Monthly Archives: February 2024

I Joined “Think” on KERA to Talk About My New Book, “A Real Right to Vote”

Listen here:

As the Supreme Court has chipped away at the Voting Rights Act, renewed calls have been made for ways to protect all Americans’ right to vote. Richard L. Hasen is professor of law and political science at UCLA and director of UCLA Law’s Safeguarding Democracy Project. He joins host Krys Boyd to discuss why he feels we need a Constitutional amendment guaranteeing the right to vote, and why leaving it to the courts to decide who can vote is a bad idea. His book is “A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.

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“Red State AGs Keep Trying to Kill Ballot Measures by a Thousand Cuts”


When a coalition of voting rights activists in Ohio set out last December to introduce a new ballot initiative to expand voting access, they hardly anticipated that the thing to stop them would be a matter of word choice.

But that’s what Ohio Attorney General Dave Yost took issue with when he reviewed the proposal’s summary language and title, then called “Secure and Fair Elections.” Among other issues, Yost said the title “does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” 

So the group tried again, this time naming their measure “The Ohio Voters Bill of Rights.” Again, Yost rejected them, for the same issue, with the same explanation. After that, activists sued to try and certify their proposal—the first step on the long road toward putting the measure in front of voters on the ballot. 

“AG Yost doesn’t have the authority to comment on our proposed title, let alone the authority to reject our petition altogether based on the title alone,” the group said in a statement announcing their plans to mount a legal challenge. “The latest rejection of our proposed ballot summary from AG Yost’s office is nothing but a shameful abuse of power to stymie the right of Ohio citizens to propose amendments to the Ohio Constitution.”

These Ohio advocates aren’t alone in their struggle to actually use the levers of direct democracy. Already in 2024, several citizen-led attempts to put issues directly to voters are hitting bureaucratic roadblocks early on in the process at the hands of state officials. …

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“NY Gov. Approves Bill Directing Redistricting Suits to NY’s Major Metropolitan Courts”

An amended bill that limits New Yorkers to filing redistricting lawsuits in Manhattan and Albany, Westchester and Erie counties was signed into law by Gov. Kathy Hochul on Wednesday, after the Assembly approved it earlier in the day, while the Senate had passed it on Monday.

Bill sponsors say S3292B/A435A is aimed at preventing forum shopping and to designate those courts as experts in redistricting matters.

But the controversial proposal drew a more-than hourlong debate on Monday in the Senate, with Republican opponents asserting the bill would harm New Yorkers who don’t live near the four designated counties.

New York elections attorneys continue to monitor the bill, which originally targeted Albany County for hearing redistricting cases throughout New York’s 62 counties.

Cozen O’Connor senior counsel Jerry Goldfeder, a prominent elections attorney, told the Law Journal in an interview that the bill makes sense.

“It’s an attempt to make certain that courts in the major population areas hear cases that relate to the entire state, as opposed to state supreme court justices in counties with very few people, that make it very difficult for people to attend,” Goldfeder said….

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“The Power of the Electorate Under State Constitutions”

Josh Douglas has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

Voters are special. They are the foundation of our constitutional democracy. Everything starts with the voter.

State constitutions, too, are special, as the recent surge in scholarship on state constitutions demonstrates.

This Article bridges the gap between various strands of recent scholarship on state constitutions, the right to vote, and democracy, making several novel claims about the way in which state constitutions protect voters. First, the Article canvasses all fifty state constitutions to conclude that they contain multiple levels of protection for the right to vote through numerous clauses that, in combination, elevate the status of voters in the constitutional structure. The Article explains these clauses and tallies how many state constitutions include each one, offering a descriptive fifty-state survey of the holistic state constitutional protection for voters. Second, the Article situates this multilayered right to vote within separation of powers principles, showing how the electorate is the most vital entity in state governance. An analogy to separation of powers ideals is a useful tool to check legislative or executive abuses of the election process. Third, the Article applies this theory to real-world voting rights disputes, arguing that courts should invalidate a law that infringes upon the multilayered right to vote. This approach differs from typical tiers of scrutiny and means-end analysis in right to vote cases. Instead, the test borrows from the non-retrogression principle once used in Voting Rights Act Section 5 cases: a plaintiff would have an evidentiary burden to show that a new law will make it harder for voters to participate or will reduce turnout. Importantly, if a legislature is taking away the power of the electorate to direct the government, then there is no valid state interest that can justify that encroachment. A plaintiff could invoke the theory by demonstrating empirically that a law will reduce voter participation.

A recognition of the multilayered right to vote under state constitutions, combined with an analogy to state separation of powers principles, will ensure that voters, not politicians, remain the most important actors in state governance.

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“Ranked-Choice Voting is MAGA’s Latest Target; Leonard Leo and other far-right power players are attacking a bipartisan election reform.”

Brendan Fischer writes for Documented (here’s the version at Rolling Stone):

An organized and well-funded network of right-wing groups is spending countless millions attacking a bipartisan election reform that could threaten the MAGA political project.

Ranked-choice voting — which allows voters to rank candidates in order of preference, rather than just selecting one — has been used in state and federal elections in Alaska and Maine, and has been gaining momentum in dozens of other states and municipalities, often with bipartisan support. Voters in Nevada and Oregon will hold referendums on adopting the system in 2024, and several other state and local governments have also been considering ranked-choice voting measures.

But beginning in early 2022, and intensifying in 2023, a range of so-called “election integrity” groups, from Leonard Leo’s Honest Elections Project to Cleta Mitchell’s Election Integrity Network, have made stopping ranked-choice voting a top legislative priority.

Five states have since banned any city or county government from adopting the system, and at least six other states are considering similar measures this year. The American Legislative Exchange Council (ALEC) approved a model bill banning ranked-choice voting last year, a Turning Point Action official successfully pressed the Republican National Committee to adopt a resolution opposing the practice, and the Heritage Foundation has organized grassroots activists to oppose ranked choice voting in several states.

The far-right fixation on ranked-choice voting “is a bit bizarre,” said Rick Hasen, a professor and director of the Safeguarding Democracy Project at UCLA’s Law School. “It’s not really an issue of ‘honest elections’ or ‘election integrity,’” he said. “It’s a debate about the best way to translate voters’ preferences into election winners.”

“I would guess,” Hasen said, “that the reason for the fear of ranked choice voting is that it could help elect more Republican moderates rather than more extreme Republicans.”

Ranked choice voting is one of the few — if not the only — democracy reforms that still has bipartisan support. For example, 21 cities in deep-red Utah use ranked choice voting, where it is broadly popular, and bills to implement it have attracted Republican co-sponsors in states like Wisconsin, Virginia, and Georgia. The organized attacks on ranked choice voting appear aimed at eroding support for the reform among Republican lawmakers and conservative activists.

Groups backed by right-wing activist Leonard Leo are playing an outsized role in the campaign against ranked choice voting. Leo, who served as former President Donald Trump’s judicial adviser, helped construct the Supreme Court’s conservative supermajority. In 2021, he was put in control of a $1.6 billion dark money fund to help push U.S. politics to the right.

While Leo’s relationship with Trump has frayed — he reportedly considered boosting another MAGA-aligned candidate, Ron DeSantis, in the GOP presidential primary — the success of his political project relies on electing far-right candidates under the same system that produced Trump….

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“Pennsylvania Plans Task Force to Combat Election Disruptions”


As a fall rematch between President Biden and former President Donald J. Trump becomes increasingly likely, the Democratic governor of Pennsylvania is announcing an Election Threats Task Force, a federal-state partnership, in the critical battleground state.

The task force, announced Thursday morning by Gov. Josh Shapiro, will seek to thwart attempts to disrupt elections as well as protect voters from intimidation. The organization will include the Homeland Security Department, the Justice Department, the Pennsylvania Department of State and multiple state agencies.

In a country already awash in disinformation and lies about the safety, security and integrity of elections, the task force points to how seriously elected officials are taking threats to the coming campaign.

Pennsylvania is one of the first battleground states, if not the first, to announce such a collaboration this far from November….

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“The US is bracing for complex, fast-moving threats to elections this year, FBI director warns”


The United States expects to face fast-moving threats to American elections this year as artificial intelligence and other technological advances have made interference and meddling easier than before, FBI Director Christopher Wray said Thursday.

“The U.S. has confronted foreign malign influence threats in the past,” Wray told a national security conference. “But this election cycle, the U.S. will face more adversaries, moving at a faster pace, and enabled by new technology.”

Wray singled out advances in generative AI, which he said had made it “easier for both more and less-sophisticated foreign adversaries to engage in malign influence.”

The remarks underscored escalating U.S. government concerns over sometimes hard-to-detect influence operations that are designed to shape public opinion. Though officials have not cited successful efforts by foreign governments to directly alter election results, they have sounded the alarms over the past decade about foreign influence campaigns….

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“Florida’s New Driver’s License Rule Is Blatant Trans Voter Suppression”


Quietly and behind the scenes last month, the Florida Department of Highway Safety and Motor Vehicles, or FLHSMV, issued a memo indicating that it will no longer honor Floridians’ requests to amend the gender marker on their driver’s licenses. “Permitting an individual to alter his or her license to reflect an internal sense of gender role or identity, which is neither immutable nor objectively verifiable, undermines the purpose of an identification record,” Robert Kynoch, deputy executive director of the Florida Department of Highway Safety and Motor Vehicles, wrote in the memo, reciting rhetoric now often used to justify anti-trans laws. The memo closed with what could be read as a threat: “Misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud [under state law] and subjects an offender to criminal and civil penalties.” Or, said more directly, as in a statement that FLHSMV made to several media outlets after news of the memo hit the press: “You do not get to play identity politics with your driver license.”

This news is alarming for several reasons. Until now, the state had allowed residents to amend the gender marker on their licenses and state identification cards. The Department of Highway Safety and Motor Vehicles, run by a political appointee of Florida Governor Ron DeSantis, is attempting to throw out that policy in this memo. The state legislature is also currently considering something similar: House Bill 1639, which Equality Florida, the statewide LGBTQ rights group, calls the Trans Erasure Bill, includes provisions that redefine “sex” and “gender” in the law in such a way that trans Floridians would be required to list the sex they were assigned at birth on their driver’s licenses. “On the one hand, you have this policy that’s saying, You can no longer amend, and on the other hand, you have this policy that’s saying, When you’re applying for documents they have to have your sex assigned at birth,” explained Kara Gross, legislative director and senior policy counsel at ACLU Florida. “So you’re creating a situation where there’s an intent to erase trans Floridians from public life.”…

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“Cook County judge orders Donald Trump removed from Illinois primary ballot for his role in Jan. 6 riot at US Capitol” (With link to order); What Happens Next?

Chicago Tribune reports.

You can find the order here.

It includes a stay until March 1, to give time for appeal.

I expect that there will continue to be requests for a stay of this ruling, which may make it all the way to the Supreme Court. Given that it appears the Supreme Court will be siding with Trump in the Colorado disqualification case (because of the timing and how things went at oral argument), I expect Trump will get a stay at one court or another.

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Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election

Like many other observers, I thought the relatively long lag time between Donald Trump’s attempt to stay his criminal trial after losing in the district court and the D.C. Circuit meant the Court was not going to grant the stay and someone was going to dissent. After all , why wait if the Court is going to actually hear the case on the merits?

But today we got this order setting the case for argument in late April, meaning, unless they rush it, a decision not likely until the end of June:

The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of
certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.

The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.

So this is parallel expedited briefing to the Trump v. Anderson disqualification case which is still pending too.

What’s going on here? We cannot say for sure, but there are a few possibilities:

  1. There was an attempt to strike some kind of grand bargain (maybe between handling of the two cases and it failed).
  2. One or more Justices who want to help Trump run out the clock kept asking for more time before the Court was ready to announce its order.
  3. These are complicated issues, and this just took time. The Court is not going to be concerned if it makes the trial impossible to bring. It’s going to take its time regardless of the consequences.

On this last point, if the Court does not issue an opinion until late June, are we really going to see the trial court put Trump on trial during the general election season (or even during the RNC convention)? I find this very hard to believe.

Early on, I called this federal election subversion case potentially the most important case in this Nation’s history. And now it may not happen because of timing, timing that is completely in the Supreme Court’s control. After all, this is the second time the Court has not expedited things to hear this case.

This could well be game over.

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“Law School clinic files brief to combat intentionally false statements about voting”

Yale Daily News:

Yale Law School’s Media Freedom and Information Access Clinic filed an amicus brief on Feb. 12 in United States v. Mackey, a case currently at the Second Circuit Court of Appeals. The case involves an influential social media user convicted of attempting to convince voters to believe they could cast their votes through a false voting mechanic. 

The case centers on claims that Douglass Mackey, a social media influencer on X, formerly known as Twitter, made during the 2016 presidential election campaign. Mackey, who was known to his 58,800 followers as Ricky Vaughn, repeatedly tweeted false claims to supporters of former Secretary of State Hillary Clinton LAW ’73 that they could cast their ballots via text message in the weeks leading up to the election.

Mackey was convicted by a New York jury in March 2023, ordered to pay a $15,000 fine and charged with violating Section 241, which prohibits conspiring to “injure” individuals’ federal rights or privileges, including the right to vote. He was sentenced to seven months in prison and appealed his conviction to the Second Circuit.

The YLS Media Freedom and Information Access Clinic filed its amicus brief in collaboration with Protect Democracy, a nonpartisan anti-authoritarian organization, on behalf of election law expert and UCLA School of Law professor Richard Hasen. The brief argues that a Reconstruction-era civil rights law can be utilized to prosecute deliberate misinformation regarding voting procedures, while still upholding the First Amendment’s right to freedom of speech….

“I really appreciated the opportunity to work on this case because I think combating election disinformation is going to be key to preserving our democracy, this year and beyond,” Victoria Maras LAW ’25, an MFIA clinic member who worked on the brief, told the News. “As a former Field Organizer, I know how important it is to get the right information out to voters, and, by the same token, how harmful it can be when misinformation spreads.”

Maras said she was grateful that this brief can show how people who conspire to spread false election information can be held accountable without threatening First Amendment free speech rights.

Another MFIA clinic member, Ben Menke LAW ’25, told the News that delving into the history of Section 241, which was passed in 1870, led him to examine transcripts of debates in Congress during that time. Through this research, Menke said that he uncovered the motivations of the legislators who first enacted the law, as well as the legal opinions of the judges who applied Section 241 at the time.

“Our brief offers clarity on the proper way to construe Section 241, and we show that the law is consistent with the First Amendment,” Menke told the News. “Bad actors are finding it easier to spread knowingly false information to interfere with the right of the people to vote. Enforcing Section 241 is one way the federal government can respond to this threat.”

In a statement to the News, James Lawrence, Mackey’s attorney, said that their core argument in defense of Mackey is that he did not have fair notice, required by the Fifth Amendment, that his conduct violated “clearly established” law.

Lawrence claimed that the amicus brief uses a Supreme Court case about a different law to argue that a rarely used legal concept, not accepted in many state courts and never applied in New York, should be turned into a federal crime for misleading election information.

“If a team of federal prosecutors never came up with this convoluted argument after pursuing this case for more than three years … how could Douglass Mackey be expected to know his conduct violated Section 241 in 2016?” Lawrence wrote in the statement. 

The MFIA clinic declined to comment on Lawrence’s statement….

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