President Biden’s Commission on the Supreme Court includes several academic figures with ties to the election-law field, including Guy-Uriel Charles, Michael Kang, Heather Gerken, Bertrall Ross, and me, as well as the Commission’s Co-Chair, Bob Bauer. It’s a terrific group overall, and I look forward to the Commission’s substantive work.
Patrick Marley for the Milwaukee Journal-Sentinel:
The Wisconsin Supreme Court ruled Friday that state election officials do not have to quickly take people off the voter rolls when they suspect they may have moved.
The 5-2 ruling means the Wisconsin Elections Commission will not force tens of thousands of people off the rolls near a major election, such as the 2022 contest for governor and U.S. Senate.
From the outset, the case has been fraught with politics. Conservatives who brought the lawsuit said they wanted to make sure the state’s voter lists are accurate, while Democrats and election officials warned a change in state policy could result in some voters being bumped off the rolls when they shouldn’t be.
The state law at the heart of the lawsuit over when to take voters off the rolls does not apply to the Elections Commission, the majority concluded.
“There is no credible argument that it does,” Justice Brian Hagedorn wrote for the majority.
On January 21, I announced a slowdown at ELB, as I finished a book project, worked on the ALI Torts: Remedies project, and undertook my courses with 200 students this semester.
I am now considering the future of the blog, and whether and how I can continue to support and sustain it.
To that end, it would be very helpful to me to learn about how people use ELB, what they want to see more of and less of, and how things can improve. Survey responses are anonymous.
The survey is here, and it will remain open through April 18. Thanks for reading and completing the survey!
JetBlue Airways Corp. is defending its decision to make a PAC contribution to a lawmaker who objected to the presidential vote certification in January, saying it was resuming donations to candidates who are relevant to its business.
The company had “temporarily paused candidate contributions to understand how PAC contributors wanted to move forward in the current political climate,” said a statement, noting the corporate political action committee’s money comes from voluntary employee contributions. “We found, like the public in general, that contributors have a wide range of opinions and beliefs about current issues.”
The company’s statement was emailed by JetBlue spokeswoman Tamara Young to Bloomberg, which first reported the company’s contribution to Rep. Nicole Malliotakis (R-N.Y.) Malliotakis was among nearly 150 Republican lawmakers who objected to Electoral College votes on Jan. 6, the day pro-Trump rioters tried to interrupt the presidential vote count.
The Texas legislature is advancing a bill that would limit early voting hours, place more restrictions on people who provide assistance with voting, control the number of voting machines at each location and allow partisan poll watchers to record video or photos of people voting, among other measures. The Texas State House is expected to begin hearings on the bill soon, which passed the state Senate around 2 a.m. on April 1 in an 18-13 party-line vote.
Republican state leaders said the omnibus elections bill would improve confidence in elections and set uniform standards across the state’s 254 counties. Democrats said it would make it more difficult to vote, particularly in urban areas and minority districts, and could allow voter intimidation.
The bill, along with others filed in Texas, comes as Republican lawmakers across the country have proposed new limits for mail-in voting and other electoral changes. Georgia emerged as an early hot spot after Republicans passed a bill along party lines in late March that added vote-by-mail identification requirements and limited ballot drop boxes.
Passage of the bill prompted Major League Baseball to pull this year’s All-Star game from Atlanta and garnered opposition from companies including Delta Air Lines Inc. and Coca-Cola Co. Republican Gov. Brian Kemp, who signed the bill, called the criticism partisan.
Opponents to the Texas legislation are trying to build on the Georgia experience by pushing major corporations to come out earlier in opposition to the bill.
Derek Thompson for The Atlantic:
What can we honestly say about the new Georgia voting-rights law? The legislation is based on a craven conspiracy theory about 2020 voter fraud. It has drawn a barrage of criticism from Democrats, including the president, that toes the line between moral indignation and unhelpful hyperbole. And it has triggered a spasm of corporate activism that seems ethical but is, the closer you look at it, scattershot….
Under the new law, registration is harder: An ID rule requires absentee voters to provide the number of their driver’s license or an equivalent state-issued ID. Formerly, they could just sign their name on the application. Requesting a ballot is harder too: Georgians had six months to request an absentee ballot in 2020; with the new law, they have only about three months. And delivering a ballot is harder: The law slashes the number of drop boxes in several urban and suburban areas; metro Atlanta, for instance, had 94 in 2020 but will have only 23 going forward. (Conservatives argue that the law requires drop boxes for the first time, and Democratic counties in Georgia will likely have more drop boxes than they did in 2016. But Georgia Republicans are straightforwardly making it harder to vote absentee just months after Trump falsely accused these ballots of being the source of a voter-fraud fantasy.)
For in-person voters, the Georgia law isn’t as restrictive. Most important, it expands early-voting periods. But the law does little else to reduce Georgia’s infamous long queues, and it even has a strange provision that outlaws offering water to a voter within 25 feet of the line or 150 feet from the polling station. Altogether, the law makes absentee voting harder, funneling citizens toward in-person voting that, on Election Day, may be a bit more parched and a bit more painful.
The most ominous provision of the law affects the final step in the voting process: the official count. The new law removes the Georgia secretary of state as chair of the State Election Board and allows the GOP-controlled legislature to handpick his replacement. “This issue is potentially pernicious,” Richard Hasen, a law and political-science professor at UC Irvine, told me. “The reason you didn’t have a total meltdown in Georgia last year is because you had a heroic secretary of state and a group of election administrators behind him who were not willing to mess with the fair counting of the vote. If this law had passed, there would have been other decision makers who would have had power to mess with the vote.”
I asked several experts if this provision would have made it easier for Trump to steal the state in 2020. “I don’t think we have any way of knowing,” Hasen said. “It’s an imponderable,” agreed the University of Georgia political scientist Charles S. Bullock III. “Could the GOP-selected chair throw out ballots that have already been tabulated, or turn away people from the polls? I don’t know how it would play out, but it would be very difficult to do, and there would be a court case.”
The uncertainty itself is a troubling thing. Across the country, Republican-controlled state legislatures are politicizing the process of voting administration in the aftermath of a close election in which the GOP loser convinced a majority of his supporters that it was stolen by Democratic fraud. That’s plenty eerie.
Jon Ward for Yahoo News:
The political battles over voting laws are at a new fever pitch, with Democrats accusing Republicans of trying to suppress participation by minority voters, and Republicans accusing Democrats of hyperbole and bad-faith objections.
Voting experts say that there are ongoing attempts to enact voter suppression laws and that there is also overheated rhetoric that in some cases has exaggerated the perceived ills of a law passed in Georgia recently.
Voting law expert Rick Hasen, author of “Election Meltdown,” said one of the reasons that the voting wars are so intense is because over the last eight years a key guardrail, which had prevented bad laws from being passed by state legislatures, has gone missing.
While there has been lots of attention on the Democrats’ voting rights bill named the For the People Act, or H.R. 1, there is another bill in Congress that would reduce the existential nature of these debates by restoring that guardrail, namely the “preclearance” provision of the 1965 Voting Rights Act.
That bill is called the John Lewis Voting Rights Act, and a bill similar to it was passed in 2019.
“The important thing to realize is that from 1965 until 2013, Georgia would not be able to do this immediately, and put into effect a potentially suppressive voting law,” Hasen said. “All voting changes had to be approved by the federal government under Section 5 of the Voting Rights Act, which the Supreme Court killed off in the Shelby County case.”…
President Biden has repeatedly referred to Georgia’s new voting law as “Jim Crow on steroids,” while Republicans have insisted that the Georgia law is less restrictive than the ones in place in some blue states such as New York.
But Hasen argues the truth is more complicated and says the new Georgia law “is a mixed bag.”
“Some parts of it actually make some sense in making things better,” Hasen said. “Some parts of it can only be understood as an attempt to suppress the vote among counties where you’re going to find large numbers of minority voters. And some of it is really aimed at making the vote counting process more politicized, which I think is the least covered but most dangerous aspect of the law.”
The biggest problem with the Georgia law, Hasen said, is that “Republicans are feeding the Trumpian base of the Republican Party, which believes the false claims that the election was stolen and it’s something needs to be done.”
John Kruzel for The Hill:
The Supreme Court’s most conservative justices are signaling an interest in issues closely associated with former President Trump, from rules on social media platforms to how elections are governed.
Justice Clarence Thomas this week opined on how Twitter might be more strictly regulated after it banned Trump from its platform and predicted the court would soon be called upon to address Big Tech’s “highly concentrated control” of speech.
He and fellow conservative Justices Samuel Alito and Neil Gorsuch also recently made clear their hope to address whether state officials and courts have the power to make changes to election rules after a number of states relaxed voting restrictions amid the coronavirus pandemic.
Court watchers say these signals can be read as an open call for lawsuits that would tee up the legal issues for the 6-3 conservative majority court to decide….
But at least a third of the justices — Thomas, Alito and Gorsuch — are eager to confront the issue head on and are likely to give the conservative arguments at least a warm reception. They dissented forcefully when the court in February declined to take up pro-Trump election lawsuits that could have teed up the independent state legislature issue for a Supreme Court ruling.
Rick Hasen, a law professor at the University of California Irvine, said the fact that three or more justices believe in a “strong version” of the independent state legislature doctrine sends a clear signal to would-be litigants to raise the claim in future lawsuits.
“Sooner or later, the Supreme Court is going to have to weigh in on the issue,” he said. “I only hope it is in a case that is not of national prominence, like a presidential election.”
A top Georgia Republican said Wednesday that Rudy Giuliani’s false claims of election fraud — which were presented before state lawmakers — created momentum for a package of voting rights restrictions that recently became state law.
“This is really the fallout from the 10 weeks of misinformation that flew in from former President Donald Trump,” Georgia Lt. Gov. Geoff Duncan said on CNN’s “New Day.” “I went back over the weekend to really look at where this really started to gain momentum in the legislature, and it was when Rudy Giuliani showed up in a couple of committee rooms and spent hours spreading misinformation and sowing doubt across, you know, hours of testimony.”
Duncan’s remarks highlight the continuing aftermath from a pair of appearances Giuliani made before Georgia state lawmakers in December when he was serving on Trump’s legal team. Giuliani tried, unsuccessfully, to convince legislators to convene a special session to overturn Joe Biden’s victory in the state. In addition to building momentum for new voting restrictions, Giuliani’s appearances have also piqued the interest of Fulton County District Attorney Fani Willis, who is investigating Trump’s efforts to influence Georgia’s election results….
Georgia GOP officials who helped thwart Trump’s efforts to overturn Georgia’s election results have supported some components of the new legislation while panning other aspects of it, particularly the efforts to rein in the secretary of state’s authorities.
“The secretary of state did a great job. I think that was one of the parts, too, that concerned me about the final passage of the law, which ultimately was a culmination of Democratic and Republican ideas,” Duncan told CNN.
“But some of the punitive, you know, responses to taking Raffensperger off that elections board was just trying to tip their hat to Donald Trump, and I just didn’t think that was a necessary step.”
In an interview with AL.com on Wednesday morning, Merrill denied having had an affair and accused Cesaire McPherson of “stalking” and “harassing” him.
McPherson declined to answer questions on the record Wednesday, instead providing a recording and a short statement.
“I don’t want to say anything other than here’s the proof that John Merrill is a liar,” she said. “Here’s the true John Merrill.”
McPherson provided Al.com with a recording of an October 2020 conversation between her and Merrill, who is a Republican. In the 17-minute recording, Merrill and McPherson discuss various sexual acts they performed during dozens of romantic encounters that McPherson says took place between November 2017 and November 2020. During the conversation, Merrill seems to try to end his relationship with McPherson, who was reluctant to break off the affair. He told her they had met for the last time and that he was seeking help from the Lord to stay away from her.
After being played a portion of the recording Wednesday, Merrill, who is married with two children, told AL.com “there’s no excuse” for his extramarital relationship.
Attorney General Dana Nessel on Tuesday asked a federal judge to consider GOP lawyer Sidney Powell’s “stunning admissions” in deciding whether to sanction her for a lawsuit filed after the November election in Michigan’s federal eastern district court.
In defending herself against a separate $1.3 billion libel suit from Dominion Voting Systems, Powell said “no reasonable person” could conclude her statements about Dominion were “truly statements of fact.” Powell also said it was the court’s responsibility, not hers, to investigate the truth of the statements.
The statements, Nessel wrote in a Tuesday motion, “go to the heart” of the argument for sanctions against Powell.
Powell “all but admits that she and her co-counsel here have engaged in sanctionable conduct before this court,” Nessel wrote. “…That approach to litigation is sanctionable under any standard.”
As Americans last year debated the elections, Victor Sauceda endured tough conversations with friends and others talking about their votes.
Sauceda, 31, was released from prison in October 2019, he said, after serving time for felony convictions — meaning he couldn’t vote last November.
“I just feel that shame that goes along with it, telling them I could not vote,” said Sauceda. “I felt like I was not good enough to vote.”
That dynamic changed Wednesday as Gov. Jay Inslee signed a bill restoring the right to vote for Washingtonians convicted of felonies automatically upon their release from incarceration.
Under House Bill 1078, roughly 20,000 people would regain their right to vote, according to the state Department of Corrections.
Today, the Bipartisan Policy Center’s Task Force on Elections released its latest series of recommendations focused on improving the whole of the American election ecosystem.
Entitled Improving the Voting Experience After 2020, these 12 recommendations highlight the tangible steps states and local jurisdictions must take to provide the accessible and secure election ecosystem that Americans expect. The pandemic ushered in a burst of election administration transformation borne of necessity. Long-term, sustainable election rules only work when they incorporate the unique perspectives and expertise of election administrators representing voters across the political spectrum.
“The 2020 election showed us just how fortunate American voters are to have dedicated election professionals securing their right to vote,” said Matthew Weil, director of BPC’s Election Project. “This task force report builds on the lessons learned in 2020 to develop forward thinking reforms that increase access and transparency across the country.”
The Bipartisan Policy Center launched the Task Force on Elections in February 2019. It is comprised of a geographically and politically diverse group of state and local election officials devoted to making meaningful improvements to United States elections. Members were selected for a variety of reasons to aid in this goal; among them are the partisan preferences of the jurisdictions they serve, the region of the country in which they live, and their perspective on election administration from either the state or local level.
View the full report here.
From a WaPo oped, “I will not vote to eliminate or weaken the filibuster:”
There is also bipartisan support for voting reform and many of the initiatives outlined in the For the People Act. Our ultimate goal should be to restore bipartisan faith in our voting process by assuring all Americans that their votes will be counted, secured and protected. Efforts to expand voting hours and access, improve our election security and increase transparency in campaign finance and advertisement rules should and do have broad, bipartisan support and would quickly address the needs facing Americans today. Taking bipartisan action on voting reform would go a long way in restoring the American people’s faith in Congress and our ability to deliver results for them.
It’s very hard to see where there could be 60 votes in the Senate right now for any package of election reform that would be meaningful.
Here’s what Nate Persily told Tom Edsall:
Along parallel lines, Nate Persily, a law professor at Stanford, emailed his view that
The next two years may be the last chance for the Democrats (and the country) to pass significant election reform. The filibuster stands in the way. Declaring that only voting policy that can attract 60 votes should be passed, is tantamount to saying that no voting reform should be passed.
Inaction by the federal government “will necessarily lead to greater divergence among the states,” Persily continued:
One set of states will codify the accommodations that were made to deal with the pandemic and to make voting more accessible. Another set of states will make voting more difficult in the name of election integrity but in service to the Big Lie that the 2020 election was marred by fraud.
Despite the logic of these claims, Manchin — who has held statewide office in West Virginia for the past 20 years and is also the last Democrat to hold statewide office at all — could emerge, at least momentarily, as a hero to fellow liberals across the country. But joining forces with fellow Democrats has the earmarks of political suicide
|AALS is pleased to announce the list of speakers for the upcoming Conference on Rebuilding Democracy and the Rule of Law.|
|This virtual, nonpartisan Conference, co-hosted by the American Bar Association and the Law School Admission Council, will take place from 11 am – 6 pm Eastern/8 am – 3 pm Pacific on May 6 and 7. We encourage faculty who wish to participate in chat discussions during the conference sessions to register in advance via the button below. Students, media, and other interested parties will be invited to watch the conference via livestream rather than register—details on how to access the stream will be forthcoming.|
|The Conference on Rebuilding Democracy and the Rule of Law emerged from the widespread sense, shared by those across the political spectrum, that crucial aspects of our democracy need reform. Although there is surely disagreement over the nature of the problems and the best solutions, few would deny that our democracy can be improved. The goal of the Conference is to bring together law professors, lawyers, and others with expertise to consider how to rebuild democracy and strengthen the rule of law. The Conference will focus on four themes: (1) the presidency; (2) the electoral process; (3) race and voting rights; and (4) improving presidential elections. The Call for Papers for the conference is open until April 23.|
Jesse Wegman column for the NYT.
From Politico’s Huddle:
Freshman Rep. Marjorie Taylor Greene (R-Ga.), the controversial MAGA firebrand, raised over $3.2 million in the first three months of this year, according to a source close to her campaign. That eye-popping haul came from over 100,000 individual donors, for an average donation of $32. Greene did not self-fund this quarter, the source added.
That is a staggering sum of money for a House member, especially for a freshman who is more than a year out from her next election. For context, Rep. Alexandria Ocasio-Cortez (D-N.Y.), then a freshman, raked in $728,000 in the first quarter of 2019.
Greene appears to have actually benefited from all the controversies that have consumed her first few months in office. She directly fundraised off of Democrats’ decision to kick her off her committees for past incendiary rhetoric and warned her supporters that Democrats are trying to expel her from Congress. Greene is also still a fan favorite in Trumpworld: she met with Donald Trump at Mar-a-Lago last week and they posed for a video together.
“Over 100,000 individual donations says it all. The People are with Marjorie Taylor Greene and her America First agenda. It’s clear she’s the heir to President Trump,” said the source close to her campaign. “While politicians inside the Beltway attack her daily, Americans are rushing to stand beside the Notorious MTG as she fights tooth and nail on the House floor utilizing procedural tactics to shut down Nancy Pelosi and the Democrats’ hostage takeover of Congress.”
UPDATE: Bill Allison at Bloomberg: “Greene broke the House record for an incumbent by raising more than $3.2 million from 100,000 donors, according to a campaign aide, with an average donation of $32. The previous high for the first quarter of a non-election year was the $2.9 million that former House Speaker Paul Ryan raised in 2017.”
One of the most heavily contested voting-policy issues in the 2020 election, in both the courts and the political arena, was the deadline for returning absentee ballots. Now that it’s possible to get data on this issue, I put together an essay for The Conversation that looks at what we can learn about how much these deadlines — including last-minute changes in them — did or did not lead to significant numbers of ballots coming in too late to be valid.
Here is a summary of what I found:
Perhaps surprisingly, the number of ballots that came in too late to be valid was extremely small, regardless of what deadline states used, or how much that deadline shifted back and forth in the months before the election. The numbers were nowhere close to the number of votes that could have changed the outcome of any significant race.
One of the focal points of these battles was Wisconsin, which led to the Supreme Court’s most controversial decision regarding the general election:
In Wisconsin, state law required absentee ballots to be returned by Election Night. The federal district court ordered that deadline extended by six days. But the Supreme Court, in a 5-3 decision, blocked the district’s court order and required the deadline in the state’s election code to be respected.
Writing for the three dissenters, Justice Elena Kagan invoked the district court’s prediction that as many as 100,000 voters would lose their right to vote, through no fault of their own, as a result of the majority’s ruling that the normal state-law deadline had to be followed. Commentators called this a “disastrous ruling” that “would likely disenfranchise tens of thousands” of voters in this key state.
The post-election audit now provides perspective on this controversy that sharply divided the court. Ultimately, only 1,045 absentee ballots were rejected in Wisconsin for failing to meet the Election Night deadline. That amounts to 0.05% ballots out of 1,969,274 valid absentee votes cast, or 0.03% of the total vote in Wisconsin.
Minnesota was another state that saw prolonged legal battles over this issue:
The fight over ballot deadlines in Minnesota was even more convoluted. If voters were going to be confused anywhere about these deadlines, with lots of ballots coming in too late as a result, it might have been expected to be here.
State law required valid ballots to be returned by Election Night, but as a result of litigation challenging that deadline, the secretary of state had agreed in early August that ballots would be valid if they were received up to seven days later.
But a mere five days before the election, a federal court pulled the rug out from under Minnesota voters. On Oct. 29, it held that Minnesota’s secretary of state had violated the federal Constitution and had no power to extend the deadline. The original Election Night deadline thus snapped back into effect at the very last minute.
Yet it turns out that only 802 ballots, out of 1,929,945 absentees cast (0.04%), were rejected for coming in too late.
For comparison, I looked at a battleground state where the Election Day deadline remained fixed throughout the run-up to the election:
Among battleground states, Michigan provides an example. Only 3,328 ballots arrived after Election Day, too late to be counted, which was 0.09% of the total votes cast there.
What accounts for these extremely low rates of ballots coming in late, despite all the controversies over these deadlines?
Voters were highly engaged, as the turnout rate showed. They were particularly attuned to the risk of delays in the mail from seeing this problem occur in the primaries. Throughout the weeks before the election, voters were consistently returning absentee ballots at higher rates than in previous elections.
The communications efforts of the Biden campaign and the state Democratic parties, whose voters cast most of these absentee votes, got the message across about these state deadlines. Election officials did a good job of communicating these deadlines to voters. In some states, drop boxes that permitted absentee ballots to be returned without using the mail might have helped minimize the number of late arriving ballots, though we don’t have any empirical analysis on that.
In a highly mobilized electorate, it turns out that the specific ballot-return deadlines, and whether they shifted even late in the day, did not lead to large numbers of ballots coming in too late.
That’s a tribute to voters, election officials, grassroots groups – and to the campaigns.
Donald Trump “incited that bloody insurrection for nothing more than selfish reasons, perpetuated by the bullshit he’d been shoveling since he lost a fair election the previous November. . . . He claimed voter fraud without any evidence, and repeated those claims, taking advantage of the trust placed in him by his supporters and ultimately betraying that trust.”
—Former House Speaker John Boehner, in his forthcoming book, as reported by the NY Times
What fantastic news, for HLS students and for those who will benefit from their work!
Here’s an article about the Election Law Clinic launching this summer at Harvard Law School, as well as a Q&A with the Director, Ruth Greenwood. This is a very exciting development that will further add to HLS’s offerings in the election law space.
Harvard Law School today announced the launch of the new Election Law Clinic. Aimed at providing law students with direct hands-on experience in litigation, legislation, administrative practice, and policymaking, the new clinic will give students the opportunity to work on a broad range of cutting-edge issues in areas such as redistricting, voting rights, campaign finance, and party regulation.
While many of the top law schools now offer courses in election law, Harvard is the first law school in the country to launch an in-house clinic designed entirely around a practice in election law. The Election Law Clinic joins the 46 legal clinics and student practice organizations that make up the school’s clinical program.
Ruth Greenwood, who joined HLS in January 2020 as a lecturer in law and launched the Voting Rights Advocacy and Litigation externship clinic, will direct the expanded in-house Election Law Clinic.
Mississippi’s top election official says he is worried that the nation will suffer if more “woke” and “uninformed” college students become registered voters. Mississippi Secretary of State Michael Watson made that remark in a televised interview while describing President Joe Biden’s March 6 executive order on “promoting access to voting.”
Among other things, the president’s executive order directs the heads of federal agencies to develop strategic plans to “promote voter registration and participation,” possibly including “distributing voter registration and vote-by-mail ballot applications in the course of regular services.”
On March 26, Watson claimed during an interview with WLOX that Biden was “basically employing all the federal agencies, universities and colleges to register as many folks as they can via this automatic voter registration.” Biden’s order does not mention colleges, universities or automatic registration.
“So think about all those woke college and university students now who will automatically be registered to vote whether they wanted to or not. Again, if they didn’t know to opt-out, they’re going to be automatically registered to vote and then they receive this mail-in ballot that they probably didn’t know was coming because they didn’t know they were registered to vote,” the Mississippi Republican said.
“Woke” is a term that originated in Black culture to describe enlightenment on issues of systemic racism and white supremacy. As a national race awakening swept the nation over the past year, though, many white Republican and conservative politicians, including U.S. Sen. Roger Wicker and Republican Senate Minority Leader Mitch McConnell, have increasingly begun using “woke” as an epithet to mock or criticize proponents of anti-racist ideas….
In the WLOX interview, Watson made additional claims about Biden’s March 6 executive order, positing an additional scenario where he implied the president could be sneakily registering people to vote without their knowledge.
“So you think about the (Gulf) Coast, we have a hurricane, FEMA comes in, we get FEMA help. On that FEMA application now is going to be an area for voter registration, and it’s automatic voter registration unless you opt out,” Watson claimed.
The White House declined to respond to Watson’s remarks, but a copy of the executive order and a March 6 White House statement announcing the order provides no evidence for these claims. The order does not offer any specific directive for colleges, universities or FEMA. It also does not mention using unrelated forms for automatic voter registration or requiring people to “opt out” of becoming registered to vote.
Instead, it orders federal agencies to “evaluate ways in which the agency can, as appropriate and consistent with applicable law, promote voter registration and voter participation.” The agency heads should consider “ways to provide relevant information in the course of activities or services that directly engage with the public,” it says, including through “agency materials, websites, online forms, social media platforms, and other points of public access” on “how to register to vote, how to request a vote-by-mail ballot, and how to cast a ballot in upcoming elections.”
The order also directs the agency heads to find “ways to facilitate seamless transition from agencies’ websites directly to State online voter registration systems.” The heads must submit “a strategic plan outlining the ways identified under this review that the agency can promote voter registration and voter participation” within 200 days, Biden’s order says.
Must-read Larry Norden:
In the past 12 months, American election officials have been heralded for their courage and commitment in carrying out the most logistically challenging election in modern times—with record turnout, no less. They have also been attacked as villains by those who believe the Big Lie, that the election was somehow stolen from then President Donald Trump. Election officials—who before 2020 had been largely ignored by the Twittersphere and conspiracy theorists—became the targets of thousands of false accusations, protests at their workplaces, and even harassment and threats.
Such mistreatment is now taking a new and possibly even more sinister form. Legislation in several states proposes to strip election officials of their power to act on behalf of voters and to criminalize various actions they might take in the course of performing their duties. These bills add the danger of arrest and prosecution to already challenging working conditions. They should be beaten back by all who are committed to preserving American democracy.
The recently passed law in Georgia is just one example. The law has rightly been criticized for its suppressive provisions, such as one that makes it a crime for volunteers to provide in-person voters with water, even when they’ve been waiting in line for hours. Less noticed are provisions that take key powers away from election officials. SB 202 removes Georgia’s secretary of state—who stood up to Trump’s efforts to overturn the state’s 2020 results—from the position of chair of the state election board and turns control of the board over to the state legislature. That newly constituted board is in turn given more power to intervene in the activity of local election boards, including by removing and replacing local board members. Reasonable people can disagree as to what is the best structure of a state election board, but all should be opposed to retaliating against an office for its holder’s refusal to bend to inappropriate and extreme political pressure.
Other bills targeting election officials and workers have been introduced in at least seven states. In many cases, the new bills threaten these workers with criminal prosecution for conduct undertaken while performing their jobs. In March, for example, Iowa Governor Kim Reynolds signed a bill creating a slew of new crimes related to election officials’ work, including a catchall “failure to perform duties.” The law was enacted just days after threats to local election officials in her state had escalated beyond name-calling and online abuse: in early March, a live pipe bomb was found in a polling place open for a local election.
Key point from Jonathan Bernstein:
So even those aspects of the new law that are unlikely to help Republicans win elections may still amount to a retreat from practical political equality.
There’s more. Some provisions empower the state legislature to act as a sort of election-administrator-of-last-resort. It’s not clear how dangerous this really is. But anyone who paid attention during the 2020 election understands that many Republicans, from Trump on down, are prepared to exercise whatever authority they have to declare themselves winners, regardless of what voters want. The last thing we need are vague new election laws that invite parties to overturn election results by fiat.
Finally, even if the law’s defenders are correct that it doesn’t open any doors to flat-out undemocratic abuse, everyone agrees that it punishes Georgia Secretary of State Brad Raffensperger by stripping his office of its authority. That alone makes the outrage over this law justified. Raffensperger was one of several Republicans who stood up to Trump’s bullying and did their job according to the law, which is partly why the 2020 elections were unusually well-administered. Republicans should be proud of Raffensperger. Instead, by punishing him, they’re sending a clear signal to party politicians: Only raw partisan warfare and constitutional hardball are welcome in today’s Republican Party.
So: Yes, it’s perfectly fine to talk about how the law might directly affect turnout and electoral outcomes. In fact, we need that sort of analysis. But anyone who limits their overall analysis of the law to the (yes, overhyped) immediate consequences of those provisions needs to step back and look at the bigger picture.
This Bloomberg piece has a lot of good data on which candidates benefit most and least from small donations. Some excerpts:
Democrats in Congress are trying to increase the clout of small donors, yet a provision in their voting-rights legislation risks favoring candidates from either party who hold polarizing views and widening ideological divisions on Capitol Hill….
“It will cause absolute chaos,” said Jim Moran, a former Democratic representative from Virginia. Moran, who served as mayor of Alexandria, Va., before entering Congress, said the legislation would give an advantage to inexperienced candidates. “This skips all of that traditional process and empowers people who have a provocative idea and can gain attention.”…
Less outspoken members of Congress, on the other hand, don’t attract as much support from small-dollar donors. Members of the Problem Solvers Caucus, a bipartisan group of lawmakers who try to craft balanced policy, raised just 9.5% of their re-election funds from contributors giving less than $200….
“If you think members of Congress were running scared of compromising, this’ll amp that up,” said Ray La Raja, a political scientist at the University of Massachusetts at Amherst. Candidates like Gottheimer, who raised $7.7 million with just 2.4% of that amount coming from small-dollar donors, would have to worry about better-financed opponents from the extreme right or left.
La Raja’s research has shown that small-dollar donors tend to be wealthier, better educated and more partisan than average Americans. “They are as ideological, if not more so on several issues, than large donors,” he said.
Ciara Torres-Spellicsy for TPM.
I have an op-ed in the USA Today (thanks to the great editors there) examining the high risk/high reward nature of the Newsom recall. Expanding a little on it here:
So far, the Republicans (who, it should be noted are not all of the petitioners, but clearly the vast majority) seem to be viewing the recall as a “when you got nothing, you got nothing to lose” event. The party has been driven so low, that might as well roll on the dice on the recall.
However, there’s another, more recent Bob Dylan quote that may be applicable, namely: “when you think that you lost everything, you find out you can always lose a little more.”
One new factor of this recall is it is coming right before Newsom’s reelection run. Walker’s recall was a year and half into his term; Davis’ was in the first year (and he was term-limited); Lynn Frazier in 1921 only had a two-year term, and it was half through. So what does this mean?
Quite possibly, if Newsom racks up a big victory (and recalls have many blowouts) what happens in 2022? Newsom will have already spent an enormous amount of money burning his name into the brains of all Californians. He is getting to road test his machine. Who is looking to challenge Newsom in this reelection run if the biggest names just got stomped on the recall?
NYT Upshot column:
What would have happened if the Georgia secretary of state, Brad Raffensperger, had responded, “OK, I’ll try,” in a January phone call after President Trump asked him to “find” 11,000 votes?
No one can be sure. What is clear is that the question has been overlooked in recent months. Public attention has mostly moved on from Mr. Trump’s bid to overturn the election; activists and politicians are focused more on whether to restrict or expand voting access, particularly by mail.
But trying to reverse an election result without credible evidence of widespread fraud is an act of a different magnitude than narrowing access. A successful effort to subvert an election would pose grave and fundamental risks to democracy, risking political violence and secessionism.
Beyond any provisions on voting itself, the new Georgia election law risks making election subversion easier. It creates new avenues for partisan interference in election administration. This includes allowing the state elections board, now newly controlled by appointees of the Republican State Legislature, to appoint a single person to take control of typically bipartisan county election boards, which have important power over vote counting and voter eligibility.
The law also gives the Legislature the authority to appoint the chair of the state election board and two more of its five voting members, allowing it to appoint a majority of the board. It strips the secretary of state of the chair and a vote.
Even without this law, there would still be a risk of election subversion: Election officials and administrators all over the country possess important powers, including certification of election results, that could be abused in pursuit of partisan gain. And it’s a risk that H.R. 1, the reform bill congressional Democrats are pushing, does relatively little to address.
This is an urgent topic that is analytically distinct from the voter suppression concerns with the Georgia law. Although Nate links here to my recent WaPo column on what to include in H.R. 1, and suggests that it is missing a requirement of “nonpartisan election administration,” I’m not sure that would be so easy for Congress to write in terms of the structure that would apply, and it would be much harder to implement than for the one time act of drawing legislative districts.
But I have written about this question in my book, Election Meltdown, and some other recent pieces of mine discuss this question of election subversion and what to do about it:
We Can’t Let Our Elections Be This Vulnerable Again (The Atlantic) (suggesting changes to the rules for counting and certifying electoral college votes)
And much more about this coming in my other writings, including my forthcoming “Cheap Speech” book
Alexander Fouinaies in APSR. Abstract:
In more than half of the democratic countries in the world, candidates face legal constraints on how much money they can spend on their electoral campaigns, yet we know little about the consequences of these restrictions. I study how spending limits affect UK House of Commons elections. I contribute new data on the more than 70,000 candidates who ran for a parliamentary seat from 1885 to 2019, and I document how much money each candidate spent, how they allocated their resources across different spending categories, and the spending limit they faced. To identify the effect on elections, I exploit variation in spending caps induced by reforms of the spending-limit formula that affected some but not all constituencies. The results indicate that when the level of permitted spending is increased, the cost of electoral campaigns increases, which is primarily driven by expenses related to advertisement and mainly to the disadvantage of Labour candidates; the pool of candidates shrinks and elections become less competitive; and the financial and electoral advantages enjoyed by incumbents are amplified.
Jamelle Bouie NYT column:
The laws that disenfranchised Black Americans in the South and established Jim Crow did not actually say they were disenfranchising Black Americans and creating a one-party racist state.
I raise this because of a debate among politicians and partisans on whether Georgia’s new election law — rushed through last month by the state’s Republican legislature and signed by Gov. Brian Kemp, a Republican — is a throwback to the Jim Crow restrictions of the 20th century.
Democrats say yes. “This is Jim Crow in the 21st century. It must end,” President Biden said in a statement. Republicans and conservative media personalities say no. “You know what voter suppression is?” Ben Shapiro said on his very popular podcast. “Voter suppression is when you don’t get to vote.”
The problem with the “no” argument here is that it mistakes both the nature and the operation of Jim Crow voting laws. There was no statute that said, “Black people cannot vote.” Instead, Southern lawmakers spun a web of restrictions and regulations meant to catch most Blacks (as well as many whites) and keep them out of the electorate. It is true that the “yes” argument of President Biden and other Democrats overstates similarities and greatly understates key differences — chief among them the violence that undergirded the Jim Crow racial order. But the “no” argument of conservatives and Republicans asks us to ignore context and extend good faith to lawmakers who overhauled their state’s election laws because their party lost an election.
Southern lawmakers at the turn of the 20th century weren’t shy about their motives — “Whenever there were political questions involved, of course, we looked to the interests of the party, because they are the interests of the State,” one Democratic delegate to the 1898 Louisiana constitutional convention, which sharply restricted the franchise, said at the time — but their laws had to be more circumspect. “Those who sought to prune the Southern electorate were hampered by various constitutional restrictions,” the historian J. Morgan Kousser explained in his 1974 book, “The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910.”
Between the Fifteenth Amendment, which prohibited overt discrimination on the basis of “race, color, or previous condition of servitude” and the Fourteenth Amendment, which allowed Congress to slash the representation of states that disenfranchised adult males for any reason other than crime or rebellion, Southern lawmakers could not just write Black voters out of the electorate. “The disenfranchisers were forced to contrive devious means to accomplish their purposes,” Kousser writes.
According to Kousser, the first wave of suffrage restriction after Reconstruction relied primarily on laws and practices that “decreased the influence of opposition voters but did not actually prohibit them from exercising the franchise.” Some states, for example, took the right to name their local officials away from voters and granted it to governors and state legislatures, a practice that “guaranteed that white Democrats would rule even in Republican areas.”…
Three months after a mob of Trump supporters stormed the Capitol to try to overturn his November election loss, about half of Republicans believe the siege was largely a non-violent protest or was the handiwork of left-wing activists “trying to make Trump look bad,” a new Reuters/Ipsos poll has found.
Six in 10 Republicans also believe the false claim put out by Trump that November’s presidential election “was stolen” from him due to widespread voter fraud, and the same proportion of Republicans think he should run again in 2024, the March 30-31 poll showed.
Since the Capitol attack, Trump, many of his allies within the Republican Party and right-wing media personalities have publicly painted a picture of the day’s events jarringly at odds with reality.
Hundreds of Trump’s supporters, mobilized by the former president’s false claims of a stolen election, climbed walls of the Capitol building and smashed windows to gain entry while lawmakers were inside voting to certify President Joe Biden’s election victory. The rioters – many of them sporting Trump campaign gear and waving flags – also included known white supremacist groups such as the Proud Boys.
In a recent interview with Fox News, Trump said the rioters posed “zero threat.” Other prominent Republicans, such as Senator Ron Johnson of Wisconsin, have publicly doubted whether Trump supporters were behind the riot.
Lawmakers and experts have been critical of Facebook’s groups feature, claiming the mostly private spaces have become hubs for coronavirus misinformation and extremism.
But The News Alerts of Beaver County isn’t home base for a gun-wielding militia, and it isn’t a QAnon fever swamp. In fact, the group’s focus on timely and relevant information for a small real-world community is probably the kind that Chief Executive Mark Zuckerberg envisioned when he pivoted his company toward communities in 2017.
And yet, the kind of misinformation that’s traded in The News Alerts of Beaver County and thousands of other groups just like it poses a unique danger. It’s subtler and in some ways more insidious, because it’s more likely to be trusted. The misinformation — shared in good faith by neighbors, sandwiched between legitimate local happenings and overseen by a community member with no training but good intentions — is still capable of tearing a community apart.
Republicans are attacking corporations over their decision to condemn the controversial Georgia voting law, part of the party’s embrace of the populism espoused by President Donald Trump even as it creates tensions with traditional allies in the business community.
Senate Minority Leader Mitch McConnell (R-Ky.) on Monday accused corporations of siding with Democrats’ portrayal of the law as the new Jim Crow, which he called an attempt to “mislead and bully the American people.” He argued that it would expand, not restrict, voter access to the polls and his statement included a threat of unspecified “serious consequences” if companies continued to take sides opposite Republicans on a variety of issues.
“From election law to environmentalism to radical social agendas to the Second Amendment, parts of the private sector keep dabbling in behaving like a woke parallel government,” McConnell said in his statement. “Corporations will invite serious consequences if they become a vehicle for far-left mobs to hijack our country from outside the constitutional order.”
Sen. Marco Rubio (R-Fla.) made similar remarks in questioning why Republicans should listen to companies on policy issues after they embrace positions at odds with the party.
“Why are we still listening to these woke corporate hypocrites on taxes, regulations & antitrust?” he tweeted Friday.
When executives from Coca-Cola and Delta Air Lines spoke out against Georgia’s new voting law as unduly restrictive last week, it seemed to signal a new activism springing from corporate America.
But if leaders of the nation’s most prominent companies are going to reject lawmakers who support restrictive voting measures, they will have to abruptly reverse course.
State legislators across the country who have pushed for new voting restrictions, and also seized on former President Donald Trump’s baseless claims of election fraud, have reaped more than $50 million in corporate donations in recent years, according to a new report by Public Citizen, a Washington-based government watchdog group.
Telecom giant AT&T was the most prolific, donating over $800,000 since 2015 to authors of proposed restrictions, cosponsors of such measures, or those who voted in favor of the bills, the report found. Other top donors during the same period include Comcast, Philip Morris USA, UnitedHealth Group, Walmart, Verizon, General Motors and Pfizer.
After Mr. Trump’s equivocating response to the white nationalist violence in Charlottesville, Va., in 2017, Ken Frazier, the Black chief executive of Merck, resigned from a presidential advisory group, prompting dozens of other top executives to distance themselves from the president. Last year, after the killing of George Floyd, hundreds of companies expressed solidarity with the Black Lives Matter movement.
But for corporations, the dispute over voting rights is different. An issue that both political parties see as a priority is not easily addressed with statements of solidarity and donations. Taking a stand on voting rights legislation thrusts companies into partisan politics and pits them against Republicans who have proven willing to raise taxes and enact onerous regulations on companies that cross them politically.
It is a head-spinning new landscape for big companies, which are trying to appease Democrats focused on social justice, as well as populist Republicans who are suddenly unafraid to break ties with business. Companies like Delta are caught in the middle, and face steep political consequences no matter what they do.
In the weeks after the 2016 election, we were all trying to explain how Donald Trump had, somehow, narrowly won the presidency. And one phrase that had cropped up just before the election was suddenly on the lips of many analysts: “fake news.” Deliberate election disinformation from dubious websites had infected such social media platforms as Facebook, leading many people to believe utterly false things like that the pope had endorsed Trump or that Hillary Clinton had sold weapons to the Islamic State militant group. Some studies even suggested it might have swung the election.
Given that last narrative, Trump and his supporters quickly sprung into action. They commandeered the term, twisting it to refer to something else entirely. Suddenly, it was used to describe media reports and media figures with whom they disagreed. Thanks to Trump’s knack for branding and repetition, this latter meaning became more pervasive. A pithy phrase used to describe a legitimate media phenomenon that risked undermining Trump suddenly became an even pithier political cudgel for him to use against his foes.
Today, a similar effort is afoot to re-purpose another phrase that has become a liability for Trump’s party: the “big lie.”
The decisions by Major League Baseball, Coca-Cola and Delta Air Lines to push back on Georgia’s new voting law has united much of the conservative movement — Trump supporters and critics alike — against them. The right has accused the left and the media of overstating the suppressive elements of Georgia’s law and these corporations of swallowing the claims whole.
It has been rightly noted that such laws and their more extreme variants are predicated, in many ways, on Trump’s “big lie” of a supposedly stolen election. GOP legislators have justified such efforts by saying that they are needed to address even the perception of problems, regardless of nonexistent evidence of the widespread voter fraud that Trump claimed.
Conservatives, though, are appropriating that phrase not to describe the predicate for laws like Georgia’s, but rather the pushback against it.
Senate Minority Leader Mitch McConnell (R-Ky.) used the phrase twice in a statement Monday accusing the corporations of falling victim to a disinformation campaign.
“All the facts disprove the big lie,” McConnell said, referring to polls showing strong support for the kind of voter ID requirements that Georgia will apply to absentee ballots, as well as Washington Post fact-checks of President Biden’s false claims about the law’s effect on Georgia’s early-vote poll closing times.
McConnell added that “a host of powerful people and institutions apparently think they stand to benefit from parroting this big lie.”
McConnell’s statement follows on a Wall Street Journal column titled “Corporate America’s ‘Big Lie’ ” that also focused on the voter ID elements of the law. Another well-trafficked column, from the Hill newspaper on Monday, attacked the MLB for pushing “Biden’s big lie about ‘suppressed’ GA voting.” Former House speaker Newt Gingrich said Sunday that Democrats were “engaged in big lie smear against Georgia.” Other conservatives have used the phrase, as well.
Watch or listen here.
Larry Diamond, Kevin Johnson, and Miles Rapoport oped.
Andrew Prokup for Vox.
Remarkable: (read the whole thread)
You can listen here.
Here’s the statement he issued on Good Friday:
Issue One is convening leading experts and officials tomorrow for a new speaker series designed to explore the most pressing matters facing American democracy today and how we can fix our broken political system.
The first event in the series, “How State Voting Proposals Could Impact How Millions of Americans Vote,” kicks off tomorrow, Tuesday, April 6 from 12-1pm ET, and will feature an important dialogue about efforts to curtail access to voting, and what we can do to make the electoral process even more secure and accessible — instead of making it harder for people to vote. This will be an on-the-record event and press are invited to attend.
Please click here to register and let us know you’re attending.
Already in 2021, state legislators have introduced more than 360 bills in 47 states to make it harder to vote, including measures to limit the early voting options that 85 million people used to safely vote in 2020, an election with the highest turnout in a century. This wave of legislation follows months of disinformation about the validity and security of the 2020 general election.
The event will feature Issue One’s CEO and Founder Nick Penniman in conversation with:
- Secretary Trey Grayson, former Republican Secretary of State of Kentucky
- Steven Greenhut, Resident Senior Fellow and Western Region Director at the R Street Institute
- Eliza Sweren-Becker, Counsel, Democracy Program at the Brennan Center for Justice
We hope you can join us tomorrow, and be on the lookout for our upcoming speaker series events.