[EL] ELB News and Commentary 1/23/19

Tue Jan 22 20:49:19 PST 2019

North Carolina: “Judge denies Mark Harris request to certify his win despite election fraud investigation”<https://electionlawblog.org/?p=103281>
Posted on January 22, 2019 8:32 pm<https://electionlawblog.org/?p=103281> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer:<https://www.newsobserver.com/news/politics-government/article224889035.html#topicLink=election-fraud-investigation>

The state’s investigation into alleged election fraud by the Mark Harris campaign will continue, a judge ruled Tuesday morning.

Harris is the Republican candidate who appeared to narrowly win an election for North Carolina’s 9th District seat in the U.S. House of Representatives in the 2018 elections. But the state has not certified his victory, due to an ongoing investigation into alleged fraud related to mail-in absentee ballots.

Harris and his legal team had asked Wake County Superior Court Judge Paul Ridgeway to order the state to certify the results of the election despite the investigation, which could then send Harris to Congress. Following two hours of arguments from Harris’ lawyers Tuesday morning, as well as lawyers for the state and Harris’ 2018 Democratic opponent Dan McCready, Ridgeway said he would deny Harris’ request.

“This is an extremely unusual situation, with no board in place, and asking this court to step in and exert extraordinary power in declaring the winner of an election, when that is clearly the purview of another branch of government,” he said during the hearing.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Tom Farr Not on List of Trump Judicial Renominations<https://electionlawblog.org/?p=103279>
Posted on January 22, 2019 8:26 pm<https://electionlawblog.org/?p=103279> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/2019/01/22/politics/white-house-judicial-nominees/index.html?utm_content=2019-01-23T03%3A52%3A18&utm_source=twCNN&utm_term=link&utm_medium=social>
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Posted in election law biz<https://electionlawblog.org/?cat=51>

“A look at the impact of Citizens United on its 9th anniversary”<https://electionlawblog.org/?p=103277>
Posted on January 22, 2019 8:09 pm<https://electionlawblog.org/?p=103277> by Rick Hasen<https://electionlawblog.org/?author=3>

Open Secrets reports.<https://www.opensecrets.org/news/2019/01/citizens-united/>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>

Pennsylvania: “High-stakes voting machine decision deserves more scrutiny”<https://electionlawblog.org/?p=103275>
Posted on January 22, 2019 8:07 pm<https://electionlawblog.org/?p=103275> by Rick Hasen<https://electionlawblog.org/?author=3>

Rich Garella<http://www.philly.com/opinion/commentary/philadelphia-voting-machines-city-commissioners-20190122.html> in the Philly Inquirer:

By this November, Philadelphia’s big electronic voting machines will be just a memory, if Governor Wolf and the Department of State have their way. They have given the City Commissioners a directive to put a paper ballot voting system in place, preferably in time for use in 2019.

That’s very good news. Because the old machines don’t record votes on paper, voters can’t tell if their votes were cast correctly, and the results can’t be recounted or checked for errors.

But citizens’ groups such as Philadelphia Neighborhood Networks<http://phillynn.org/>, Citizens for Better Elections<https://www.citizensforbetterelections.org/>, and the League of Women Voters<https://www.lwvphilly.org/> have become justifiably concerned that the process to choose a new system is taking place with too little public involvement or oversight.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Breaking: DOJ Will Seek to Leapfrog Over Second Circuit, Seek Immediate Supreme Court Review on Census Citizenship Question<https://electionlawblog.org/?p=103273>
Posted on January 22, 2019 12:43 pm<https://electionlawblog.org/?p=103273> by Rick Hasen<https://electionlawblog.org/?author=3>

Hansi Lo Wang reports.<https://twitter.com/hansilowang/status/1087811933577785345>

I think the Court will be likely to grant this motion and to hear the case this term, given printing deadlines in June.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

New FARA Resource<https://electionlawblog.org/?p=103271>
Posted on January 22, 2019 11:30 am<https://electionlawblog.org/?p=103271> by Rick Hasen<https://electionlawblog.org/?author=3>

Via email I learned that Caplin & Drysdale “has launched a website focused exclusively on the Foreign Agents Registration Act.  www.FARA.us<http://www.fara.us/> is a centralized resource that might help in research work of various parties moving forward, as it features FARA legislative history<http://fara.us/resources/>, descriptions of key enforcement cases<http://fara.us/case-summaries/>, summaries of the 60+ FARA advisory opinions<http://fara.us/advisory-opinions/>, and plain-language discussions<http://fara.us/blog/>of the law all in a single location.  Site content will be expanded and updated regularly.”

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

“How Voting-Machine Lobbyists Undermine the Democratic Process”<https://electionlawblog.org/?p=103269>
Posted on January 22, 2019 11:08 am<https://electionlawblog.org/?p=103269> by Rick Hasen<https://electionlawblog.org/?author=3>

New Yorker:<https://www.newyorker.com/tech/annals-of-technology/how-voting-machine-lobbyists-undermine-the-democratic-process?mbid=nl_Daily%20012219&CNDID=24399013&utm_source=nl&utm_medium=email&utm_campaign=Daily%20012219&utm_content=&utm_brand=tny&utm_mailing=Daily%20012219&hasha=309d6717cbc3e3f32e92886d7c56ad7c&hashb=83e1dab582589f34645916c2107b5abdf101af1f&spMailingID=15000144&spUserID=MTMzMTgyMzY0NTk1S0&spJobID=1561803483&spReportId=MTU2MTgwMzQ4MwS2>

In the past decade, Election Systems & Software (E.S. & S.), the largest manufacturer of voting machines in the country, has routinely wined and dined a select group of state-election brass, which the company called an “advisory board,” offering them airfare on trips to places like Las Vegas and New York, upscale-hotel accommodations, and tickets to live events. Among the recipients of this largesse, according to an investigation by McClatchy published<https://www.mcclatchydc.com/latest-news/article213558729.html> last year, was David Dove, the chief of staff to Georgia’s then secretary of state, Brian Kemp<https://www.newyorker.com/tag/brian-kemp>. Kemp, the new governor of Georgia, made news in the midterm elections for his efforts to keep people of color<https://www.newyorker.com/magazine/2018/10/29/voter-suppression-tactics-in-the-age-of-trump> from voting<https://www.newyorker.com/news/news-desk/a-win-in-the-battle-to-vote-in-georgia> and for overseeing his own election<https://www.newyorker.com/news/current/midterms-2018-voters-ask-a-federal-judge-to-bar-brian-kemp-from-counting-ballots-in-georgia>. In March of 2017, when Dove attended an E.S. & S. junket in Las Vegas, Kemp’s office was in the market to replace the state’s entire inventory of voting machines. “It’s highly inappropriate for any election official to be accepting anything of value from a primary contractor,” Virginia Canter, the chief ethics officer at Citizens for Responsibility and Ethics in Washington, told McClatchy. “It shocks the conscience.” (Kathy Rogers, E.S. & S.’s senior vice-president for governmental affairs, told McClatchy that there was nothing untoward about the advisory board, which she said has been “immensely valuable in providing customer feedback.”)
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

“Fighting settlement, GOP says Benson has ‘potential bias’ in gerrymandering case”<https://electionlawblog.org/?p=103267>
Posted on January 22, 2019 10:37 am<https://electionlawblog.org/?p=103267> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit News reports.<https://www.detroitnews.com/story/news/local/michigan/2019/01/22/gop-benson-potential-bias-gerrymandering-case/2643980002/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Mulroy: The Electoral College: Time To Graduate<https://electionlawblog.org/?p=103261>
Posted on January 22, 2019 7:46 am<https://electionlawblog.org/?p=103261> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is the first of three guest posts by University of Memphis law professor Steve Mulroy<https://www.memphis.edu/law/faculty-staff/steve-mulroy.php>, sounding some themes from his fascinating new book, Rethinking US Election Law: Unskewing the System<https://www.amazon.com/Rethinking-Us-Election-Law-Unskewing/dp/1788117506>:

We all know it is possible for a presidential candidate with fewer votes to win in the Electoral College over one with more votes. But we also saw elections in the House<https://www.washingtonpost.com/news/the-fix/wp/2014/11/06/in-2012-democrats-won-the-popular-vote-but-lost-the-house-not-this-year/?utm_term=.5f3e1ddce50a> (2012)  where the party with the majority of votes doesn’t control a majority of seats.[1]<https://electionlawblog.org/#_ftn1>   One can find similar results at the state and local level.

For all, the fundamental problem is holding winner-take-all elections within single-member political subdivisions—States for the Electoral College and Senate, and districts for the House as well as state and local elections.   Even where there is no counter-majoritarian result, these electoral features can often lead to a significant “skew” between votes and seats won by a political party, racial minority, or other politically cohesive group.

The skew likely will only get worse, as “demographic clustering” (aka “The Big Sort<http://www.thebigsort.com/home.php>”) continues, with Democrats overconcentrating in cities, leading to “natural gerrymanders.”  By 2040, 30% of Americans  <https://demographics.coopercenter.org/united-states-interactive-map> will control 70% of the Senate, and they will not be demographically representative of the nation as a whole.<https://twitter.com/normornstein/status/1016789064379334656?s=11>

We should be troubled by such results.  Elections are designed to measure popular will; they should reflect that will accurately.

In my book<https://books.google.com/books?id=P6V-DwAAQBAJ&pg=PT13&lpg=PT13&dq=since+WWII,+average+of+6%25+deviation+between+votes+and+seats+in+US+House+elections&source=bl&ots=ZQzMHY4bHJ&sig=ACfU3U2WH_v1eBfdbZ5VUe_2dqJpxYO1qw&hl=en&sa=X&ved=2ahUKEwiTxcacifvfAhULXKwKHcSpA1IQ6AEwDnoECAEQAQ#v=onepage&q=since%20WWII%2C%20average%20of%206%25%20deviation%20between%20votes%20and%20seats%20in%20US%20House%20elections&f=false>, I propose reforms to address these problems.  This post focuses on the Electoral College.

The Framers devised the College out of an inherent distrust of common voters<http://avalon.com.law.yale.edu/18th_century/debates_717.asp> ;  <http://avalon.com.law.yale.edu/18th_century/debates_717.asp> a desire to placate slave-holding states<https://academic.oup.com/jah/article-abstract/73/1/35/782082?redirectedFrom=fulltext> ; and as a compromise between large and small states.  None are persuasive today.  It’s not even clear the College really does protect small states.  Instead, it transfers power to about 10 swing states<https://www.cookpoliticalreport.com/analysis/national/2018-almanac-american-politics-preview/two-nations>, only 2 of which are in the bottom half of states by population.

The best modern defense of the College is the notion that it prevents a candidate with regionally isolated appeal from winning despite deep unpopularity in the rest of the nation’s regions.  But under any reasonable definition of “region” today, no one region would be enough to win the popular vote; a candidate would need to dominate in several major regions, by which time they’d likely be racking up Electoral College wins as well.

Abolishing the College through constitutional amendment is politically fanciful.  There are at least 10 swing states which would have every incentive to fight their loss of outsize influence, almost enough to defeat the ¾ majority required.  But there is a workaround: the National Popular Vote Interstate Compact<https://www.nationalpopularvote.com/>.

[1]<https://electionlawblog.org/#_ftnref1>  Similar non-majority results can be observed in recent Senate elections as well, although scoring them is more<https://www.nytimes.com/interactive/2018/11/06/us/elections/results-senate-elections.html> complicated<https://www.washingtonpost.com/politics/2018/11/07/some-democrats-are-complaining-about-senate-popular-vote-its-still-not-thing/?utm_term=.69dfc9307d03>.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>, electoral college<https://electionlawblog.org/?cat=44>

“Kobach’s defeat puts future of voter database in doubt”<https://electionlawblog.org/?p=103259>
Posted on January 22, 2019 7:36 am<https://electionlawblog.org/?p=103259> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://journaltimes.com/news/national/kobach-s-defeat-puts-future-of-voter-database-in-doubt/article_fe5ae9e7-68e1-5468-9cdb-9bc8a3466928.html?platform=hootsuite>

The future of a much-criticized database that checks if voters are illegally registered in multiple states is up in the air after its patron, Kris Kobach, lost the Kansas race for governor and is out of elected office.

A spokeswoman for Kobach’s successor as Kansas secretary of state said Friday the office is reviewing the Interstate Voter Registration Crosscheck Program and consulting with other member states about it. “No formal decision has been made either way” about whether to end the program, said Katie Koupal, the spokeswoman for Secretary of State Scott Schwab.

Crosscheck, which had been administered by Kobach’s office, compares voter registration lists among participating states to look for duplicates. The program is aimed at cleaning voter records and preventing voter fraud, but has drawn criticism<https://apnews.com/8bdb79714d604e04a296d915e37f77ab>for its high error rate and lax security.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“How Democrats Should Reform Elections in the States”<https://electionlawblog.org/?p=103257>
Posted on January 22, 2019 6:48 am<https://electionlawblog.org/?p=103257> by Richard Pildes<https://electionlawblog.org/?author=7>

On this subject, I have a new essay<https://prospect.org/article/how-democrats-should-reform-elections-states>, along with others writing on the same theme, published in the current edition of The American Prospect.  Here’s an excerpt on one issue I think has not received enough critical discussion:  among efforts to make voting more convenient, how should we think about the pros and cons of vote-by-mail versus expanded in-person early voting.  I believe it would be far better to expand early voting than vote-by-mail, for these reasons:

Another easy lift for Democrats is to make it easier to vote on a day other than a single workday. On this front, early voting and vote-by-mail (VBM) are to some extent functional alternatives, but early in-person voting has some clear advantages over VBM. States prefer VBM because it is less costly than staffing early-voting sites. But when there has been significant voter fraud in recent U.S. elections, it has been through the absentee ballot process, not in-person voting. In a notorious example, the courts ordered all the absentee ballots to be discarded in a Miami mayoral race in the mid-1990s because of pervasive absentee ballot fraud. As this article goes to press, North Carolina has refused to certify the results of one congressional race out of concern about possible absentee ballot fraud. No such problem has yet developed in the western states (Washington, Oregon, and Colorado) that now use VBM for all their elections, but we still ought to be concerned about the potential for fraud that VBM introduces.

Another problem with VBM, which became more apparent this year, is that it prolongs Election Day and raises suspicions about fraud when the outcome shifts in the prolonged ballot-counting. Many voters are unwilling to trust the U.S. Postal Service and prefer to turn their ballots in by hand on Election Day, even though they are casting VBM ballots. When VBM ballots come in on Election Day, checking the signatures on the ballots against the signatures on the registration rolls adds considerable delay to the counting process. In addition, the VBM system depends on the Postal Service’s efficiency and effectiveness. We now face situations— such as the recent elections in Arizona and California—in which hundreds of thousands of ballots still have to be counted after Election Day, and in which the winner cannot be determined well past a week afterward.

In a world of hyperpolarized political parties and a frenzied social media ecosystem, delays of this length in determining election winners are dangerous. We got a taste of this problem after the recent midterms, when Speaker of the House Paul Ryan called California’s election system “bizarre” and said that it “defies logic” because many congressional races in California took days to be decided and the Democrat ended up winning despite having been behind on election night. There was nothing nefarious about California’s process, but prolonged delays invite suspicions. When the stakes are high, partisans will question the legitimacy of the process, and public confidence in elections is jeopardized. To the extent we can achieve reform goals while bringing closure to election results closer to Election Day, we should do so. Early voting has clear advantages over VBM in this respect.
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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
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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