[EL] Votes left to cast

Mon Nov 14 08:01:58 PST 2016

Just a reminder that while it is accurate to cite the California Secretary of State’s initial “votes left to count” report as saying California on Wednesday had “more than 4 million votes pending” (as stated by the Atlantic article at the link below), that report was missing three counties: two small counties whose numbers will not noticeably impact the total, plus San Diego County. For some reason the number of San Diego County ballots left to count did not get included in that report, but the number is available on the County Registrar’s website. As of Wednesday morning, it was 550,000 ballots left to count in San Diego County alone.

Thus the difference between some reports of “more than 4 million” and the actual count (as of last Wednesday) of 4.957 million (often rounded to 5 million) ballots in California alone that were not counted on election day.

-          Doug

Douglas Johnson, Ph.D.

Fellow, Rose Institute of State and Local Government

at Claremont McKenna College

douglas.johnson at cmc.edu

direct: 310-200-2058

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, November 14, 2016 7:13 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] PARTIAL ELB News and Commentary 11/14/16

There is a technical problem with the software behind the Election Law Blog, and so new posts are on hold.  I hope the problem will be resolved soon.   Here are the posts that went up before the problem arose:

The Election Law Blog is Having Technical Troubles <http://electionlawblog.org/?p=89223> 

Posted on November 13, 2016 1:01 pm <http://electionlawblog.org/?p=89223>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Back soon, we hope.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89223&title=The%20Election%20Law%20Blog%20is%20Having%20Technical%20Troubles> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1> 

Voter Turnout in 2016 Appears About the Same as in 2012 <http://electionlawblog.org/?p=89216> 

Posted on November 13, 2016 6:56 am <http://electionlawblog.org/?p=89216>  by  <http://electionlawblog.org/?author=7> Richard Pildes

Yes, that’s right.  One fact obscured by analysis that focuses only on the Trump and Clinton vote totals is that overall turnout this year is likely to end up being essentially the same as in 2012.  A big difference is that this year, there were at least 6.5 million votes cast for third-party or independent candidates, while in 2012, there were only 2.24 million such votes (2012 final results are here <http://www.fec.gov/pubrec/fe2012/federalelections2012.shtml> ).

In addition, as more people are becoming aware, the number of ballots still to be counted post-Election Day is large and growing each election.  Current estimates <http://www.theatlantic.com/politics/archive/2016/11/clintons-popular-vote-lead-will-grow-and-grow/507455/>  put it at 5-7 million.  This number has been increasing, as more states go to all vote-by-mail (three states now), absentee ballot rules become more liberalized, and more ballots are cast as provisional ballots than before the Help America Vote Act was enacted.

Turnout in 2012 was 58.6% of eligible voters.  Based on the indispensable Election Project website <http://www.electproject.org/2016g> , run by Michael McDonald, the current estimate for 2016 once all the ballots are counted is 57.9%.  Turnout was higher in 2008 and 2004 – political polarization increases turnout – but other than those years, we have to go back to 1968 to find higher turnout elections.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89216&title=Voter%20Turnout%20in%202016%20Appears%20About%20the%20Same%20as%20in%202012> 

Posted in third parties <http://electionlawblog.org/?cat=47> , voting <http://electionlawblog.org/?cat=31> 

“After a Fraught Election, Questions Over the Impact of a Balky Voting Process” <http://electionlawblog.org/?p=89212> 

Posted on November 12, 2016 1:43 pm <http://electionlawblog.org/?p=89212>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Michael Wines <http://www.nytimes.com/2016/11/13/us/politics/voter-registration-election-2016.html>  for the NYT:

Some scholars and election analysts questioned this week whether a better run and less politically influenced voting process might have changed the outcome in some close races and made the presidential contest even closer.

The headline example is Wisconsin, where a Republican-backed law requiring voters to produce one of a limited number of acceptable photo IDs was in effect for the first time. Studies show — and some Republicans admit — that such laws disproportionately reduce Democratic turnout because many of the laws require IDs that low-income and immigrant voters, who are often Democrats, frequently lack.

In Milwaukee, where turnout dropped 41,000 votes from the 2012 total, the chief elections official said on Friday <http://www.channel3000.com/news/politics/milwaukee-elections-chief-voter-id-law-caused-problems-at-the-polls/42468388>  that declines in voting were greatest in areas where lack of IDs was most common. Donald J. Trump won Wisconsin by about 27,000 votes.

No conclusion can be drawn on the impact of the ID requirement until voting data is analyzed, said Nicholas Stephanopoulos, a law professor at the University of Chicago and an election law expert. But “it’s at least a reasonable hypothesis that voting restrictions made a major difference in places like Wisconsin,” he said.

Others said they remained skeptical until election data could be sifted. Some of the strictest voter-identification laws that Republican legislatures had enacted were struck down by courts before balloting began, they noted, and support for <https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/>  Hillary Clinton declined across the board f <https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/> rom 2012 levels <https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/> , not just in states with stricter voter ID requirements.

“With their election debacle, Democrats are looking for a scapegoat,” said Richard L. Hasen, a law professor at the University of California, Irvine, and a leading election scholar. “And as much as I am upset with the efforts of Republican legislatures to make it harder to register and vote, I don’t think that’s the primary explanation for the Democrats’ failure at the top of the ticket.”

There is nevertheless broad agreement that the electoral system failed large numbers of would-be voters this year, and substantial doubt that many of those failings will be remedied anytime soon.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89212&title=%E2%80%9CAfter%20a%20Fraught%20Election%2C%20Questions%20Over%20the%20Impact%20of%20a%20Balky%20Voting%20Process%E2%80%9D> 

Posted in election administration <http://electionlawblog.org/?cat=18> , The Voting Wars <http://electionlawblog.org/?cat=60> 

“Where the money came from, not how much, mattered in the presidential race” <http://electionlawblog.org/?p=89210> 

Posted on November 12, 2016 12:37 pm <http://electionlawblog.org/?p=89210>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Open Secrets looks <https://www.opensecrets.org/news/2016/11/where-the-money-came-from-not-how-much-mattered-in-the-presidential-race/>  at Election 2016.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89210&title=%E2%80%9CWhere%20the%20money%20came%20from%2C%20not%20how%20much%2C%20mattered%20in%20the%20presidential%20race%E2%80%9D> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> 

“The year when money won nobody nothing” <http://electionlawblog.org/?p=89208> 

Posted on November 12, 2016 12:35 pm <http://electionlawblog.org/?p=89208>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Teddy Schleifer <http://www.cnn.com/2016/11/12/politics/money-campaign-spending/index.html>  for CNN:

Almost all players, Republican and Democrat, acknowledge that their dollars had a far more limited impact than they themselves had predicted at the campaign’s starting gun.

What has perplexed the nation’s political financiers, according to more than a dozen interviews with leading players, is what 2016 has signaled — if anything — about the changing country. Some, including loyalists to Trump and Bernie Sanders, argue that they have crafted the new normal, pooh-poohing the rich as self-important and — in a painful indictment of the entire big-money world — proven to be powerless. A high-wattage, carefully cultivated super PAC? No need, they say. Have a real movement, and watch the money bloom eternal.

The other train of thought — often from the spurned corps of professionals who have, at some point, been cast as the elite bogeymen: Trump is a self-financed, larger-than-life aberration that tells us next to nothing about how money will rule in the post-Trump era. Super PACs, attack ads and the luxury fundraising circuit? How the game is played — now and forever.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89208&title=%E2%80%9CThe%20year%20when%20money%20won%20nobody%20nothing%E2%80%9D> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> 

NC: “McCrory calls for recount of Durham votes, cites other “irregularities”” <http://electionlawblog.org/?p=89206> 

Posted on November 12, 2016 11:42 am <http://electionlawblog.org/?p=89206>  by  <http://electionlawblog.org/?author=3> Rick Hasen

News and Observer: <http://www.newsobserver.com/news/politics-government/state-politics/article114391848.html> 

Gov. Pat McCrory, trailing in a close race for re-election behind Attorney General Roy Cooper, claims there was “malfeasance” in tabulating votes in Durham County and “irregularities” reported around the state.

Cooper’s campaign said nothing improper happened in Durham, and accused McCrory of tryingn to undermine the election.

A formal protest filed Saturday with the Durham County Board of Elections calls for a recount of disputed votes there. About 90,000 votes weren’t counted until late on Election Day. Durham officials said it was due to malfunctioning equipment earlier in the day that led to a backlog, and that it had no impact on the votes cast.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89206&title=NC%3A%20%E2%80%9CMcCrory%20calls%20for%20recount%20of%20Durham%20votes%2C%20cites%20other%20%E2%80%9Cirregularities%E2%80%9D%E2%80%9D> 

Posted in election administration <http://electionlawblog.org/?cat=18> , recounts <http://electionlawblog.org/?cat=50> 

“Donors and lobbyists already shaping Trump’s ‘drain the swamp’ administration” <http://electionlawblog.org/?p=89204> 

Posted on November 11, 2016 4:29 pm <http://electionlawblog.org/?p=89204>  by  <http://electionlawblog.org/?author=3> Rick Hasen

WaPo reports. <https://www.washingtonpost.com/politics/donors-and-lobbyists-already-shaping-trumps-drain-the-swamp-administration/2016/11/11/d1c13704-a828-11e6-ba59-a7d93165c6d4_story.html> 

See also NYT’s Trump Campaigned Against Lobbyists, but Now They’re on His Transition Team <http://www.nytimes.com/2016/11/12/us/politics/trump-campaigned-against-lobbyists-now-theyre-on-his-transition-team.html?smid=tw-share> .

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89204&title=%E2%80%9CDonors%20and%20lobbyists%20already%20shaping%20Trump%E2%80%99s%20%E2%80%98drain%20the%20swamp%E2%80%99%20administration%E2%80%9D> 

Posted in lobbying <http://electionlawblog.org/?cat=28> 

NC: “State GOP leaders could neutralize Democrats’ Supreme Court majority by adding justices” <http://electionlawblog.org/?p=89202> 

Posted on November 11, 2016 3:44 pm <http://electionlawblog.org/?p=89202>  by  <http://electionlawblog.org/?author=3> Rick Hasen

More <http://www.journalnow.com/news/elections/state/state-gop-leaders-could-neutralize-democrats-supreme-court-majority-by/article_510c2c00-f7ea-5c8d-9251-26a784d6cb9c.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share>  from North Carolina.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89202&title=NC%3A%20%E2%80%9CState%20GOP%20leaders%20could%20neutralize%20Democrats%E2%80%99%20Supreme%20Court%20majority%20by%20adding%20justices%E2%80%9D> 

Posted in chicanery <http://electionlawblog.org/?cat=12> , judicial elections <http://electionlawblog.org/?cat=19> 

“Florida orders recount in Miami-Dade House race where margin is just 68 votes” <http://electionlawblog.org/?p=89200> 

Posted on November 11, 2016 2:03 pm <http://electionlawblog.org/?p=89200>  by  <http://electionlawblog.org/?author=3> Rick Hasen

The Miami Herald reports. <http://www.miamiherald.com/news/politics-government/state-politics/article114158618.html> 

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89200&title=%E2%80%9CFlorida%20orders%20recount%20in%20Miami-Dade%20House%20race%20where%20margin%20is%20just%2068%20votes%E2%80%9D> 

Posted in recounts <http://electionlawblog.org/?cat=50> 

“Voter Suppression Laws Cost Americans Their Voices at the Polls” <http://electionlawblog.org/?p=89197> 

Posted on November 11, 2016 1:49 pm <http://electionlawblog.org/?p=89197>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Liz Kennedy <https://www.americanprogress.org/issues/democracy/reports/2016/11/11/292322/voter-suppression-laws-cost-americans-their-voices-at-the-polls/>  for CAP.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89197&title=%E2%80%9CVoter%20Suppression%20Laws%20Cost%20Americans%20Their%20Voices%20at%20the%20Polls%E2%80%9D> 

Posted in The Voting Wars <http://electionlawblog.org/?cat=60> 

“GOP legislative leaders could make rare court-packing move to keep partisan control of state Supreme Court” <http://electionlawblog.org/?p=89195> 

Posted on November 11, 2016 1:33 pm <http://electionlawblog.org/?p=89195>  by  <http://electionlawblog.org/?author=3> Rick Hasen

NC Policy Watch. <http://www.ncpolicywatch.com/2016/11/11/gop-legislative-leaders-make-rare-court-packing-move-keep-partisan-control-state-supreme-court/>  

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89195&title=%E2%80%9CGOP%20legislative%20leaders%20could%20make%20rare%20court-packing%20move%20to%20keep%20partisan%20control%20of%20state%20Supreme%20Court%E2%80%9D> 

Posted in judicial elections <http://electionlawblog.org/?cat=19> 

“Court challenges likely for photo ID, campaign contribution amendments approved by Missouri voters” <http://electionlawblog.org/?p=89193> 

Posted on November 11, 2016 1:28 pm <http://electionlawblog.org/?p=89193>  by  <http://electionlawblog.org/?author=3> Rick Hasen

The St. Louis Post-Dispatch <http://www.stltoday.com/news/local/govt-and-politics/court-challenges-likely-for-photo-id-campaign-contribution-amendments-approved/article_b970d0d3-9ea4-5602-a890-f1c36a9803d4.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share>  reports.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89193&title=%E2%80%9CCourt%20challenges%20likely%20for%20photo%20ID%2C%20campaign%20contribution%20amendments%20approved%20by%20Missouri%20voters%E2%80%9D> 

Posted in campaigns <http://electionlawblog.org/?cat=59> , election administration <http://electionlawblog.org/?cat=18> , The Voting Wars <http://electionlawblog.org/?cat=60> , voter id <http://electionlawblog.org/?cat=9> 

“The dual meaning of evidence-based judicial review of legislation” <http://electionlawblog.org/?p=89191> 

Posted on November 11, 2016 1:25 pm <http://electionlawblog.org/?p=89191>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Ittai Bar Siman-Tov has written this article <http://www.tandfonline.com/eprint/7UJscKBBZnbaPqU5syxM/full>  for The Theory and Practice of Legislation. Here is the abstract:

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualisation of evidence-based judicial review. It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making. The article then employs this novel insight about the overlooked dual meaning of evidence-based judicial review to shed new light on some of the major debates about this phenomenon, such as: whether it should be understood as part of substantive or procedural judicial review; the relationship between evidence-based judicial review and evidence-based law-making; and the role of legislative findings in constitutional adjudication.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89191&title=%E2%80%9CThe%20dual%20meaning%20of%20evidence-based%20judicial%20review%20of%20legislation%E2%80%9D> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1> 

“Rare big win for Democrats tilts party balance on NC Supreme Court” <http://electionlawblog.org/?p=89189> 

Posted on November 11, 2016 1:19 pm <http://electionlawblog.org/?p=89189>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Charlotte Observer: <http://www.charlotteobserver.com/news/politics-government/article114053308.html> 

As people pore over election results, trying to make sense of a year that has baffled many, some in North Carolina are trying to decipher the reasons for Wake County Superior Court Judge Mike Morgan’s resounding victory over Justice Bob Edmunds for the only open seat on the state Supreme Court.

The victory for Morgan, a Democrat, over Edmunds, a Republican, means the ideological balance of the state’s highest court swings back to favor the Democrats, who will hold four of the seven seats.

Morgan won by more than nine percentage points even though Republicans won the state’s votes for president, Senate, five state Court of Appeals seats and six other statewide races. Democrats lead narrowly in three more contests, including for governor, but Morgan and Secretary of State Elaine Marshall were the only Democrats with decisive statewide wins….Some wondered, too, whether the attempt to create retention elections hurt Edmunds’ chances for re-election….

The race between Morgan, 60, and Edmunds, 67, this year would not have come about had it not been for Sabra Faires, a Raleigh attorney who successfully challenged a 2015 law that would have changed how sitting justices stood for re-election. A Superior Court judge panel found the law, which would have shielded sitting justices from opposition on the ballot unless they lost a “retention election,” to be a violation of the state Constitution. Because the Supreme Court split 3-3 on the question, with Edmunds abstaining, the lower court ruling forced a competitive race.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89189&title=%E2%80%9CRare%20big%20win%20for%20Democrats%20tilts%20party%20balance%20on%20NC%20Supreme%20Court%E2%80%9D> 

Posted in judicial elections <http://electionlawblog.org/?cat=19> 

Super PAC Donor Literally Given a Seat at the Table for Trump’s Transition <http://electionlawblog.org/?p=89187> 

Posted on November 11, 2016 11:27 am <http://electionlawblog.org/?p=89187>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Announcement <https://twitter.com/sahilkapur/status/797157219066413057>  from transition team that Rebekah Mercer is joining.

Now’s the time to go back and study Matea Gold’s must-read <https://www.washingtonpost.com/politics/the-rise-of-gop-mega-donor-rebekah-mercer/2016/09/13/85ae3c32-79bf-11e6-beac-57a4a412e93a_story.html>  profile of Mercer.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89187&title=Super%20PAC%20Donor%20Literally%20Given%20a%20Seat%20at%20the%20Table%20for%20Trump%E2%80%99s%20Transition> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> , campaigns <http://electionlawblog.org/?cat=59> , Plutocrats United <http://electionlawblog.org/?cat=104> 

ATL: Supreme Court Releases Statement Signalling Justice Kennedy Not Planning to Leave Court Soon <http://electionlawblog.org/?p=89183> 

Posted on November 11, 2016 10:43 am <http://electionlawblog.org/?p=89183>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Following up on this post, <http://electionlawblog.org/?p=89140>  David Lat of Above the Law <http://abovethelaw.com/2016/11/anatomy-of-a-rumor-on-justice-kennedys-retirement-next-year/>  has obtained this statement from the Court:

Justice Kennedy is in the process of hiring clerks for 2017. The Justice didn’t go to Salzburg this past summer because it conflicted with some plans with his family, but he is scheduled to return to teach there in 2017. The reunion is scheduled for the end of this Term because the Justice’s law clerks wanted to hold it during the Justice’s 80th year to mark his birthday.

David adds:

 This statement, which presumably reflects input from Justice Kennedy, strikes me as a persuasive and well-founded rebuttal to the rumors. If AMK were planning to retire next year, the easiest thing would have been for the Court to offer a simple “no comment.”

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89183&title=ATL%3A%20Supreme%20Court%20Releases%20Statement%20Signalling%20Justice%20Kennedy%20Not%20Planning%20to%20Leave%20Court%20Soon> 

Posted in Supreme Court <http://electionlawblog.org/?cat=29> 

“Effect of voting laws seen, but not enough to sway outcome” <http://electionlawblog.org/?p=89181> 

Posted on November 11, 2016 10:39 am <http://electionlawblog.org/?p=89181>  by  <http://electionlawblog.org/?author=3> Rick Hasen

AP: <http://www.seattletimes.com/nation-world/nation-politics/effect-of-voting-laws-seen-but-not-enough-to-sway-outcome/> 

Fourteen states had new voting or registration restrictions in place for the 2016 presidential election, raising concerns that minority voters in particular would have a harder time accessing the ballot box.

Voting experts believe the laws had some effect on turnout this year, but said it would be difficult to measure against other factors — such as a lack of enthusiasm for either Donald Trump or Hillary Clinton and the decision of many people simply not to vote.

They expressed frustration that some states had made it more difficult for voters to participate, even if there is no evidence the changes influenced the outcome of the presidential election.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89181&title=%E2%80%9CEffect%20of%20voting%20laws%20seen%2C%20but%20not%20enough%20to%20sway%20outcome%E2%80%9D> 

Posted in election administration <http://electionlawblog.org/?cat=18> , The Voting Wars <http://electionlawblog.org/?cat=60> 

-- 

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

 <mailto:rhasen at law.uci.edu> rhasen at law.uci.edu

 <http://www.law.uci.edu/faculty/full-time/hasen/> http://www.law.uci.edu/faculty/full-time/hasen/

 <http://electionlawblog.org/> http://electionlawblog.org

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