“Fusion Could Lower the Temperature”

alternative voting systems

Bill Galston column in the WSJ:

There is mounting evidence that institutional changes below the level of constitutional amendments can increase opportunities for voters to express more-moderate sentiments. Fortunately, our federal system allows for more experimentation along these lines than is available in countries with more centralized political systems.

Ranked-choice voting has been employed at both the municipal and state level, with promising results. CEO turned political reformer Katherine Gehl helped persuade Alaska to endorse a new system that combines a nonpartisan primary with ranked-choice voting to pick the general-election winner from among the top four primary finishers. In their book, “100% Democracy: The Case for Universal Voting,” political analyst E.J. Dionne and former Connecticut Secretary of State Miles S. Rapoport argue for adopting the Australian system, which requires all citizens to vote and enforces this requirement with a fine no larger than a parking ticket. (Full disclosure: I was a member of a working group, which included the book’s authors, that examined this option and recommended its adoption.)

A once-popular option—fusion voting—also deserves renewed attention. In this system, a candidate could be the nominee of more than one political party. The votes cast for this candidate would be tallied separately by party and then combined to determine the candidate’s total support. During much of the 19th century, most states used this system, which had its greatest effect in the three decades after the Civil War, when the two major parties enjoyed nearly equal support, allowing minor parties to influence election outcomes.

This system enabled voters, who weren’t comfortable with the stances of either major party, such as supporters of the Greenback and Populist parties, to cast a ballot without wasting their vote on a candidate with no chance of winning or inadvertently helping their less-preferred major-party candidate win. In addition, fusion voting forced the major-party candidates to compete for nominations. Also, candidates who cared about getting re-elected were more likely to see themselves as the head of a winning coalition and less likely to ignore the preferences of minor-party members of their coalition.

Share this:

Colorado Secretary of State’s brief in Trump disqualification case filled with curious claims

electoral college

It’s hard not to read the brief in Colorado and wonder how in the world these claims are going to proceed in a state trial court.

Here’s one statement that’s contrary to a hundred years of state practice, and offered without citation: “Just as a thirty-year-old should not be listed on a ballot for president because that would violate Section 1 of Article II, neither should a candidate who is determined to have violated Section 3 of the Fourteenth Amendment if that section applies to the candidate’s request for ballot access.” (Emphasis added.) Apparently, states across the country have been “violating” the Constitution for decades in their ballot access rules.

There’s of course no citation to this claim, because it doesn’t exist. The closest support one could find is from Chief Justice Roy Moore’s dissenting opinion in McInnish v. Bennett (Ala. 2014): “the qualifications clause prohibits anyone from being eligible for the office of President who does not meet the three qualifications stated therein. . . . As the gatekeeper for presidential-ballot access in Alabama, the Secretary of State is the official upon whom rests the duty to enforce the qualifications clause. . . . The statement of the Deputy Secretary of State in an agency capacity that the Secretary of State’s ‘office would not investigate the legitimacy of any candidate’ is legally untenable, as is the statement of the Secretary of State in her motion to dismiss that she ‘has no legal duty to investigate the qualifications of a candidate.’ Under both the Supremacy Clause and the oath she took to support the United States Constitution, the Secretary of State has a legal duty to observe the presidential-eligibility requirements of Article II, § 1, clause 4 of the United States Constitution. She may not refuse to recognize this duty without violating her oath of office or offending the Supremacy Clause.” But one could understand why Colorado opted not to cite Chief Justice Moore’s views here.

The brief also adds to the Oath Clause of Article VI of the Constitution: “But the Secretary has sworn a solemn oath to uphold the U.S. Constitution and to effectuate its requirements.” (Emphasis added.) Colorado has added that all officials take an oath to “effectuate” the “requirements” of the Constitution.

The brief includes curious interpretations of Prop 107, which was passed in 2016 by Colorado voters to create a semi-closed primary system in presidential elections. The brief imports the notion that the language of “qualified candidates” extends beyond just those who qualify by party rules but must also qualify under the United States Constitution; and that the intent to comport with “federal law” apparently means excluding ineligible candidates from the ballot, rather than comport with ordinary timing and associational requirements.

That’s just some of the issues. What a mess. The point of the brief is quite obviously to pass responsibility to a court while recognizing that if the court advises the Secretary of State to remove the candidate from the ballot, the Secretary will do so. But it’s not a great path forward.

Share this:

“Fearing Third-Party Spoilers vs. Trump, Biden Allies Try to Squash Them”

ballot access, third parties

NY Times:

Powerful allies of President Biden are aggressively working to stop third-party and independent presidential candidacies, fearing that an outside bid could cost Democrats an election that many believe will again come down to a few percentage points in key battleground states.

As attempts to mount outside campaigns multiply, a broad coalition has accelerated a multipronged assault to starve such efforts of financial and political support and warn fellow Democrats that supporting outsider candidacies, including the centrist organization No Labels, could throw the election to former President Donald J. Trump.

Mr. Biden’s top aides have blessed the multimillion-dollar offensive, which cuts across the party, tapping the resources of the Democratic National Committee, labor unions, abortion rights groups, top donors and advocacy groups backing moderate and liberal Democrats. Even the president has helped spread the word: Mr. Biden, in an interview with ProPublica, said a No Labels candidacy would “help the other guy.”

The endeavor is far-reaching. In Washington, Democratic allies are working alongside top party strategists to spread negative information about possible outsider candidates. Across the country, lawyers have begun researching moves to limit ballot access — or at least make it more costly to qualify.

Share this:

“Drop boxes have become key to election conspiracy theories. Two Democrats just fueled those claims”

Uncategorized

AP:

A woman approaches a drop box in the dark with what appears to be handfuls of ballots. At a different drop box, someone else is seen making multiple trips to insert ballots. At yet another, the same car stops on at least three separate occasions, with different people stepping out and heading to the box.

It’s not a trailer for the latest conspiracy movie about rigged elections. Instead, the video footage has become central to a real-world controversy over potential fraud involving ballot drop boxes, a favorite target of right-wing conspiracy theorists since former President Donald Trump’s loss in the 2020 election.

The accusations of drop box fraud are not coming from those pushing fringe election claims or from skeptical Republicans who have long favored eliminating or severely restricting use of the boxes. They are being made by Democrats — two candidates vying for mayor in Connecticut’s largest city, in a heavily Democratic state that began allowing drop boxes to be used during the COVID-19 pandemic.

Share this:

ELB Book Corner: Michael Kang: “Free to Judge: The Power of Campaign Money in Judicial Elections”

campaign finance, judicial elections

I am pleased to welcome Michael Kang to ELB Book Corner. Michael, along with Joanna Shepherd, is author of the new book, Free to Judge: The Power of Campaign Money in Judicial Elections. Here is the first of three posts:

Thanks to Rick Hasen for the chance to introduce my new book Free to Judge with Joanna Shepherd.  Listserv members may know my work in election law better than my empirical work on judicial behavior, but Joanna and I have spent the last decade studying the relationship among judicial campaign finance, judicial elections, and state supreme court decisions.  Roughly 9 out of 10 state judges face some sort of judicial election either to reach office or keep it, and to paraphrase Justice Scalia, judicial elections mean judicial campaigning, which means judicial campaign finance.  In our book, we document how judicial campaign finance influences and, we argue, actually biases state supreme court decision-making.   

As a basic matter, when we look at the broader pattern of data on campaign finance money and judicial decisionmaking, we find a robust and statistically significant relationship between campaign contributions and elected judges’ decisions in favor of contributors’ interests over a wide range of cases.  The details are in the book and our articles, but we find, for example, that business groups successfully influence state supreme court justices to favor their interests in business cases, controlling for other important factors.  We look at contributions from the broader left and right ideological coalitions and find that money from these coalitions predictably influences decisionmaking toward their respective ideological positions across the spectrum of cases.  We look at contributions from political parties and find that their money is associated with decisions in favor of their candidates in election cases.  That’s just the basic landscape.

We do not argue that money is the only thing that matters in judicial decisionmaking.  Of course, law matters because judges want to apply the substantive law as faithfully as they feel they can.  There are certainly many cases where basically all judges agree, regardless of party, ideology, and campaign money, that the law is clear about how the case should come out.  Many other cases are harder calls, and judges do disagree about how the law applies and how those cases should be decided as a matter of law.  This is where party and ideology, among other things, matter most.  But campaign money matters too.

Why does the money matter?  How does causality work here?  When we’ve presented our work, this question would inevitably come up, and someone always argued that judges might not be influenced (i.e., biased) by campaign money, but instead selected by the money.  Smart contributors may have simply picked well in giving money to judicial candidates who they accurately discerned would decide cases as the contributors want.  The money aligned with judges’ decisions, not because the judges were swayed by the money, but because the contributors and judges were aligned together from the start. 

It’s this question that became the focus of our book.  We realized that we had interesting data that told us a consistent story on this point, which I’ll address tomorrow.

Share this: