Monthly Archives: October 2023
“Communicating with Voters to Build Trust in the U.S. Election System: Best Practices and New Areas of Research”
New piece from OLIVIER BERGERON-BOUTIN • KATHERINE CLAYTON • THAD KOUSSER • BRENDAN NYHAN • LAUREN PRATHER. Summary:
The stability of democracy depends in part on public belief in the legitimacy of elections, which has been called into question in the U.S. We review the factors that affect confidence in elections, identifying relevant findings from academic studies conducted here and around the world and discussing the limitations of existing research.
Attitudes toward elections are based on people’s experiences and what they hear from the media, elites, and experts. Losers are more prone to distrust election results, but the level and persistence of distrust is shaped by elite messages and electoral expectations. One approach to reducing distrust would be to strengthen election security, but public opinion is only weakly responsive to changes in policy or outcomes, especially for low salience issues. The effects of such changes on the behavior of elites are thus crucial.
Messages about elections can affect public confidence, but it seems easier to damage confidence than to strengthen it. Promising approaches include affirming messages from co-partisans, factual information about election security, and non-partisan observers. Reporting of election results faces challenges given delays in counting and shifts in vote margins that are
often highlighted in news coverage. Explaining the timelines on which votes are counted and the reasons for delays are important steps to take and to study.
Finally, Black Americans and other racial and ethnic minorities often express lower trust that their own vote was counted accurately. However, their confidence in the national vote count varies with respect to other groups depending on the electoral context.
We highlight several areas in which more research is needed. In particular, we know little about the real-world effects of various proposed reforms and messages on voter trust. We suggest that collaborations between election officials and academics would be a fruitful way to provide this much-needed evidence. These collaborations would marry the real-world context of reforms with the power of randomized experiments.
“Why We Can’t Have Nice Things: Equality, Proportionality, and Our Abridged Voting Rights Regime”
New from Michael Latner. Abstract:
What constraints should the protection of political equality place on the design of electoral systems? With the exception of requiring approximate population equality across a jurisdiction’s districts, the U.S. voting rights regime accepts substantial disproportionality in voting strength. This Article addresses the current Supreme Court’s abandonment of the Second Reconstruction’s “one person, one vote” standard with regard to both racial and partisan gerrymandering, and assesses the role that Congress and political science have played in this transition. This Article argues that an unabridged voting rights regime must recognize a standard of proportional representation derived from the protection of individual political equality.
Watch Archived Video of Safeguarding Democracy Project Conference: “The Law and Politics of Potentially Disqualifying Donald Trump from Running for President”
This virtual conference took place October 20. It was a great set of discussions with Julia Azari, Guy Charles, Edward B. Foley, Mark Graber, Rebecca Green, Gretchen Helmke, Sherrilyn Ifill, Sam Issacharoff, Kurt Lash, Lisa Manheim, Derek Muller, and Daniel Ziblatt.
Introduction
Panel 1: Deciding on Presidential Disqualification Who, How, When, and Where? (Foley, Green, Manheim, Muller)
Panel 2: The Politics of Candidate Disqualification: Here and Abroad (Azari, Helmke, Issacharoff, Ziblatt)
Panel 3: Does Section 3 of the 14th Amendment Bar Trump from Holding Office? (Charles, Graber, Ifill, Lash)
Conclusion: Roundtable Discussion and Q&A with Panelists
ELB Podcast 5:3: The Trump Prosecutions, the First Amendment, and Election Interference (Genevieve Lakier and Eugene Volokh)
Do gag orders against presidential candidate Donald Trump in his civil or criminal trials violate the First Amendment?
What should we make of Trump’s claims that his actions to overturn the results of the 2020 elections are protected free speech?
How should we assess the dangers of government “jawboning” of social media platforms to remove objectionable conduct?
On Season 5, Episode 3 of the ELB Podcast, we delve into these issues with First Amendment experts Genevieve Lakier and Eugene Volokh.
You can subscribe on Soundcloud, Apple Podcasts, and Spotify.
“Pence joins Republicans eviscerated by contradicting Trump’s election lies”
The rise of Rep. Mike Johnson in the House, coupled with the fall of former Vice President Mike Pence and the dominance of ex-President Donald Trump, shows that 2020 election denialism is a prerequisite for winning Republican power.Johnson, who played a leading role in the effort to block the certification of President Joe Biden’s 2020 election win, benefited in his ascent to the speakership last week from the approval of pro-Trump lawmakers.
Pence suspended his run for the White House over the weekend after months mired in the single digits in surveys. His tortured explanations of his constitutionality correct decision – that he lacked power to overturn Biden’s 2020 election win in Congress – failed to convince grassroots Republicans bought into the ex-president’s false claims that he won the election. Pence now joins the swelling ranks of Republicans, from former Wyoming Rep. Liz Cheney to retiring Utah Sen. Mitt Romney, whose careers were eviscerated by contradicting Trump’s lies.
Those lies – namely that he was unfairly and illegally ejected from the White House – are now the foundation of Trump’s 2024 campaign to win it back. And after discrediting the electoral system in the eyes of millions of his supporters, Trump is now setting about tarnishing another pillar of America’s democratic institutions – the courts. Over the weekend, the former president stepped up his social media rants at the judge presiding over a fraud trial in New York that targets him, his adult sons and his company, after he was fined for a second time last week for breaching a gag order by apparently attacking court personnel on social media.
The trial – and Trump’s attempt to fight the case in the court of public opinion with inflammatory commentary – is a prelude to an unprecedented election year, with the runaway GOP front-runner facing four criminal trials and the possibility he could be a convicted felon by Election Day in November 2024. In one of those criminal matters – the federal election subversion case – the judge on Sunday reinstated the gag order against him, denying his request to pause it while his appeal played out.
“Youngkin ‘purge’ removed nearly 3,400 legal Virginia voters from rolls”
Gov. Glenn Youngkin’s elections team has admitted in the run-up to pivotal General Assembly elections that it removed nearly 3,400 qualified voters from the state’s rolls, far higher than the administration’s previous estimate of 270.
Elections officials under Youngkin (R) acknowledged what it called the mistaken removal of about 3,400 voters in a news release Friday — five weeks after early voting began for Nov. 7 General Assembly elections. The outcome will determine the viability of Youngkin’s last-minute presidential prospects and the fate of his conservative legislative agenda, which includes banning most abortions after 15 weeks.
The news release claimed that local registrars had already reinstated all but “approximately 100” of the voters, all of whom had been convicted of felonies, had their voting rights restored and then went on to violate the terms of their probation. The state’s computer software had erroneously counted the probation violations as new felonies that disqualified them from voting, administration officials have said.
“In Mississippi, most voters will have no choice about who represents them in the Legislature”
After being in office for over a decade, Mississippi state Sen. Dean Kirby got challenged in the Republican primary. He won with 70% of the vote.
That was in 2003 — and it remains the last time Kirby faced an opponent. The longtime Jackson-area senator is on the ballot again this year without either a Democratic or Republican challenger.
While the length of Kirby’s uncontested streak is unusual, his situation is not. More than four-fifths of Mississippi’s legislative candidates will have no major-party opposition in the Nov. 7 general election. And more than half of this year’s winners will have faced no other Republicans or Democrats in either the primary or the general election.
“Danger in Plain Sight: The Risk of Triggering a Contingent Election in 2024”
Beau Tremitiere and Aisha Woodward at Lawfare.
“Most Republicans say Trump didn’t even try to overturn the election”
Earlier this year, we learned about how the American political right’s most trusted news outlet proactively aired claims that its higher-ups understood to be baseless and false, and resisted fact-checking them. Fox News’s viewers were sold a fantasy about a stolen election and voting machines because it was decided that’s what they and the business model demanded — with it all accruing to the benefit of Donald Trump.
Months later, with Trump facing a pair of criminal trials over his stolen-election crusade, that fantasy still looms over the potential political fallout.
The Economist and YouGov this week became the latest to publish a head-scratching poll showing Republicans rejecting basic facts about Trump and his legal jeopardy.
The poll asked people whether Trump was “involved in an attempt to overturn the results of the 2020 election in Georgia.” He, of course, was. Myriad pieces of evidence make that abundantly clear. We have a literal recording of him asking Georgia’s secretary of state to “find” just enough votes to overcome his deficit, and Trump on the call explicitly cited “flipping” the results in the state.
But to most Republicans, this apparently never happened. Just 18 percent in the YouGov poll said Trump was involved in trying to overturn Georgia’s results, compared to 59percent who say he wasn’t.
It’s now the second poll to show the vast majority of Republicans saying Trump wasn’t even involved in trying to overturn the election. YouGov asked similar, non-Georgia-specific questions in August. Republicans said just 38-30 percent that there was an attempt to overturn the election. That’s shocking in and of itself. But then it showed only half of that 38 percent said Trump was personally involved.
So in both polls, only about 1 in 5 Republicans said Trump tried to overturn the election — the very basic threshold fact that undergirds two of his four indictments.
One year later – “What the litigation path of eligibility challenges to Donald Trump may look like”
Just about one year ago, in November 2022, I wrote the following:
If I had a crystal ball into the future of litigation surrounding Donald Trump’s candidacy for the Republican presidential nomination, I would project something like this: In January 2024, administrative tribunals in Illinois and New Hampshire will issue the first decisions on the merits examining whether Trump is eligible to appear on the ballot for the presidential primaries. Those will be the first merits decisions in a torrent of litigation with an unknown future.
I’m doing pretty well–so far, however, we’re likely to see merits decisions in Colorado, Michigan, and Minnesota in late November or early December 2023, as all three see hearings over the next couple of weeks. (I hadn’t anticipated that state courts would offer fairly generous ripeness considerations here, in ways that haven’t necessarily happened in the past.) I had some other thoughts in the piece that held up well, such as the fact that most viable challenges would be in state not federal court, and including:
It’s not clear how this process plays out. It’ll certainly be truncated (the amount of time between a nomination paper filing deadlines and the printing of ballots is usually pretty tight), scattershot, and uncertain. Often, the initial review is not in front of a judge, but a single administrator or panel of an election board, with rather opaque evidentiary requirements. It’s possible that the only way this is resolved on an effectively-national level is (1) some state supreme court excluding the candidate after rapid review through the state administrative and judicial process, and (2) the United States Supreme Court granting cert to review the lawfulness of that exclusion.
Of course, a “scattershot” and “uncertain” approach is not an ideal one, but it’s the one we’re experiencing.
“Federal Judge Reinstates Gag Order on Trump in Election Case”
federal judge reinstated a gag order on former President Donald J. Trump on Sunday that had been temporarily placed on hold nine days earlier, reimposing restrictions on what Mr. Trump can say about witnesses and prosecutors in the case in which he stands accused of seeking to overturn the 2020 election.
In making her decision, the judge, Tanya S. Chutkan, also denied a request by Mr. Trump’s lawyers to freeze the gag order for what could have been a considerably longer period, saying it can remain in effect as a federal appeals court in Washington reviews it.
Judge Chutkan’s ruling about the order was posted publicly on PACER, the federal court database, late on Sunday, but her detailed order explaining her reasoning was not immediately available because of what appeared to be a glitch in the computer system.
The dispute about the gag order, which was initially put in place on Oct. 16 after several rounds of court filings and a hard-fought hearing in Federal District Court in Washington, has for weeks pitted two significant legal arguments against each other.
From the start, Mr. Trump’s lawyers, largely led by John F. Lauro, have argued that the order was not merely a violation of the former president’s First Amendment rights. Rather, the order “silenced” him at a critical moment: just as he has been shoring up his position as the Republican Party’s leading candidate for president in the 2024 election.
Federal prosecutors working for the special counsel, Jack Smith, have countered that even though Mr. Trump is running for the country’s highest office, he does not have permission to issue public statements threatening or intimidating people involved in the election interference case, especially if those remarks might incite violence in those who read or hear them.
Colorado trial court botches interpretation of Electoral Count Reform Act in rush to get Trump ballot access case to hearing
Back in 2015, I suggested that courts should proceed with “caution” when exercising review over qualifications disputes involving presidential candidates. Other entities are involved in the process, and the state legislature may not have empowered a court or some body to engage in rigorous review of qualifications. In these time sensitive election cases, complex and layered legal questions might not find adequate resolution.
Not so in Colorado. The trial court’s schedule for a five-day hearing beginning October 30 means clearing a series of complicated legal questions ahead of the complicated factual (and other legal) claims for the hearing. In some places, I’d pick at the edges of some of the court’s holdings under state law. But in other places, more fundamental errors arise–including an interpretation of the recently-enacted Electoral Count Reform Act.
Continue reading Colorado trial court botches interpretation of Electoral Count Reform Act in rush to get Trump ballot access case to hearing“Pence Bows Out of 2024 Presidential Race That Trump Is Dominating”
Former Vice President Mike Pence, who spent four years dutifully serving President Donald J. Trump but refused to carry out Mr. Trump’s demand that he block the 2020 election results, ended his presidential bid on Saturday, with a final appeal for his party to return to conservative principles and resist the “siren song of populism.”
The surprise announcement came at the end of his remarks before a crowd of Jewish Republican donors in Las Vegas, and was met with gasps. Mr. Pence had received a standing ovation, opening his speech with a full-throated endorsement of Israel’s military operations in Gaza.
Then he pivoted to a more “personal note,” saying that after much prayer and deliberation, he had decided to drop out of the race.
“It’s become clear to me that this is not my time,” he told the crowd of 1,500, promising to “never leave the fight for conservative values.”…
Mr. Trump had pressured his vice president to reject Mr. Biden’s Electoral College victory. On Jan. 6, 2021, that pressure campaign culminated in a pro-Trump mob attacking the Capitol, with some in the mob chanting “Hang Mike Pence!”
Mr. Pence was heralded for his resistance by some who see Mr. Trump as an unadulterated threat to democracy. But on the campaign trail, where many Republican voters have come to echo and champion Mr. Trump’s false claims of widespread fraud, Mr. Pence sometimes faced antagonistic questions about why he had not tried to hand the election to Mr. Trump.