“How R.F.K. Jr. Got on the Michigan Ballot, With Only Two Votes”

Interesting story from the N.Y Times on how RFK, Jr. became the nominee of the Natural Law Party, which has retained ballot access under Michigan law. In my judgment, it would be helpful if stories like these explained to readers that the problem with the current system is not ballot access for minor-party candidates but the lack of a runoff mechanism (or ranked choice voting) that would require candidates to receive a majority of the vote. Or, to put the point sometime differently, the media could explain the inconsistency between (1) the idea of having a “two-party system” and (2) laws that permit third-party and independent candidates ballot access. On this issue, it’s impossible to “have your cake and eat it too”–and yet that’s how American repeatedly attempts to conduct its elections, because because there has been no civics education to explain this to the citizenry.

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“Trump campaign says it will deploy thousands of election workers to monitor poll sites”


Former President Donald Trump’s political operation said Thursday that it plans to deploy more than 100,000 attorneys and volunteers across battleground states to monitor — and potentially challenge — vote counting in November.

The initiative — which the Trump campaign and the Republican National Committee described as “the most extensive and monumental election integrity program in the nation’s history” — will include training poll watchers and workers as well as lawyers.

Most states have rules regulating activities at polling sites. That includes laws prohibiting voter intimidation, obstructing voters from casting their ballots, loitering and advertising. According to the National Conference of State Legislatures, partisan poll workers are allowed to monitor elections but can’t interfere in the electoral process except to report issues.

Those involved in the drafting of the program included RNC Chair Michael Whatley, RNC co-chair Lara Trump, who is Trump’s daughter-in-law, and the RNC’s general counsel, Charlie Spies.

In a statement, Spies said, “In 2024 we’re going to beat the Democrats at their own game and the RNC legal team will be working tirelessly to ensure that elections officials follow the rules in administering elections. We will aggressively take them to court if they don’t follow rules or try to change them at the last minute.”

This story reminds me of what occurred in Ohio in 2004: the GOP planned to undertake a similar effort of potentially challenging voters at the polls on Election Day, but had to back down at the last minute after litigation over the effort when all the way to the U.S. Supreme Court, with Justice Stevens issuing a warning to the state at around 3 am on Election Day. In response, Governor Taft ordered Republicans in the state to abandon their plans for aggressive challenging of voters. There were still extraordinarily long lines at many polling places in Ohio that day, but not attributable to the challenging campaign that the GOP had planned. As Justice Stevens’s opinion reflecting, this issue calls for careful balancing of the right to monitor the voting process in order to maintain transparency and thus public confidence in its integrity, while at the same time refraining from practices that would interfere the right of eligible voters to cast their ballots.

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More tentative thoughts on the NJ case

Nick, following up on my initial post on this important new case, adds his own helpful analysis. My views continue to be very preliminary and tentative (unlike Nick, I had no prior involvement in this case until reading the opinion yesterday). But I’m not (yet?) convinced about the potential distinction that Nick offers between when the party should win concerning a fight with the government over the rules for a partisan primary election and when, instead, the government should prevail. Nick says “who participates in a primary is genuinely associational” but “a manipulative ballot design” is not.

What makes a ballot design “manipulative”? Nick says it’s when it’s “an attempt to distort party members’ choices—not to enable those choices to be freely made.” But what’s the difference between party elites “distorting” the choices of the party’s members versus party elites just “influencing” or even trying very hard to persuade the choices of party members? Are there any circumstances in which the party elites making a choice about which candidates get a more advantageous position on the party’s primary ballot would be a matter for internal party governance, just like the decision of party elites over which candidate to endorse and whether or not to include the information of that endorsement on the primary ballot? A better spot on the ballot might “affect” or “influence” the vote of party members, but it doesn’t negate the freedom to exercise that vote completely. And what if the party would prefer to nominate its candidates by means of a party caucus or convention rather than a primary?

Suppose the very same ballot design were used, not in a party primary funded by the government and operated by government officials, but instead a purely internal party caucus or other electoral procedure used to choose the party’s nominees for the November general election. Would the party have a First Amendment right to use the NJ ballot design in this context, or would it’s doing so violate some constitutional rights of the candidates running in the party’s caucus disfavored by the party’s elite? I assume not. Nor could the state force the party to choose a different ballot design for its own internal party caucus. (Note in this actual case, the party elites and the government were aligned in wishing to permit the challenged ballot design; it was disfavored candidates who as a practical matter challenged both the party elites and the state. This posture, it seems to me, implicates the Supreme Court’s Lopez Torres decision, but frankly I haven’t had a chance yet to think through the implications of Lopez Torres for this case; I don’t recall seeing Lopez Torres cited in the Third Circuit’s opinion, but I might have missed it.) But if these assumptions are correct, we are back with the condrundum–as Nick also notes–of trying to figure when, in the context of a government-run partisan primary, the government gets to control the rules instead of the party, and vice versa.

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