[EL] ELB News and Commentary 11/11/17

Fri Nov 10 18:02:31 PST 2017

Virginia County Allegedly Not Counting 55 Timely-Cast Military Absentee Ballots in Very Close Elections<http://electionlawblog.org/?p=95948>
Posted on November 10, 2017 5:56 pm<http://electionlawblog.org/?p=95948> by Rick Hasen<http://electionlawblog.org/?author=3>
Strange story:<http://www.fredericksburg.com/news/election/vote-count-in-close-stafford-races-fuels-criticism-concern/article_32d96961-8ab9-5bf5-a4f3-fb8939f83d01.html>
Questions are swirling around two close elections in the Fredericksburg region that appear destined for recounts.
In a conference call Friday, House Democratic Caucus Executive Director Trent Armitage said that 55 military ballots delivered to the Stafford County registrar’s post office box on Tuesday—Election Day—went uncounted because they were not picked up until Wednesday. Democrats said they had no way of knowing which candidates the 55 votes went for, but the ballots arrived on time and came from active-duty military personnel.
“We find that to be absolutely ridiculous,” Armitage said.
Stafford Supervisor Laura Sellers, a Democrat, lost her Garrisonville District seat to Republican Mark Dudenhefer by just 15 votes. And Republican Bob Thomas holds an 83-vote lead over Democrat Joshua Cole in the race for the 28th District House of Delegates seat representing parts of Fredericksburg and Stafford.
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Posted in military voting<http://electionlawblog.org/?cat=48>

DNC Wants to Reopen Scope of Discovery in DNC v. RNC Voter Intimidation Case Based on Politico Article<http://electionlawblog.org/?p=95946>
Posted on November 10, 2017 5:16 pm<http://electionlawblog.org/?p=95946> by Rick Hasen<http://electionlawblog.org/?author=3>
Filing.<https://www.politico.com/f/?id=0000015f-a84e-dd23-a97f-eb6f58c90001>
(Earlier post<http://electionlawblog.org/?p=95942>.)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Alabama Republicans Float Idea of Rescheduling Special Senate Election to Avoid Roy Moore Problem, Even Though Military/Overseas Voters May Have Already Voted<http://electionlawblog.org/?p=95944>
Posted on November 10, 2017 2:34 pm<http://electionlawblog.org/?p=95944> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/11/10/us/politics/roy-moore-alabama-republican.html?smid=tw-share>
One approach that Republicans are considering, according to people briefed on the deliberations, would involve asking Gov. Kay Ivey to order a new date for the election, scheduling it for early next year and giving the party time to persuade Mr. Moore to withdraw, or force him out of the race.
Alabama election law requires candidates to withdraw at least 76 days before an election in order to be replaced on the ballot, a deadline Mr. Moore has already missed.
State law gives the governor broad authority to set the date of special elections, and Ms. Ivey, who is a Republican, already rescheduled the Senate election once, after inheriting the governor’s office in April when her predecessor, Robert Bentley, resigned in a sex and corruption scandal. Ms. Ivey’s advisers have not ruled out exercising that power again, according to Republicans in touch with her camp, but she has signaled that she would like reassurances of support from the White House before taking any such step.
A spokesman for the governor did not reply to an email asking about her intentions.
But there is no apparent precedent for rescheduling an election so close to the planned vote, and it is unlikely Ms. Ivey could move the election without a court battle, Republicans acknowledged. But advocates of a delay say at least it could keep the election date tied up in court.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Sean Spicer May Have Given Democrats Evidence to Extend Consent Decree Against RNC Voter Intimidation Activities<http://electionlawblog.org/?p=95942>
Posted on November 10, 2017 11:07 am<http://electionlawblog.org/?p=95942> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<https://www.politico.com/story/2017/11/10/sean-spicer-gq-magazine-story-fallout-244784>
In the oral history published Tuesday by GQ Magazine<https://www.gq.com/story/inside-donald-trumps-election-night-war-room>, Spicer recalled of the historic day: “A group of us gathered on the fifth floor of Trump Tower in what could be described as basically an oversized utility room.”…
After the interview was published, four people who worked with Spicer on the campaign and at the RNC reached out to POLITICO to express surprise that he highlighted his presence on the fifth floor — which served as the nerve center of the campaign’s poll-monitoring operation and data war room that day — because party employees were given strict instructions prohibiting them from going there.
 …
The directive to RNC employees to steer clear of floor five was given out of an abundance of caution, according to an RNC employee, to avoid violating a decades-old court order, known as a consent decree. It barred the RNC from challenging voters’ eligibility at the polls after the party was accused in the 1980s of practices meant to discourage African Americans from voting. The consent decree is set to expire next month, barring proof of any violations.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“What Virginia tells us, and doesn’t tell us, about gerrymandering”<http://electionlawblog.org/?p=95940>
Posted on November 10, 2017 9:57 am<http://electionlawblog.org/?p=95940> by Rick Hasen<http://electionlawblog.org/?author=3>
Nick Stephanopoulos LAT oped:<http://www.latimes.com/opinion/op-ed/la-oe-stephanopoulos-gerrymander-waves-virginia-20171110-story.html>
Although the Virginia governorship was Tuesday’s marquee race, the Virginia House of Delegates<http://www.latimes.com/topic/politics-government/virginia-general-assembly-ORGOV0000122-topic.html> produced the day’s most surprising result. Democrats<http://www.latimes.com/topic/politics-government/democratic-party-ORGOV0000005-topic.html>picked up at least 15 seats and reduced a 66 to 34 Republican advantage to, at most, 51 to 49. A gerrymandered chamber thought to be safely Republican suddenly became a toss-up — and may yet flip to Democratic control after all the recounts are completed.
This unexpected outcome raises the question: Can gerrymandering really be such a problem if a party’s legislative edge can virtually disappear overnight? This question is especially important at present, as the Supreme Court mulls over Gill vs. Whitford, a potentially historic case about redistricting in Wisconsin.
The question also has a clear answer: Of course gerrymandering is deeply troublesome even if it can be overcome, at least temporarily, by a wave election….’
A final point is that not all maps are equally at risk if a Virginia-sized wave materializes. Take the Wisconsin state house plan at issue in Whitford. Its authors were not quite as greedy as those who drew the Virginia map. They were content for Republicans to win three-fifths (rather than two-thirds) of the seats in normal conditions. This somewhat less ambitious target let them sprinkle more Republican voters into each Republican district, yielding bigger margins and more leeway in the event of a Democratic groundswell.
Consequently, there are only three Wisconsin districts (out of 99) won by Clinton but represented by Republicans. If Wisconsin Democrats do as well in 2018 as their Virginia counterparts did in 2017, they will likely flip just four seats. For Democrats to win a majority of the Wisconsin Assembly, they would need a further five-point boost — a 100-year flood rather than an ordinary wave.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“How to Reverse the Degradation of Our Politics”<http://electionlawblog.org/?p=95938>
Posted on November 10, 2017 9:41 am<http://electionlawblog.org/?p=95938> by Rick Hasen<http://electionlawblog.org/?author=3>
Larry Diamond <https://www.the-american-interest.com/2017/11/10/reverse-degradation-politics/> in The American Interest:
The most promising change is ranked choice voting, sometimes called “the instant runoff.” Imagine that Arizona’s voters had serious options beyond a Democrat and a Republican, and that instead of voting for a single Senate candidate in the general election, voters could rank their choices one, two, three, and so on.  Under ranked choice voting, if no candidate gets a majority of first place votes, the candidate with the lowest number of such votes is eliminated, and his or her votes are redistributed to their voters’ second choices. The process continues until someone gets a majority or a final-round plurality. The instant run-off has the potential to lower the temperature of political polarization, by enabling voters to opt for an independent or third-party candidate without fear that in doing so they will “waste” their vote and thus help elect the candidate they dislike the most.
What if Arizona had ranked choice voting? Flake could have made his clarion call on the Senate floor and then announced that he was running as an independent. Corker could have done the same in Tennessee. Under ranked choice voting, each might have had a decent chance of winning. Indeed, Alaska Senator Lisa Murkowski did (just barely) win re-election as an independent in the 2010 general election after losing the Republican primary to a Tea Party candidate. But she had to mount a heroic and improbable write-in campaign because of the “sore loser” rule, which (in 45 states) prevents a candidate from getting on the ballot in the general election if he or she loses a party primary. If states also moved to eliminate this undemocratic rule, incumbents could wage a principled campaign in defense of moderation in the primary, and if they lose, come back to run in the general election as an independent. Joe Lieberman did this in Connecticut after losing the Democratic primary in 2006, and he won as an independent—because Connecticut is one of the few states without a sore loser rule.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, political polarization<http://electionlawblog.org/?cat=68>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>
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