“Conservatives are warning about noncitizens voting. It’s a myth with a long history”

fraudulent fraud squad

Miles Parks for NPR:

For those looking to raise doubts about American elections, it’s becoming clear that a key 2024 voting boogeyman will be immigration.

The false notion that undocumented immigrants are affecting federal elections has been floating around for over 100 years, experts say, but this year, due in part to an increase in migrants at the southern U.S. border, the idea could have new potency.

The narratives are being pushed by prominent right-wing figures including Cleta Mitchell, a former adviser to Donald Trump, along with the presumptive Republican presidential nominee himself.

NPR acquired a two-page memo Mitchell has been circulating laying out “the threat of non-citizen voting in 2024.”….

“Allegations of vote fraud were the main stated justification for imposing restrictive practices,” Hayduk said.

And in the century since then, he said, every time the country has seen an influx of immigrants, a loosening of immigration policy or an expansion of voting access, accusations of voter fraud have followed.

Mitchell’s memo about the risk of noncitizen voting touches on two of those things. Migrant encounters at the southern border hit an all-time high in December, and the document focuses mostly on the implementation of a 1993 law, the National Voter Registration Act, that made registering to vote easier.

The NVRA does not require proof of U.S. citizenship for people to register to vote, only that potential voters fill out a form and attest under penalty of perjury that they are citizens. A federal voting law passed in 2002 also required applicants to provide a unique identification number to register, like a driver’s license or Social Security number, which election officials say effectively serves as a citizenship check since both of those forms of ID involve the government checking whether someone is a citizen or not.

But Mitchell’s main hope, according to the document, is to spur Congress to require documentary proof of citizenship as part of registration.

Experts say that sort of change would have a drastic negative impact on many eligible voters, like naturalized citizens, without solving any real problem.

“If you make [registering] harder, there will be students, young people, elderly people, poor people and other groupings of people who would just not bother,” said Daniels, of the University of Baltimore. “This whole document is [saying] we don’t want the NVRA or any other piece of legislation to do what it’s supposed to do, which is register people to vote.”

Mitchell did not respond to an email from NPR requesting comment

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“BREAKING: Fulton judge kills six counts in Trump indictment” (Link to Order)

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AJC:

Fulton Superior Court Judge Scott McAfee on Wednesday struck down six counts of the August indictment that alleged felony conduct by former President Donald Trump and 18 others, saying they lacked sufficient detail.

In a nine-page ruling, McAfee dismissed counts lodged against Trump, former New York City Mayor Rudy Giuliani, lawyer [John] Eastman, former White House Chief of Staff Mark Meadows and attorneys Ray Smith and Bob Cheeley.

Many of the charges relate to allegations that defendants illegally urged Georgia elected officials, including Secretary of State Brad Raffensperger, then-House Speaker David Ralston and members of the General Assembly to violate their oaths of office by convening a special session of the Legislature to appoint pro-Trump electors.

“The Court’s concern is less that the State has failed to allege sufficient conduct of the Defendants – in fact it has alleged an abundance,” McAfee wrote. “However, the lack of detail concerning an essential legal element is, in the undersigned’s opinion, fatal.”

McAfee said the six counts contain “all the essential elements of the crimes” but don’t provide enough detail regarding the alleged felonies committed. “They do not give the Defendants enough information to prepare their defenses intelligently,” he added.

All of the remaining defendants are still under indictment for racketeering and other various offenses. McAfee noted, “This does not mean the entire indictment is dismissed.”

The order is here.

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“Republicans Can’t Restructure North Carolina Election Boards, Judges Rule”

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NYT:

A bipartisan panel of three judges in North Carolina ruled that a Republican-led effort in the state legislature to restructure state and county election boards is unconstitutional.

Their ruling, which contained no dissent, leaves in place the current makeup of the state election board, which has three Democratic members and two Republican members.

Representatives for the Republican-led legislature on Tuesday did not indicate whether they would appeal the decision.

The legislation, passed by the Republican supermajority last year, would have upended the balance of state and county election boards in the state, creating an eight-member state election board with an equal number of Democrats and Republicans appointed to the board by the state legislature. County election boards would be set up for similar stalemates.

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“The Potential for Chaos in the Wake of the Supreme Court’s Colorado Ballot Decision”

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Gerard Magliocca in Washington Monthly:

One goal of both parties to the Section 3 lawsuit was to obtain a decision on Trump’s eligibility before the election. As Justice Louis Brandeis once wrote, it is usually more important that the “law be settled than it be settled right.” Disqualifying Trump from office was the way to settle the case right. Resolving Trump’s eligibility one way or the other was the way to settle the case. Unfortunately, the Court did neither. Instead, the opinion said that Congress, not a state government, must act to disqualify him from federal office. The Court’s failure to tackle the insurrection issue head-on means that, even if Trump wins and is inaugurated, millions of Americans in good faith could (and probably will) still believe he is not eligible to serve another term. Though this alone may be more of a nuisance than a problem, this belief that Trump is not the lawful president could cause considerable mischief in the coming years.

The most acute danger from the Court’s indecision will come between Election Day and Inauguration Day. Suppose that Trump wins and the Democrats win control of Congress. Many will argue that the Joint Session of Congress should not count the electoral votes for Trump on January 6, 2025. The Supreme Court’s opinion does not address that possibility. Trump v. Anderson says that only Congress may enforce Section 3 against candidates for federal office and acknowledges that during Reconstruction each House of Congress did so against members-elect without any authorization from federal legislation. In other parts of the opinion, the Court says that federal legislation is required to enforce Section 3, but the counting of the electoral votes by the Joint Session is done under a federal law—the Electoral Count Reform Act of 2022. Then, at other points, the Court suggests that only a specific Section 3 enforcement statute passed under Congress’s power under Section 5 of the Fourteenth Amendment will suffice. The Court’s confusion on this question invites people who think that Trump is an insurrectionist and cannot be president to press that claim on the Joint Session.

One response to this scenario is that it is improbable that Trump will win and that the Democrats will win control of Congress. There could be a symbolic protest of Trump’s election next January 6, but that won’t amount to anything. But this answer is complacent for two reasons. First, the 2021 meeting of the Joint Session shows us what can happen at these symbolic protests. Second, the protests in 2025 could happen against the backdrop of Trump’s status as a convicted felon. We have no precedent for a convicted criminal as president-elect, and therefore, there is no way to know how people will respond to that fact in combination with the constitutional claim that the convicted criminal is an oathbreaking insurrectionist ineligible to serve.

What can be done to defuse this powder keg if Trump wins? President Joe Biden’s role will be critical. In practice, if the losing presidential candidate concedes, then the anger of his supporters subsides. But a concession may not be enough. One option is for Congress to exercise its Section 3 power and give Trump amnesty. This would end all doubt about his eligibility.

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Dan Tokaji in Balkinization Symposium on “A Real Right to Vote”: “Dare to Dream”

Real Right to Vote

Here’s Dan Tokaji’s contribution to the symposium on my book, A Real Right to Vote:

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act….

In any event, the real problem isn’t neither the volume of voting litigation nor the absence of tools to address such barriers.   In the right hands, the existing U.S. Constitution and Voting Rights Act would be powerful tools for protecting the right to vote.  The problem, as Hasen aptly puts it, is the “ultra-conservative Supreme Court supermajority that gives every benefit of the doubt to states that pass laws intended to make it harder to vote” (p. 9).  And it’s the Supreme Court that would ultimately interpret any constitutional amendment protecting the right to vote. 

For that reason, the post-Reconstruction history of voting rights provides a cautionary tale for those seeking to expand voting access by way of constitutional amendment.  Despite the Fifteenth Amendment’s express prohibition on denial or abridgement of the vote on account of race, southern states disenfranchised African Americans en masse in the last three decades of the Nineteenth Century.  As Hasen recounts (p. 23), the Supreme Court shamefully refused to intervene in Alabama’s blatantly racist denial of voting rights in Giles v. Harris (1903).  The consequence was that most southern Blacks were prevented from voting until the Voting Rights Act of 1965.  No matter how clear its language, the impact of a constitutional amendment will depend largely on the composition of the courts interpreting it.

To be fair, Hasen understands that most progress in voting rights has come from political actors rather than judges.  In fact, that point is core to his argument.  His proposed right-to-vote amendment would, if enacted, shore up the defense against future constitutional challenges to federal legislation protecting access to the ballot (pp. 65-66).  That would make a difference – but also makes it more doubtful that bipartisan consensus on a constitutional amendment could be achieved.  It’s hard to imagine many Republicans embracing such an amendment, even in the most modest form the book envisions.  

Hasen’s response to these concerns is that we should play the long game.   His chief model is the Nineteenth Amendment, with which the book begins (pp. 1-2).  It took over seven decades to enact the federal constitutional amendment prohibiting sex discrimination in voting.  During that lengthy period, suffragists built a movement that enshrined women’s right to vote in many states’ constitutions. 

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