[EL] ELB News and Commentary 3/5/19

Tue Mar 5 08:55:08 PST 2019

“How much should Florida trust technology in conducting elections?”
<https://electionlawblog.org/?p=103944>
Posted on March 5, 2019 8:50 am <https://electionlawblog.org/?p=103944> by Dan
Tokaji <https://electionlawblog.org/?author=5>

An important question, not just for Florida. Tampa Bay Times
<https://www.tampabay.com/florida-politics/2019/03/05/how-much-should-florida-trust-technology-in-conducting-elections/>
:

A computer program might have avoided the entire 2018 recount fiasco and
saved South Florida election officials days of embarrassment last year, if
not their jobs.

Had the law allowed it, exhausted election workers in Broward and Palm
Beach counties could have conducted recounts in races for the U.S. Senate,
governor and agriculture commissioner in a matter of hours simply by
running a series of queries on licensed software already at their
fingertips. Instead, they toiled for days, unpacking and retabulating
hundreds of thousands of paper ballots….

Though Florida’s midterm election meltdown exposed administrative missteps
and led to the widely publicized suspensions and resignations of [election
supervisors] Snipes and Bucher, it also displayed Florida’s reliance on
fallible humans and outdated systems to perform crucial, repetitive and
sometimes subjective tasks.

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Posted in voting technology <https://electionlawblog.org/?cat=40>
“Gov. Greg Abbott blames DPS for voter roll snafu. But the story behind the
citizenship review is complicated.” <https://electionlawblog.org/?p=103942>
Posted on March 5, 2019 8:45 am <https://electionlawblog.org/?p=103942> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Texas Tribune
<https://www.texastribune.org/2019/03/04/voting-rights-fight-texas-gov-greg-abbott-picks-side-david-whitley/?utm_campaign=trib-social-buttons&utm_source=twitter&utm_medium=social>
:

In reality, the voter citizenship review was flawed in two major ways.

For one, officials from the Texas secretary of state’s office based their
review on data DPS had warned would not be up-to-date. In addition,
miscommunication between different state offices led state election
officials to misinterpret the citizenship status of 25,000 Texans who had
already proved to the state that they were citizens.

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Posted in voter registration <https://electionlawblog.org/?cat=37>
“Hillary Clinton blames her defeat on the downfall of the Voting Rights
Act: But is she right?” <https://electionlawblog.org/?p=103940>
Posted on March 5, 2019 8:40 am <https://electionlawblog.org/?p=103940> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Salon asks.
<https://www.salon.com/2019/03/05/hillary-clinton-blames-her-defeat-on-the-downfall-of-the-voting-rights-act-but-is-she-right/>
The
answer is no.
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Posted in Voting Rights Act <https://electionlawblog.org/?cat=15>
“Ilhan Omar’s Criticism Raises the Question: Is Aipac Too Powerful?”
<https://electionlawblog.org/?p=103937>
Posted on March 5, 2019 8:37 am <https://electionlawblog.org/?p=103937> by Dan
Tokaji <https://electionlawblog.org/?author=5>

NYT
<https://www.nytimes.com/2019/03/04/us/politics/aipac-congress-democrats.html>
:

…. Unlike the National Rifle Association, the Human Rights Campaign and
other powerful grass-roots advocacy organizations, Aipac, which is
bipartisan, does not endorse or raise money for candidates. But its members
do, with the organization’s strong encouragement.

Mr. Fiske’s Florida Congressional Committee is one of a string of political
action committees
<https://www.opensecrets.org/industries/indus.php?ind=Q05> with
anodyne names — NorPac <http://norpac.net/> in New Jersey, To Protect Our
Heritage PAC <http://www.protectourheritagepac.net/> outside Chicago,
the Maryland
Association for Concerned Citizens
<https://www.opensecrets.org/pacs/lookup2.php?strID=C00195024> outside
Baltimore, among others — that operate independently of Aipac but whose
missions and membership align with it.

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Posted in Uncategorized <https://electionlawblog.org/?cat=1>
“House Democrats ready ethics overhaul for floor vote this week”
<https://electionlawblog.org/?p=103935>
Posted on March 5, 2019 7:05 am <https://electionlawblog.org/?p=103935> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Roll Call
<https://www.rollcall.com/news/politics/house-democrats-ready-ethics-overhaul-floor-vote-week/>
:

The House Rules Committee will take up the package [HR 1] Tuesday, setting
the parameters for consideration on the floor. Lawmakers then will debate
the measure on the House floor over the following days, with an expected
vote on final passage Friday morning. Democrats and outside advocates
pushing for the bill say they’ll be on high alert for GOP attempts,
including amendments and motions to recommit, that could tank the overhaul.

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Posted in campaign finance <https://electionlawblog.org/?cat=10>, election
administration <https://electionlawblog.org/?cat=18>, legislation and
legislatures <https://electionlawblog.org/?cat=27>
Plaintiffs’ Merits Brief in Maryland Redistricting Case
<https://electionlawblog.org/?p=103933>
Posted on March 5, 2019 7:01 am <https://electionlawblog.org/?p=103933> by Dan
Tokaji <https://electionlawblog.org/?author=5>

>From Plaintiffs-Appellees’ Brief
<https://www.supremecourt.gov/DocketPDF/18/18-726/90601/20190304174151417_18-726.bs.pdf>
filed
in the Supreme Court yesterday:

A State may not inhibit “the political participation of some in order to
enhance the relative influence of others.” McCutcheon v. FEC, 572 U.S. 185,
191 (2014). Given this insuperable principle, counsel for the State agreed
last Term that if “the Maryland legislature passed a statute and said, in
the next round of reapportionment, we’re going to create seven Democratic
districts and one Republican district,” it would be unconstitutional
“viewpoint discrimination.” Tr. 45:9- 47:22, Benisek v. Lamone, 138 S. Ct.
1942 (2018) (No. 17-333). Yet in practical effect, that is exactly what
Maryland did during the 2011 congressional redistricting process….

The Court has held repeatedly that election regulations may not unduly
“burden[] the availability of political opportunity” of particular groups
of citizens on the basis of their political views. Clements v. Fashing, 457
U.S. 957, 964-65 (1982). In particular, “schemes that impose burdens on new
or small political parties or independent candidates” violate “First
Amendment interests in ensuring freedom of association” when they
concretely inhibit individuals’ “association with particular political
parties” and “mak[e] it virtually impossible for” candidates from
disfavored parties to achieve electoral success. Ibid. Accord, e.g.,
Anderson v. Celebrezze, 460 U.S. 780 (1983); Cook v. Gralike, 531 U.S. 510
(2001). That is exactly what a partisan gerrymander does—and if those
burdens are capable of principled evaluation in the ballot-access context,
they are equally so here….

Application of the First Amendment to partisan gerrymandering would not
outlaw politics in redistricting; mapdrawers would be free to use political
data in pursuit of balanced and competitive maps, and to undo past
gerrymanders. The First Amendment framework provides a more workable and
analytically sound approach to evaluating the problem of partisan
gerrymandering—it focuses on what kind of political considerations are
impermissible, not just how much political consideration is too much. Many
political considerations that play important, proven roles in redistricting
remain lawful under the First Amendment.

This is the strongest brief I’ve seen from the Maryland plaintiffs at any
stage. It wisely backs away from the idea that gerrymandering is a form of
retaliation — a backward-looking type of injury — instead focusing on
whether the state has burdened the disfavored party and its voters
prospectively (p. 25). It also hews to the established First Amendment
association standard set forth in *Anderson v. Celebrezze* and other cases
(pp. 36-42), while also telling the story of how the disfavored party and
its adherents were harmed both inside and outside the electoral process, as
Justice Kagan recommended in her
<https://www.law.cornell.edu/supremecourt/text/16-1161#writing-16-1161_CONCUR_4>*Gill
v. Whitford
<https://www.law.cornell.edu/supremecourt/text/16-1161#writing-16-1161_CONCUR_4>*
concurrence
<https://www.law.cornell.edu/supremecourt/text/16-1161#writing-16-1161_CONCUR_4>.
See this post
<https://www.scotusblog.com/2019/02/symposium-how-to-win-the-partisan-gerrymandering-cases/>
for
my thoughts on why this is the best approach.

Interesting that *McCutcheon *is featured prominently by all three
plaintiff groups <https://electionlawblog.org/?p=103910> in the NC and MD
redistricting cases
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Posted in redistricting <https://electionlawblog.org/?cat=6>
“Can the internet save Congress from ‘call time’?”
<https://electionlawblog.org/?p=103930>
Posted on March 5, 2019 4:37 am <https://electionlawblog.org/?p=103930> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Marketplace
<https://www.marketplace.org/2019/03/04/elections/can-internet-save-congress-call-time>
:

Several presidential candidates have said they will avoid corporate
political action committee money, and Democratic Sen. Elizabeth Warren
has promised
to avoid “call time,”
<https://medium.com/@teamwarren/the-best-president-money-cant-buy-1adfbe01a344>
when
candidates can spend hours a day on the phone with donors to raise money
for their campaign and the party….

Call time is particularly contentious in Congress, where members have
complained for years about the burden of fundraising while working.

“There have been decades and decades of members of Congress losing their
lives to ‘dialing for dollars,’ ” said Ciara Torres-Spelliscy
<https://www.stetson.edu/law/faculty/torres-spelliscy-ciara/>, a law
professor at Stetson University who studies political fundraising
<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=3083740>.

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Posted in campaign finance <https://electionlawblog.org/?cat=10>
NY Democratic Party Call for End to Fusion Voting
<https://electionlawblog.org/?p=103928>
Posted on March 5, 2019 4:25 am <https://electionlawblog.org/?p=103928> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Newsday
<https://www.newsday.com/news/region-state/democrats-fusion-voting-1.28068771>
:

The state Democratic Party approved a resolution Monday to ban New York’s
oft-criticized practice of fusion voting.

The resolution was nonbinding and has no legal impact. But Democratic
leaders said they hope lawmakers in the Democratic-controlled State
Legislature hear the message and pursue legislation.

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Posted in political parties <https://electionlawblog.org/?cat=25>
“Legislature votes to move up Washington state’s presidential primary”
<https://electionlawblog.org/?p=103926>
Posted on March 5, 2019 4:18 am <https://electionlawblog.org/?p=103926> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Seattle Times reports
<https://www.seattletimes.com/seattle-news/politics/legislature-votes-to-move-up-washington-states-presidential-primary/>:
“The bill would move Washington’s presidential primary to March 10, 2020
<https://www.seattletimes.com/seattle-news/politics/washingtons-last-presidential-primary-was-meaningless-the-state-legislature-might-change-that/>,
just one month after New Hampshire’s first-in-the-nation primary.”
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Posted in primaries <https://electionlawblog.org/?cat=32>
Dates Set for NC CD9 Do-Over <https://electionlawblog.org/?p=103924>
Posted on March 5, 2019 4:14 am <https://electionlawblog.org/?p=103924> by Dan
Tokaji <https://electionlawblog.org/?author=5>

NYT reports
<https://www.nytimes.com/2019/03/04/us/north-carolina-special-election-house-ninth.html>
:

The state elections board, which concluded last month
<https://www.nytimes.com/2019/02/21/us/mark-harris-nc-voter-fraud.html?module=inline>
that
fraud had tainted November’s voting for the seat, ruled on Monday that a
new open primary would be held in the district on May 14 and a new general
election on Sept. 10. If a second primary is required — a second-place
candidate may request another round of voting if no one receives at least
30 percent of the vote — the general election would be pushed to November.

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Posted in chicanery <https://electionlawblog.org/?cat=12>, Remedies
<https://electionlawblog.org/?cat=57>
Bad Ballot Design: Why Does It Keep Happening?
<https://electionlawblog.org/?p=103921>
Posted on March 4, 2019 1:44 pm <https://electionlawblog.org/?p=103921> by Dan
Tokaji <https://electionlawblog.org/?author=5>

>From Florida
<https://www.tampabay.com/florida-politics/2019/03/04/bad-ballot-design-changed-floridas-2018-election-why-does-this-keep-happening/>,
of course.
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Posted in election administration <https://electionlawblog.org/?cat=18>
Who Gets to Vote? <https://electionlawblog.org/?p=103918>
Posted on March 4, 2019 12:42 pm <https://electionlawblog.org/?p=103918> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Governing
<http://www.governing.com/topics/politics/gov-state-voting-laws-voter-purge-registration-id-fraud-ballot.html>
:

Expressing concerns about security, a majority of states have taken steps
in recent years that restrict voting in one way or another, including photo
identification requirements, cutbacks to early voting and policies designed
to make it more difficult for students to vote where they attend college.

But something else is happening in response. This year, hundreds of pieces
of legislation are up for consideration in more than 30 states that seek to
expand voting rights…. All over the country, both ballot measures and
legislation are being promoted to make voting and registration easier and
closer to universal. It’s not happening everywhere; there’s still a
partisan divide on many voting issues. But politicians from both parties,
in various states, have come around to the idea that it’s time to make
voting easier.

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Posted in Fixing Election Administration
<https://electionlawblog.org/?cat=4>, voter registration
<https://electionlawblog.org/?cat=37>
Bloomberg on H.R. 1 <https://electionlawblog.org/?p=103916>
Posted on March 4, 2019 12:34 pm <https://electionlawblog.org/?p=103916> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Support from the editorial board
<https://www.bloomberg.com/opinion/articles/2019-03-04/hr-1-offers-needed-election-reforms-to-american-democracy>
 and Francis Wilkinson
<https://www.bloomberg.com/opinion/articles/2019-03-04/hr-1-is-enormous-and-its-voting-and-districting-reforms-necessary>
.
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Posted in Fixing Election Administration
<https://electionlawblog.org/?cat=4>
Merits Briefs in N.C. Gerrymandering Case
<https://electionlawblog.org/?p=103910>
Posted on March 4, 2019 12:00 pm <https://electionlawblog.org/?p=103910> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Plaintiffs-Appellees have filed their briefs in *Rucho v. Common Cause
<https://electionlawblog.org/wp-content/uploads/Common-Cause-Brief.pdf>*/*League
of Women Voters*
<https://campaignlegal.org/document/rucho-v-league-women-voters-north-carolina-us-supreme-court-brief-appellees>
.

>From the Common Cause plaintiffs’ brief
<https://electionlawblog.org/wp-content/uploads/Common-Cause-Brief.pdf>:

The 2016 North Carolina Congressional Plan (“2016 Plan” or “Plan”) is the
most overt, and likely the most extreme, partisan gerrymander this Court
has ever seen. The official written criteria that governed its creation
expressly dictated pursuit of “Partisan Advantage” for the Republican Party
and specified a quota of “10 Republican” districts and just “3
Democrat[ic]” ones—despite a near-equal split among the State’s voters….

[T]he First Amendment does not permit the government “to restrict the
political participation of some in order to enhance the relative influence
of others.” McCutcheon, 572 U.S. at 191. It therefore prohibits State
action that distorts “[t]he free functioning of the electoral process” or
“tips the electoral process in favor of the incumbent party.” Elrod v.
Burns, 427 U.S. 347, 356 (1976)….

The District Court correctly found that [the plan] caused the North
Carolina Democratic Party and the voter-plaintiffs to suffer
well-recognized First Amendment harms to political expression and
association, including “decreased ability to mobilize their party’s base,
persuade independent voters to participate, attract volunteers, raise
money, and recruit candidates.” … Lastly, the District Court correctly held
that this burdening of First Amendment rights was not narrowly tailored to
a compelling State interest…

>From the LWV plaintiffs’ brief
<https://campaignlegal.org/sites/default/files/2019-03/18-422%20Brief%20of%20Appellee_FINAL%20PDF-A.pdf>
:

As throughout this litigation, the League solely advances a claim of
partisan vote dilution under the First and Fourteenth Amendments (while
also supporting other plaintiffs’ different claims)….

Republican candidates won ten out of thirteen seats in the 2016 election
even though the statewide vote was nearly tied. In 2018—as predicted by
Appellees’ expert—Republicans again prevailed in ten districts while
Democrats earned a majority of the statewide vote. A Democratic wave thus
failed to breach the gerrymander’s defenses. To the contrary, it yielded
the single largest Republican advantage in the last half-century of
congressional elections….

If given a judicial green light, both parties will exploit their authority
to gerrymander even more aggressively, using even more potent techniques,
than they have to date. Like North Carolina’s mapmakers, they will
ruthlessly crack and pack the opposing party’s voters. They will also
program computer algorithms to maximize their partisan advantage and make
adjustments throughout the decade to any districts that seem to be slipping
from their grasp. Through such machinations, “those who govern,” who
“should be the last people to help decide who should govern,” will try to
extinguish “the political responsiveness at the heart of the democratic
process.” McCutcheon v. FEC, 572 U.S. 185, 192, 227 (2014) (plurality).

*Update*: Common Cause’s press release and a link to its brief are here
<https://www.commoncause.org/press-release/common-cause-files-final-gerrymandering-brief-in-advance-of-supreme-court-arguments/>
.
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Posted in redistricting <https://electionlawblog.org/?cat=6>
“With Sweeping Document Request, Democrats Launch Broad Trump Corruption
Inquiry” <https://electionlawblog.org/?p=103911>
Posted on March 4, 2019 10:45 am <https://electionlawblog.org/?p=103911> by Dan
Tokaji <https://electionlawblog.org/?author=5>

NYT
<https://www.nytimes.com/2019/03/04/us/politics/trump-obstruction.html?action=click&module=Top%20Stories&pgtype=Homepage>
:

The chairman of the House Judiciary Committee delivered a flurry of
document demands to the executive branch and the broader Trump world on
Monday that detailed the breadth of the Democrats’ investigation into
possible obstruction of justice, corruption and abuse of power by President
Trump and his administration….

The letters from Mr. Nadler, dated March 4, went to 81 agencies,
individuals and other entities tied to the president, including the Trump
Organization, the Trump campaign, the Trump Foundation, the presidential
inaugural committee, the White House, the Justice Department, the F.B.I.
and dozens of the president’s closest aides who counseled him as he
launched attacks against federal investigations into him and his
associates, the press, and the federal judiciary. The committee will also
investigate accusations of corruption, including possible violations of
campaign finance law, the Constitution’s ban on foreign emoluments and the
use of office for personal gain.

Rep. Nadler’s press release, the letters, and the documents requests are
here
<https://nadler.house.gov/press-release/house-judiciary-committee-unveils-investigation-threats-against-rule-law>
.
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Posted in campaign finance <https://electionlawblog.org/?cat=10>, conflict
of interest laws <https://electionlawblog.org/?cat=20>
Cert. Denied in Utah Republican Party v. Cox
<https://electionlawblog.org/?p=103908>
Posted on March 4, 2019 8:23 am <https://electionlawblog.org/?p=103908> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Order here
<https://www.supremecourt.gov/orders/courtorders/030419zor_d1pf.pdf> in
case challenging the state’s candidate-selection process. Prior coverage
here <https://electionlawblog.org/?p=101447> and here
<https://electionlawblog.org/?p=103367>.
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Posted in political parties <https://electionlawblog.org/?cat=25>
“North Carolina Democrats see opportunity in do-over election”
<https://electionlawblog.org/?p=103905>
Posted on March 4, 2019 8:06 am <https://electionlawblog.org/?p=103905> by Dan
Tokaji <https://electionlawblog.org/?author=5>

AP <https://www.apnews.com/3e34f508b19b4e14951d5dc6bdc3ae5b>:

A ballot-fraud scandal that brought down a Republican candidate and led
North Carolina to order a do-over congressional election could give the
Democrats a strong shot at taking back a seat that has been held by the GOP
since John F. Kennedy was in the White House….

But there are also fears that the scandal could cut both ways, with fatigue
and disillusionment over the electoral system keeping some voters home.

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Posted in campaigns <https://electionlawblog.org/?cat=59>, chicanery
<https://electionlawblog.org/?cat=12>
Persily, “The Internet’s Challenge to Democracy: Framing the Problem and
Assessing Reforms” <https://electionlawblog.org/?p=103903>
Posted on March 4, 2019 7:11 am <https://electionlawblog.org/?p=103903> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Nate Persily
<https://www.kofiannanfoundation.org/electoral-integrity/democracy-digital-age-challenges-opportunities/>
has
written this report
<https://storage.googleapis.com/kofiannanfoundation.org/2019/02/a6112278-190206_kaf_democracy_internet_persily_single_pages_v3.pdf>
for
the Kofi Annan Commission on Elections and Democracy in the Digital Age
<https://www.kofiannanfoundation.org/our-work/kofi-annan-commission/>. From
the executive summary:

In the span of just two years, the widely shared utopian vision of the
internet’s impact on governance has turned decidedly pessimistic. The
original promise of digital technologies was unapologetically democratic:
empowering the voiceless, breaking down borders to build cross-national
communities, and eliminating elite referees who restricted political
discourse. That promise has been replaced by concern that the most
democratic features of the internet are, in fact, endangering democracy
itself. Democracies pay a price for internet freedom, under this view, in
the form of disinformation, hate speech, incitement, and foreign
interference in elections. They also become captive to the economic power
of certain platforms, with all the accompanying challenges to privacy and
speech regulation that these new, powerful information monopolies have
posed.

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Posted in political polarization <https://electionlawblog.org/?cat=68>

Daniel P. Tokaji
Associate Dean for Faculty | Ebersold Professor of Constitutional Law
The Ohio State University | Moritz College of Law
55 W. 12th Ave. | Columbus, OH 43210

614.292.6566 | tokaji.1 at osu.edu
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