[EL] ELB News and Commentary 11/8/18

Wed Nov 7 20:25:10 PST 2018

“The 16 Races That Are Still Too Close To Call”<https://electionlawblog.org/?p=102061>
Posted on November 7, 2018 8:23 pm<https://electionlawblog.org/?p=102061> by Rick Hasen<https://electionlawblog.org/?author=3>

538 round up.<https://fivethirtyeight.com/features/the-16-races-still-too-close-to-call/?ex_cid=story-twitter>
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Posted in recounts<https://electionlawblog.org/?cat=50>

“Scott-Nelson race for U.S. Senate seat could be headed for a recount”<https://electionlawblog.org/?p=102059>
Posted on November 7, 2018 8:15 pm<https://electionlawblog.org/?p=102059> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/news/politics-government/state-politics/article221277405.html>

Republican Gov. Rick Scott was clinging to a 25,920-vote advantage over Democratic incumbent Sen. Bill Nelson as of Wednesday evening — or just 0.32 percent of the 8.1 million ballots cast by Floridians.

State law allows for a machine recount of the results if the two candidates are separated by one-half of a percentage point or less. The race is well within that margin.
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Posted in recounts<https://electionlawblog.org/?cat=50>

Georgia: “Thousands of provisional ballots remain uncounted in Fulton County”<https://electionlawblog.org/?p=102057>
Posted on November 7, 2018 8:10 pm<https://electionlawblog.org/?p=102057> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC: <https://www.ajc.com/news/local-govt--politics/thousands-provisional-ballots-remain-uncounted-fulton-county/XJHEhxb3AZNdqh45Slh4SN/>

A day after the election, the governor’s <https://politics.myajc.com/blog/politics/the-jolt-brian-kemp-the-cusp-but-stacey-abrams-hasn-given/JMENWBtvOhw4v99u3fn3XP/>  race remained in limbo<https://www.ajc.com/news/state--regional-govt--politics/kemp-maintains-slim-lead-over-abrams-final-votes-counted/RrCkTLAxPcD93dIS1TQXHL/>, with Secretary of State Brian Kemp declaring victory and Democrat Stacey Abrams vowing to hang in the race until every vote is counted.

A number of other races could result in a recount, including the 6th District<https://www.ajc.com/news/election-day-georgia-6th-district/7Zmbp8sh6jgJlHfAJCmbTM/> Congressional contest between Republican Rep. Karen Handel and Lucy McBath. McBath, a Democrat, was ahead by fewer than 3,000 votes as of Wednesday afternoon, and the margin was less than 1 percent.

Some of the provisional ballots in question were cast at three Atlanta precincts that were ordered by a judge to remain open late. Votes cast by people who joined the line after the normal 7 p.m. close were required to be provisional, the Fulton elections director said, so they could be separated from other votes if the judge’s order is overturned.

Barron said he did not know how many of the total provisional ballots came from those precincts.
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Posted in election administration<https://electionlawblog.org/?cat=18>, recounts<https://electionlawblog.org/?cat=50>

Republican Senate Could Block Democratic Supreme Court Nominees For a Long Time<https://electionlawblog.org/?p=102055>
Posted on November 7, 2018 8:08 pm<https://electionlawblog.org/?p=102055> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/07/us/politics/senate-judges-appointed.html>

But the midterm results have longer-term implications as well. By broadening their Senate majority from 51 seats to about 54 (some races have yet to be decided<https://www.nytimes.com/2018/11/07/us/politics/midterms-florida-georgia-california.html?module=inline>), Republicans have expanded their chances of retaining control of the chamber after 2020. Only a handful of Republican Senate incumbents will be up in states where Democrats are competitive, and they have their own vulnerable incumbents, too.

As a result, even if a Democrat defeats Mr. Trump and takes over the White House in 2021, Mr. McConnell is likely to retain sufficient power in the Senate to prevent that president from appointing judges to start swinging the pendulum back. That situation would be similar to what happened in President Barack Obama’s final two years in office, when Republicans, after taking control of the Senate, systematically blocked his nominees<https://www.nytimes.com/2016/02/16/us/politics/before-antonin-scalias-death-a-clash-between-gop-and-obama-over-appellate-judges.html?module=inline> to fill vacancies on both federal appeals courts and the Supreme Court.

“Getting judicial nominees acceptable from a liberal persuasion into a position to get nominated and confirmed is a slim-to-none proposition over the course of the next two to three election cycles because of the composition of the Senate,” said Bruce Buchanan, a political-science professor at the University of Texas, Austin.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Aging Machines, Crowds, Humidity: Problems at the Polls Were Mundane but Widespread”<https://electionlawblog.org/?p=102053>
Posted on November 7, 2018 7:42 pm<https://electionlawblog.org/?p=102053> by Rick Hasen<https://electionlawblog.org/?author=3>

Pro Publica:<https://www.propublica.org/article/aging-machines-crowds-humidity-problems-at-the-polls-were-mundane-but-widespread>

While aging infrastructure was already a well-known problem to election administrators, the surge of voters experiencing ordinary glitches led to extraordinarily long waits, sometimes stretching over hours. From Pennsylvania to Georgia to Arizona and Michigan, polling places started the day with broken machines leading to long lines, and never recovered.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: Three Judge Federal Court Unanimously Strikes Maryland Congressional District as Partisan Gerrymander<https://electionlawblog.org/?p=102051>
Posted on November 7, 2018 10:56 am<https://electionlawblog.org/?p=102051> by Rick Hasen<https://electionlawblog.org/?author=3>

The judges<https://www.brennancenter.org/sites/default/files/legal-work/2018-11-07-Memorandum%20Opinion.pdf> considered two First Amendment-based theories: all three joined in one of the theories, and two in the other.

This will go on direct appeal to the Supreme Court, in a case with an opinion written by a well respected conservative judge (Niemeyer) and involving a finding of gerrymandering against Democrats.

This will likely get taken up with the North Carolina case which involves a Republican gerrymander.

As I recently wrote<https://blog.harvardlawreview.org/the-next-threat-to-redistricting-reform/> at the HLR Blog, the Court without Justice Kennedy is much less likely to police partisan gerrymandering under the U.S. Constitution.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

QV Or Not QV? That Is The Question: Some Skepticism About Radical Egalitarian Voting Markets<https://electionlawblog.org/?p=102049>
Posted on November 7, 2018 8:48 am<https://electionlawblog.org/?p=102049> by Rick Hasen<https://electionlawblog.org/?author=3>

I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3279216> on SSRN (forthcoming, University of Chicago Law Review, Online).  Here is the abstract:

This paper is part of a symposium on Eric A. Posner & E. Glen Weyl’s recent book, Radical Markets: Uprooting Capitalism and Democracy for a Just Society. Posner and Weyl argue for the use of quadratic voting, or QV, for conducting voting for ballot measures and (perhaps) representative government. The original version of Posner and Weyl’s QV would allow literal vote buying, in which the wealthy could decide how many votes to allocate in an election such as one to decide whether to build a public park. In the current version of their proposal, contained in their book, Posner and Weyl advocate a modified version of QV in which all voters receive an equal number of “credits” which they can then vote quadratically across ballot measures over time or among a number of candidates for office. They argue that such a system will allow “a passionate minority” to “outvote an indifferent majority” and that “the outcome of the vote should maximize the well-being of the entire group, not the well-being of one subset at the expense of another.” Their chapter on QV begins with a vignette of a rural Japanese voter saving up his money to cast a large number of votes in favor a measure repealing gun control in rural areas.

In this short response, I express some skepticism about the creation of the radical egalitarian voting market Posner and Weyl suggest, and argue instead for QV-based public financing of elections. First, I argue that the kind of tradeoffs that modified QV elections require are both normatively undesirable and likely beyond the rational capacity of voters, especially in a politically polarized political environment fueled by social media and disinformation. Second, I argue that the caveats and constraints Posner and Weyl build into their model makes modified QV risky and impractical as an actual voting reform, as compared to other voting methods that reflect intensity, such as cumulative voting. Third, I briefly argue that QV public financing of elections through campaign finance vouchers is both practical and can achieve many of the benefits Posner and Weyl suggest for their voting market without some of the drawbacks I have identified.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>, theory<https://electionlawblog.org/?cat=41>, voting<https://electionlawblog.org/?cat=31>

--
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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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