“Utah Gov. Cox signs away the state’s popular universal vote-by-mail election system”

election administration

Salt Lake Tribune:

Tucked in the middle of a list of 100 bills Gov. Spencer Cox signed Thursday was “Amendments to Election Law,” or HB300 — the law that is set to end Utah’s popular universal vote-by-mail election system.

The governor did not include a comment on his decision to sign the bill in the news release, as he has for some other bills.

An initial version of the bill would have effectively eliminated Utahns’ option to send their ballot through the mail altogether, but the version Cox ultimately signed allows voters to opt in to participating in elections through the mail. Utahns must opt in before 2029, when counties will stop sending ballots to every voter’s mailbox.

The compromise came after widespread opposition among the elected officials who oversee the state’s elections, as well as skepticism from the Senate over cutting off access to voting by mail….

The law also starts Utah on the path of transitioning toward relying on the last four digits of a state ID number — or, if they don’t have one, the last four digits of their Social Security number — rather than the voter’s signature to verify a mail-in ballot.

It also moves up the deadline for returning a ballot, requiring voters to ensure that county clerks receive mailed ballots before 8 p.m. Election Day — likely resulting in fewer ballots being counted. Previously, all ballots postmarked by the day before Election Day were counted.

The bill has been criticized by Democrats and voting rights advocates as a policy change that will make it more difficult for marginalized communities — especially Native Americans and those with disabilities — to vote.

Share this:

Shaw v. Reno and Callais v. Louisiana

Uncategorized

I’m struck by the similarity of the underlying factual contexts in these two cases. Only one Justice on the current Court, Justice Thomas, was on the Court that decided Shaw, and the similarity is not apparent from the opinion in Shaw. But for those of us who were engaged with the issues in Shaw at the time, the similarity is hard to miss.

The central legal question in both cases is this: when a State has justifiable reason to create a remedial VRA district, what constitutional constraints, if any, apply to the way that district is designed? 

In Callais, Louisiana believed it had to create a second VRA district to comply with federal court decisions that required such a district. The federal court had identified a region of the state in which, it found, a reasonably configured second VRA district could be created. But the Republican legislature preferred to draw that district in a somewhat different area of the state, in order to protect important Republican incumbents. The state designed a (less compact) district to be majority black, to comply with the VRA, but political reasons drove the decision to locate that district in specific areas of the state.

You can substitute North Carolina for Louisiana and Democratic for Republican and you’ll get the same story in Shaw. In Shaw, North Carolina believed it had to create a second VRA district to comply with federal rulings, this time from the Department of Justice (DOJ). The DOJ had identified a region of the State in which a reasonably configured second district could be drawn.  But the Democratic legislature wanted to protect an important incumbent who represented that area. So just as in Callais, the state designed a district a district to be majority black — the highway district, as it was called — to comply with the VRA, but political reasons drove the decision to locate that district in specific areas of the state.

It’s easy to miss the role that political considerations played in NC’s design of that district because the majority opinion does not address that issue and the dissent mentions it only in a footnote.  This is the relevant passage from note 10 in Justice White’s dissent:

This appears to be what has occurred in this instance. In providing the reasons for the objection, the Attorney General noted that “[f]or the south-central to southeast area, there were several plans drawn providing for a second majority-minority congressional district” and that such a district would have been no more irregular than others in the State’s plan. See App. to Brief for Federal Appellees lOa. North Carolina’s decision to create a majority-minority district can be explained as an attempt to meet this objection. Its decision not to create the more compact southern majority-minority district that was suggested, on the other hand, was more likely a result of partisan considerations. Indeed, in a suit brought prior to this one, different plaintiffs charged that District 12 was “grossly contorted” and had “no logical explanation other than incumbency protection and the enhancement of Democratic partisan interests …. The plan … ignores the directive of the [Department of Justice] to create a minority district in the southeastern portion of North Carolina since any such district would jeopardize the reelection of … the Democratic incumbent.” App. to Juris. Statement, O. T. 1991, No. 91-2038, p. 43a (Complaint in Pope v. Blue, No. 3:92CV71-P (WDNC)). With respect to this incident, one writer has observed that “understanding why the configurations are shaped as they are requires us to know at least as much about the interests of incumbent Democratic politicians, as it does knowledge of the Voting Rights Act.” Grofman, Would Vince Lombardi Have Been Right If He Had Said: ”When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing”?, 14 Cardozo L. Rev. 1237, 1258 (1993). [italics added]

The one significant difference in the two contexts is that the remedial district in Shaw was in a completely different area of the state than the federal actor (there, the DOJ) had used as its basis for finding NC had violated its VRA obligations. The district at issue in LA includes about 70% of the population in the area that the federal actor (here, the federal court) had used as its basis for concluding LA had violated its VRA obligations.

I’m not going to go through here the whole analysis of how this difference does or should affect a full treatment of the doctrinal issues in Callais, which would require too much space to work through the quagmire of whether race “predominated” here and, if so, how the strict scrutiny analysis should be applied. Based on the oral argument, I also don’t have a confident view about how the Court is likely to decide the case.

But I wanted to note that the mix of race and politics in the two cases is very similar and that this might not be obvious to those who don’t recall the full context of Shaw. When federal authorities require partisan state legislatures to draw remedial VRA districts, politics ends up playing a significant role in where and how those districts are designed.

Share this:

My New One at MSNBC Opinion: “Trump’s executive order on elections is a blatant power grab; It seems especially dangerous to take power away from the states when there are many threats to our democracy.”

authoritarian threats in US, election administration, Election Assistance Commission, fraudulent fraud squad, The Voting Wars

I have written this piece for MSNBC Opinion. It begins:

By design, presidents have no power over the conduct of federal elections. President Donald Trump’s recent executive order on election administration aims to flip that, trying to take power from both an independent bipartisan federal agency and from the states, in an affront to principles of federalism. This dangerous power grab signals further democratic backsliding….

After the disputed 2000 election, Congress used those powers to pass the Help America Vote Act which, among other things, established the United States Election Assistance Commission: a federal agency that approves voting technologies eligible for federal subsidies and advises states and counties on best practices. The EAC is described as “independent” in the congressional statute; it has four members, no more than two from any single political party, and it takes three commissioners to approve anything. The design is meant to be bipartisan and independent of political branches, insulating the agency from some politics.

Trump’s executive order tries to turn that around. It purports to direct the EAC to do certain things such as require documentary proof of citizenship on a form that the federal government provides to allow people to register to vote anywhere in the United States for federal elections.

Requiring documentary proof of citizenship to be allowed to register to vote is currently under debate both in Congress and in the states (Arizona has such rules, though they are tied up in litigation). Whether a documentary requirement is a good idea — and I think it is a bad idea, because it could disenfranchise millions of eligible voters and prevent only a tiny amount of fraud — the issue is up to the states and Congress, not to the president.

It’s dangerous to put such power in the hands of the president, who could attempt to manipulate election rules to favor his party and his self-interest. And it seems especially dangerous to take power away from the states when there are many threats to our democracy….

Republicans seemed to understand this point in the past. When Joe Biden was president, he issued his own executive order on voting. The order was a mild one, asking federal agencies to promote voter access and voter registration. Yet Republicans were outraged. Rep. Bryan Steil of Wisconsin, the chair of the House Administration Committee, issued a press release calling the order “another attempt by the Biden Administration to tilt the scales ahead of 2024.” Then-West Virginia Secretary of State Mac Warner dismissed the order as “federal overreach.”

If that order was an overreach, what Trump is trying to do now risks dislocating his proverbial arm from its socket. Not only does the executive order try to direct the independent EAC to take certain action, it also directs the attorney general to sue states that accept and count ballots that are mailed before Election Day but arrive after that day. And it purports to give the Department of Homeland Security and the Department of Government Efficiency the power to subpoena voter registration records from states in a silly hunt for elusive voter fraud. 

In the first Trump administration, an advisory commission on “election integrity” chaired by Vice President Mike Pence tried to go after similar voting records. Pence and the commission got pushback from both Democrats and Republicans. One GOP official who refused to hand over such records was Mississippi Secretary of State Delbert Hosemann. “As all of you may remember, I fought in federal court to protect Mississippi voters’ rights for their privacy and won,” he said in 2017. “In the event I were to receive correspondence from the commission requesting (what the other state received) … My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from.”

 I hope Republican officials have a similar response this time around — minus the reference to the “Gulf of Mexico” of course….

Share this:

“Trump Is Trying to Gain More Power Over Elections. Is His Effort Legal?”

authoritarian threats in US, election administration, Election Assistance Commission

Nick Corasaniti for the NYT:

President Trump pushed on Tuesday to hand the executive branch unprecedented influence over how federal elections are run, signing a far-reaching and legally dubious order to change U.S. voting rules.

The executive order, which seeks to require proof of citizenship to register to vote as well as the return of all mail ballots by Election Day, is an attempt to upend centuries of settled election law and federal-state relations.

The Constitution gives the president no explicit authority to regulate elections. Instead, it gives states the power to set the “times, places and manner” of elections, leaving them to decide the rules, oversee voting and try to prevent fraud. Congress can also pass election laws or override state legislation, as it did with the Voting Rights Act of 1965.

Yet Mr. Trump’s order, which follows a yearslong Republican push to tighten voting laws out of a false belief that the 2020 election was rigged, bypasses both the states and Congress. Republican lawmakers in Washington are trying to pass many of the same voting restrictions, but they are unlikely to make it through the Senate….

The order’s most eye-catching provisions are the requirements of proof of citizenship and the return of mail ballots by Election Day.

But the order, which threatens to withhold federal funding from states that do not comply with it, includes a range of other measures.

It seeks to give federal agencies, including the Elon Musk-led team known as the Department of Government Efficiency, access to state voter rolls to check “for consistency with federal requirements.” It aims to set new rules for election equipment, which could force states to replace voting machines that use bar codes or QR codes. And it instructs the U.S. attorney general to hunt for and prosecute election crimes.

Probably not all of it, legal experts say — and voting rights groups and state attorneys general are already signaling that they will file challenges.

Several experts predicted that provisions of the order might well be found unlawful, though they said that others, like directions to Mr. Trump’s attorney general and other cabinet members, fell within legal bounds.

“It’s an attempt at a power grab,” said Richard L. Hasen, an election law expert at the University of California, Los Angeles. “The president has been seen in the past as having no role to play when it comes to the conduct of federal elections, and this attempt to assert authority over the conduct of federal elections would take power away from both an independent federal agency and from the states.”…

The executive order would force the E.A.C. to change that process to require a passport, state identification that includes citizenship information or military identification.

Legal experts dispute that Mr. Trump has the authority to force the agency, which Congress designated as “independent” and which includes two commissioners from each party, to take any action.

“He can ask nicely,” said Justin Levitt, a professor of constitutional law at Loyola Marymount University who served in the Biden administration. “But he thinks he’s got a power that, at least so far, he does not have. It would take a change in the law and the Supreme Court affirmatively approving a radical expansion of power of the executive.”

Legal experts say the provision requiring all ballots to arrive by Election Day also probably exceeds the president’s legal authority, particularly the threat to withhold federal funding from those states that do not comply. (Seventeen states currently allow mail ballots postmarked by Election Day to be counted if they arrive soon afterward.)…

Share this:

New Book on “Electoral Geography”

Uncategorized

Igor Okunev has written this new book (sample on Amazon). Here is the description:

Electoral geography is the study of the spatial dimension of the electoral process. It examines the factors and patterns underlying long-standing ideological and political splits in society and their territorial diff erences, as well as the political activity of voters and their voting habits by administrative and territorial unit, constituency and district. This book conceptualizes and operationalizes the phenomenon of geographic favouritism and spatial disproportionality in electoral and party systems. Spatial statistical analysis and geoinformation modelling are used to develop algorithms for assessing the role of space in the electoral behaviour of citizens. This monograph is aimed at researchers in political science, electoral sociology and election law, as well as political consultants. It can also be used as a teaching aid in a specialized university course on electoral geography.

Share this:

President Trump Issues Dangerous Executive Order That Would Shift to Presidency More Power Over the Conduct of Federal Elections and Potentially Disenfranchise Millions of Voters

election administration, Election Assistance Commission, Election Meltdown, election subversion risk, Elections Clause, The Voting Wars
I am still making my way through this new Trump executive order on election administration (helpfully posted by Chris Geidner). There is a lot in here, but let me make four initial points as I still digest this. An executive… Continue reading

“Elon Musk Revealed Why He’s Spending Millions to Flip the Wisconsin Supreme Court; It’s all about preserving gerrymandered districts that lock in Republican power.”

judicial elections, Plutocrats United, redistricting
Ari Berman in Mother Jones: On March 22, Elon Musk hosted conservative Wisconsin Supreme Court candidate Brad Schimel and US Senator Ron Johnson (R-Wisc.) for a discussion on X about the importance of the Wisconsin Supreme Court election on April… Continue reading