“Gavin Newsom Just Proved It: Voters Want Democrats to Fight Fire With Fire”

Real Right to Vote, The Voting Wars

I have written this piece for Slate. It begins:

If Democrats and those on the left want to draw one lesson from the lopsided 64–36 victory of Proposition 50 in California earlier this week, it is that the public understands that these are not normal times, and that to get democracy on track again in the U.S. it may take some drastic, norm-breaking measures. If in the period after Donald Trump’s tenure, Democrats retake control of the House and Senate and secure the presidency, bold election reform that protects both free and fair elections and voting rights must be on the table….

When Democrats had control of both houses of Congress and Joe Biden was in the White House, the House passed and a majority in the Senate passed both the John Lewis Voting Rights Amendments Act and a broader package of election reforms. But Democrats, especially Sens. Joe Manchin and Kyrsten Sinema, were not willing to make an exception to the filibuster to get a final vote for the legislation in the Senate, meaning that this legislation died. That was a costly mistake.

In an age when voters see Donald Trump breaking norms to solidify his power and move the country toward authoritarianism, trying to just return to normal after Trump and pretend the last decade-plus of threats to democracy did not happen is not a good strategy. It will just leave more openings for the next would-be authoritarian. Proposition 50’s decisive victory shows that voters are enthusiastic about breaking norms, if doing so can achieve national partisan fairness and to counter the many anti-majoritarian features of American democracy.

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“Two Republican Incumbents Will Face Off as Red Turf Shrinks in California”

redistricting

NYT:

A day after California voters shrunk the number of safe Republican House seats through a Democratic gerrymander, two endangered incumbents said they would square off against each other in a high-stakes bid for political survival next year.

Representative Ken Calvert, a Riverside County Republican whose 41st Congressional District was carved up and appended to several neighboring districts, said on Wednesday that he would run for the new incarnation of the 40th District, one of the few friendly territories left for Republicans in California.

He made no mention of the fact that the district was already occupied.

Representative Young Kim, an Orange County Republican, is the current 40th District incumbent, and she said on Wednesday that she would not cede her favorable turf without a fight. The Democratic redraw of congressional maps actually made her district safer for Republicans than it was before — which also made it an attractive life raft.

That means two veteran G.O.P. incumbents will vie for one House seat in a clash that underscores how dire the stakes have become for Republicans in California. It also shows how the redistricting war has sent incumbents scrambling in the middle of the decade, in a way that unlucky members usually only do after a new census….

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“Kansas mayor charged with alleged voter fraud; state leader says ‘hundreds’ more cases expected”

chicanery

Kansas Reflector:

The mayor of a small south-central Kansas town has been charged with committing fraud by voting in elections since 2022 even though he is not a United States citizen, the state’s attorney general and secretary of state said Wednesday.

Attorney General Kris Kobach said Joe Ceballos, who garnered nearly 83% of the vote Tuesday for a second term as Coldwater mayor, was charged with three counts of voting without being qualified and three counts of election perjury. Both are felony offenses.

“These charges carry a potential maximum penalty of up to 68 months imprisonment and up to $200,000 in fines,” Kobach said. 

The charges, filed in Comanche County, are based on Ceballos’ voting in the 2022 general election, the 2023 general election for local offices and the 2024 primary election, Kobach said. 

Ceballos served two terms on the Coldwater City Council and was elected mayor in 2021, a position he is not qualified to hold if he is not a U.S. citizen although it is not a criminal violation, Kobach said. 

He referenced a Kansas statute that requires a city officer to be a qualified elector, which requires that person to be a United States citizen. 

“He is a legal permanent resident of the United States and a citizen of Mexico,” Kobach said. 

Schwab said it would be up to the local governing board to make a determination about the mayoral race after the election is finalized. 

Coldwater government leaders did not find out about the situation until Wednesday. …

During a news conference in Topeka, Kobach and Secretary of State Scott Schwab said the state is actively pursuing cases like this by using the federal Systematic Alien Verification for Entitlements, or SAVE, database, which can be queried by states to determine a voter’s U.S. citizenship status.

According to The Center Square, 26 states are using the database to verify voter registration information. Schwab confirmed Kansas has begun using the SAVE database to check voter registrations, but also said the case against Ceballos was not compiled using the database. 

Kobach has waged a campaign for years claiming significant voter fraud and pushing for  stricter voting regulations, including proof of citizenship laws and showing photo identification at the polls.

Schwab, who is the state’s top elections officer, said until Kansas began recently using the SAVE database, he had disagreed with Kobach that there was much of an issue. 

“We’re currently verifying. We don’t want any false positives, but attorney general, be prepared to be busy as we go through these and find out potential positives of people who are non-U.S. citizens that have voted,” Schwab said. “I was never really a big believer this happened. I always came from the angle of, let’s prove it’s not happening, and then we get the data, and it’s important we clean this up.”

Kobach said he expects there will be hundreds of people on the voter rolls who are not legally eligible to vote. Although that may be a small number compared to the 2 million registered to vote in Kansas, it matters, he said. …

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“Cyclical Misalignment: A History of Campaign Finance Law”

campaign finance

Tony Gaughan has posted this draft on SSRN (forthcoming, Ohio State Law Journal). Here is the abstract:

The role of money in politics poses a thorny challenge to democratic government. In a healthy democracy, individual voters should have an equal influence on election outcomes. But robust political discourse depends on candidates having access to effective means of communication. In the absence of a comprehensive public funding system, candidates must turn to private donors to finance their campaigns. Candidates’ reliance on wealthy supporters creates the risk that the rich will exercise disproportionate influence over public policy. Principles of free speech and democratic equality thus sit uneasily together in privately funded campaign finance systems. The United States is the leading case in point. Since the 1700s, Americans have struggled to strike a balance between access to campaign funds on one hand and democratic accountability and responsiveness on the other.

This article examines the history of American campaign finance law prior to the adoption of the 1974 amendments to the Federal Election Campaign Act. The period from 1619 to 1974 saw the rise and fall of three distinct campaign finance eras characterized by unique laws and practices: the Aristocratic Era (1619-1790s), the Patronage Era (1790s to 1883), and the Nominally Regulated Era (1883 to 1974).

This article contends that the American campaign finance system has proven exceptionally difficult to align with democratic values. The Aristocratic Era, the Patronage Era, and the Nominally Regulated Era reveal the extent of the alignment challenge. On paper at least, each era’s campaign finance system sought to facilitate representational and policy alignment with democratic values by ensuring that elected officials reflected the will of their constituents. But in each case, the reforms failed to achieve the long-term goals of the reformers. Technological change, partisan manipulation, wealthy special interest groups, and evolving popular and elite preferences inevitably led to misalignment. History thus provides a cautionary note for modern campaign finance reformers. It suggests that aligning campaign finance law may be the hardest alignment challenge of all.

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“Professor Pildes: Effective Government Is the Forgotten Pillar of Democracy”

Uncategorized

I did this extended interview for the European Center for Populism Studies. Here is their summary:

In an interview with the ECPS, Professor Richard H. Pildes, one of America’s leading constitutional scholars, warns that democracy’s survival depends not only on equality and participation but also on its capacity to deliver effective governance. “Democracy,” he says, “rests on two simple promises: equal voice and better lives. When governments fail in that second task, it profoundly undermines democracy itself.” Professor Pildes argues that excessive focus on participation, coupled with digital fragmentation and weakened political parties, have eroded governments’ ability to act decisively. The rise of “free-agent politicians,” algorithmic outrage, and social media-driven polarization, he cautions, threaten to make democracy less capable of solving problems. “Effective government,” Professor Pildes insists, “is the forgotten pillar of democracy.”

Here is the full interview, text is available here.

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The Complaint Filed By Republicans Against the Maps Created by California’s Prop 50 Raising Racial Gerrymandering and Intentional Discrimination Claims Faces an Uphill Battle, Especially Given 2026 Timing

redistricting, Voting Rights Act
You can find the complaint here. The main argument in the case is that plaintiffs engaged in a racial gerrymander by making race the predominant factor in drawing district lines without s compelling reason to to so. The primary… Continue reading