[EL] ELB News and Commentary 3/21/19

[Rick Hasen]

“New report through US 2050 details the effect of race and gender on campaign fundraising”<https://electionlawblog.org/?p=104302>
Posted on March 21, 2019 8:31 am<https://electionlawblog.org/?p=104302> by Rick Hasen<https://electionlawblog.org/?author=3>

Open Secrets<https://www.opensecrets.org/news/2019/03/new-report-through-us-2050-details-the-effect-of-race-and-gender-on-campaign-fundraising/#utm_source=twitter&utm_medium=social&utm_campaign=twitt_race-and-gender-report-pressrelease-032018>:

The Center for Responsive Politics is pleased to announce the publication<https://www.pgpf.org/us-2050/research-projects/Race-Gender-and-Money-in-Politics-Campaign-Finance-and-Federal-Candidates-in-the-2018-Midterms> of “Race, Gender, and Money in Politics: Campaign Finance and Federal Candidates in the 2018 Midterms.” Written by Sarah Bryner, the Center’s research director, and Grace Haley, the Center’s gender and race researcher, this paper looks at the future of money in politics and the changing demographic shifts in Congress and America.

Here is the paper’s abstract:

As the U.S. population grows increasingly diverse, Congress, and particularly Republican members, continue to lag behind in representation of women and minorities. While the 2018 midterm elections ushered in a historically large group of new female and minority congresspeople, barriers still remain to minority candidates trying to run, raise money, and win. Collecting individual candidate data from the 2018 midterms, the authors study the fundraising of political candidates by race, gender, and political affiliation, pairing an email survey in which candidates self-identify race and gender with data on electoral outcomes. While Democrats ran more diverse candidates than Republicans in terms of women and people of color in the 2018 midterms, the Democratic candidate pool was still less diverse than the electorate, particularly in competitive races. Additionally, black women face disadvantages in fundraising, particularly from large individual donors. While women raised more money than men this cycle, much of this increase in female fundraising in 2018 was driven by female candidates raising a disproportionate amount of money from female donors. The authors suggest that although the 116th Congress is much more diverse than those prior, there remain significant barriers to disadvantaged groups in running for office.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“In Wisconsin gerrymandering case, Assembly Speaker Robin Vos refuses to testify”<https://electionlawblog.org/?p=104300>
Posted on March 21, 2019 8:29 am<https://electionlawblog.org/?p=104300> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal Sentinel reports<https://www.jsonline.com/story/news/politics/2019/03/20/wisconsin-gerrymandering-case-speaker-robin-vos-refuses-testify/3222777002/>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Florida Republicans Push to Make Ex-Felons Pay Fees Before They Can Vote”<https://electionlawblog.org/?p=104298>
Posted on March 21, 2019 8:27 am<https://electionlawblog.org/?p=104298> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports<https://www.nytimes.com/2019/03/20/us/florida-felon-voting-rights.html>.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


Nevada Democrats Will Allow People to Participate Virtually in Presidential Primary Caucus, Increasing Opportunities for Participation<https://electionlawblog.org/?p=104295>
Posted on March 21, 2019 8:19 am<https://electionlawblog.org/?p=104295> by Rick Hasen<https://electionlawblog.org/?author=3>

Good news<https://lasvegassun.com/news/2019/mar/20/nevada-democrats-release-plan-for-2020-presidentia/#.XJMGX22Jsjg.mailto> from Nevada. Caucuses are inherently undemocratic, as I’ve been arguing<http://%20https/slate.com/news-and-politics/2012/02/congress-should-kill-the-republican-and-democratic-state-caucuses-and-mandate-primaries-instead.html> for years<https://slate.com/news-and-politics/2008/02/why-the-crazy-caucus-and-primary-rules-are-legal.html>.
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Posted in political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>


“Get-out-the-vote groups urge Texas to allow Election-Day registration”<https://electionlawblog.org/?p=104293>
Posted on March 21, 2019 8:13 am<https://electionlawblog.org/?p=104293> by Rick Hasen<https://electionlawblog.org/?author=3>

The Houston Chronicle reports<https://www.houstonchronicle.com/news/politics/texas/article/Report-More-Texans-voted-last-year-but-state-13700403.php?t=e310015cec>.
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Posted in voter registration<https://electionlawblog.org/?cat=37>


Video of Symposium: “Barriers at the Ballot Box: Protecting or Limiting the Core of the American Identity?”<https://electionlawblog.org/?p=104291>
Posted on March 21, 2019 8:11 am<https://electionlawblog.org/?p=104291> by Rick Hasen<https://electionlawblog.org/?author=3>

Video <https://mediasite.memphis.edu/Mediasite/Play/126cf898506041c79053f5a848d29bcd1d> of this recent symposium<https://www.memphis.edu/law/programs/law-review-symposium.php> at the University of Memphis is now available.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Democratic super PAC launches $50 million effort to weaken Trump with core supporters”<https://electionlawblog.org/?p=104289>
Posted on March 21, 2019 8:07 am<https://electionlawblog.org/?p=104289> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News reports<https://www.nbcnews.com/politics/2020-election/democratic-super-pac-launches-50-million-effort-weaken-trump-core-n985571?cid=eml_pol_20190321>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“Cindy Yang helped Chinese tech stars get $50K photos with Trump. Who paid?”<https://electionlawblog.org/?p=104287>
Posted on March 21, 2019 8:05 am<https://electionlawblog.org/?p=104287> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald<https://www.miamiherald.com/news/politics-government/article227941749.html>:

So who paid Trump Victory for their photos?

Yang isn’t saying — but she and three associates with an Asian-American political group donated a total of $135,500 to Trump Victory in the weeks leading up to the event. None of those associates would comment either. One of them told the Miami Herald she could not recall making a $25,000 donation listed in her name and address.

Yang and her associates have advertised businesses that connect Chinese clients with U.S. politicians. Their strategy reflects a growing industry selling tickets to U.S. political or charity events through foreign social-media sites — sometimes at marked-up prices.

Selling tickets to campaign fundraisers without disclosing the buyer to the Federal Election Commission is illegal. Selling tickets to foreign nationals, who are banned from donating to American political causes, would be an additional violation of U.S. law. Only U.S. citizens and permanent residents can contribute, although foreign nationals can attend fundraisers if they do not reimburse anyone for their tickets. It would be legal for Yang and her associates to give away tickets and high-dollar extras like photos with the president as gifts, but illegal to sell them.

Through a spokesman, Lu said a friend gifted him a ticket to the event, which is legal because he said he never paid the friend back. He declined to name the friend. Lu’s spokesman provided a copy of his green card, issued three weeks before the event. His company, 5miles, offers an online marketplace through a mobile app. Last year, the company, which has branches in Beijing and Dallas, secured a three-year deal to place its patch on the Dallas Mavericks’ jersey, the Fort Worth Star-Telegram reported<https://www.star-telegram.com/latest-news/article203794899.html>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>


“Redistricting Edge Saved GOP From Deeper Midterm Losses”<https://electionlawblog.org/?p=104285>
Posted on March 21, 2019 8:02 am<https://electionlawblog.org/?p=104285> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://talkingpointsmemo.com/news/gop-redistricting-edge-moderated-democrats-midterms-gains>:

The AP’s analysis indicates that Republicans won about 16 more U.S. House seats than would have been expected based on their average share of the vote in congressional districts across the country. In state House elections, Republicans’ structural advantage might have helped them hold on to as many as seven chambers that otherwise could have flipped to Democrats, according to the analysis.

The AP examined all U.S. House races and about 4,900 state House and Assembly seats up for election last year using a statistical method of calculating partisan advantage that is designed to flag cases of potential political gerrymandering. A similar analysis also showed a GOP advantage in the 2016 elections.

The AP used the so-called “efficiency gap” test in part because it was one of the analytical tools cited in a Wisconsin gerrymandering case that went before the U.S. Supreme Court in 2017 and is part of a North Carolina case scheduled to be argued on Tuesday before the court. In that case, justices will decide whether to uphold a lower court ruling that struck down North Carolina’s congressional districts as an unconstitutional political gerrymander favoring Republicans.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


Mulroy: “Adopting proportional representation would unskew US elections”<https://electionlawblog.org/?p=104283>
Posted on March 20, 2019 12:55 pm<https://electionlawblog.org/?p=104283> by Rick Hasen<https://electionlawblog.org/?author=3>

Steve Mulroy blogs.<https://blogs.lse.ac.uk/usappblog/2019/03/20/adopting-proportional-representation-would-unskew-us-elections/>
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


“Trump could be left off some states’ ballots in 2020 if these bills become law”<https://electionlawblog.org/?p=104281>
Posted on March 20, 2019 12:43 pm<https://electionlawblog.org/?p=104281> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/politics/2019/03/20/trump-could-be-left-off-some-states-ballots-if-these-bills-become-law/?utm_term=.750d61991242>.
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Posted in ballot access<https://electionlawblog.org/?cat=46>


“Democracy, Federalism, and the Guarantee Clause”<https://electionlawblog.org/?p=104278>
Posted on March 20, 2019 11:15 am<https://electionlawblog.org/?p=104278> by Rick Hasen<https://electionlawblog.org/?author=3>

Carolyn Shapiro has posted this draf<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3355020>t on SSRN (forthcoming, Arizona Law Review. Here is the abstract:

The Guarantee Clause of the Constitution promises that “[t]he United States shall guarantee to every State in this Union a Republican form of Government…” The Supreme Court has long held this Clause to be nonjusticiable, and as a result many see the Clause as purely vestigial. But nonjusticiable does not mean toothless, and this view fails to recognize the Clause’s grant of power to Congress. The Guarantee Clause provides Congress with the authority to ensure that each state’s internal governance meets a minimum standard of republicanism. The Framers included this promise because they feared that some forms of government, such as monarchy, were incompatible with republicanism.

Nonrepublican government in one state, they believed, might have deleterious or even dangerous effects on other states, and protection against nonrepublican government was thus essential for long-lasting and healthy interstate and federal-state relationships. Today, the Framers’ fears appear prescient, as a number of states engage in tactics like extreme partisan gerrymandering that entrenches one party in power, lame duck legislation that reallocates power to undermine an incoming administration, and targeted burdens on voting. These tactics are of a piece with the type of democratic erosion that scholars have observed internationally and historically. Moreover, the potential negative effects from one state to another – and from one state to the nation as a whole – are substantial and threaten to undermine many of the benefits of federalism. Fortunately, the Guarantee Clause allows – indeed, requires – Congress to address these antidemocratic state-level practices.

Looking forward to reading this!
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Posted in theory<https://electionlawblog.org/?cat=41>


Today’s Must-Read: Jacob Levy at Niskanen on Republicans’ Fear of Democracy<https://electionlawblog.org/?p=104275>
Posted on March 20, 2019 7:03 am<https://electionlawblog.org/?p=104275> by Rick Hasen<https://electionlawblog.org/?author=3>

Jacob Levy:<https://niskanencenter.org/blog/democracy-for-republicans/>

A favorite reply to the complaint about the Electoral College outcomes is to note that campaign strategies are endogenous to the electoral rules, and that it is impossible to infer what would have happened if both campaigns had been trying to win the popular vote instead. That reply is probably right as to 2000, when the popular vote margin was .5 percent and candidate popularity as measured by opinion polls was essentially tied. It’s probably impossible to know the counterfactual as to who would have won if both campaigns had been seeking popular majorities all along. It is certainly wrong as to 2016, when the popular vote margin was much larger, when there was a hard ceiling on Trump’s support nationwide, when polling consistently showed a Clinton lead even after the Comey letter, and when the urban-rural divide in voting strength was much larger than in 2000. (If you are trying to run up large popular margins, you have to be able to focus get-out-the-vote efforts in concentrated areas with large populations and a large majority favoring your candidate, i.e., cities.)

At the state level, matters are different but no better. The starkest symbol of the Republican approach to state politics is provided by the fact that two GOP secretaries of state, Kris Kobach of Kansas and Brian Kemp of Georgia, served as chief election officers and pursued extremely aggressive purges of voting rolls while running for governor. (Kemp won, Kobach lost.) After the 2018 election, Republican legislatures in Michigan and Wisconsin rewrote the separation of powers in their states<https://www.nytimes.com/2018/12/11/opinion/wisconsin-michigan-democrats-hardball.html>
, using bills signed by lame-duck Republican incumbents to change the rules of the game for their incoming Democratic successors. (The same had happened in North Carolina in 2016.) And Republican legislatures have conducted a decade-long assault on voting rights in the states, ratcheting up identification requirements, conducting scare campaigns against immigrant voters that chill participation by Latino citizens, rolling back early voting and absentee voting, and playing games with the opening hours and numbers of polling places <https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/09/04/polling-places-remain-a-target-ahead-of-november-elections> in Democratic-leaning cities. The best current research suggests that the voter ID laws in particular have not had much effect on turnout<https://www.nber.org/papers/w25522>, but that’s not for lack of trying on the part of Republicans.

And the state and federal levels interact. The Republican failure to command majorities of votes cast at the federal level is all the more striking given the state-level efforts to limit the electorate in the first place. And the Republican-dominated Supreme Court gutted the Voting Rights Act in the 2013 decision Shelby County v. Holder, opening the floodgates to almost-entirely-Republican state-level efforts to restrict access to the ballot.

The Republican Party is now the beneficiary of all the countermajoritarian mechanisms that make it difficult to translate voting pluralities or majorities into electoral wins, including those that were deliberate creations of constitutional design, those that evolved more or less accidentally, and those that were opportunistically engineered in recent decades. It is moreover the beneficiary of actions that selectively suppress voter turnout and eligibility to vote. Democrats more often than not command popular-vote pluralities even though many Democratic-leaning voters are discouraged or prohibited from getting to the ballot box at all.

The Trump administration has tried to blow smoke about all this, asserting, in defiance of all evidence, that millions of illegal votes cost Trump the popular vote in 2016. In reality, Trump’s victory stands as the culmination of a Republican willingness to give up on trying to reach pluralities or majorities of voters, and to be willing to grab any narrow victory by any means necessary, and in particular by aggressively trying to discount the votes of African-Americans, Hispanics, and Native Americans relative to those of whites. McConnell’s machinations in 2016 tie the whole Republican enterprise of minoritarian election-rigging to Trump, and if he goes down in disgrace, the enterprise that secured his victory should go with him….

ELECTORATE-RIGGING IS RENT-SEEKING
Winning a majority vote doesn’t have all the moral importance that the romantic conception of a democratic will imputes to it. But that doesn’t somehow make the inability to win a majority vote into a virtue. Countermajoritarianism has some place as a check on untrammeled power, but it is not itself a foundation for political legitimacy.
Imagine if Democrats had won the popular vote for the House by only 5 percent or 6 percent and had failed to flip control of the chamber, at a time when the Republican Senate majority represents an electoral minority, and a president whose legitimacy is deeply compromised on other grounds to begin with was chosen by an electoral minority, and that president and Senate are locking in control of the Supreme Court for years to come. And, faced with the knowledge of their shrinking popular base, imagine that Congress and president further enabling state-level disenfranchisement efforts.

When incumbent owners and industries shape the rules to prevent themselves from facing free and fair competition, supporters of open markets have no difficulty in condemning that as rent-seeking. The attempt to engineer electorates to one’s liking — through selective identification requirements or restricted ballot places and hours, through gerrymandering, through felon disenfranchisement, and so on, and so on — is also rent-seeking. It is the effort to replace general, impersonal, rule-of-law-type decision-making procedures with self-reinforcing power for incumbent elites. Political power is both itself a valuable good and is the key instrumental good in the pursuit of rents. Empowering political coalitions to constantly reselect their own electorates, rewrite the separation of powers rules under which they operate, and redefine the rules of competition in their own interest just is to enshrine rent-seeking as standard operating procedure.
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Posted in theory<https://electionlawblog.org/?cat=41>


“Gillum to launch Florida voter-registration campaign to trip up Trump”<https://electionlawblog.org/?p=104273>
Posted on March 20, 2019 6:59 am<https://electionlawblog.org/?p=104273> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico reports.<https://www.politico.com/states/florida/story/2019/03/20/gillum-to-launch-florida-voter-registration-campaign-to-trip-up-trump-923517>
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Posted in voter registration<https://electionlawblog.org/?cat=37>


“Florida Republicans move to limit felon voting rights despite constitutional amendment”<https://electionlawblog.org/?p=104271>
Posted on March 20, 2019 6:56 am<https://electionlawblog.org/?p=104271> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News reports.<https://www.nbcnews.com/politics/politics-news/florida-republicans-move-limit-felon-voting-rights-despite-constitutional-amendment-n985156?cid=eml_pol_20190320>
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Posted in felon voting<https://electionlawblog.org/?cat=66>


--
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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