[EL] ELB News and Commentary 11/7/18

Wed Nov 7 08:27:24 PST 2018

Election Administrator’s Prayer Fail: Nelson-Scott Senate Fla. Race, Walker-Evers WI Gov. Race Could Go to Recounts; McSally-Sinema AZ Sen, Kemp-Abrams Ga. Gov. Race Still Counting<https://electionlawblog.org/?p=102047>
Posted on November 7, 2018 8:21 am<https://electionlawblog.org/?p=102047> by Rick Hasen<https://electionlawblog.org/?author=3>

Election Administrator’s prayer<https://politicaldictionary.com/words/election-administrators-prayer/> not answered last night in a number of high profile races.

Nelson-Scott<https://www.gainesville.com/news/20181107/floridas-us-senate-race-headed-for-recount/1> (Scott ahead)

Walker-Evers<https://www.jsonline.com/story/news/politics/elections/2018/11/06/wisconsin-governor-election-results-scott-walker-versus-tony-evers/1854447002/> (Evers ahead)

McSally-Sinema<http://ktar.com/story/2297210/mcsally-sinema-senate-winner-might-not-be-decided-for-days/> (McSally ahead)

Kemp-Abrams<https://www.ajc.com/news/state--regional-govt--politics/kemp-maintains-slim-lead-over-abrams-final-votes-counted/RrCkTLAxPcD93dIS1TQXHL/> (Kemp ahead)

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

“Midterm Voters Significantly Expanded The Right To Vote”<https://electionlawblog.org/?p=102042>
Posted on November 7, 2018 7:58 am<https://electionlawblog.org/?p=102042> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost:<https://www.huffingtonpost.com/entry/midterm-elections-voting-rights_us_5be27da6e4b0dbe871a47ce0>

Voting rights were on the ballot<https://www.huffingtonpost.com/entry/2018-midterm-voting-rights_us_5bd8be73e4b019a7ab57f5f0> in the midterm elections on Tuesday, and voters sent a resoundingly clear message in favor of making elections more accessible and fairer.

After Tuesday’s election, approximately 1.4 million people with felony convictions<https://www.huffingtonpost.com/entry/florida-felon-disenfranchisement_us_5bdb2c8ae4b01abe6a1c370d> in Florida will regain the right to vote. It will be much easier for people in Michigan to vote. Nevadans will be automatically registered<http://www.kunr.org/post/breaking-down-nevadas-proposed-motor-voter-question#stream/0> when they conduct business with the state Department of Motor Vehicles unless they opt out. Lawmakers in Michigan<https://www.huffingtonpost.com/entry/michigan-gerrymandering-proposal-2_us_5bdb6f15e4b04367a87ae705>, Colorado <https://www.coloradoan.com/story/news/politics/elections/2018/11/06/colorado-election-results-amendments-y-and-z-pass-changing-redistricting-process/1894902002/> and Missouri <https://www.kmov.com/news/voters-approve-missouri-amendment-overhauling-redistricting-process-and-campaign-finance/article_03c75424-e240-11e8-a662-6fe3a7563d7c.html> (and potentially Utah<https://www.nytimes.com/interactive/2018/11/06/us/elections/results-utah-elections.html>) will no longer be able to draw electoral districts that severely benefit one party. Voters in Maryland<https://www.baltimoresun.com/news/maryland/politics/bs-md-state-ballot-20181102-story.html> will get to register to vote on Election Day. Democrats took control of the state Senate in New York<https://www.nytimes.com/2018/11/07/nyregion/democrat-ny-senate.html>, giving them a chance to do something about the state’s antiquated voting laws<https://www.huffingtonpost.com/entry/new-york-voting-laws_us_5b97ffb9e4b0162f4731895a>.

In Kansas, Kris Kobach, who championed perhaps the most restrictive voting law in the country and led President Donald Trump’s voter fraud commission, lost the race for Kansas governor<https://www.huffingtonpost.com/entry/laura-kelly-kansas-governor_us_5bdcb4b6e4b09d43e31ee97a> to Democrat Laura Kelly.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

What the Election Means for Redistricting<https://electionlawblog.org/?p=102044>
Posted on November 7, 2018 7:58 am<https://electionlawblog.org/?p=102044> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

I see that Justin<https://electionlawblog.org/?p=102034> already beat me to the punch, but I wanted to add some more thoughts about the implications of yesterday’s elections for redistricting:
1.      First off, yesterday was the most successful day in U.S. history in terms of voter initiatives to prevent gerrymandering. Colorado, Michigan, and Missouri all passed anti-gerrymandering measures, and a fourth initiative, in Utah, is narrowly leading but still too close to call. By the standard of past efforts, this is astonishing. In a 2007 paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1494082>, I found that about two-thirds of redistricting initiatives to that point had failed, typically because of the intense opposition of the majority party. But now reformers seem to have cracked the code; they have repeatedly managed to turn anti-gerrymandering measures into valence issues instead of partisan contests.
2.      Reformers have done so, moreover, while advancing more ambitious visions of what fair redistricting should look like. None of the commissions in place in this cycle affirmatively took election results into account in order to try to achieve partisan symmetry. The Michigan initiative, however, requires that district maps not “provide disproportionate advantage to political parties.” The Missouri measure, similarly, states that “districts shall be designed in a manner that achieves . . . partisan fairness,” in that “parties shall be able to translate their popular support into legislative representation with approximately equal efficiency.” These criteria mean that the Michigan and Missouri commissions, at least, will have to do more than comply with traditional redistricting criteria. They will also have to consider partisan data to make sure that neither party is significantly—even if unintentionally—helped or harmed.
3.      Also encouragingly, it’s now highly likely that several states that had severe gerrymanders in this cycle will not in the 2020s. In Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin, there will probably be either divided government (thanks to Democratic gubernatorial wins) or a redistricting commission responsible for drawing the lines. The odds are therefore good that gerrymandering in the next decade will not be as prevalent, or as one-sided, as it was in this cycle.
4.      On the other hand, barring judicial intervention, we’re still likely to see some extreme gerrymanders. Democrats will probably have unified control in major states such as Illinois, Massachusetts (since they can override a gubernatorial veto), and New York (where the new commission’s maps are merely advisory). For their part, Republicans will probably have unified control in large states including Florida (where constitutionally prescribed criteria impose some check on gerrymandering), Georgia, North Carolina (since the governor can’t veto district maps), and Texas. These are the places that will likely be the flashpoints of redistricting litigation in the 2020s.
5.      Also on the bad news front, several of the existing gerrymanders that are currently being litigated had little difficulty weathering the blue wave. In North Carolina, for example, Republicans seem again to have won ten of the state’s thirteen congressional districts—exactly as in 2016, and exactly as intended by the map’s architects. In Wisconsin, similarly, Republicans appear to have retained their 64-35 advantage in the state house—even as Democrats swept every statewide office. This is further evidence of the durability of contemporary gerrymandering, even in the face of dramatic political developments.
6.      Lastly, with respect to Congress as a whole, Democrats look poised to win the national House vote by roughly 7 percentage points, and to translate this advantage into about 230 seats. While a majority is a majority, this outcome is actually quite biased in favor of Republicans. Both historically and in order to achieve a zero efficiency gap, a seven-point win nationwide should yield about 250 House seats for the majority party. The cost exacted by intentional gerrymandering—as well as unintentional factors like the geographic distribution of the parties’ supporters—is thus on the order of twenty seats. This cost did not deprive Democrats of the majority this time, but it did in 2012, and it may well again in 2020.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Tuesday’s implications for redistricting<https://electionlawblog.org/?p=102034>
Posted on November 7, 2018 3:23 am<https://electionlawblog.org/?p=102034> by Justin Levitt<https://electionlawblog.org/?author=4>

Hi, all.  Justin here.

On Tuesday, voters in Colorado, Michigan, and maybe Utah (it’s still too close to call) approved ballot initatives changing the process for drawing state legislative and congressional lines, and voters in Missouri approved an initiative changing the process for drawing state legislative lines.

Overall, the initiative, legislative, and gubernatorial choices on Tuesday moved the redistricting process in Illinois, New Mexico, and New York from split partisan control to Democratic control, and moved Michigan and Wisconsin from unilateral Republican control to split control — if the districts were redrawn as soon as the new candidates-elect were sworn in.  Obviously, the 2020 elections could shuffle the decks again.

The elections in Alaska, Georgia, Kansas, Maine, Nevada, New Hampshire, and Washington state that were too close to call (including some state legislative races with the potential to yield a supermajority) could also shake things up on the redistricting front, either delivering or breaking up potential unilateral partisan control of the process.

I’ve got maps and tables showing the partisan control of the redistricting process in the aftermath of Tuesday’s elections here for congressional districts<http://redistricting.lls.edu/who-partyfed20.php> and here for state legislative districts<http://redistricting.lls.edu/who-partystate20.php>.  And I’ll have writeups of the new initiatives and the processes they use, coming shortly.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

Zack Roth and Michael Waldman: “Democracy Wins”<https://electionlawblog.org/?p=102032>
Posted on November 6, 2018 8:47 pm<https://electionlawblog.org/?p=102032> by Rick Hasen<https://electionlawblog.org/?author=3>

Blog post:<https://www.brennancenter.org/blog/democracy-wins>

In the end, democracy won on Tuesday night.

Voters overcame suppression attempts, long lines, broken machines and nasty weather to turn out in massive numbers in key states. Extreme gerrymandering wasn’t enough to thwart the will of voters in the battle for the House. And Florida registered a massive win for democracy by voting to restore the franchise to those with past criminal convictions.

Still, some voters faced wait times of several hours, often thanks to machine problems, underlining the urgent need to fix our aging voting machines and improve election administration. Georgia, already a hotbed<https://www.brennancenter.org/blog/whats-matter-georgia> of voter suppression efforts, was the site of particular problems, especially in minority-heavy areas. And the landslide in the House, where Democrats likely won the popular vote by around 9 percent while winning only a narrow majority of seats, shows why we urgently need to unrig the map.

The most important result is a new Congress that’s likely be much more supportive of the reforms needed to strengthen democracy, and far more willing to act as a necessary check on the executive branch. Congress will come closer to reflecting America, too. The House will have a record number of women and minority members — including its first female Native American and its first female Muslim.

In Florida, a ballot initiative to restore voting rights to people with past criminal convictions, which the Brennan Center is proud to have helped draft, passed<https://www.brennancenter.org/blog/election-day-live-blog#florida> with strong bipartisan support, ending a ban that had affected over one in five African-Americans in the state. Around 1.4 million people total will now have a voice in their democracy. Not since the 26th Amendment lowered the voting age to 18 in 1971 has a law change conferred voting rights to so many Americans….
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Michigan Voting Reform, Anti-Gerrymandering Measure Heading for Victory; Election Law Prof Jocelyn Benson Leading in SOS Race; Law Prof Sam Bagenstos Trailing for State Supreme Court<https://electionlawblog.org/?p=102030>
Posted on November 6, 2018 8:45 pm<https://electionlawblog.org/?p=102030> by Rick Hasen<https://electionlawblog.org/?author=3>

Results in progress.<https://www.mlive.com/news/index.ssf/2018/11/live_election_results_governor.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

North Carolina Voter ID Amendment Poised to Win; Watch North Carolina General Assembly Try to Ram Through New Voter ID Law Before They May Lose Supermajority<https://electionlawblog.org/?p=102028>
Posted on November 6, 2018 8:09 pm<https://electionlawblog.org/?p=102028> by Rick Hasen<https://electionlawblog.org/?author=3>
[https://pbs.twimg.com/profile_images/1027236869476573184/PFqQJu6__bigger.jpg]<https://twitter.com/rickhasen>
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 13h<https://twitter.com/rickhasen/status/1060008665447510016>
<https://twitter.com/rickhasen/status/1060008665447510016>

Looks like voter id amendment is winning in North Carolina, but if Republicans lose super majority, what would the rules on voter id that the #ncga<https://twitter.com/hashtag/ncga?src=hash> would draft look like? @gercohen<https://twitter.com/gercohen>
[https://pbs.twimg.com/profile_images/1417877763/shadow_bigger.jpg]<https://twitter.com/gercohen>
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Gerry Cohen at gercohen<https://twitter.com/gercohen>

We don’t know. Remember, the main effect of the NC Voter ID amendment will likely be to withdraw from the 5-2 Democratic State Supreme Court the power to rule on voter ID on state constitutional grounds. But the NCGA won’t be able to pass any implementing legislation over veto /1
7:50 PM - Nov 6, 2018<https://twitter.com/gercohen/status/1060016524159844352> · Raleigh, NC<https://twitter.com/search?q=place%3A161d2f18e3a0445a>

·         <https://twitter.com/intent/like?tweet_id=1060016524159844352>

7<https://twitter.com/intent/like?tweet_id=1060016524159844352>

·         <https://twitter.com/gercohen>

See Gerry Cohen's other Tweets<https://twitter.com/gercohen>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Gerry Cohen at gercohen<https://twitter.com/gercohen>

 · 12h<https://twitter.com/gercohen/status/1060016524159844352>
<https://twitter.com/gercohen/status/1060016524159844352>

Replying to @rickhasen<https://twitter.com/_/status/1060008665447510016>

We don’t know. Remember, the main effect of the NC Voter ID amendment will likely be to withdraw from the 5-2 Democratic State Supreme Court the power to rule on voter ID on state constitutional grounds. But the NCGA won’t be able to pass any implementing legislation over veto /1
[https://pbs.twimg.com/profile_images/1417877763/shadow_bigger.jpg]<https://twitter.com/gercohen>
<https://twitter.com/gercohen>
Gerry Cohen at gercohen<https://twitter.com/gercohen>

Unless of course they pass something in the November 27 lame duck session and hope federal courts with changed 4th Circuit and SCOTUS will sustain it /2
7:51 PM - Nov 6, 2018<https://twitter.com/gercohen/status/1060016872723283968> · Raleigh, NC<https://twitter.com/search?q=place%3A161d2f18e3a0445a>

·         <https://twitter.com/intent/like?tweet_id=1060016872723283968>

6<https://twitter.com/intent/like?tweet_id=1060016872723283968>

·         <https://twitter.com/gercohen>

See Gerry Cohen's other Tweets<https://twitter.com/gercohen>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Kobach Projected to Lose Kansas Governor’s Race to Democrat<https://electionlawblog.org/?p=102026>
Posted on November 6, 2018 7:12 pm<https://electionlawblog.org/?p=102026> by Rick Hasen<https://electionlawblog.org/?author=3>

Kansas.com reports.<https://www.kansas.com/news/politics-government/election/article221139715.html>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Florida voters approve Amendment 4 on restoring felons’ voting rights”<https://electionlawblog.org/?p=102024>
Posted on November 6, 2018 7:10 pm<https://electionlawblog.org/?p=102024> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/news/politics-government/election/article220678880.html>

About 1.2 million convicted felons in Florida will automatically have their right to vote restored, thanks to a ballot measure that received about65 percent of the vote Tuesday.

At least 60 percent of voters had to approve for Amendment 4 to become law.

For the past seven years, felons have had to wait five years after completing their sentence to even apply to have their voting rights restored.

The movement to reform the state’s notoriously strict restoration process was championed by the Florida Rights Restoration Coalition, a bipartisan group led by convicted felons. The group collected more than 800,000 signatures to qualify Amendment 4 for the 2018 ballot.

Make no mistake: this is one of the biggest stories of the night.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

“Civil Rights Organizations Request Extension of Poll Hours in Maricopa County, Arizona”<https://electionlawblog.org/?p=102022>
Posted on November 6, 2018 2:41 pm<https://electionlawblog.org/?p=102022> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

Today, the Lawyers’ Committee for Civil Rights Under Law, The Arizona Advocacy Foundation and All Voting is Local-Arizona sent a letter, demanding that the Maricopa County Arizona Board of Supervisors and the County Recorder extend voting hours in polling locations throughout Arizona’s largest county. The purpose of the demand is to allow those voters who could not vote in the morning and would not be able to vote before the 7 pm closing time.

There has been record voter turnout this election, but it has resulted in technology glitches and printing problems rendering some polling places unavailable to voters.   The Election Protection hotline has received numerous calls from registered Maricopa County voters who indicated that they were unable to vote at their assigned polling locations or at a vote center due to these problems. As a result, voters left polling places or were told to go to other voting centers. The technological issues affected ten precinct polling places and all of the 40 voting centers in Maricopa County.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Georgia Voters File Emergency Lawsuit Seeking to Have Secretary of State Kemp Barred From Presiding Over His Own Election”<https://electionlawblog.org/?p=102020>
Posted on November 6, 2018 2:38 pm<https://electionlawblog.org/?p=102020> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

Today, a group of Georgia voters filed a federal lawsuit<https://protectdemocracy.org/brown-et-al-v-brian-p-kemp-complaint/> asking the United States District Court in Atlanta to enjoin Secretary of State Brian Kemp from exercising any further powers of the Secretary of State’s Office in presiding over the 2018 general election, in which he himself is a candidate.

The emergency legal papers were filed at 5 PM today on behalf of five Georgia voters: LaTosha Brown, Jennifer N. Ide and Katharine Wilkinson of Fulton County, Candace Fowler of Dekalb County, and Chalis Montgomery of Barrow County. They are represented in the matter by the nonpartisan nonprofit Protect Democracy, former United States Attorney for the Middle District of Georgia Michael J. Moore of Pope McGlamry, and former Department of Justice Voting Rights Section attorney Bryan L. Sells of the Atlanta Law Office of Bryan L. Sells.

The plaintiffs are seeking a temporary restraining order barring Secretary Kemp from being involved in the counting of votes, the certification of results, or any runoff or recount procedures that would normally be exercised by the Secretary of State’s Office or the Board of Elections, on which he also sits.

Counsel for Protect Democracy Larry Schwartztol said, “That no person should be a judge in their own case is about as basic a rule of fairness as you can get. That principle, embodied in the Constitution’s Due Process Clause, applies with special force to Secretary Kemp, who has misused his official position to try to tilt the playing field of the election in his favor. The extreme facts of this case warrant emergency relief to protect the rights of Georgia voters.”

Seems a bit late for this, no?
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Reports of long lines, broken machines as voters go to polls”<https://electionlawblog.org/?p=102018>
Posted on November 6, 2018 9:52 am<https://electionlawblog.org/?p=102018> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/6fb6de6fdb034b889d301efd12602e21?utm_medium=AP_Politics&utm_campaign=SocialFlow&utm_source=Twitter>

 Long lines and malfunctioning machines marred the first hours of voting in some precincts across the country Tuesday. Some of the biggest problems were in Georgia, a state with a hotly contested gubernatorial election, where some voters reported waiting up to three hours to vote.

At a polling place in Snellville, Georgia, more than 100 people took turns sitting in children’s chairs and on the floor as they waited in line for hours. Voting machines at the Gwinnett County precinct did not work, so poll workers offered provisional paper ballots while trying to get a replacement machine.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Brian Kemp and His Staff Caught in a String of Falsehoods”<https://electionlawblog.org/?p=102016>
Posted on November 6, 2018 9:50 am<https://electionlawblog.org/?p=102016> by Rick Hasen<https://electionlawblog.org/?author=3>

WhoWhatWhy:<https://whowhatwhy.org/2018/11/06/brian-kemp-and-his-staff-caught-in-a-string-of-falsehoods/>

WhoWhatWhy asked the secretary of state’s office if it planned to conduct an audit to ascertain that unauthorized changes had not been made to voter registrations.

Broce responded, “There is no such vulnerability in the system as alleged by your article. We immediately reviewed those claims and could not substantiate any of it. To be clear, those webpages are not linked to a location containing files with confidential or sensitive information.”

The five computer security experts WhoWhatWhy contacted disagree<https://medium.com/@mattbernhard/serious-vulnerabilities-in-georgias-online-voter-registration-system-cc319cbbe3d8>. Each expert — Matt Bernhard<https://mbernhard.com/>, Duncan Buell<https://cse.sc.edu/duncanbuell>, Kris Constable<https://peacegeeks.org/team/kris-constable>, Harri Hursti<https://nordicinnovationlabs.com/team/harri-hursti/>, and one source who asked to remain unnamed — is a national or international leader in cyber or elections security.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Is democracy rigged? The debate over Senate representation ignores a much more plausible reform”<https://electionlawblog.org/?p=102013>
Posted on November 6, 2018 7:51 am<https://electionlawblog.org/?p=102013> by Rick Hasen<https://electionlawblog.org/?author=3>

Steve Vladeck:<https://www.nbcnews.com/think/opinion/democracy-rigged-debate-over-senate-representation-ignores-more-plausible-reform-ncna920286>

Perhaps because it plays no direct role in the judicial confirmation process, these more recent conversations have largely ignored the House of Representatives. That’s a mistake. Although it’s not the only way to make our political branches (and, through them, our judges) more representative, changing the size of the House of Representatives — from its current total of 435 seats to 650 seats, or one for every 500,000 constituents — would make that body far more reflective of the country at large; would dramatically affect presidential elections; and, perhaps alone among all of these proposed reforms, would most be in keeping with the wishes of the Constitution’s drafters.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>

“Four big-picture principles for making our democracy work better”<https://electionlawblog.org/?p=102011>
Posted on November 5, 2018 8:33 pm<https://electionlawblog.org/?p=102011> by Rick Hasen<https://electionlawblog.org/?author=3>

Catherine Rampell WaPo column.<https://www.washingtonpost.com/opinions/good-election-hygiene-in-four-steps/2018/11/05/a908af60-e140-11e8-b759-3d88a5ce9e19_story.html?utm_term=.a2a01c7c7b17>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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