“What Are the Usual Burdens of Voting?”

Jim Fischer has posted this draft on SSRN (Georgia State U. L. Rev.) Here is the abstract:

When the Court in Crawford v. Marion County Election Board approved presentment of a government-issued photo identification asa requirement to vote, Justice Stevens compared the requirement to what he characterized as “the usual burdens of voting.” SinceCrawford was decided, the concept of “the usual burdens of voting”has been invoked numerous times as lawsuits have been brought challenging state practices that are claimed to unduly burden the ability of voters to vote.
In theory, “the usual burdens of voting” serve as a benchmark against which state conditions imposed on the ability to vote can be measured to determine if the right to vote has been infringed. Yet, despite numerous uses of the phrase, courts have generally left the phrase undefined. In essence, a benchmark exists, but the content, design, and dimensions of that benchmark are amorphous.
This Article examines the development of the “usual burdens of voting” concept by Justice Stevens in Crawford and its use in subsequent decisions. This Article looks at the evolution of voting in the United States to provide some context as to how voting burdens should be understood. This Article concludes with some observations regarding the usefulness of the phrase as a means for determining whether a condition associated with voting, such as a prohibition on providing food or water to those waiting to vote, can be reliably evaluated using “the usual burdens of voting” concept.

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“I Study Disinformation. This Election Will Be Grim.”

Renee DiResta NYT oped:

This brings us to the present, when another election looms. The 2024 rerun is already being viciously fought. Since 2020, the technological landscape has shifted. There are new social media platforms in the mix, such as Bluesky, Threads and Truth Social. Election integrity policies and enforcement priorities are in flux at some of the biggest platforms. What used to be Twitter is under new ownership and most of the team that focused on trust and safety was let go.

Fake audio generated by artificial intelligence has already been deployed in a European election, and A.I.-powered chatbots are posting on social-media platforms. Overseas players continue to run influence operations to interfere in American politics; in recent weeks, OpenAI has confirmed that Russia, China and others have begun to use generative text tools to improve the quality and quantity of their efforts.

Offline, trust in institutions, government, media and fellow citizens is at or near record lows and polarization continues to increase. Election officials are concerned about the safety of poll workers and election administrators — perhaps the most terrible illustration of the cost of lies on our politics.

As we enter the final stretch of the 2024 campaign, it will not be other countries that are likely to have the greatest impact. Rather, it will once again be the domestic rumor mill. The networks spreading misleading notions remain stronger than ever, while the networks of researchers and observers who worked to counter them are being dismantled….

osts, both financial and psychological, have mounted. Stanford is refocusing the work of the Observatory and has ended the Election Integrity Partnership’s rapid-response election observation work. Employees including me did not have their contracts renewed.

This is disappointing, though not entirely surprising. The investigations have led to threats and sustained harassment for researchers who find themselves the focus of congressional attention. Misleading media claims have put students in the position of facing retribution for an academic research project. Even technology companies no longer appear to be acting together to disrupt election influence operations by foreign countries on their platforms.

Republican members of the House Judiciary subcommittee reacted to the Stanford news by saying their “robust oversight” over the center had resulted in a “big win” for free speech. This is an alarming statement for government officials to make about a private research institution with First Amendment rights.

The work of studying election delegitimization and supporting election officials is more important than ever. It is crucial that we not only stand resolute but speak out forcefully against intimidation tactics intended to silence us and discredit academic research. We cannot allow fear to undermine our commitment to safeguarding the democratic process.

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“The Ballot Measures Aim to Reduce Partisanship. Can They Fix American Politics?”

Michael Wines for the NYT:

Americans of both parties routinely express deep concern about the state of the country’s democracy. This fall, many voters may have a chance to do something about it, by voting on state ballot measures related to the nuts and bolts of elections and governance.

Eight states, including Ohio and seven others largely in the West, appear all but certain to field ballot measures that would either overhaul redistricting or rewrite election rules to discourage hyper-partisanship and give voters a greater voice in choosing candidates.

Redistricting ballot measures are not uncommon, but since the advent of citizen-backed ballot initiatives in the early 1900s no other year has had more than three election-system initiatives, according to the online elections database Ballotpedia….

Closed primaries, the argument goes, rob independent voters — a growing segment of the electorate, and in some states now the largest one — of a voice in choosing general election candidates. Candidates in open primaries have an incentive to court not only independents but also voters of the opposing party, which, in theory at least, should steer them closer to the political center.

And gerrymandered maps make elections so lopsided that parties with little chance of winning often don’t bother to field general-election candidates. (Nationally, about four in 10 state legislative races have only one candidate.) In those cases, the general election winner only has to win over primary voters, not the broader electorate that turns out in November.

Advocates of ranked-choice elections say they not only give voters a greater say in choosing the ultimate winner of a political contest, but also reward candidates who try to win over a broad swath of the electorate.

It is no accident that electing more moderates would change the conditions that have made the G.O.P. a hothouse for far-right extremists, said Richard L. Hasen, an election-law expert and director of the Safeguarding Democracy Project at the University of California, Los Angeles, School of Law.

“So much of this has to do with the battle for the soul of the Republican Party,” he said.

Not everyone buys the logic. Academic research suggests that ending gerrymandering and adopting certain versions of ranked-choice voting can indeed dampen hyper-partisanship and promote cooperation. But the evidence favoring open primaries is more mixed….

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”…

Ned Foley responds to Nate’s comments here.

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“Pro-Trump extremists are sure he will win. That could be dangerous.”


Donald Trump has a history of fiery calls urging supporters to rise up, and his most militant fans often have obliged.

So it might seem counterintuitive that now, as Trump faces unprecedented legal problems and a close election in November, the nation is experiencing a lull in political unrest — in fact, one of the quietest periods that extremismresearchers have recorded in recent years.

Chief among the factors explaining the lack of political violence, analysts say, is a simple one: Trump’s supporters believe he will win the presidency.

Trump himself has contributed to that certainty by insisting the only way he can lose is if the other side cheats. There’s little reason for pro-Trump extremist groups or radicalized MAGA fans to demonstrate when they foresee the presumptive Republican nominee coasting to victory over President Biden in five months and positioned to enact promised “retribution” against his enemies in seven, political violence trackers say.

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The Primary Importance of Primary Reform

Nate Persily is one of our nation’s leading election law scholars (and a friend), with whom I usually agree on many specific matters in our field, but he is quoted today in the N.Y. Times (in an article today by Michael Wines) making a point with which I strongly disagree. The issue being discussed is whether a move from partisan to nonpartisan primaries, of the type used by California in its top-2 system or Alaska in its top-4 system, would significantly help curb the disproportionate strength of MAGA extremists within the Republican Party, leading to the election of more moderate Republicans whose views align more closely with the median voter in the relevant electorate.

Here’s the relevant passage of the article:

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”

I believe that Nate’s characterization of the potential significance of primary election reform is much more pessimistic than is warranted. Instead, I associate myself with Rick Pildes who in his important Dunwody lecture identified the adoption of nonpartisan primaries as the number one reform priority in order to reduce the distorted power of partisan extremists within government. The same priority is expressed in Nick Troiano’s book, The Primary Solution.

There is substantial evidence that partisan primaries (combined with “sore loser” laws, which prohibit candidates who lose partisan primaries from running as independents in the general election) cause voters in November to make a choice between an extreme MAGA Republican and a Democrat, when the median voter in November would prefer a non-extreme Republican over either of these two alternatives. When forced to choose between the extreme MAGA Republican and the Democrats, voters in red-leaning states and districts elect the extreme MAGA Republican rather than the Democrat. This causes voters to send to Congress more “insurrectionists” when the median voters in these congressional districts (and states) would prefer to elect a non-insurrectionist Republican. Replacing partisan primaries with nonpartisan primaries would be a significant step, contrary to Nate’s quote, in removing this distorting dynamic that causes Congress to be populated with many more insurrectionists than the voters actually want.

I have written extensively on this point, in both law review articles and public commentary, and I won’t repeat (or even cite) those writings here. I will offer two simple illustrations of the basic truth. Arizona’s second congressional district is represented by Eli Crane, a MAGA election denialist who was one of the eight extremists who brought Kevin McCarthy down. The only reason why Crane won his seat is because he defeated a more moderate Republican in the partisan GOP primary, and then went on to win the general election in his red-leaning district. There’s no doubt that Crane’s GOP primary opponent would have been preferred over him by his district’s median voter. (In other words, Crane’s primary opponent would have won the general election by an even greater margin than Crane did.) Indeed, at a recent symposium on primary elections research sponsored by Unite America and the National Institute for Civic Discourse, I saw a presentation of empirical analysis conducted by Georgetown University scholars that confirmed this truth.

A second example is J.D. Vance’s victory over Matt Dolan in the 2022 GOP primary for Ohio’s U.S. Senate seat, after Rob Portman declined to run for reelection. Vance is the ultimate insurrection-supporting politician, saying that if he had been Vice President on January 6 he would not have acted as Pence did, whose election to the Senate is a consequence of the distorting effect of partisan primaries. Ohio’s general election voters in November would have much preferred a non-MAGA alternative to J.D. Vance, like Dolan or Portman, but the institutional effect of partisan primaries prevented them from having that option, causing Congress to be more populated by insurrectionists that it otherwise would be based on the true preferences of the median voter of each state and district.

Thus, my view on this key point is exactly the opposite of Nate’s: I agree with him that it is a “hair-on-fire moment” because of the threat of “insurrectionists” and the “dysfunctional” nature of existing institutions under current conditions, but it is precisely because we are in a “hair-on-fire moment” that I think institutional reform to eliminate partisan primaries is such a high priority. To be clear, since January 6, I have repeatedly stated that I thought the two highest electoral reform priorities were (1) revising the Electoral Count Act of 1887, and (2) a requirement that members of Congress be elected by a majority, rather than a plurality, of votes–a reform that would functionally necessitate the kind of nonpartisan primary that both California and Alaska use. Thankfully, we accomplished the first reform before this year’s presidential election. Regrettably, we did not accomplish the second.

A further point of clarity: those familiar with my work in this area know that while I believe nonpartisan primaries are necessary part of the institutional reform to combat extremism, I also believe that in many circumstances nonpartisan primaries alone will not be sufficient and must be coupled with Convergence Voting (in technical terms, Condorcet-based electoral procedures). Depending on the degree of polarization within an electorate, candidates closest to the electorate’s median voter–like Dolan or Portman in Ohio–cannot win even if there is a nonpartisan primary, unless there is also a voting procedure geared to electing the candidate closest to the median voter, as Convergence Voting is. (For those interested in learning more about Convergence Voting and how it differs from the “instant runoff” form of Ranked Choice Voting, tomorrow’s webinar on this subject is very timely.) But to say that Convergence Voting must be part of the prescription to combat the ill of unrepresentative insurrectionism (along with nonpartisan primaries) is no reason to deny–as Nate apparently does–that the use of nonpartisan primaries is effective medicine. Instead, it just needs to be administered as part of an overall treatment plan.

This is why the Arizona reform effort, which the New York Times article describes, is so important (as I’ve written previously). If adopted, it will complete the first essential step of eliminating partisan primaries in that hyper-polarized state–where extremist Crane was able to win his congressional seat, despite his district’s voters preferring the more moderate Republican he beat in the primary–and leave open the next step of adopting Convergence Voting as the way to assure that insurrectionists disfavored by a majority of voters do not prevail.

Finally, it is worth noting (as the Times article does) that the extreme MAGA wing of the Republican Party is doing its best to hold on to partisan primaries. This is because the extremists instinctively know that they need the distorting effect of partisan primaries in order to be able win office. They don’t want any reform that will let voters have their true preference of non-extreme Republicans. Their behavior is additional reason to believe Nate incorrect on this crucial issue.

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