security that she would make any charging announcements between July 31 and the end of August. She laid out a variety of security provisions her team plans to take beginning Monday. Willis’ latest commitment to that time frame comes after a judge scheduled an August 10 hearing on the Trump team’s efforts to disqualify Willis, a Democrat, from the case, toss much of the evidence she has collected and remove another judge in Fulton County from presiding over the case.
Frank is convinced that American elections need saving and believes that to do so, people must take back the ballot box one county at a time. And though his allegations have been disproved and dismissed by election experts and fact checkers, he hasn’t been deterred from spending the last 2½ years on the road, spreading his message to any group that will host him.
“I’m fighting for the country that I grew up in that’s no longer here,” Frank said in an interview with The Times.
His more than 50 speeches in California and hundreds more across the country are part of a multi-pronged effort by the election denial movement to make a significant impact on future elections by changing state laws, training candidates and — in Frank’s case — organizing volunteers to challenge local results and voter rolls.
Paul Gronke, director of the Elections & Voting Information Center at Reed College in Portland, Ore., called Frank’s theories “fiction.”
“He’s a compelling presenter, but that doesn’t change the fact that what he’s saying are not facts,” Gronke said….
Frank said he got involved in Shasta County’s efforts last fall. Local activists had already been knocking on doors to conduct their own election audit and were pressuring county supervisors to stop using Dominion Voting Systems machines. Sympathetic county supervisors were elected to the board in November and Frank visited the county several times to present his election fraud theories.
He said he “coached” some of the supervisors on strategy in daily phone calls and private meetings. The Shasta County Board of Supervisors ended its contract with Dominion in January, and went a step further in March when it voted to stop using electronic machines to tabulate ballots. Only a small number of the roughly 10,000 election jurisdictions in the U.S. have stopped using electronic voting machines since 2020.
Frank speaks of Shasta County in biblical terms, holding it up to audiences as an inspiration and template.
“Once David slew Goliath, then the Hebrew children, the Israelites, chased the Philistines out of the land. … They suddenly all got brave, right? Shasta just slew Goliath. Now you all need to get brave,” he said in Hemet.
Election officials are worried Frank’s claims are being embraced by people who feel disenfranchised and oppose efforts to expand voter registration and voting by mail.
Democrats are worried about a potential drop next year in turnout among Black voters, the party’s most loyal constituency, who played a consequential role in delivering the White House to President Biden in 2020 and will be crucial in his bid for reelection.
Their concern stems from a 10 percentage-point decline in Black voter turnout in last year’s midterms compared with 2018, a bigger drop than among any other racial or ethnic group, according to a Washington Post analysis of the Census Bureau’s turnout survey. Such warning signals were initially papered over by other Democratic successes in 2022: The party picked up a U.S. Senate seat in Pennsylvania, Sen. Raphael G. Warnock won reelection in Georgia and anticipated losses in the House were minimal.
But in key states like Georgia, the center of Democrats’ plans to mobilize Black voters in large margins for Biden in 2024, turnout in last year’s midterms was much lower among younger and male Black voters, according to internal party analysis.
The drop in Black turnout has become a focus for Democratic leaders as the party reorients to next year’s presidential contest. Biden’s election in 2020 hinged on narrow victories in states like Georgia, Wisconsin, Michigan and Pennsylvania that former president Donald Trump had won in 2016. Democratic activists are cautioning that the party can’t afford to let support from Black voters slip.
The big picture: The split between Biden’s team and Elias — who had represented the DNC since 2009 — reflects a larger fight within the party on the best legal approach to expand and protect voting rules.
Elias argues Democrats should be fighting on every possible front — filing a flurry of lawsuits and exerting public pressure through the media.
Biden’s team, long guided by lawyer Bob Bauer, is concerned that while Elias’ approach may be emotionally satisfying and make for good headlines, it can backfire with the current conservative makeup of the judiciary.
The president’s team wants to be more selective in picking legal fights, especially going into a 2024 election that could be especially litigious.
The intrigue: Beyond the philosophical disagreements, Biden’s team became fed up with Elias during the first two years of the administration.
Elias often did not consult the DNC or the White House before filing lawsuits affecting voting rights and election laws in key states and at times disregarded their concerns with cases, Democrats familiar with the internal deliberations said.
Biden officials found out Elias had filed some lawsuits only when he announced them — often on MSNBC or Twitter….
Bauer had helped craft the bipartisan bill behind the scenes.
Elias was openly critical of the proposed bill, writing: “Lacking precision in critical areas, the bill feels less like the product of legislative compromise and more like something constructed in a law school faculty lounge.”
Many people involved in the negotiations felt that Elias’ tactics were more grandstanding than constructive.
His public critiques frustrated some senators who co-sponsored the bill — including Mark Warner (D-Va.) — given that Elias also serves as their campaign lawyer. Warner’s office declined to comment.
“Thank god we got that through, no thanks to Marc,” a Democrat involved in the negotiations told Axios.
“Bob Bauer was a constructive and insightful sounding board for the senators as they developed the proposals, while Marc Elias’ contribution was serving as a Twitter troll who tried to undermine the effort at every turn,” said one Senate aide.
I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the first of four posts:
The 2016 election of Donald Trump may have focused American attention on the rise of populism, but a more accurate lens takes a global view. Populism – and in particular, the anti-institutionalist style of governance – is ascendant across the world. Electorates around the world have proved susceptible to demagogic appeals that the traditional forms of democratic governance, and the leading role of political parties, are cabals of elites working against “the people.”
When I began turning my academic interests to the question of democratic fragility that surrounded the post-1989 emergent democracies, my primary focus was the multiple layers of institutional arrangements necessary for democratic governance, both inside government and through the layers of civil society. The efforts to stabilize newly elected government highlighted the indispensable role of institutions ranging from political parties to civil society outposts such as an independent media and universities in successful democratic rule. In particular, stable political parties have the proven ability to funnel passion into practice, blunt the edges of group animus, increase welfare protections, and compel accountability to a broader range of the society.
While my previous book, Fragile Democracies, focused on strengthening democratic governments and norms through empowered constitutional courts –I also warned that constitutional judicial review alone was not enough to protect against the rise of authoritarian regimes. Indeed, the risk of democratic fragility would apply in any context in which institutions falter.
Strikingly, the populist advance in both the new and the more stable democracies turns on an anti-institutional program of governance that mirrors the concerns that previously could be assigned to the birth pangs of new democracies. Similar forms of politics and efforts to disrupt institutional constraints are found not only in the politics of Donald Trump and Brexit, but in Brazil, Poland, Argentina, Turkey, India, Hungary, and the list goes on. The prior focus on constitutionalism and constitutional courts is insufficient to contain illiberal regimes that can work within the frameworks of democracy. And, as well shown by the illiberal democracies in Poland and Hungary, constitutional courts could be made and unmade as needed to facilitate executive power.
I am honored that Rick Hasen has invited me to post on my new book, Democracy Unmoored, an examination of the common root causes that connect populist movements across the globe. The book aims not only to analyze the common roots of rising illiberalism but to underscore the need to shore up both governing institutions and intermediary organizations in order to protect the larger democratic ecosystem from being overwhelmed by a popular tide.
Let me open this first post with a subject of great concern to the readers here: the ways in which anti-institutional populism has chipped away at the most essential democratic institution itself: the ordinary administration of elections. As much as contested elections are an article of faith in the U.S., uniquely this country held contested elections even during the Civil War and World Wars II, this country is conspicuously an outlier among democratic countries in relying not on an independent civil service-administered election process but on partisan election officials. More precisely, the American system relies on bipartisan election oversight, a process by which representatives of the two parties watch over each other with an eye to the long-term stability of the enterprise. On the tit-for-tat view of the world, everyone understands that what goes around comes around. For the most part, and with a few exceptions in jurisdictions controlled by one-party exclusively, the system has worked tolerably well in yielding election results that reflect the expressed preferences of those that voted.
But that was then. Populists internationally believe that they are the true and only representative of the people. No matter how autocratic their impulses, they point to their election as the source of their mandate. This has yielded unfortunate efforts to compromise the electoral system to guarantee their tenure. In one sense, this is but a microcosm of the greater effort to subordinate independent state institutions and the civil service, something that has now been made an express part of the Trump re-election effort.
Election administrators share with other elements of the modern administrative state a core of bureaucratic authority based on specialized expertise, certainty in command structures, continuity of institutional presence, and established forms of decision-making. Because the modern would-be autocrats claim legitimacy from the fact of having been elected, the mechanics of voting have a particular salience in bending state institutions to the populist will. The distrust of institutions and growing polarization has led to direct assault on independent election administration. Hundreds of bills have been introduced at the state legislature, and a troubling number passed, to increase partisan control of the counting and certification of ballots.
The attacks on American election administration echo a recurring pattern internationally, for a repeated populist goal is to subordinate any independent electoral authority. In Hungary, upon taking power in 2010, Prime Minister Orbán suspended the tenure of the Electoral Commission and forced each Commission member to be reelected by Parliament following each national election. Because Orbán’s Fidesz was the majority party in Parliament, the new Election Commission included no opposition members. In 2013, Fidesz reorganized the Commission again to place the power of nomination directly in parliamentary hands. Not surprisingly, in subsequent elections, the Commission has signed off on misinformation and false advertising campaigns, including incorrect election instructions directed at voters likely to vote for the opposition. Poland followed suit, with the populist Law and Justice Party (Pis) claiming “monstrous irregularities in voting” as the pretext to allow Parliament to take over election administration.
Indian Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP) have gone even further with the Citizenship Act of 2019 would have granted citizenship to undocumented religious minorities in India except Muslims (on the ground that they were not “indigenous” Indians) and a compulsory re-registration of voters that put Muslim citizens at risk of disenfranchisement. The law systematically disfavored a bloc of voters who would almost certainly vote for the opposition. In the words of the Citizen’s Commission on Elections, the formerly independent Election Commission (and perhaps India more generally) has “morphed into an ‘unelected autocracy.’”
While the United States’ system of election oversight held up remarkably well in 2020, that is by no means a given going forward. Certainly in the American context, fortifying impartial election administration ahead of the 2024 election is perhaps the most important short-term action for the long-term survival of the nation’s democratic system.
A few months ago, Rick and others celebrated the 20th anniversary of this blog with a series of guest posts. Serving as dean of a law school doesn’t usually allow me to keep up with day-to-day developments in the field as I once did, so I wasn’t able to write something at the time. But finishing up three weeks in the ELB driver’s seat gives me an opportunity to offer some reflections on where we’ve been, where we are, and where we might be going.
The first observation is that Donald J. Trump continues to dominate daily news in the field. Over the past three weeks , 70 ELB posts have mentioned Trump’s name, an average of over three each day. By way of comparison, I count only 13 that mention Biden and just 8 that mention DeSantis. So like it or not, we in the field of election law are still living in the age of Trump, more than two and one-half years after he reluctantly relinquished the presidency.
Now of course, deciding what news is worth including on the blog involves subjective judgment. Like others who started out studying election law, my interests have gravitated toward structural weaknesses in American democracy over the years. That includes political polarization, persistent racial divisions, and rising economic inequality, as well as the vulnerability of electoral institutions to partisan manipulation. I’m also worried by the increasing receptivity toward politically motivated violence, most graphically illustrated by the events of January 6, 2021.
It bears emphasis that much of the current coverage of Trump is involuntary, on his part. Over the past few weeks and months, we’ve seen numerous charges and convictions for people associated with the attack on the Capitol during the counting of electoral votes. And at times, it seems as though the walls are closing in on Trump himself. The pending cases against him — not to mention a potential new federal indictment over his role in January 6 and another potential criminal case in Georgia — will make for a busy campaign/courtroom calendar in 2024. As the recent coverage of Trump’s legal expenses reveals, it’s becoming difficult to distinguish his attempt to regain the presidency from his attempt to fight criminal charges against him.
The proliferation of pending and potential criminal charges against a former/aspiring President present an unprecedented challenge for American democracy. That’s all the more true in light of the growingbodyofevidence that all the criminal and civil cases against him aren’t hurting his standing with the Republican primary electorate and may actually be helping.
Amidst all this, it’s easy to lose sight of the considerable progress that has been made over the past twenty years. That’s particularly true in the area of election administration, which has been a main focus of my academic career. I became a law professor in 2003, just a few months after Rick started this blog. Hard as it may be to believe now, not many scholars were writing about the “nuts and bolts” of elections — things like voting technology, voter registration, and voter ID — at the time. Bush v. Gore was still a new decision, and the Help America Vote Act had just been enacted into law. Back then, it was mostly left-leaning Democrats who were worried that electronic voting machines would steal their votes. (How things have changed.)
When it comes to election administration, there is much to celebrate in what’s happened over the past two decades. We’ve moved to more reliable voting technology and statewide voter registration lists. The professionalization of election officials has increased dramatically over the intervening years. A testament to that fact is the miracle of the 2020 election, as Nate Persily and Charles Stewart have called it, when the country successfully managed a massive shift toward remote voting in the midst of a global pandemic and record turnout. Our judicial system also held up well to the challenge that the 2020 election posed. Judges across the ideological spectrum — including both Republican and Democratic appointees — rejecting the specious legal cases brought by Trump’s allies (traced in my contribution to this book on January 6). Some of those lawyers are now facing the consequences of their actions.
The tragedy of the 2020 election, borrowing again from Persily and Stewart, is that so many Americans believed — and continue to believe — that the election was stolen. Not only has there been a massive loss of trust in our election system, but we’ve also seen escalating threats toward the people responsible for running our elections. That’s led many of these dedicated public servants to conclude that it’s just not worth it, leaving their jobs in large numbers. This too is a tragedy, especially given the progress is professionalizing election administration over the past twenty years.
Despite all this, I’m hopeful about the future of election law and, more broadly, of our democracy. Although we’ve lost some great election officials, public awareness of the serious challenges that our system faces has increased dramatically. I’m talking not only about the risk of election subversion — the tag of so many recent ELB posts — but also about gerrymandering, money in politics, and the institutions responsible for running elections. The election law community, including both academics and practitioners, has never been more robust. I’m not sure of the solutions to the enormous challenges we face. But the diversity of new voices in the field increases my confidence that we’ll find a way through them together.
I’ll close this post, and my stint as guest blogger, with a big “thank you” to everyone else in the election law community. Thanks especially to Rick for keeping this blog going over the past twenty years. And to all of you for caring enough about our democracy to keep reading and responding.
Over the last four years, at least 40 of North Carolina’s 100 counties have had to replace their election directors due to retirements, resignations and other career moves. Patrick Gannon, a spokesperson for the state Board of Elections, said that’s a significantly greater level of turnover than the state has seen before.
Similar trends hold true across the rest of the United States. A Boston Globeanalysis of data from the US Vote Foundation found that county election official turnover had spiked after the 2020 election in battleground states like Arizona, Pennsylvania and Georgia. According to a 2022 survey by the nonpartisan Brennan Center for Justice, 20% of officials serving at the time said they planned to leave their posts before the 2024 presidential contest.
Those filling the vacancies are entering a high-pressure environment, especially in North Carolina, where Donald Trump defeated Joe Biden by fewer than 75,000 votes. Over 25% of the state’s county election directors have personally experienced threats, according to a March poll by the Massachusetts Institute of Technology Election Data and Science Lab, and 85% say their work-related stress has grown since 2019.
Update: Pat Gannon of the NC State Board of Elections writes to say: “[W]e are now up to exactly 50 of NC’s 100 counties have (or are currently seeking) new election directors since 2019. More than 30 directors will be working their first presidential election in 2024.”
Politico: “National Democrats had all but written off Florida as a lost cause — a former purple state turned solid red by the MAGA movement and Gov. Ron DeSantis. But key party leaders in the state, desperate to turn things around in 2024, are confident that citizen initiatives dealing with abortion rights and recreational marijuana legalization could fuel turnout and boost the party’s chances.”
Filed on Friday, the challenge argues that the abortion rights petition did not identify which state laws would have to be repealed if the constitutional amendment were to be adopted….
The legal challenge came three days after the Ohio Secretary of State Frank LaRose approved the amendment for the November ballot, certifying that the required number of valid signatures were obtained to put the issue before voters.
