A few months ago, we and ProPublica wanted to answer a question: How many people with felony convictions have registered to vote under Amendment 4?
Passed by nearly two-thirds of voters in 2018, the amendment was supposed to be America’s greatest expansion of civil rights in decades, allowing an estimated 1.4 million to vote. Some speculated it could swing Florida’s election in favor of Democrats.
We found that hasn’t happened. At all.
You can read the full investigation here. Here are 5 things we learned while reporting this story…
A dispute over how North Carolina voters should correct problems with their mail ballots remains unresolved roughly three weeks before Election Day, leaving at least 6,800 votes — including more than 3,300 ballots from people of color — in limbo across a key presidential battleground state.
The legal fight intensified after the state Board of Elections said last month it would allow voters to “cure,” or fix, deficiencies in their mail ballots by completing and returning an affidavit to county election officials. The affidavit would neutralize a range of voter errors that could lead to ballots being tossed, including failure to provide a witness signature.
But a federal judge put the plan on hold Oct. 3, arguing it changed the rules too close to Election Day. And a second federal judge expressed concern that the affidavits would allow voters to essentially dodge the state’s witness requirement — the primary method used in North Carolina to prove mail ballots are authentic.
While the lines were longest in the state’s heavily Democratic strongholds in and around Atlanta, Augusta, Savannah and Macon, hours-long waits were also reported in smaller, more conservative counties, including Lowndes and Floyd, officials said. By the evening, at least 120,000 voters had cast their ballots, according to Jordan Fuchs, Georgia’s deputy secretary of state.
“This is a fantastic turnout election,” she said. “I’m on the floor.”
Voters in Gwinnett County, northeast of Atlanta, began queuing up as early as 4 a.m. — three hours before the polls opened Monday, and an unusually early start, officials said. By the afternoon, the main elections office in the county had an eight-hour wait, and two other locations reported five- to six-hour lines, officials said.
Voters said the crowds were generally patient, but some reported that they saw people walking away before casting their ballots.
Order here; opinion to follow.
Facebook users engage with content from untrustworthy outlets twice as often today as they did at the time of the 2016 U.S. election, researchers at the German Marshall Fund found, despite the many measures the platform and its competitors have rolled out to combat the spread of misinformation.
How it works: The German Marshall Fund, along with nonpartisan news reliability service NewsGuard and social media intelligence firm NewsWhip, measured the spread of articles from deceptive sites across Facebook in the U.S.-focused study.
Grace Panetta for Business Insider.
Josh Douglas at Take Care.
Democrats are accusing app-based gig companies including Uber and Lyft of playing dirty in their multimillion-dollar ad campaign supporting a California ballot measure that would allow their drivers to continue to be treated as independent contractors rather than employees.
California state Assemblywoman Lorena Gonzalez (D) said Monday that the campaign backing Proposition 22 includes tactics that are “dirtier than I’ve ever seen before,” such buying up “fake groups” that have no actual members and misleading names meant to tie them to progressives such as Sen. Bernie Sanders (I-Vt.).
“This is historic spending by any side on an initiative, and not historic by California standards; it’s historic nationally,” Gonzalez said during a press conference. “When you think about how much these companies put into the initiative process to simply write their own rules, this is a new path that has been chosen by these Silicon Valley billionaire corporations, and it should alarm all of us.”
Sanders on Monday tweeted his personal opposition to Proposition 22, denouncing as dishonest a mailer that backed it under the title “Feel the Bern, Progressive Voter Guide.”…
The mailers, which also back the Democratic presidential ticket, have been showing up in Southern California mailboxes. But the groups named in them, such as “Our Voice, Latino Voter Guide” and the “Council of Concerned Women Voters Guide,” do not exist, SFGate reported.
Yes on 22, a PAC supported by Uber and Lyft as well as delivery-based apps DoorDash, Instacart and Postmates, spent hundreds of thousands of dollars on mailers in expenditures on Aug. 28, according to the California secretary of state’s Cal-Access database. The expenditures included $20,000 for a “progressive slate,” $60,000 for a “California voter guide” and $48,750 for a “California Latino voter guide.”
Spokespeople for Uber and Lyft were not immediately available for comment when asked about the mailers or to respond to Sanders’s call to “denounce the deception.”
In total, more than $186 million has been contributed to the campaign in support of Proposition 22, according to California’s Fair Political Practices Commission, reportedly making it the costliest ballot measure campaign in the nation’s history and far outstripping the opposition’s spending.
New Brennan Center resource on what’s allowed and what’s prohibited in each state.
Early-voting maven Michael McDonald has been running evaluations of the vote so far every weekend, and if you want to understand what’s happening it’s a must-read. This week he added a prediction: “I predict in the coming weeks the Democratic narrative will change from euphoria over the apparent large leads in early voting to concern that a disproportionately large number of younger voters have yet to return their mail ballots.”
Safe bet — at least, it’s a safe be that Democrats will be panicking about something. If it’s not the lower ballot-return rate from younger voters, it will be that more mail-in than in-person ballots wind up disqualified, or perhaps just that former Vice President Joe Biden’s current very large lead over President Donald Trump will slide back to being just a large lead. Democrats always are on the verge of panic, and after Trump won in 2016 despite being behind in the polls (but nowhere near as far behind as he is now) that’s only going to make them more insecure.
“When the Secretary State’s office becomes a stepping stone to other office, it’s inevitable that it’s going to serve a kind of partisan purpose. And I think that that disserves the voters,” said U.C. Irvine Law Professor Rick Hasen, one of the nation’s leading election law experts. Hasen said the job should be above politics.
That does not describe the current Secretary of State. Padilla regularly endorses candidates for office and this year he has campaign committees to raise money for three statewide propositions, including ones to end the ban on affirmative action (Prop. 16) and another (Prop. 18) to allow 17-year-olds to vote in primary elections.
“[The Secretary of State] should be someone whose allegiance is first and foremost to the integrity of the election system. I certainly shouldn’t be endorsing candidates or serving on their committees,” Hasen said.
Indeed, Padilla has focused on lowering barriers to voting in California and has had to help implement a raft of new state laws doing just that. In the process, he’s been sued by Republicans who say he’s failed to rid voter rolls of dead or duplicated voters.
“So if you’re a Republican, you probably see Alex Padilla as really supporting Democratic causes. If you’re a Democrat, you probably see Alex Padilla is doing what he should be doing, which is expanding the ability of people to easily vote to make sure that the barriers to vote are very low,” said Loyola Law School’s Jessica Levinson.
In 2016 Padilla endorsed Hillary Clinton for president which she won over Sen. Bernie Sanders. At the Democratic National Convention in Philadelphia that year, supporters of Sanders were furious at Padilla — shouting him down at a delegation breakfast — and claimed he had disadvantaged Sanders in the California primary.
It is episodes like that one that make Hasen, the law professor, say he would like to see the Secretary of State nominated by the governor, rather than be elected on their own.
“If I had a few million dollars, I would try to qualify a measure for the California ballot that would make the Secretary of State’s position a nonpartisan office,” Hasen said.
“What I’d like to see is have the governor nominate someone who is above politics to run the election system and have that person confirmed by a two-thirds vote of the Senate and the Assembly. That way you would have bipartisan buy-in on that person.”
Some Trump allies say their best bet is to hope that the results look close election night, before some of the mail-in ballots are counted, allowing Trump to declare victory and have the results thrown to the courts.
How this is not the headline of the piece baffles me.
In separate interviews with Reuters about their plans for election night, top executives at five major news networks described a focus on restraint, not speed; on transparency about what remains unknown; and on a reassuring message that slow results don’t signify a crisis.
Election night “is not going to be about storylines or narratives or projections or predictions,” said NBC News President Noah Oppenheim. “It’s going to be about: ‘What do we know in any given moment?’ and staying firmly focused on only those facts.”
Compared to election night features such as the white board Tim Russert scrawled on in 2000, many of this year’s tools will be decidedly more scientific. Networks will be showcasing their investments in more polling, deeper data analysis, and additional reporting on the mechanics of voting, voting integrity and misinformation.
Walt Disney Co’s DIS.N ABC News and ViacomCBS Inc VIACA.O- owned CBS News have voter integrity units dedicated to topics such as foreign election interference and how the vote is tallied, state by state. CBS is using its “Battleground Tracker” that combines polling, files on voter participation, U.S. Census data and historical patterns.
Comcast CMCSA.O-owned NBC News has doubled the size of its “Vote Watch” team, which includes 24 correspondents, reporters and producers who specialize in issues such as voting rights and misinformation campaigns. For the past year, the news division has been reporting on voter sentiment in five “bellwether” counties in Florida, Michigan, Wisconsin, Pennsylvania and Arizona.
This will be the first presidential election in which the major TV networks will get data from different providers, raising the potential for divergent perspectives on election night returns.
Since 2018, Fox Corp’s FOXA.O Fox News has partnered with the Associated Press to replace traditional in-person exit polls with online and telephone surveys that aim to reach early and Election Day voters. The survey data will be combined with real-time results tabulated by the AP to help make projections. Fox and the AP left the National Election Pool consortium, which includes the three broadcast news networks and AT&T T.N-owned CNN. The consortium will rely on the firm Edison Research for exit polls and results as they come in from each precinct. Reuters has a distribution deal with the NEP for 2020 election data.
Networks may benefit from an adjustment in pre-election polling since 2016: Weighting state polls for education, not just gender and age. In the 2016 election, a voter’s education figured prominently in whether they would vote for Trump or Democratic challenger Hillary Clinton. Whites without college degrees turned out for Trump in greater numbers.
“One of the major concerns about poll watching is that it will still lead, intentionally or not, to voter intimidation,” said Sean Morales-Doyle, the deputy director of voting rights and election programs at the Brennan Center for Justice.
“An ‘army’ doesn’t sound like people just there to observe,” Morales-Doyle said. “An army sounds like people there to engage in war with the enemy.”
Responding to that concern in a statement Sunday to ABC News, Clark pushed back: “This isn’t about intimidation but about transparency in the election process. Anything to the contrary is just demagoguery.”
Trump campaign officials said they view poll watchers as critical to ensuring the fairness of the election, a point the president tried to drive home during the first presidential debate. Trump referenced his plans to mobilize his supporters to monitor the polls, saying he is “urging my supporters to go in to the polls and watch very carefully.”
“You know why? Because bad things happen,” he said.
Richard Hasen, an election law expert at the University of California, Irvine Law School, said in a recent interview with Slate that he grew more concerned about voter intimidation when the president in the same debate refused to condemn a hard-right group known for violent confrontations.
“He’s talking about sending poll watchers to places. When he says that in a debate at the same time he’s talking about the Proud Boys standing by, it’s very worrisome,” Hasen said.
Microsoft and a team of companies and law enforcement groups have disabled — at least temporarily — one of the world’s largest hacking operations, an effort run by Russian-speaking cybercriminals that officials feared could disrupt the presidential election in three weeks.
But as soon as Microsoft began dismantling the operations last week, seeking to cripple a network of infected computers known as TrickBot that has been used to paralyze computer systems with ransomware attacks, it discovered that someone else was trying to do the same thing.
In a separate but parallel effort — which was apparently not coordinated with Microsoft — United States Cyber Command, the military cousin to the National Security Agency, had already started hacking TrickBot’s command and control servers around the world late last month, according to two government officials.
The one-two punch painted a picture of the accelerating cyberconflict underway in the final weeks before the elections. Cyber Command, following a model it created in the 2018 midterm elections, kicked off a series of covert pre-emptive strikes on the Russian-speaking hackers it believes could aid President Vladimir V. Putin in disrupting the casting, counting and certifying of ballots this November. Meanwhile, Microsoft, Symantec and other American companies are doing the same.
The online fundraising edge that Democrats have enjoyed for years has mushroomed into an overpowering force, with small-dollar donors smashing “donate” buttons over the last three months to process their disgust for President Donald Trump, fury with Senate Majority Leader Mitch McConnell and grief for the late Justice Ruth Bader Ginsburg.Propelled by the wave of money, Democrats have suddenly expanded the Senate battlefield to a dozen competitive races, burying long-contested states like Iowa and Maine in TV ads while also overwhelming Republican opponents in states like Alaska, Kansas and South Carolina that are suddenly tightening.
Where most of the top Democratic Senate candidates two years ago raised $4 million to $7 million in the third quarter of 2018, their contenders this year are multiplying those totals. Colorado’s John Hickenlooper raised $22 million, more than six times what his presidential campaign raised before he dropped out of that race in 2019. Iowa’s Theresa Greenfield and North Carolina’s Cal Cunningham each cleared $28 million.
And on Sunday, South Carolina Democrat Jaime Harrison announced a record $57 million third-quarter haul for his race against GOP Sen. Lindsey Graham, where the most favorable public polling for Graham in the last month has shown him leading by a single point. Altogether, the money has given Democrats a TV spending edge in 12 of the 13 most expensive Senate races.
“The money is indicative [of] how much energy there is on their side, and the lack thereof on our side,” said Mike DuHaime, a Republican consultant. “I think we’re finding that Trump — the energy for Trump — is not always transferable, the same way it wasn’t transferable for Democrats from Obama.”
President Donald Trump has demanded to know the results of the 2020 election on election night, even though some states warn that it will take days to count their votes. But if there is a winner declared on Nov. 3, it will almost certainly be bad news for the president.
While vote counting could be delayed in many states due to a glut of mail ballots, Biden is challenging Trump in several fast-counting, Republican-leaning swing states the president carried four years ago. Election administrators in those states, especially Florida and North Carolina, are confident they should have most of the vote counted on election night.
Meanwhile, the most important states that tipped the Electoral College to Trump in 2016 — Michigan, Pennsylvania and Wisconsin — allow, at best, extremely limited pre-processing of mail ballots. That means it could take days to actually declare a winner in those states.
The result: Several narrow paths to a fast 270 electoral votes for Biden, and basically none for Trump — barring a major surprise in states he lost four years ago. The president likely cannot win another term in the White House without waiting days to find out, though Trump has hinted that he could try to claim he won on election night based on vote counts that won’t yet include many mail ballots, which more Democrats are planning to use this year.
Nikolas Bowie has posted this draft on SSRN (forthcoming, Yale LJ). Here is the abstract:
The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.
This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.
In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance.
The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.
The confirmation battle over Judge Amy Coney Barrett is bringing the issue of Court-packing into public discussion for the first time since FDR’s failed effort in 1937 — as Adam Liptak’s NYT piece today reflects. If this issue gains traction after the election, the “lesson” of FDR’s failure will inevitably play a central role.
I wrote about that question several years ago, in an academic article titled Is the Supreme Court a ‘Majoritarian’ Institution? Here is a modified version of that discussion:
“The lesson of 1937” is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson?
The conventional takeaway [reflected in Adam Liptak’s piece] is that FDR lost the battle, but won the war. His Court-packing plan failed, but the Court soon stopped invalidating New Deal legislation. Generalizing from this account, scholars have argued that the Court is not a counter-majoritarian institution, but tends to fall in line with prevailing public opinion (a brief digression: were this true, one wonders why fights over appointments to the Court are among the most significant political battles of recent years).
But by focusing too narrowly on the Court alone, the conventional story that FDR won that battle misses the far more important point: the political backlash against the Court-packing plan ended the New Deal — and the progressive policy agenda did not recover until 1964.
The most significant study of the Court-packing fight, Jeff Sheshol’s superb 2010 book, Supreme Power: Franklin Roosevelt vs. the Supreme Court, portrays the full political context — and consequences — of this battle.
First, the Court’s challenge to the political branches in the 1930s was breathtaking, far beyond anything we have seen in more recent decades. Many people are aware of the major highlights–the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA).
But consider the range of national and state legislation or Presidential action the Court held unconstitutional in one seventeen-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition and the President’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the President to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Guffey Coal Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, ultimately in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades (some of these decisions have withstood the test of time, but most, of course, have not).
In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation. Moreover, at least some of these issues cut to the bone of the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.”
In that context, FDR put forth his Court-packing plan as the first piece of legislation after he had just won the biggest landslide in American history. Yet even so, resistance to FDR’s Court-packing plan was vehement, geographically widespread, and bipartisan. The legislation was in dire shape politically long before the Court’s famous “switch in time” took the last wind out of that effort.
Two-thirds of the newspapers that had endorsed FDR came out immediately and vociferously against the plan. The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge. Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan. Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart. And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court-packing.
We cannot know, of course, whether FDR would ultimately have prevailed, had the Court’s decisions not started to change course. But more remarkably, here was the most popular President in history, with a Congress his party controlled overwhelmingly, confronted by the most aggressive Court in American history – and yet, it is likely that FDR’s legislative challenge to the authority of the Court would have failed, given how deep the cultural and political support was for the Court’s institutional role. That remained so even as the Court issued one unpopular decision after another.
But even more importantly, who actually “won” the Court-packing fight? As I’ve noted, the conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, because the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation — despite his huge electoral triumph just a year before in 1936.
As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.”
Ned Foley in WaPo:
There is a way to avoid this outcome, if it comes to that.
The court could protect itself — and help reassure the country — by appointing a three-member expert panel that would consider any vote-counting challenges that come before it. The notion of this special master panel draws on a 2008 experiment conducted by Georgetown University, Ohio State University and the AEI-Brookings Election Reform Project. They held a mock trial of a hypothetical McCain v. Obama lawsuit, to test whether a deliberately neutral tribunal might enable the nonpartisan resolution of a disputed presidential election.
Half of all likely voters say they plan to vote early, and an additional 7 percent say they have already voted. Among likely voters who have voted or say they will vote early, 40 percent are voting by mail, and 22 percent are dropping off their ballots at a designated drop box, while 37 percent were voting in person. Over the past month, more say they will use drop boxes, and slightly fewer say they will use the Postal Service.
Likely voters 65 and older are much more likely to have already voted (15 percent) than voters under 65 (5 percent). A 64 percent majority of likely voters supporting Biden plan to vote early, and an additional 10 percent say they have already voted, leaving about a quarter who say they plan to vote on Election Day. Among likely voters supporting Trump, a 61 percent majority plan to vote on Election Day, while 33 percent plan to vote early, and 3 percent say they have already voted. Among senior likely voters, 23 percent who back Biden say they have already cast their ballots, compared with 6 percent of Trump supporters.
Democrat Jaime Harrison raised a record-breaking $57 million in the past three months in his bid to unseat Sen. Lindsey O. Graham (R-S.C.), shattering the mark for a Senate candidate.
The single-quarter haul Harrison raised from July through September smashes the $38.1 million then-Rep. Beto O’Rourke raised in the third quarter of 2018 in his unsuccessful bid to oust Sen. Ted Cruz (R-Tex.). At the time, O’Rourke broke the record for the largest-ever quarterly fundraising haul in a Senate race, according to the Center for Responsive Politics.
After I and others called out these comments as potentially delegitimizing the election, Biden quickly issued the following clarification:
Trump of course has made dozens of comments delegitimizing the election, such as saying that the only way he loses is if the election is rigged. Trump has not backed off this, but instead has doubled and tripled down.
What if in-person votes suggestPresident Donald Trump is winning Pennsylvania after the polls close, but the slow counting of mail ballotsin Philadelphia flips the tally in favor of Democratic nomineeJoe Biden in the days after? And what happens if Trump then wrongly claims the election is being stolen from him and calls on supporters to storm elections offices?
“This is the scenario that scared people the most,” said one participant in the planning session, who like two others present would discuss it only on condition of anonymity so they could describe a process that wasn’t open to public participation.
Their fear isn’t unfounded.
Trump has for months falsely assailed mail ballotsas beingvulnerable to widespread fraud, leading his voters to shun them.Requests for mail ballots in Pennsylvania show Democrats using them in far greater numbers than Republicans. They take longer to count than votes cast on polling-place machines, meaning early returns will disproportionately count Trump voters — a phenomenon Democrats have branded the “red mirage,” though it’s known academically as the “blue shift.” And while election officials can’t legally start counting mail ballots in Pennsylvania until the polls open on Election Day, Trump has made clear he wants the results known by that night.
It’s a recipe for chaos.
Dozens of officials talked through how to handle this scenario and others over the course of four hours in the EOC, in the basement of the Fire Administration Building, where long banks of large video screens stand in front of clusters of work stations. It’s a place where the city deals with everything from the coronavirus pandemic to crowd control after an Eagles Super Bowl victory — and now, potential postelection unrest.
Officials from the City Commissioners — who run elections — police, fire, the Office of Emergency Management, and other agencies, along with staffers from thePennsylvania Emergency Management Agency, left with plans they hope they’ll never need. Their meeting took place before Trump put Philadelphia on the front lines of his attack on voting by declaring in a nationally televised debate that “bad things happen” in the city’s elections.
The participants worked through how to handle civil unrest at polling places. And officials even considered how to respond to a cyberattack that publishes fake results online.
“I’m more concerned about the disinformation and misinformation about fraud than I am about the possibility and reality of fraud,” said David Thornburgh, head of the nonpartisan, good-government group Committee of Seventy, who did not attend the planning session.“It’s very destabilizing. It causes an unnecessary and even dangerous lack of confidence in our local election systems. It encourages people to question something that is foundational to our democracy.”
This interesting ruling has some interesting discussions about the working of the electoral college/safe harbor rules.
President Trump’s order to his secretary of state to declassify thousands of Hillary Clinton’s emails, along with his insistence that his attorney general issue indictments against Barack Obama and Joseph R. Biden Jr., takes his presidency into new territory — until now, occupied by leaders with names like Putin, Xi and Erdogan.
Mr. Trump has long demanded — quite publicly, often on Twitter — that his most senior cabinet members use the power of their office to pursue political enemies. But his appeals this week, as he trailed badly in the polls and was desperate to turn the national conversation away from the coronavirus, were so blatant that one had to look to authoritarian nations to make comparisons.
He took a step even Richard M. Nixon avoided in his most desperate days: openly ordering direct, immediate government action against specific opponents, timed to serve his re-election campaign.
“There is essentially no precedent,” said Jack Goldsmith, who led the Justice Department’s Office of Legal Counsel under President George W. Bush and has written extensively on presidential powers. “We have a norm that developed after Watergate that presidents don’t talk about ongoing investigations, much less interfere with them.”
Newsday reports.
In a photo posted to social media last week, a young man wearing a mask with Orange County congressional candidate Michelle Steel’s name on it is holding a mail ballot and giving a thumbs up next to a box about the size of a file cabinet labeled “Official ballot drop off box.”
The post, from Jordan Tygh, a regional field director for the California Republican Party, encouraged people to message him for “convenient locations” to drop their own ballots.
The problem is the drop box in the photo is not official – and it could be against the law.
The California Secretary of State has received reports in recent days about possible unauthorized ballot drop boxes in Fresno, Los Angeles and Orange counties, agency spokesman Sam Mahood said Sunday evening. Reports place such boxes at local political party offices, candidate headquarters and churches.
Secretary of State Alex Padilla said his office is coordinating with local elections officials to look into the reports.
Only county elections officials can oversee ballot drop boxes, choosing the number, location, hours of operation and other details. County registrars are charged with making sure every box follows strict state guidelines for security, including making sure they can’t be tampered with and tracing the chain of custody of all ballots.
“Operating unofficial ballot drop boxes – especially those misrepresented as official drop boxes – is not just misleading to voters, it’s a violation of state law,” Padilla said, with a felony conviction carrying a prison sentence of two to four years….
More:
ABC News reports.
(The title of the article is a quote from this response of mine in the BU symposium on Election Meltdown).
147-page district court opinion that begins with a quote from “Groundhog Day” and ends with this:
Plaintiffs’ challenge to the State of Georgia’s new ballot marking device QR barcode-based computer voting system and its scanner and associated software presents serious system security vulnerability and operational issues that may place Plaintiffs and other voters at risk of deprivation of their fundamental right to cast an effective vote that is accurately counted. While these risks might appear theoretical to some, Plaintiffs have shown how voting equipment and voter registration database problems during the 2019 pilot elections and again in the June and August 2020 primary elections caused severe breakdowns at the polls, severely burdening voters’ exercise of the franchise. (See September 28, 2020 Order, Doc. 918.)
Established Supreme Court authority recognizes that States retain the authority and power to regulate their elections and the voting process itself, subject to the preservation of citizens’ fundamental First and Fourteenth Amendment rights. And the Supreme Court has repeatedly emphasized in the last months the principle that district courts must exercise great restraint in considering the grant of injunctive relief that requires major new electoral rules on the cusp of an election where a court’s order could cause electoral disruption and potential voter confusion. The posture of this case collides with this latter principle. The sweeping injunctive relief that Plaintiffs seek would require immediate abandonment of the ballot marking device voting system enacted by the Georgia Legislature in 2019 that is in its first year of implementation by the Secretary of State pursuant to his authority under Georgia law. Though major difficulties have arisen during the course of this new system’s rocky first year, the Court recognizes that the staff of the Secretary of State’s Office and county election offices have worked hard to roll out the system in short order during a Covid-19 pandemic era that presents unique hurdles. That hard work though does not answer the fundamental deficits and exposure in the system challenged by Plaintiffs.
Thus, although Plaintiffs have put on a strong case indicating they may prevail on the merits at some future juncture, the Court must exercise real caution in considering the grant of their request for extraordinary injunctive relief, given its obligation to follow governing Supreme Court and Eleventh Circuit authority. Despite the profound issues raised by the Plaintiffs, the Court cannot jump off the legal edge and potentially trigger major disruption in the legally established state primary process governing the conduct of elections based on a preliminary evidentiary record. The capacity of county election systems and poll workers, much less the Secretary of State’s Office, to turn on a dime and switch to a full-scale hand-marked paper ballot system is contradicted by the entire messy electoral record of the past years. Implementation of such a sudden systemic change under these circumstances cannot but cause voter confusion and some real measure of electoral disruption. As with any systemic change, implementation of a statewide hand-marked paper ballot system as the State’s primary electoral system would require long term planning and advanced poll worker training. Accordingly, based on the binding appellate legal authority, the State’s strong legal interest in ensuring an orderly and manageable administration of the current election, and the Court’s assessment of the operational realities before it, the Court must deny the Plaintiffs’ Motions for Preliminary Injunctive Relief in so far as they request immediate replacement of the current BMD system with a statewide hand-marked paper ballot system.
But the Court cannot part with that message alone. The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation. These risks are neither hypothetical nor remote under the current circumstances. The insularity of the Defendants’ and Dominion’s stance here in evaluation and management of the security and vulnerability of the BMD system does not benefit the public or citizens’ confident exercise of the franchise. The stealth vote alteration or operational interference risks posed by malware that can be effectively invisible to detection, whether intentionally seeded or not, are high once implanted, if equipment and software systems are not properly protected, implemented, and audited. The modality of the BMD systems’ capacity to deprive voters of their cast votes without burden, long wait times, and insecurity regarding how their votes are actually cast and recorded in the unverified QR code makes the potential constitutional deprivation less transparently visible as well, at least until any portions of the system implode
because of system breach, breakdown, or crashes. Any operational shortcuts now in setting up or running election equipment or software creates other risks that can adversely impact the voting process.
The Plaintiffs’ national cybersecurity experts convincingly present evidence that this is not a question of “might this actually ever happen?” – but “when it will happen,” especially if further protective measures are not taken. Given the masking nature of malware and the current systems described here, if the State and Dominion simply stand by and say, “we have never seen it,” the future does not bode well.
Still, this is year one for Georgia in implementation of this new BMD system as the first state in the nation to embrace statewide implementation of this QR barcode-based BMD system for its entire population. Electoral dysfunction – cyber or otherwise – should not be desired as a mode of proof. It may well land unfortunately on the State’s doorstep. The Court certainly hopes not.
The Court recognizes the major challenges facing the Secretary of State’s Office in rapidly implementing a new statewide voting system. Yet the vital issues identified in this case will not disappear or be appropriately addressed without focused State attention, resources, ongoing serious evaluation by independent cybersecurity experts, and open-mindedness. The Secretary of State and Dominion are obviously not without resources to tackle these issues. And at very least, the Court cannot fathom why, post-election, the State and Dominion would not at least be moving toward consideration of the software upgrade option Dominion
originally promised, allowing voters to cast ballots that are solely counted based on their voting designations and not on an unencrypted, humanly unverifiable QR code that can be subject to external manipulation and does not allow proper voter verification and ballot vote auditing.
Time will tell whether Act V here can be still avoided or at least re-written.
For the foregoing reasons, the Court DENIES the Curling Plaintiffs’ Motion for Preliminary Injunction [Doc. 785] and DENIES IN PART AND GRANTS IN PART the Coalition Plaintiffs’ Motion for Preliminary Injunction on BMDs, Scanners, and Tabulators, and Audits [Doc. 809].
(Here’s how the court described the part of the injunction being granted: For the reasons discussed in Section III D, the Coalition Plaintiffs’ Motion is GRANTED IN PART in connection with the scanner/tabulator settings in tandem with Dominion’s adjudication software that as currently configured allow certain voter marks on hand-marked absentee and provisional ballots to disregarded and not be counted.
If Judge Amy Coney Barrett is confirmed and seated by Nov. 3 or shortly after, she could participate in decisions about any election-related petitions. This week, Sen. Chris Coons, D-Del., said Barrett “made no commitment to recusal” when asked if she would step back from a case involving Trump.
There is no formal recusal requirement for Supreme Court justices. The practice is entirely at each justices’ discretion.
“Recusal is a decision that’s made heavily fact-dependent,” said Ed Whelan, president of the Ethics and Public Policy Center and a former clerk to the late Justice Antonin Scalia. “In 2016, Justice Ginsburg made lots of remarks very derogatory about President Trump. No one was suggesting at that time that if there was election litigation that she should recuse.” (my emphasis)
From an Ariane de Vogue piece in 2016:
If the Supreme Court finds itself in the position of deciding the presidential election — as it did in 2000 between Al Gore and George W. Bush — some legal experts say the liberal icon would likely have to recuse herself.
“A federal law requires all federal judges, including the justices, to recuse themselves if their ‘impartiality might reasonably be questioned’,” said Stephen Gillers, a legal ethicist at New York University School of Law.
“Under this test, Justice Ginsburg’s remarks would prevent her from sitting in the unlikely event of a ‘Clinton v. Trump’ case that determines the next president,” he said.
Ginsburg attacked Trump in no uncertain terms this week, calling him a “faker” in an interview with CNN legal analyst Joan Biskupic. To The New York Times, Ginsburg said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”
Gillers was referring to 28 U.S. Code 455 that says “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
“If a Trump election-related question made it to the Supreme Court, I expect that the Trump team would move for Justice Ginsburg to recuse herself,” said Rick Hasen, an election law expert who runs the Election Law Blog.”
Justice Ginsburg herself would decide on that motion, as there is no other mechanism for recusal,” Hasen said.
Steven Lubet, of Northwestern Pritzker School of Law, agrees with Gillers that Ginsburg would need to recuse herself in the event of a disputed election.
See also my Reuters opinion piece from 2016, Commentary: Ruth Bader Ginsburg’s slam of Trump does the nation no favors.
And here’s what I wrote about a Judge Barrett recusal in any Trump v. Biden case:
Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.
Update: Whelan says his misrepresentation of the truth was inadvertent and “off the cuff,” not intentional. For Zillow-man to accuse me of a “cheap shot” is extra rich.
The Chicago Tribune takes a deep dive into this issue, interviewing 60 Black local elected officials, religious leaders in Detroit, Milwaukee, and Cleveland.
Among the more than 3,000 counties nationwide, the three with the largest drop in Democratic votes between Barack Obama’s reelection win in 2012 and Clinton’s 2016 loss were Wayne County, Michigan (home to Detroit), Cuyahoga County, Ohio (home to Cleveland) and Milwaukee County, Wisconsin, according to certified election results compiled by the Massachusetts Institute of Technology. . . .
Cleveland City Councilman Basheer Jones worked as a regional field director in his city for Obama’s 2012 campaign and as a consultant for Clinton’s 2016 campaign, organizing events to engage Black voters. He described Obama’s campaign as a “well-oiled machine” that sent “waves of people who never considered voting” to the polls while “Hillary Clinton took that vote for granted.”
“They just believed there was no way Black people would support Donald Trump,” said Jones, the first Muslim elected to Cleveland’s council who represents a ward on the city’s predominantly Black East Side. “But they never made the case on why we needed to support Hillary Clinton. There wasn’t a sense of urgency.”
Jones said he’s seeing slightly more energy around this election — mostly because of deep opposition to Trump.
“I’m not seeing a lot of excitement on the ground here in Cleveland for Joe Biden, unfortunately,” Jones said. “So, at least if you’re not pro-Biden, I’m hoping you’re anti-Trump and that will be enough to bring you out, but I’m just not sure.”
“If you want this community to support you, you need to touch down in a lot of ways in this community,” said Rev. Gregory Lewis, executive director of Souls to the Polls, a faith-based grassroots organization that is aiming to boost Milwaukee’s Black turnout by 100,000 voters.
“I know it’s a pandemic, but get people out here with a ton of free yard signs, door hangers, put up some billboards — do something that shows us you want our vote,” Lewis said. “I could go down the street right now and ask someone if they know who Joe Biden is, and they probably won’t know.”
With all the attention focused on the election, this story about an impressive bipartisan congressional report on how to fix Congress, with 97 recommendations, is not likely to get the attention it deserves. This line stood out to me: “That’s why their most important recommendation is for the return of earmarks.” I’ve endorsed that idea, as part of my critique of how a number of “good government” reforms of recent decades have actually contributed to making government more dysfunctional.
From the story:
Tom Graves entered Congress in the summer of 2010, one of the first Republicans elected under the anti-spending tea party banner, a hard-charging conservative pushing to abolish everything from Obamacare to earmarks….
For almost two years, Graves served as the vice-chair of the Select Committee on the Modernization of Congress, alongside Rep. Derek Kilmer (D-Wash.), the chairman, whom he now counts as a close friend. Their sleepy little temporary panel worked in the smartest fashion possible, forging early consensus on the relatively easy items and built toward tackling the politically challenging issues at the end.
The result is one of the most important proposals to reform Congress, with more weight than the countless wonky blue papers cranked out by think tanks that did nothing but gather dust. This new offering came from within the building, six Democrats and six Republicans, forging common ground despite serving during a brutally partisan time. . . .
Rank-and-file lawmakers like Kilmer and Graves basically waited to be told when to show up and vote yes. . .
Soon after Graves arrived in Congress, Republicans swept the 2010 midterms and claimed the House majority. Their new, anti-corruption-minded speaker, John A. Boehner (R-Ohio), banished those narrow special interest spending items because they had been tied to many corruption investigations.
Like every new idea with such good intentions, it turned out disastrous….
“One of the biggest reasons, I think, Congress is held in low regard is because of the dysfunction that you’ve seen on budget and appropriations matters,” Kilmer said.
They believe that if members of Congress could be in charge of directing funding to their districts, they will be much more invested in the entire process.
Their proposal would limit earmarks to local entities like water authorities and police departments, not private companies, and that they would function like grant proposals. And if local officials abused the system, federal investigators would be empowered to claw back the funds.
In 2016, one of the early signals of Donald Trump’s impending victory were the unexpected, extremely long lines to vote in Luzerne County, PA. Politico examines where matters stand in Luzerne County on the eve of the 2020 election:
In the wake of the 2016 election, a little-known county in northeastern Pennsylvania emergedas a national symbol of Donald Trump’s unexpected victory, seeming to epitomize the political forces that explained the stunning outcome….
Trump won working-class Luzerne by 26,000 votes in 2016 — nearly 60 percent of his margin of victory in a state that he narrowly carried. As part of his strategy to win Pennsylvania again, his campaign is betting on increased turnout in the small cities and rural reaches of the northeast….
A historic coal region, Luzerne County was a longtime Democratic stronghold with a proud labor tradition. Residents are predominantly white and the vast majority do not have college degrees. The county supported President Barack Obama twice, but in recent years, has been moving sharply toward the Republican Party.
Much like Democrats have spent the last four years turning red seats in the state’s suburbs blue, Republicans have seized power in ancestrally Democratic areas in northeastern Pennsylvania over the same period. Local GOP leaders said Democrats are dreaming if they think that Luzerne County is in play this year.
Both parties are increasingly focused on the pivotal — and potentially messy — role that Pennsylvania could play in deciding the outcome of the presidential race.
President Trump’s campaign in recent days has redirected ad spending there from other northern battlegrounds, while Joe Biden’s campaign and supportive groups are increasing their spending in the state, which between its rolling rural expanses and major metropolitan hubs is seen as a classic political bellwether.
Both sides now see Pennsylvania, with 20 electoral college votes, as a must-win prize on the path to the 270 needed to win the White House, according to Democratic and Republican strategists. They also increasingly view the battle for those votes as one that could well continue beyond Election Day — with a growing list of balloting disputes and lawsuits setting the stage, if the race is close, for a contested election reminiscent of the Florida drama that transfixed the nation after the 2000 election.
Not only is Pennsylvania allowing anyone to vote by mail in a general election for the first time, but all the state’s polling places also have new voting machines, and the rules that govern the vote have been shifting in recent weeks, as the two parties in a state with divided government battle in the courts on multiple fronts.
Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.
The litigation was a sidebar to the central drama of the 2000 presidential contest, but a loss in thecase could have cost Bush the presidency.
At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.
After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.
Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.
This year, the Trump campaign and Republicans in Iowa have pushed to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.
“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”…
Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them.
The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.
Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.
Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”
Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.
“It tells you that sometimes what goes around comes around,”said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”
It’s a question Americans are unaccustomed to considering in a presidential election campaign: Could voting, vote-counting or the post-vote reaction become so chaotic that the U.S. military would intervene?
The answer is yes, but only in an extreme case. There is normally no need for the military to play any role in an election. The Constitution keeps the military in a narrow lane — defending the United States from external enemies. Civil order is left largely to civilian police. But there is an obscure law, the Insurrection Act, that theoretically could thrust the active-duty military into a police-like role. And governors have the ability to use the National Guard in state emergencies if needed.
Justin Levitt on MSNBC.
Balz at WaPo:
Republican officials have rhetorically brushed aside President Trump’s refusal to say he will accept the results of the election. They note that presidencies have changed hands peacefully since the start of the republic. Meanwhile, they are engaged in a systematic effort to make voting more difficult.
These actions are not the work of a confident, expanding party; they are not signs of a party that sees its coalition growing and its appeal widening. Instead, they are an acknowledgment that, unless something changes, they could face a bleak future, one in which winning elections will depend more on holding down the size of an increasingly diverse electorate than on encouraging the widest possible enfranchisement.
This is not a new phenomenon. For some years, Republicans at the state level have instituted barriers to voting. They have done this in the name of ballot integrity, despite the absence of evidence of widespread fraud in voting.
In Madison, Wis., thousands of people have gone to parks to deliver their ballots during Saturday voting festivals. In Milwaukee, Facebook feeds are inundated with selfies of Democrats inserting ballots into drop boxes. And along the shores of Lake Superior, voters in Wisconsin’s liberal northwest corner still trust the Postal Service to deliver ballots.
Of all the mini-battlegrounds within Wisconsin — perhaps the most pivotal state in November for both President Trump and Joseph R. Biden Jr. — the mother lode of absentee ballots is coming in Dane County, a Democratic stronghold that includes Madison. As of Friday, the number of submitted ballots there amounted to more than 36 percent of the county’s total 2016 election vote, a sign of significant enthusiasm; that figure is 10 percentage points higher than in any other county in the state.
In Wisconsin’s Republican heartland, the suburban counties that ring Milwaukee, the absentee turnout is only at about the state average so far. And in the dozens of rural counties where President Trump won huge victories four years ago, ballots are being returned at a far slower rate than in the state’s Democratic areas.
The yawning disparities in voting across Wisconsin and several other key battlegrounds so far are among the clearest signs yet this fall that the Democratic embrace of absentee voting is resulting in head starts for the party ahead of Election Day. For Republicans, the voting patterns underscore the huge bet they are placing on high turnout on Nov. 3, even as states like Wisconsin face safety concerns at polling sites given the spikes in coronavirus cases.
he Democratic enthusiasm to vote is not limited to Wisconsin. Ballot return data from heavily Democratic cities like Pittsburgh; Chapel Hill, N.C.; and Tampa, Fla., and the long lines of cars waiting at a Houston arena to drop off ballots, are signs that many voters have followed through on their intentions to cast ballots well ahead of Nov. 3.
There is still time for Republicans to catch up in many places, and they are expected to vote in strong numbers in person on Election Day. And untold numbers of absentee ballots could be rejected for failing to fulfill requirements, like witness signatures, or could face legal challenges. But in states that have begun accepting absentee ballots, Democrats have built what appears to be a sizable advantage, after years when Republicans were usually more likely to vote by mail….
The Wisconsin ballot numbers illustrate how much voting has changed in the pandemic era. In the 2016 general election, 146,294 Wisconsinites voted by mail, and 666,035 others voted at in-person early-voting sites. In the current general election, 646,987 people have already voted absentee as of Friday. Early-voting sites start opening in Wisconsin on Oct. 20.
This is a terrific new paper from Michael Morley (forthcoming, George Mason Law Review), though there are aspects I disagree with. Here is the abstract:
The U.S. Supreme Court cautioned in Bush v. Gore that its “consideration is limited to the present circumstances.” Pointing to this admonition, many commentators predicted that, despite the case’s immediate impact in resolving the 2000 presidential election, Bush v. Gore would have little lasting effect on constitutional law. Two decades later, these predictions have proven incorrect.
Bush v. Gore extended Equal Protection principles to the nuts-and-bolts aspects of election administration. The case established a Uniformity Principle that prohibits states from applying “arbitrary and disparate treatment” to different voters participating in the same election. This Article explores the Uniformity Principle’s subsequent development over the ensuing two decades based on a personal examination of all 471 federal and state cases that cited Bush through June 30, 2020.
Courts have applied Bush’s Uniformity Principle in three main contexts. First, they have generally invalidated laws that expressly require or allow materially different treatment of different groups of voters participating in the same election. Second, courts have been almost as skeptical of laws that expressly delegate authority to county or municipal election officials to set substantial voting-related policies. In particular, they have been generally unwilling to allow different jurisdictions within a state to adopt different voting systems with substantially different error rates. Finally, courts have been skeptical of laws that establish vague standards that are subject to a range of conflicting interpretations by local officials in different municipalities or counties. This is especially true in challenges to the constitutional adequacy of states’ ballot-counting standards.
In contrast, courts have been most resistant to applying the Uniformity Principle to selective restrictions on absentee and early voting, administrative “matching” requirements (including laws requiring election officials to determine whether a voter’s information matches official records), and challenges involving the restoration of felons’ voting rights. Citing a conflicting line of Supreme Court precedent from the Civil Rights Era, several courts have held that states are generally free to reduce barriers to voting and expand opportunities to vote, even if they do so selectively, only for particular groups of voters. In the years to come, a compelling need will likely arise for the Court to resolve the apparent conflict between these historic cases and the Bush Uniformity Principle.
Tom Edsall published another terrific piece synthesizing political scientists’ analyses, this time on what both political parties might look like after this election. For reasons readers of this blog will know, I was particularly struck by these comments from Sean McElwee, one of the founders of the liberal research institute Data for Progress:
McElwee said:
Progressives increasingly control much of the party infrastructure. It’s hard to find staffers who aren’t progressives. Wonks? They’re all super liberal!
Furthermore, McElwee argued,
Young people who dedicate their careers to helping Democrats win elections are much more liberal than the country as a whole, as are the donors who give millions to the campaigns. The increasing reliance on small dollar ideological donors also keeps progressives in the mix.
Daniel Schlozman, a political scientist at Johns Hopkins, agreed that the Trump wing of the party will not disappear if Trump is defeated:
Whatever happens to Donald Trump himself, or to his family, Trumpism — that is, the American manifestation of global right-populism — is not going away, nor is what Jacob Hacker and Paul Pierson call plutocratic populism, namely the fusion of resentment and classic conservatism.
Schlozman warned that if Trumpism
succeeds in finding new recruits among members of historically Democratic blocs, e.g. anti-immigrant Blacks, it may succeed. The only way to imagine a more responsible Republican Party is for it to lose badly and repeatedly. Given the realities of evenly matched parties and Republican advantages in the Senate and the courts, that is not a likely prospect.
Here’s a detailed story from local news in PA about where things stand in the legislature about changing the law to permit the processing of absentee ballots before Election Day.
“It’s been frustrating, observing that there haven’t been really any constructive discussions about this, that we can tell, in public or behind closed doors,” said Pat Christmas, policy director at nonpartisan good government think tank Committee of 70. “The time that the counties would have to process these ballots – that’s a purely administrative change that should not have any implications one way or another, on one party’s … ability to win votes or not.”
Directors have been asking to begin pre-canvassing before Election Day since April, ahead of a vote-by-mail surge predicted for the primary. At the time, lawmakers punted. They did the same thing after the June 2 primary because they wanted data to inform election code changes. They’ve since received that data.
“It’s mystifying to see this train coming at us, the counties, the voters – and for the legislature not to do anything about it,” Christmas said. “If Pennsylvania happens to have electoral votes that … could be the decisive ones in a presidential election — if that is the case, we’re asking for just an incredible amount of scrutiny during election week, and potentially beyond that if some ballots are being challenged.”