Henry Olsen on Alaska’s RCV system

I hope Mitch McConnell and other GOP Senators read Henry Olsen’s new Washington Post column. As regular readers of his columns know, Olsen is no RINO. (See, for example, his GOP-promoting column of August 15.) What’s distinctive and important about Olsen’s latest piece is that he makes the argument that electoral reform along the lines of Alaska’s new RCV system would help McConnell and the GOP become the majority leader and party, respectively, in the Senate. It would do this by avoiding binary choices in November between an MAGA-extreme GOP nominee and a conventional Democrat, where the Democrat is more likely to win; instead, opening up the November competition to a non-extreme Republican (like Alaska’s Lisa Murkowski), along with the Trump-endorsed MAGA candidate and the conventional Democrat, increases the chances of a GOP winner in November. This not only gives McConnell a greater chance of the Senate having non-MAGA Republicans more like him, it also means it more likely that the Senate will have Republican members period, appealing to McConnell’s self- and partisan- interest of becoming Majority Leader again.

Here’s how Olsen puts the point, using Arizona as an example–and although he mentions specifically the state’s gubernatorial race, the point applies to the state’s Senate race as well, where MAGA candidate Blake Masters might lose to Democrat Mark Kelly, but a more moderate Republican, who would be among the top 4 finishers under Alaska’s new system might have a better chance:

The forced choice between extremes in other states is the only reason Trump-backed Republicans such as Arizona gubernatorial candidate Kari Lake have a prayer in the general election. Many Republicans who backed Lake’s erstwhile opponent, Karrin Taylor Robson, will hold their noses and vote for the crude demagogue to avoid electing the Democrat. Robson would still be on the ballot under Alaska’s system — and could have defeated Lake when votes for other GOP candidates or independents, who don’t normally vote in primaries, decide whom they like best.”

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Sept 13 U. Wisconsin Event: “Campaign Finance and Election Misinformation (in-person or live-stream options)”

Campaign Finance and Election Misinformation (in-person or live-stream options)

When it comes to the health of U.S. electoral politics, money and misinformation are prominent concerns.  Campaign spending continues to set records, and false or misleading election-related content proliferates on social media and elsewhere.  This hybrid in-person and online installment of the Election Matters 2022 series will focus on both campaign finance and the state of our political discourse, including potential regulatory and nonregulatory solutions. Panelists will include Professor Daniel Kreiss (University of North Carolina Hussman School of Journalism & Media), Professor Rick Pildes (NYU Law School), and Katie Harbath (Anchor Change).

Tuesday, September 13, 3:30-4:30 p.m.

UW-Madison Law School the Lubar Faculty Commons (Room 7200)

Register to attend (in-person or virtual)

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“HAVA at 20: Building Trust in Elections”

This looks like a great event on September 1, and there will be a simultaneous webcast:

The Pepperdine School of Public Policy (SPP) and the US Election Assistance Commission will host a series of panels in recognition of the 20th anniversary of the signing of the Help America Vote Act of 2022 (HAVA) and the 25th anniversary of SPP. Election officials and subject matter experts will hold panels on confidence in elections, security and technology in elections, current issues in election administration, and the future of elections. 

This conference will host a series of panels on confidence in elections, security and technology in elections, current issues in election administration, and the future of elections. “Confidence in Elections” will discuss some of the data identifying trends for the increase in mis-and-dis-information, and ways to address the challenges that stem from it. “Security and Technology in Elections” will discuss the role of election officials as IT managers, which requires a unique set of attitudes, knowledge, and skills to plan, direct, and control contemporary election administration. “Current Issues in Election Administration (Clearinghouse/HAVA Grants)” will discuss election funding through HAVA and the impact those grants have on supporting elections during critical moments over the last 20 years. “Future of Elections- HAVA 20 Years From Now” will discuss how HAVA is still relevant, how elections will evolve in the future, and what can be done to build confidence in our elections. 

More here.

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“Revalidating the Electoral Count Act”

Steven Bradbury, who headed OLC during President George W. Bush’s second term and served as General Counsel of the Department of Transportation in the Trump administration, has written on Substack an extensive analysis of constitutional and statutory issues relating to Electoral Count Act reform. Its bottom-line conclusion:

“Happily, there’s biparti­san legis­la­tion cur­rently pend­ing in the Senate that would achieve all of these needed reforms: the Elec­toral Count Reform Act of 2022, co-spon­sored by Sena­tors Susan Col­lins and Joe Man­chin.

Con­gress should move this bill for­ward at the earli­est oppor­tunity so that up­dated elec­toral count pro­ce­dures are in place well in advance of the 2024 Presi­den­tial elec­tion.”

I highly recommend reading the whole essay, which presents the relevant issues thoroughly and accessibly, in a style that is very reader-friendly. (I only wish there were links or citations to some of the sources; in this respect, it’s more like a New Yorker article than a law review essay.) From my own research and analysis of the topic, I think the piece does a particularly good job on these key points:

  1. analyzing the constitutional ambiguity caused by the use of the passive voice in the Twelfth Amendment, and ascribing the most sensible construction of that ambiguity in light of the relevant constitutional history, especially the period between the adoption of the original Constitution and the ratification of the Twelfth Amendment.
  2. explaining why a sound interpretation of the relevant constitutional provision entitles Congress to invoke the Necessary & Proper Clause to enact a statute that clarifies and implements the Twelfth Amendment, consistent with the basic constitutional framework that Article II and the Twelfth Amendment establish (as supplement by subsequent constitutional provisions, including the Fourteenth Amendment);
  3. showing how the 1887 Electoral Count Act fits within that constitutional framework but urgently needs revision because of its now-antiquated and convoluted language, as well as misunderstanding and abuse of its provisions in recent years, most especially by the efforts of Trump and his allies;
  4. and detailing how the proposed Electoral Count Reform Act appropriately revises and updates the 1887 Act, especially to take account of the changing relationship between state and federal court litigation over vote-counting disputes, including Bush v. Gore.

For anyone, especially members of Congress, who might be harboring any lingering doubts on any of these matters, this essay is a very timely and valuable contribution to the topic of ECA reform.

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“‘Never in a Million Years’: Arizona Republicans Grapple with the Rising Fringe”


When Arizona state lawmaker Mark Finchem, a 2020 election denier who deals in fringe legal theories, won the Republican nomination for secretary of state earlier this month, many of his GOP colleagues in the state Legislature couldn’t believe it.

To be clear, they knew he would win — he had Donald Trump’s endorsement — but they were still stunned. Mark Finchem. Him.

A back-bench lawmaker best known locally for his over-the-top drugstore cowboy get-ups and extreme ideas, Finchem would be in charge of the state’s elections should he win in November. That would also put him first in the line of succession for the governorship since Arizona doesn’t have a lieutenant governor.

“It’s basically from political gadfly within the Republican caucus to potentially the number two person in the state of Arizona,” says Arizona Republican Sen. T.J. Shope. “It’s a meteoric rise.”

“Never in a million years” would Paul Boyer, a fellow GOP state legislator, have imagined that Finchem would crush a field of qualified candidates and win a nomination to statewide office.

“Mark is known as the guy that’s probably the dumbest — well, there’s a long list, but one of the dumbest — legislators in the state House,” he says. (Finchem’s retort: Boyer is an “utter disgrace.”)

But Finchem’s rise makes sense in light of the broader shift within the Arizona Republican Party. Trump’s slate of political insurgents swept the GOP nomination for every state office in which he offered his blessing, from the U.S. Senate down to state Senate races.

After decades of civil war, the Arizona primaries mark a decisive swing in the state GOP’s balance of power. The center-right, pro-business wing of the party led by the late Sen. John McCain and Gov. Doug Ducey has been defeated, at least for now. Finchem and other far-right outsiders — the original tea party activists and the new Trumpist hard-liners — have taken over.

“We drove a stake through the heart of the McCain machine,” Republican gubernatorial nominee Kari Lake bragged, while making a stabbing motion, at a CPAC event following the primary. “We threw together a rag-tag team of nonpolitical people to run the most exciting campaign in the country. And we won.”

Lake, a former TV news anchor, fended off more than $20 million in spending against her to narrowly capture the nomination, despite her opponent’s backing from Ducey, former GOP Gov. Jan Brewer and former Vice President Mike Pence.

Blake Masters, a 36-year-old acolyte of billionaire tech entrepreneur and Trump donor Peter Thiel, surged from behind in the U.S. Senate primary after earning Trump’s nod. Abraham Hamadeh, a 31-year-old lawyer who has spent fewer days in a courtroom than many petty criminals, was rocketed out of obscurity to win the primary for state attorney general after snagging Trump’s endorsement.

None have any political experience. But they have the main qualification that matters to the former president: They repeat the lie that the Arizona election was rigged against him. Every winning Republican candidate said they wouldn’t have certified the 2020 election. That means that as Trump gears up for a possible third run for the presidency, Arizona is facing the prospect of a slate of statewide officials who could steal the election for him. (Indeed, another victim of a Trump-backed primary was Rusty Bowers, the soft-spoken leader of the Arizona House who rebuffed Trump’s pressure campaign to overturn the state’s 2020 election results and testified to the January 6 committee.)

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