Tomorrow, the U.S. Department of Justice will argue before a federal district court judge in Reeves v. Nago that federal overseas voting laws that discriminate against residents of Guam and the U.S. Virgin Islands cannot be challenged in federal court and that the appropriate remedy for any constitutional violation would be to restrict rather than expand the right to vote. Reeves is a case brought by veterans and others living in Guam and the Virgin Islands who could vote for President and voting representation in Congress if they lived almost anywhere else in the world, including in a foreign country or even the Northern Mariana Islands, a U.S. territory less than a hundred miles from Guam. The March 5th hearing will be before Judge Jill Otake in Hawaii at 9 am Hawaii time (3pm in the Virgin Islands/Puerto Rico, 2pm East Coast, 11am Pacific, and 5am Guam time).
Josh Douglas has posted this draft on SSRN. Here is the abstract:
I was in “the room where it happens” when Kentucky enacted a new photo ID law for voting. And I lived to tell the tale.
This Article recounts the evolution of Kentucky’s voter ID law, which could have been one of the strictest ID laws in the country but ultimately became one of the mildest. The inside story of how that occurred is itself interesting, but the Article also relates it to a theory of deliberative democracy, or a legislative process that benefits from debate, negotiation, and compromise from various voices, making the final enactment more legitimate. The Article traces the history of the voter ID law, explaining the significant substantive changes that occurred during the legislative process. Next, the Article analyzes the litigation over the bill, which was focused on its implementation during the pandemic and not about the substance of the new law—showing that even opponents accepted its main substantive components. Finally, the Article relates the Kentucky story to a legislative theory of deliberative democracy. The Kentucky process mostly worked because, even though Republicans had the votes to pass the most stringent law possible, they instead moderated in response to opposition from Democrats and advocacy organizations. That moderation made the process more legitimate and created a better substantive outcome. The Article suggests that, to encourage a stronger legislative process, courts could give slightly more deference to a state that passes an election law with indicia of deliberative democracy.
Voter ID laws are unnecessary: they do not root out any fraud that exists and can disenfranchise voters. But the Kentucky experience shows that not all voter ID laws are created equal. If the political reality meant that a new voter ID law was inevitable, the Kentucky version—with its various exceptions and fail-safe protections—is about as good as one can expect. Further, its passage opened the door to other pro-voter reforms. Perhaps the Kentucky model—and the deliberative democracy process it exhibits—can lower the temperature in other states.
Jack Michael Beerman and Gary Lawson have posted this draft on SSRN. Here is the abstract:
In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. Further, the objections raised to two states’ electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states’ electoral votes would have been contrary to law. While state executive or state judicially-ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution’s requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes.
The House scrapped plans for a Thursday session after security officials warned of a possible plot by an unnamed militant group to breach the Capitol. The decision to move up votes on legislation to Wednesday night came after officials warned of credible threats of violence circulated by right-wing extremists that March 4 is the “true Inauguration Day” when former president Donald Trump will be sworn in for a second term. The Senate plans to be in session Thursday.
House Democrats pushed through a sweeping expansion of federal voting rights on Wednesday over unified Republican opposition, opening a new front in a raging national debate about elections aimed at countering G.O.P. attempts to clamp down on ballot access.
The bill, adopted 220 to 210 mostly along party lines, would constitute the most significant enhancement of federal voting protections since the 1960s if it became law. It aims to impose new national requirements weakening restrictive state voter ID laws, mandate automatic voter registration, expand early and mail-in voting, make it harder to purge voter rolls and restore voting rights to former felons — changes that studies suggest would increase voter participation, especially by racial minorities.
The vote was the latest bid by Democrats to beat back Republican efforts in statehouses across the country to enact new barriers to voting that would consolidate power for the Republican Party amid false claims of rampant election fraud heralded by former President Donald J. Trump and many of his allies in Congress.
But the measure, which is supported by President Biden, appears to be doomed for now in the Senate, where Republican opposition would make it all but impossible to draw the 60 votes needed to advance. Democratic leaders have vowed to put it up for a vote anyway, and progressives were already plotting to use Republican obstruction of the bill to build their case for jettisoning the legislative filibuster in the months ahead.
Jerry Goldfeder podcast.
In the months before and after the 2020 election, far-right pages that are known to spread misinformation consistently garnered more engagement on Facebook than any other partisan news, according to a New York University study published Wednesday.
The study looked at Facebook engagement for news sources across the political spectrum between Aug. 10, 2020 and Jan. 11, 2021, and found that on average, far-right pages that regularly trade in misinformation raked in 65% more engagement per follower than other far-right pages that aren’t known for spreading misinformation.
That finding was specific to the far right. In every other category — including far left, slightly left, center and slightly right — misinformation pages saw significantly less engagement than non-misinformation pages of the same political slant.
After record turnout flipped Georgia blue for the first time in decades, Republicans who control the state Legislature are moving swiftly to implement a raft of new restrictions on voting access, mounting one of the biggest challenges to voting rights in a major battleground state following the 2020 election.
Two bills, one passed by the House on Monday and another that could pass the Senate this week, seek to alter foundational elements of voting in Georgia, which supported President Biden in November and a pair of Democratic senators in January — narrow victories attributable in part to the array of voting options in the state.
The Republican legislation would undermine pillars of voting access by ending automatic voter registration, banning drop boxes for mail ballots and eliminating the broad availability of absentee voting. The bills would restrict early voting on the weekends, limiting the longstanding civic tradition of “Souls to the Polls” in which Black voters cast ballots on Sunday after church services.
Taken together, the new barriers would have an outsize impact on Black voters, who make up roughly one-third of the state’s population and vote overwhelmingly Democratic.
From an oped attacking HR 1:
After an election marked by significant voting irregularities and numerous instances of officials setting aside state election law, I share the concerns of millions of Americans about the integrity of the 2020 election.
That’s why when I was serving as presiding officer at the joint session of Congress certifying the Electoral College results, I pledged to ensure that all objections properly raised under the Electoral Count Act would be given a full hearing before Congress and the American people.
The tragic events of Jan. 6—the most significant being the loss of life and violence at our nation’s Capitol—also deprived the American people of a substantive discussion in Congress about election integrity in America.
Under the Constitution, elections are governed at the state level. And each state is required to appoint presidential electors “in such Manner as the Legislature thereof may direct.”
Many of the most troubling voting irregularities took place in states that set aside laws enacted by state legislatures in favor of sweeping changes ordered by governors, secretaries of state, and courts.
You can find the new report here.
[Disclosure: I served as an advisor reviewing the portion of the report dealing with the United States.]
The Law and Political Process Study Group (a related group of APSA) will be putting together a panel on “New Voices in Election Law” for the APSA Annual Meeting being held Sept. 28-Oct. 3 (for virtual panels). All related panel groups, including this one, will be virtual (so there is no need to participate in person).
The group will be putting together a “New Voices in Election Law” panel, which will take place some time over APSA. Papers in election law, broadly defined, are eligible. We encourage doctrinal, theoretical, and empirical contributions. Papers must not have been published before the meeting. Paper authors must be full-time professors for seven or fewer years (if co-authored, all authors must meet these criteria).
Send your contact information and abstract to Rick Hasen (rhasen-at-law.uci.edu) by no later than Monday, March 8.
Please join us on Wednesday March 3, 2021 from 3:00-4:30 pm EST (12:00-1:30 PST) for the public launch of our comprehensive report. Hear researchers from the Stanford Internet Observatory, Graphika, the University of Washington’s Center for an Informed Public, and the Atlantic Council’s Digital Forensic Research Lab, and special guest Chris Krebs. Panelists will discuss the origins and amplification of voting-related misinformation, charting how these narratives evolved over time. The Partnership was set up to monitor false information about the process and results of the 2020 election, in line with the Department of Homeland Security’s designation of elections as critical infrastructure in democracies. In particular, the EIP identified and traced the false “stolen election” narrative which would culminate in the January 6 attack on the US Capitol.
Gary Gensler, President Joe Biden’s pick to head the Securities and Exchange Commission, signaled Tuesday that the agency would raise pressure on corporations to disclose their political spending activities, a long-running tension between SEC officials, big business and Democrats.
At a Senate confirmation hearing, Sen. Bob Menendez (D-N.J.) asked the nominee for the SEC’s chair role whether political contributions by publicly traded companies represented “material” information to investors and should be disclosed. In response, Gensler said there was growing investor appetite for the information.
Looking forward to this:
March 9, 2021 8-9:15 PM ET | Add to your calendar
The democratic process in the United States was sorely tested in the aftermath of the 2020 presidential election. Our electoral institutions survived that test, but the fragility of our democracy was exposed. With national polls showing that a third of all Americans and two-thirds of Republicans believe that Joe Biden was not legitimately elected, how do we restore trust in the voting process? Do we need fundamental changes in how we conduct our elections and count our votes?
Please join us on March 9th from 8-9:15 p.m. Eastern time for a panel discussion from the nation’s leading experts on election administration and election law to help answer these questions. Our distinguished panel will be led by David Canon, Editor-in-Chief of Election Law Journal and professor of political science at the University of Wisconsin, Madison.
A live Q&A session will follow the roundtable, offering you a chance to pose questions to our expert panelists.
Guy-Uriel Charles (Presenter)
Edward and Ellen Schwarzman Professor of Law
Duke University Law School
Edward Foley (Presenter)
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Director, Election Law at Ohio State University Moritz College of Law
Richard Hasen (Presenter)
Chancellor’s Professor of Law and Political Science at the University of California
Irvine School of Law
Lisa Manheim (Presenter)
Charles I. Stone Associate Professor of Law
University of Washington, School of Law
Charles Stewart III (Presenter)
Kenan Sahin Distinguished Professor of Political Science
Massachusetts Institute of Technology
Daniel Tokaji (Presenter)
Fred W. & Vi Miller Dean and Professor of Law
University of Wisconsin Law School
David Canon (Moderator)
David Canon (Moderator) Editor-in-Chief, Election Law Journal
Department of Political Science, University of Wisconsin
I just finished listening to the two-hour argument in the Brnovich voting rights case. For background on what’s at stake and where I think things are, see this SCOTUSBlog post.
Oral argument went as I expected. There was little support for the position of the Republican Party, as offered by attorney Mike Carvin—that test would essentially render Section 2 of the Voting Rights Act to not apply to most vote denial cases. There was considerably more support for the test put forward by the state attorney general, Brnovich, as well as the DOJ standard put forward in the Trump DOJ brief. It seemed that all six conservatives were comfortable with some test that would require both that plaintiffs show a substantial burden in voting, and one that would give the state the ability to rebut even a statistical disparity in a voting procedure that falls more heavily on minority voters so long as the state can come forward with a nonpretextual anti-fraud interest.
The Court conservatives could well coalesce around a test that requires both the plaintiffs show a substantial racially discriminatory impact AND that requires the state to produce little evidence of an antifraud (or sound election administration) reason to enact a law. The big question is exactly what that standard looks like. Both Justice Kagan and Justice Alito are masters at giving hypotheticals to push the boundaries of the parties’ positions, and it was clear that each side had trouble with some of the hypotheticals. (Indeed, I’d recommend this oral argument as a good one to listen to for law students wanting to hear how good these Justices are at asking their questions.)
The Court’s 3 liberal Justices were as expected much more sympathetic to the plaintiffs’ positions. Justice Breyer was somewhat obsessed with Nick Stephanolpoulos’s brief that called for use of disparate impact tests from other areas of the law to try to deal with Section 2 cases. It’s not clear if there are any takers on that. It is also not clear that the liberals would uphold the 9th Circuit test—they may instead fight on the right standard to apply in other cases. And that in fact is the whole ball game: is Section 2 going to be a test that plaintiffs can actually use in going after very strict voting rules with a racially disparate impact on minority voters, or will it be a test that will be nearly impossible to meet?
We will likely find out in June.
Nina Totenberg for NPR:
The potential to render the Voting Rights Act nearly a dead letter
In fact, 33 states have “introduced, refiled, or carried over more than 165 restrictive laws this year,” says Myrna Pérez, director of the Voting Rights and Elections Program at New York University’s Brennan Center for Justice.
Remember too that Chief Justice Roberts, in striking down the pre-clearance provision of the law eight years ago, highlighted Section 2’s importance as the law’s alternative enforcement mechanism. But Roberts has long been disdainful of the need for the Voting Rights Act, dating back to his youth as an aide in Ronald Reagan’s administration, when he unsuccessfully urged the president not to sign the amended law. Now, decades later, he presides over a 6-to-3 conservative majority on a court that is, at minimum, skeptical about the need for tough voting rights enforcement.
The Biden administration has withdrawn the Trump Justice Department’s brief, which sided with Arizona Republicans in the case. But the new administration is not siding with Democratic Party arguments either.
“They’re in an effort at damage control,” says law professor Richard Hasen, a voting rights expert at the University of California, Irvine. “What they’re trying to do is prevent the court from making bad law that will apply to more draconian voting restrictions. So this fight is less about whether the Democratic Party loses but how the Democratic Party loses.”
In the past, the Supreme Court established a variety of tests under Section 2 to prevent vote dilution in congressional redistricting, but this is the first time that the court will examine a state law that has been found to disproportionally result in the denial of the right to vote for minorities. And there is every possibility that the high court could make it much more difficult, or practically impossible, to challenge voting rights restrictions in the future.
Here is a guest post from Travis Crum of Wash U:
The Supreme Court will soon hear oral argument in Brnovich v. DNC, a major voting rights case. As relevant here, the case concerns an Arizona ballot-collection law that the Ninth Circuit concluded was enacted with discriminatory intent in violation of the Fifteenth Amendment’s prohibition against racial discrimination in voting. I filed an amicus brief in support of respondents addressing the Fifteenth Amendment’s drafting and ratification as well as Congress’s enforcement authority under that Amendment. But in this post, I want to expound on a different point: Brnovich provides the Supreme Court with its first opportunity after the 2020 presidential election to address allegations of voter fraud—and to correct its past willingness to uphold voter-suppression laws based on unfounded allegations.
For decades, Arizona permitted individuals to collect early ballots and deliver them to a polling place. Historically, minority voters were far more likely than white voters to rely on ballot collectors due to unreliable mail service and lack of transportation options. And in recent years, a “substantial increase in American Indian and Hispanic voting [was] attributable to ballot collection.”
Then, in 2016, Arizona passed H.B. 2023, which criminalizes the collection of another person’s early ballot, with exceptions for postal workers, caregivers, and family and household members. Arizona enacted H.B. 2023 notwithstanding the dearth of “evidence of any fraud in the long history of third-party ballot collection in Arizona.” As the Ninth Circuit explained, the state legislators who supported H.B. 2023 relied on two pieces of “evidence.”
The first was “farfetched allegations of ballot collection fraud” made by a former state senator who had introduced a predecessor bill that was “motivated by a desire to eliminate the increasingly effective efforts to ensure that Hispanic votes in his district were collected, delivered, and counted.” The second was a “racially tinged video” produced by the Maricopa County Republican Party Chair showing “a man of apparent Hispanic heritage appearing to deliver early ballots.” The video included commentary stating that “the man was … stuff[ing] the ballot box” and that, although it was unknown whether the man “was an illegal alien, a dreamer, or citizen,” he was a “thug.” The video was “widely distributed … on Facebook and YouTube.” There was zero evidence that the man delivering the ballots was engaged in illegal activity.
The rationales underlying H.B. 2023 strongly resemble the unfounded voter fraud allegations surrounding the 2020 election. Indeed, they read like a bad prequel to the past few months.
A key issue in Brnovich is whether racial or partisan considerations motivated H.B. 2023’s passage and provided the underlying rationales for the Arizona legislature’s anti-fraud concerns. As Rick Hasen has shown, the question whether race or party motivated a governmental decision comes up frequently in election law cases given high rates of racially polarized voting. The paradigmatic example arises in the redistricting context, where courts must determine whether a district was drawn along racial or partisan lines. The Supreme Court has required that race predominate in the redistricting context before rigorously reviewing a map. That high threshold has been justified on the pragmatic grounds that mere awareness of race in the redistricting process would risk invalidating virtually every redistricting plan. After all, even casual visitors to, say, Chicago will notice that its south side is predominately black whereas its north side is overwhelmingly white—and redistricting plans are frequently drawn by politicians with intimate knowledge of local demographics.
That framework is inappropriate in a case like Brnovich that involves the fundamental right to cast a ballot. Indeed, in its first-ever decision addressing voter ID laws, the Supreme Court left the door open to this argument. Although the Court concluded that states could pass prophylactic measures even absent evidence of voter fraud, a plurality of Justices observed that a voter ID law would be unconstitutional if “partisan considerations … had provided the only justification.”
In Brnovich, the Court should breathe new life into this language and make clear that it will invalidate pre-textual anti-fraud measures enacted for either racist or partisan reasons. When disentangling a legislature’s reasons for restricting access to the ballot, neither race nor party are proper motivations. We live in an age where claims of voter fraud are often stalking horses for racist or partisan motives—and the Court’s deferential approach has allowed these claims to fester.
This begs the question: does the Roberts Court care about unsubstantiated allegations of voter fraud? While the Court intervened in several pre-election disputes last fall, it assiduously avoided them after the election. Indeed, the Court recently denied cert in the Pennsylvania election cases over the dissents of three Justices. A majority of Justices clearly viewed the cases as radioactive and sought to distance the Court from the election’s partisan fallout. Thus, there is at least some appetite on the Court to avoid disputes about election fraud, and if those Justices are looking for a way to tamp down on such baseless claims, then Brnovich provides that opportunity.
H.R. 1—the omnibus electoral reform package—is scheduled for a House vote later this week. The managers’ amendment to the bill was just released, and includes (among other things) some substantial (and beneficial) changes to the bill’s prohibition of partisan gerrymandering.
First, the amendment bars intentional (not just excessive) gerrymandering: any congressional plan “drawn with the intent . . . of unduly favoring or disfavoring any political party.” To assist in the determination of partisan intent, the amendment creates a rebuttable presumption that a map that wins significant bipartisan support doesn’t have a partisan purpose.
Second, the amendment clarifies that the severity of a plan’s partisan bias is relevant to the assessment of partisan effect. The bill had previously referred only to the durability of a map’s partisan skew. Severity and durability are distinct concepts, of course, and both are important aspects of an effective gerrymander.
Third, and maybe most importantly, the amendment identifies one way in which a plan can have the effect of unduly favoring a party. Based on quantitative measures of partisan fairness like the efficiency gap, the declination, and so on, a plan must be likely to have a partisan bias exceeding one seat (in states with twenty or fewer congressional districts) or two seats (in states with more than twenty congressional districts). Based on alternative maps (most likely generated by a redistricting algorithm), it must also be possible to design a less biased plan that complies with all nonpartisan legal criteria.
Note that this approach to demonstrating partisan effect doesn’t preclude other ways of establishing liability. Note also the convergence between this approach and the plaintiffs’ proposals in Rucho and other partisan gerrymandering cases. Those proposals generally required a large and durable partisan effect that couldn’t be justified by legitimate factors. That’s what this approach calls for, too, only in somewhat more specific language.
From the speech transcript:
Another one of the most urgent issues facing the Republican Party is that of ensuring fair, honest, and secure elections. Such a disgrace. Such a disgrace. Such a disgrace. We must pass comprehensive election reforms and we must do it now. The democrats use the China virus as an excuse to change all of the election rules without the approval of their state legislatures, making it therefore illegal. It had a massive impact on the election. Again, you have to go to the legislatures to get these approvals. This alone would have easily changed the outcome of the election at levels that you wouldn’t have even believed. Even with COVID, even with all of the things, the numbers are staggering. We can never let this or other abuses of the 2020 election be repeated or happen again. Can never let that happen again.
You see what’s going on. We’ve been set back so greatly with other countries and with the world. We need election integrity and election reform immediately. Republicans should be the party of honest elections that can give everyone confidence in the future of our country. Without honest elections, who has confidence? Who has confidence? This issue is being studied and examined, but the reality is you cannot have a situation where ballots are indiscriminately pouring in from all over the country, tens of millions of ballots, where are they coming from? They’re coming all over the place. We’re illegal aliens and dead people are voting, and many other horrible things are happening that are too voluminous to even mention. But people know. I mean it’s being studied and the level of dishonesty is not to be believed.
We have a very sick and corrupt electoral process that must be fixed immediately. This election was rigged and the supreme court and other courts didn’t want to do anything about it.
We did. If you just take that one element where they didn’t go through a legislature, it’s illegal, you can’t do it. It’s in the constitution. They didn’t have the courage, the supreme court, they didn’t have the courage to act, but instead used process and lack of standing. I was told the President of the United States has no standing. It’s my election, it’s your election. We have no standing. We had almost 25 … if you think of it … we had almost 20 states go into the supreme court so that we didn’t have a standing problem. They rejected it. They rejected it. They should be ashamed of themselves for what they’ve done to our country. They didn’t have the guts or the courage to make the right decision. They didn’t want to talk about it. We had the case led by the great State of Texas. 18 States went in. “You don’t have standing.” Let’s not talk about it. They didn’t have the guts to do what should be done.
And that’s on top of all of these other forms of cheating, but this is the most basic of all. They would have local courts and local politicians change the rules in some cases a day or two before the election. This should never be allowed to happen to another presidential candidate or presidential race, should never be allowed to happen.
Today I want to outline the steps that we must take to have an election system in this country that is honest, fair, and accurate. We need one election day, not 45, 30. One day, like it’s been. And the republicans don’t get this, and the other things I’m going to say, that you should, like the supreme court, be ashamed of yourselves. One day. One day. And the only people that should be allowed to vote by mail are people that can be proven to be either very sick or out of the country or military where they can’t do it. One day. They have millions and millions of ballots sitting around all over the place for long periods of time. Gee, I wonder what happens with those ballots? I wonder what happens. It’s common sense. It’s a disgrace. It’s an absolute disgrace.
There should be a legitimate reason for someone to vote absentee, has to have a reason. We should eliminate the insanity of the mass and very corrupt mail-in voting. We must have voter ID. voter ID. To get into the Democratic National Convention, when they had the convention, you needed voter ID. You needed an ID card. You couldn’t get it unless you had an ID. So many people told me, “You can’t get in that place. You need ID. Nobody had ID.” You need voter ID. They know that. This is a con job. They’re conning everybody. They know that. They know the wall was good. They knew the wall would work, but didn’t want to have it because we wanted. I made one big mistake in the world. I should have said, “We will not have a wall.” And then they would have said, “Let’s build a wall.” I made a big mistake. I made a big mistake. I’m sorry. It took us a year and a half extra because of that mistake. “We will not have a wall … We need a wall immediately,” said Chuck Schumer.
We need universal signature matching. They want to pass a bill where you don’t have to match signatures, where signatures don’t mean anything. Now they know it’s … just like with the wall, just like with voter ID, when you need to go into anything that’s Democrat run, you need it. But for voting, which is our most sacred institution, they don’t want to let you have it.
There should be a 100 percent requirement to verify the citizenship of every person who votes and there must be a chain of custody protections for every ballot. Every ballot. And you saw what happened in Detroit and Philadelphia and many other places, swing states mostly. All over, but swing states mostly. You saw what happened. You saw what was going on. You saw that more people … you take a look at the votes, when you have more votes than you have people, that’s a problem, right? Is that a problem? We have a little problem adjusting in Detroit. We seem to have more votes than we have people, a lot more votes, and election changing number. We’re not talking about a number where you can’t … no, these aren’t election changing numbers. In Pennsylvania, they had hundreds of thousands of more votes than they had people voting. What’s that all about? What’s that all about? Cheating they say. Yeah, I’d say so.
In the history of our country, and it has taken place for years in Pennsylvania and Detroit and various other places. But there’s tremendous, never like this, because they used COVID as a way of cheating. That’s what happened. And everybody knows it. Hundreds of thousands and millions of ballots. They used it as a way of getting what they’ve wanted for many years. And the republicans have to do something about it. They better do something about it. Our election process is worse than that in many cases of a third world country. You know that, you saw what was going on. Even if you consider nothing else, it is undeniable that election rules were illegally changed at the last minute in almost every swing state with the procedures rewritten by local politicians … you’re not allowed to do that … and local judges. They want more time, they want this, they want that. All done by local politicians or local judges, as opposed to state legislatures as required by the Constitution of the United States. And these are just numbers that are massive. These aren’t little numbers, these are numbers that in each state is a transformative number. It changes the outcome of the election. And it’s not close. Regardless of your political views, this should concern you as a constitutional matter. And the supreme court, again, didn’t have the guts or the courage to do anything about it. And neither did other judges. And democrats even admitted in Time-
And Democrats even admitted in Time Magazine, which is, I would say on the liberal side. They just couldn’t hold it in. They had to brag about it, because what they did, they had to brag about it. They couldn’t do it. You’ve got to read this story. It’s a disaster. It’s a disaster for our country that we can allow something so corrupt to happen. Read that article. I really encourage you. You read that article. Yet all of the election integrity measures in the world will mean nothing if we don’t have free speech and that’s where we’re at now.
If Republicans can be censored for speaking the truth and calling out corruption, we will not have democracy and we will have only left wing tyranny. And we can do this. We can do this. We’re smarter than they are. We’re tougher than they are. For some reason we just don’t… we don’t get it done. We let them attack our businesses and we don’t attack their businesses. I believe your numbers are bigger than their numbers, but you’re nicer than they are. You’re not as vicious as they are….
While conspiracy theories aren’t new, experts say their reach is spreading — accelerated by social media, encouraged by former President Donald Trump and weaponized in a way that is unprecedented.
Steve Inskeep for NPR.
A six-month delay holding up the data that states use to draw their legislative districts is mangling plans for the 2022 elections, as states discuss postponing primaries and navigating legal deadlines for redistricting that some are now almost certain to miss.
The Census Bureau announced in mid-February that redistricting data — the granular, block-level population counts that are used to draw equal-population political boundaries for state legislatures and the House of Representatives — would be released by Sept. 30 this year, well past the usual delivery date of March 31.
Many states are typically done with redistricting by then, not just starting it, and the delay puts states with early primaries and redistricting deadlines in a difficult position. At least nine states have constitutional or statutory deadlines to redraw their maps, according to the National Conference of State Legislatures, that won’t mesh with such a profound delay in the data delivery. Election officials in some states, such as North Carolina, have recommended moving back early primary dates to make more time for drawing new districts. And both political parties will have to grapple with how to recruit candidates to run for districts that may not exist until just before election season begins.
At 1:51 p.m. on Jan. 6, a right-wing radio host named Michael D. Brown wrote on Twitter that rioters had breached the United States Capitol — and immediately speculated about who was really to blame. “Antifa or BLM or other insurgents could be doing it disguised as Trump supporters,” Mr. Brown wrote, using shorthand for Black Lives Matter. “Come on, man, have you never heard of psyops?”
Only 13,000 people follow Mr. Brown on Twitter, but his tweet caught the attention of another conservative pundit: Todd Herman, who was guest-hosting Rush Limbaugh’s national radio program. Minutes later, he repeated Mr. Brown’s baseless claim to Mr. Limbaugh’s throngs of listeners: “It’s probably not Trump supporters who would do that. Antifa, BLM, that’s what theydo. Right?”
What happened over the next 12 hours illustrated the speed and the scale of a right-wing disinformation machine primed to seize on a lie that served its political interests and quickly spread it as truth to a receptive audience. The weekslong fiction about a stolen election that President Donald J. Trump pushed to his millions of supporters had set the stage for a new and equally false iteration: that left-wing agitators were responsible for the attack on the Capitol.
In fact, the rioters breaking into the citadel of American democracy that day were acolytes of Mr. Trump, intent on stopping Congress from certifying his electoral defeat. Subsequent arrests and investigations have found no evidence that people who identify with antifa, a loose collective of antifascist activists, were involved in the insurrection.
Josh Douglas CNN oped.
Michael Wines for the NYT:
Led by loyalists who embrace former President Donald J. Trump’s baseless claims of a stolen election, Republicans in state legislatures nationwide are mounting extraordinary efforts to change the rules of voting and representation — and enhance their own political clout.
At the top of those efforts is a slew of bills raising new barriers to casting votes, particularly the mail ballots that Democrats flocked to in the 2020 election. But other measures go well beyond that, including tweaking Electoral College and judicial election rules for the benefit of Republicans; clamping down on citizen-led ballot initiatives; and outlawing private donations that provide resources for administering elections, which were crucial to the smooth November vote.
And although the decennial redrawing of political maps has been pushed to the fall because of delays in delivering 2020 census totals, there are already signs of an aggressive drive to further gerrymander political districts, particularly in states under complete Republican control.
The national Republican Party joined the movement this past week by setting up a Committee on Election Integrity to scrutinize state election laws, echoing similar moves by Republicans in a number of state legislatures.
Republicans have long thought — sometimes quietly, occasionally out loud — that large turnouts, particularly in urban areas, favor Democrats, and that Republicans benefit when fewer people vote. But politicians and scholars alike say that this moment feels like a dangerous plunge into uncharted waters.
The avalanche of legislation also raises fundamental questions about the ability of a minority of voters to exert majority control in American politics, with Republicans winning the popular vote in just one of the last eight presidential elections but filling six of the nine seats on the Supreme Court.
The party’s battle in the past decade to raise barriers to voting, principally among minorities, young people and other Democrat-leaning groups, has been waged under the banner of stopping voter fraud that multiple studies have shown barely exists.
“The typical response by a losing party in a functioning democracy is that they alter their platform to make it more appealing,” Kenneth Mayer, an expert on voting and elections at the University of Wisconsin-Madison, said. “Here the response is to try to keep people from voting. It’s dangerously antidemocratic.”
Right Side Broadcasting Network was streaming the Conservative Political Action Conference, and the content was becoming a problem. One of the weekend’s first panels had brought a lawyer for Donald Trump’s 2020 campaign together with other anti-“voter fraud” crusaders, and they suggested that Nevada’s election was stolen for the Democrats.
“We must jump in here and make a small disclosure: We want you to do your own research,” broke in Brian Glenn, a host at the conservative streaming network.
The Republican Party on display at CPAC this weekend was anti-monopoly, anti-free trade, skeptical of foreign wars, girded for economic conflict with China — and frequently invested in things that aren’t true.
Election myths were mentioned often, though rarely the damage they’d led to on Jan. 6, when hordes of Trump supporters fueled by the falsehoods and seeking to block Joe Biden’s election stormed the Capitol.
Robert Barnes WaPo preview of the Brnovich argument.
Days after the 2020 election, House Democrats convened to address some of the party’s most surprising losses, and Democratic Congressional Campaign Committee Chair Cheri Bustos name-checked one in particular: Rep. Debbie Mucarsel-Powell, a freshman from South Florida.
Party data missed a huge surge to the right in her Miami-based district, where voters backed Hillary Clinton by 16 points in 2016 — and then voted for former President Donald Trump by more than 5 points in 2020, after he rebounded with Cuban Americans and other Latino groups.
Traditionally, state legislators and political mapmakers rely heavily on recent election results for clues about how communities will vote in the future — baselines they use to gerrymander advantageous districts for their party. But the whiplash in Trump-era elections make drawing conclusions from those results more complicated this year. And both parties’ strategists know that if they make bad bets, drawing districts based on elections that were driven more by Trump’s singular personality than by trends that will persist until 2030, those mistakes could swing control of the House against them over the next decade.
Ash Center event March 4.
David Primo and Jeff Milyo oped in Roll Call.
Fredreka Schouten and Kelly Mena for CNN.
Ciara Torres-Spelliscy oped.
Jane Timm reports for NBC News.
A faction of local, county and state Republican officials is pushing lies, misinformation and conspiracy theories that echo those that helped inspire the violent U.S. Capitol siege, online messaging that is spreading quickly through GOP ranks fueled by algorithms that boost extreme content.
The Associated Press reviewed public and private social media accounts of nearly 1,000 federal, state, and local elected and appointed Republican officials nationwide, many of whom have voiced support for the Jan. 6 insurrection or demanded that the 2020 presidential election be overturned, sometimes in deleted posts or now-removed online forums.
“Sham-peachment,” they say, and warn that “corporate America helped rig the election.” They call former president Donald Trump a “savior” who was robbed of a second term — despite no evidence — and President Joe Biden, a “thief.” “Patriots want answers,” they declare.
The bitter, combative rhetoric is helping the officials grow their constituencies on social media and gain outsized influence in their communities, city councils, county boards and state assemblies. And it exposes the GOP’s internal struggle over whether the party can include traditional conservative politicians, conspiracy theorists and militias as it builds its base for 2022.
Enrijeta Shino, Mara Suttmann-Lea, and Daniel A. Smith in Political Research Quarterly:
Because of the COVID-19 threat to in-person voting in the November 2020 election, state and local election officials have pivoted to mail-in voting as a potential solution. This method of voting—while safe from a public health standpoint—comes with its own set of problems, as increased use of mail voting risks amplifying existing discrepancies in rejected mail ballots. While some mail ballot rejections are to be expected, a lack of uniformity in whose ballots get rejected among subgroups of voters—whether for mistakes on a ballot return envelope (BRE) or lateness—raise concerns about equal representation. We draw on official statewide voter file and mail-in ballot data from the 2018 midterm election in Georgia, a state that until the pandemic did not have widespread use of mail voting, to test whether some voters are more likely to cast a mail ballot that does not count. Most importantly, we distinguish between ballots rejected for lateness and those rejected for a mistake on the return envelope. We find that newly registered, young, and minority voters have higher rejection rates compared with their counterparts.
President Donald Trump told political advisers Thursday that he’s chosen longtime ally Corey Lewandowski to run a yet-to-be-formed super PAC as part of his expanding post-presidential political apparatus, according to multiple people familiar with the discussion.
The decision was made in a multi-hour meeting at Trump’s Mar-a-Lago estate on Thursday. Trump gathered his top political lieutenants, including Donald Trump Jr., former campaign manager Bill Stepien, former deputy campaign manager Justin Clark, former campaign manager Brad Parscale, former White House social media director Dan Scavino and senior adviser Jason Miller. Alex Cannon, an attorney who has been advising the Trump team on the post-White House plans, was also present.
Lewandowski, himself a former campaign manager for Trump in 2016, did not respond to requests for comment. In a statement, Trump spokesman Jason Miller said the former president will announce more details about his political operation “in the coming weeks.”
Melanie Mason for the LAT.
That’s the title the NYT gave my latest piece. I’ll include an excerpt here, though it’s a bit hard to excerpt this one because I raise reform proposals in four different areas:
American democracy faces alarming risks from extremist forces that have rapidly gained ground in our politics. The most urgent focus of political reform must be to marginalize, to the extent possible, these destabilizing forces.
Every reform proposal must be judged through this lens: Is it likely to fuel or to weaken the power of extremist politics and candidates?
In healthy democracies, they are rewarded for appealing to the broadest forces in politics, not the narrowest. This is precisely why American elections take place in a “first past the post” system rather than the proportional representation system many other democracies use.
What structural changes would reward politicians whose appeal is broadest? We should start with a focus on four areas.
Reform the presidential nomination process
Until the 1970s, presidential nominees were selected through a convention-based system, which means that a candidate had to obtain a broad consensus among the various interests and factions in the party. “Brokered conventions” — which required several rounds of balloting to choose a nominee — offered a vivid demonstration of how the sausage of consensus was made. In 1952, for example, the Republican Party convention selected the more moderate Dwight D. Eisenhower over Robert A. Taft, the popular leader of the more extreme wing of the party, who opposed the creation of NATO. …
How can we restore some of the party-wide consensus the convention system required? The parties can use ranked-choice voting, which allows voters to rank candidates in order of preference. This rewards candidates with broad appeal to a party’s voters, even if they have fewer passionate supporters. … Ranked-choice voting reduces the prospects of factional party candidates. Presidents with a broad base of support can institute major reforms, as Teddy Roosevelt, Franklin Delano Roosevelt, Lyndon Johnson and Ronald Reagan demonstrated.
Reform the party primaries
Many incumbents take more extreme positions than they might otherwise endorse because they worry about a primary challenge.
One way to help defang that threat is to eliminate “sore-loser” laws. These laws, which exist in some form in 47 states, bar candidates who have lost in a party primary from running in the general election as an independent or third-party candidate. Thus, if a more moderate candidate loses in a primary to a more extreme one, that person is shut out from the general election — even if he or she would likely beat the (sometimes extreme) winners of the party primaries. One study finds that sore-loser laws favor more ideological candidates: Democratic candidates in states with the law are nearly six points more liberal and Republicans nearly nine-to-10 points more conservative than in states without these laws. …
Reform gerrymandering
Many reformers agree on the need to take redistricting out of the hands of partisan state legislatures and give it to a commission. In several recent state ballot initiatives, voters have endorsed this change. But that still raises a question: What constitutes a fair map?
Redistricting reform should have as a goal the creation of competitive election districts. Competitive districts pressure candidates from both the left and the right, which creates incentives to appeal to the political center. They also encourage more moderate candidates to run in the first place, because they know they have a greater prospect of winning than in a district whose seat is safe for the other party.
[I’ve left out suggestions for the right direction for campaign finance reform]
Jan. 6 provided a painful demonstration of the dangerous currents gathering in American political culture. Every proposed election reform must now be measured against this reality to make sure political reform furthers American democracy.
I’m aware of ongoing debates about these issues, which there was no space to address in the NYT. My goal was to frame the general question and encourage debate and discussion about these specific proposals, along with additional ones that should be part of the conversation. I’ll respond in later posts or elsewhere to what I expect will be some pushback on some of these ideas.
Amel Ahmed oped in the Washington Monthly.
A well-connected conservative group in Wisconsin nearly succeeded in forcing the state to kick nearly 17,000 eligible voters off its rolls ahead of the 2020 election, new state data reveals.
The group, the Wisconsin Institute for Law and Liberty (Will), caused a national uproar in late 2019 when it successfully convinced a county judge to order the state to immediately remove more than 232,000 people Wisconsin suspected of moving homes from the state’s voter rolls. The state, relying on government records, had sent a postcard to all of those voters asking them to confirm their address, and Will sought to remove anyone who had not responded within 30 days.
Democrats on the commission refused to comply with the order, believing that the underlying data wasn’t reliable, and wanted to give voters until April 2021 to confirm their address before they removed them. Appeals courts intervened and blocked the removals; the case is currently pending before the Wisconsin supreme court. There were still more than 71,000 voters still on the list at the end of January who did not respond to the mailer (152,524 people on the list updated their registration at a new address).
But new data from the Wisconsin Elections Commission shows how disastrous such a purge could have been. And the dispute underscores the way fights over how states remove people from their voter rolls – often called purging – has become a critical part of protecting voting rights in America.
Tribe in The Hill:
Justice Thomas’s solo dissent is another matter altogether. The question at hand concerned only the relationship between a state legislature and the state constitution as construed by the state’s highest court. But Thomas seized the opportunity to rant against the nonexistent dangers of undetectable fraud and to suggest that the 2020 election — the most secure and reliable election in our nation’s history — was clouded by uncertainty that only the U.S. Supreme Court could clarify. While he had to concede that the Pennsylvania Supreme Court’s decision “does not appear to have changed the outcome in any federal election,” his ominous warning that “we may not be so lucky in the future” stoked the same false and self-fulfilling narrative of fear and victimization that on Jan. 6 wrought death and destruction on the epicenter of democracy.
Moreover, Justice Thomas shamelessly distorted the words of Yale Law School’s dean, the distinguished election law scholar Professor Heather Gerken. In the midst of Republicans’ push to pass voter ID laws that ostensibly secured elections but actually disenfranchised Democratic voters, Dean Gerken had observed that anyone bent on pulling off voter fraud on a scale large enough to swing an election would be more likely to “steal some absentee ballots or stuff a ballot box or bribe an election administrator or fiddle with an electronic voting machine.” So here’s the kicker: Gerken’s point was simply that polling places are secure, so they don’t need extra “security” from voter-suppressing ID laws. Her point was not, as Justice Thomas asserted, that mail-in voting is insecure. Turning Dean Gerken’s point upside-down, Justice Thomas cited it for the altogether different and entirely unsubstantiated proposition that voting by mail is unacceptably vulnerable to fraud. Even if that inference could be drawn – which it can’t – it had nothing at all to do with the case before the Court.
Justice Thomas’s opinion is particularly egregious because those most aggrieved can hardly speak up. Joe Biden’s need to govern makes it counterproductive to engage in unending debate about the legitimacy of the 2020 election. Dean Gerken’s role as head of one of our great law schools makes it awkward for her to chastise that school’s own distinguished alumnus, Justice Thomas, for his intellectual dishonesty.
‘This is so disappointing to see.
New oped by Laura Albert and Barry Burden in The Hill.
Can’t wait to read this from Nate Persily and Charles Stewart (forthcoming in the Journal of Democracy). Abstract:
The 2020 election was both a miracle and a tragedy. In the midst of a pandemic, election administrators pulled off a safe, secure, and professional election. Still, lies of voter fraud have cemented in the minds of tens of millions of Americans that the election was rigged.
As the first wave of the pandemic overtook the nation right as the presidential election season was beginning, most states responded by delaying their primaries and maximizing opportunities to vote by mail. We review how the quick actions of many states led to salvaging of the primary season, but also led to two cautionary tales, from Wisconsin and New York, that illustrated the disasters that could befall both mail and in-person voters if the nation did not act quickly. We recount the combination of actions taken by governors, state legislators, health officials, judges, and civil society to adapt election administration to the exigent realities of the pandemic and to cope with the logistical challenges state and local election officials faced.
We discuss metrics of success in the adaptations that took place — record-high turnout, widespread voter satisfaction, a doubling of mail voting without a concomitant increase in problems often associated with absentee ballots, and the recruitment of hundreds of thousands of new poll workers. We also explore how the competing narrative of dysfunction and a “stolen election,” propagated by President Trump and his supporters, led not only to the insurrection at the Capitol on January 1, but also to a historically deep chasm at the mass level between partisans in their trust of the election process and outcome. We conclude by noting that many states will be considering legislation that re-litigates the election by addressing non-problems, rather than building on the triumphs of the election.
Donald Trump transformed these once-obscure officials into either the enemies — or the saviors, as most would have it — of American democracy. Now, campaigns for secretary of state are becoming the next major arena of nationwide political combat.
Sitting secretaries and political groups are preparing for a flood of candidates, money and attention into campaigns for the newly prominent positions in 2022. Voting rules have become a bigger cause for both political parties, while coronavirus-fueled election changes combined with Trump’s conspiracy theories to turn secretaries of state into pivotal characters in last year’s presidential election.
The biggest battleground is likely to be Georgia, where Republican Secretary of State Brad Raffensperger is set to face dual challenges after Trump targeted him for certifying President Joe Biden’s victory there. Democrats are eager to take control of state election administration in Georgia, which has for years been at the center of national debates about voter suppression. But first, Raffensperger may see Trump endorse a primary opponent out of retribution for perceived slights.
“This will be a true test of where the Republican Party is going,” said Jordan Fuchs, who ran Raffensperger’s 2018 campaign and is now deputy secretary of state in Georgia. “There’s some growing pains now that Trump is not the leader of the Republican Party. And these primary elections are going to be defining for us for a very long time.”
Twenty-six states will have secretary of state elections next year, including five of the 10 closest states in the 2020 presidential election, and incumbents from both parties are preparing for tough battles. Michigan Secretary of State Jocelyn Benson, a Democrat up for reelection in 2022, said she will likely have to raise more money than before — but she expects it to be easier now.
Jowei Chen and I have written this column for the Washington Post, exploring the implications of changing the unit of apportionment from all people to adult citizens only. The op-ed is based on our forthcoming article in the California Law Review.
The gerrymandering wars are about to resume. Over the next year, every state in the country will have to redraw its congressional and legislative districts. In anticipation of redistricting, Republicans are eyeing a new tactic: For decades, states have equalized the numbers of people their districts contain. But the GOP is now pushing to equalize districts’ citizen voting-age populations instead. Under this approach, noncitizens and children would be invisible for remapping purposes. Only adult citizens would count. . . .
To find out what would happen if states made the switch, we instructed a computer algorithm to generate millions of statehouse maps for the 10 states with the smallest proportions of adult citizens. The algorithm incorporated line-drawing rules like compactness, respect for county boundaries, and compliance with the Voting Rights Act. But half the maps equalized people, while the other half did conservatives’ bidding by equalizing adult citizens instead.
Our results for minority representation were striking. Across all 10 states, the fraction of districts where minority voters can elect their preferred candidates (usually either Black or Latino, depending on the district’s population) fell by an average of three percentage points when the apportionment base changed from people to adult citizens. In major states such as Arizona, Florida, New York and Texas, this decline exceeded six percentage points. In Texas specifically, roughly 10 minority districts disappeared between the equal-person and the equal-adult-citizen simulations. These districts’ elimination would undo overnight a generation of slow diversification in the Texas Legislature, rendering the body unreflective of the Texas population.
Our partisan findings, however, were considerably less dramatic. Across all 10 states, the share of Republican districts rose by an average of just one percentage point when we switched the unit of apportionment from people to adult citizens. True, Republicans benefited more in a few states, Texas in particular. But in most states we studied, including Arizona, California, Georgia, Illinois and New York, there was effectively no difference in the parties’ fortunes between the equal-person and the equal-adult-citizen simulations. This was because many of the minority districts that vanished from one simulation set to the other remained Democratic. They would typically be represented by non-White Democrats beforehand, and by White Democrats afterward.