[EL] ELB News and Commentary 1/3/20

Fri Jan 3 16:52:07 PST 2020

Election-related options still to come at AALS<https://electionlawblog.org/?p=108705>
Posted on January 3, 2020 4:47 pm<https://electionlawblog.org/?p=108705> by Justin Levitt<https://electionlawblog.org/?author=4>

Rick already mentioned a few<https://electionlawblog.org/?p=108491> of the exceptional election-related events at AALS so far.

There are still several to come, including my stint tomorrow at 8:30 as least valuable player on a 2020 census panel<https://memberaccess.aals.org/eweb/DynamicPage.aspx?webcode=SesDetails&ses_key=1e75f006-e9e6-40be-b4c6-538bf8ee8ece> with Dale Ho, Christina Mora, and Franita Tolson, moderated by Rachel Moran.

Then stick around for a 10:30 panel on the 15th and 19th Amendments<https://memberaccess.aals.org/eweb/DynamicPage.aspx?webcode=SesDetails&ses_key=a1a6f5a4-2f83-4b5a-86c8-3c5a75e6e400> with Atiba Ellis, Catherine Powell, Camille Gear Rich, Jorge Roig, Ciara Torres-Spelliscy, and Sarah Catherine Walker, moderated by Marc-Tizoc Gonzalez.   And a 1:30 program on partisan politics and our democratic order<https://memberaccess.aals.org/eweb/DynamicPage.aspx?webcode=SesDetails&ses_key=7deb4df3-da67-4aa4-9655-2cd254a44736>, with andré douglas pond cummings, Emma Jordan, Yvonne Lindgren, and Gerald Torres, moderated by Steven Ramirez.   And another 1:30 program on litigating voting rights remedies in the Trump era<https://memberaccess.aals.org/eweb/DynamicPage.aspx?webcode=SesDetails&ses_key=e56994ef-f2c4-431e-97c5-955a5d7fd72b>, with Elise Boddie, Guy-Uriel Charles, John Harrison, and Pam Karlan, moderated by Alexandra Lahav.  And a 3:30 program on discussing socioeconomic issues in the context of a polarized and polarizing election season<https://memberaccess.aals.org/eweb/DynamicPage.aspx?webcode=SesDetails&ses_key=0ed77791-72f0-42c7-ae0b-be5cbd733631>, with Natalie Gomez-Velez, Susan Kuo, and Bertrall Ross, moderated by Deleso Alford and June Rose Carbone.

And the big presidential program tomorrow at 1:30, on representation, voting, and sustainable constitutional democracy<https://memberaccess.aals.org/eweb/DynamicPage.aspx?webcode=SesDetails&ses_key=9ba0f208-e95f-4a06-ba73-bf962caeda06>, with Guy, Pam, Michael Morley, and Kim Lane Scheppele, moderated by Thomas Ginsburg.

Among (many) others.  If you’re in the Wardman Park area, come join!
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Posted in census litigation<https://electionlawblog.org/?cat=125>, election law and constitutional law<https://electionlawblog.org/?cat=55>, The Voting Wars<https://electionlawblog.org/?cat=60>, theory<https://electionlawblog.org/?cat=41>, voting<https://electionlawblog.org/?cat=31>

🤔
Posted on January 3, 2020 4:45 pm<https://electionlawblog.org/?p=108702> by Justin Levitt<https://electionlawblog.org/?author=4>

The New York Times lede<http://www.startribune.com/judge-indicted-giuliani-associate-may-give-records-to-house/566689581/?refresh=true>:

A federal judge on Friday allowed a Rudy Giuliani associate indicted on campaign finance charges to turn over documents to Congress as part of the impeachment proceeding against President Donald Trump.

U.S. District Court Judge Paul Oetken granted Lev Parnas’ request to turn over to the House intelligence committee documents and data seized by federal investigators when Parnas was arrested in October.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“A deceptively edited video of Joe Biden illustrates a big problem in 2020”<https://electionlawblog.org/?p=108700>
Posted on January 3, 2020 4:44 pm<https://electionlawblog.org/?p=108700> by Justin Levitt<https://electionlawblog.org/?author=4>

Rick’s been writing up a storm<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418427> about dirty tricks like deepfakes in American elections, including in his new book<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/>.

But the sort of deceptive selective editing at play in the video described here<https://www.vox.com/policy-and-politics/2020/1/2/21046605/joe-biden-viral-video-deceptive-edit> is much more accessible, and has been for a while now<https://www.projectveritas.com/>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>

“America Won’t Give Up Its Hackable Wireless Voting Machines”<https://electionlawblog.org/?p=108698>
Posted on January 3, 2020 4:43 pm<https://electionlawblog.org/?p=108698> by Justin Levitt<https://electionlawblog.org/?author=4>

This Bloomberg piece<https://www.bloomberg.com/news/articles/2020-01-03/america-won-t-give-up-its-hackable-wireless-voting-machines> on Web-connected election machines scapegoats the public craving for instant results.

“The pressure to promptly transmit results to news organizations –- and ultimately voters — is so great that election officials have no choice but to briefly connect voting systems to the internet at the end of the night, said Paul Lux, the elections supervisor of Okaloosa County, Florida and a member of the EAC advisory committee that develops technical guidelines.”

“If everyone would just be patient on election night and let us produce the results, then there’s no real debate here about wireless transmission,” Lux said.

I’ve thought for a while now that we’d all actually be a lot better served, substantively, by some election-day self-restraint with the preliminary results and the pre-preliminary reults and the pre-pre-preliminary results.  And that’s as unrealistic as the hope that the media reporting on the security vulnerabilities caused by the promise of the instant results they offer might lead that charge.
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Posted in voting technology<https://electionlawblog.org/?cat=40>

Here come the latest purge demands<https://electionlawblog.org/?p=108695>
Posted on January 3, 2020 4:42 pm<https://electionlawblog.org/?p=108695> by Justin Levitt<https://electionlawblog.org/?author=4>

Looks like Judicial Watch released another tranch<https://www.judicialwatch.org/press-releases/judicial-watch-finds-millions-of-extra-registrants-on-voting-rolls-warns-california-pennsylvania-north-carolina-colorado-virginia-to-clean-up-voting-rolls-or-face-a-fed/> of NVRA demand letters.

Also looks like they’re still<https://www.judicialwatch.org/wp-content/uploads/2019/12/NVRA-Notices-2019-California.pdf> identifying allegedly non-compliant jurisdictions at least in part by comparing point-estimate registration data on legal domicile to trend-estimate ACS data on physical CVAP presence.

When I wrote about this particular comparison in 2017<http://electionlawblog.org/?p=95240>, it was bad science.  It’s still bad science.  Just to recap a few of the problems:
·         These metrics measure different things. Registration is about domicile, Census estimates of CVAP are about where you lay your head.  You can still be legally registered in a jurisdiction even if you’re not physically present there.  Two obvious examples, but there are plenty more:
o    Any member of Congress who sleeps most of the time in DC is probably registered in their home district but probably counted for Census purposes in DC.
o    And members of the military may be counted for Census purposes where they’re stationed,<https://www.census.gov/population/www/cen2010/resid_rules/resid_rules.html#TWELVE> but can also be registered at “home.”  Any jurisdiction that sends a lot of people to the military, but doesn’t have a base, may well have more lawfully registered people than Census CVAP estimates show.  Not so kind to the troops to purge them while they’re serving.
·         These metrics are different types of measures.  Registration is a hard count of individuals, Census estimates of CVAP are survey estimates and projections. Among other things: the latter comes with a margin of error.
·         These metrics cover different time periods. The CVAP estimates are estimates over a (usually) multi-year period, often several years behind any current snapshot of a registration count.
·         And if the measure of registration entries includes inactive voters, those are voters heading off the list if they don’t interact with election officials in the near future – but that interim period is a safeguard to make sure that eligible voters aren’t kicked off the rolls by mistake.

To be abundantly clear: accurate list maintenance is good hygiene, and beneficial.  Inaccurate list maintenance based on flawed measures of problems is medical malpractice.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>

“Florida legislators’ PACs amass hundreds of millions of dollars”<https://electionlawblog.org/?p=108693>
Posted on January 3, 2020 4:39 pm<https://electionlawblog.org/?p=108693> by Justin Levitt<https://electionlawblog.org/?author=4>

I missed this last week<https://www.news-journalonline.com/news/20191228/florida-legislatorsrsquo-pacs-amass-hundreds-of-millions-of-dollars/1>:

Direct donations to campaigns for the Florida Legislature are limited to $1,000. . . . [But t]he amount of money a company or individual can donate to a legislator’s PAC is limitless. . . .  A Daytona Beach News-Journal investigation found PACs controlled by current Republican House and Senate members total $728 million. In contrast, Democratic legislators’ PACs total just $19 million.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, lobbying<https://electionlawblog.org/?cat=28>

“Voting Rights Restoration Gives Felons a Voice in More States”<https://electionlawblog.org/?p=108691>
Posted on January 3, 2020 4:38 pm<https://electionlawblog.org/?p=108691> by Justin Levitt<https://electionlawblog.org/?author=4>

A recap of recent action<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/01/03/voting-rights-restoration-gives-felons-a-voice-in-more-states> on the enfranchisement of people with convictions, from Stateline.
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Posted in political equality<https://electionlawblog.org/?cat=69>

“Lowering the Voting Age to 16: Learning from Real Experiences Worldwide”<https://electionlawblog.org/?p=108689>
Posted on January 3, 2020 4:38 pm<https://electionlawblog.org/?p=108689> by Justin Levitt<https://electionlawblog.org/?author=4>

The new year brings another new book on electoral mechanics<https://www.palgrave.com/us/book/9783030325404>, edited by Jan Eichhorn and Johannes Bergh.  The abstract:

This book explores the consequences of lowering the voting age to 16 from a global perspective, bringing together empirical research from countries where at least some 16-year-olds are able to vote. With the aim to show what really happens when younger people can take part in elections, the authors engage with the key debates on earlier enfranchisement and examine the lead-up to and impact of changes to the voting age in countries across the globe. The book provides the most comprehensive synthesis on this topic, including detailed case studies and broad comparative analyses. It summarizes what can be said about youth political participation and attitudes, and highlights where further research is needed. The findings will be of great interest to researchers working in youth political socialization and engagement, as well as to policymakers, youth workers and activists.

Should be an interesting read.
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Posted in political equality<https://electionlawblog.org/?cat=69>, voting<https://electionlawblog.org/?cat=31>

“SEC Proposed Proxy Rules Changes—A Risk to Companies, Corporate Political Disclosure and Accountability”<https://electionlawblog.org/?p=108687>
Posted on January 3, 2020 4:37 pm<https://electionlawblog.org/?p=108687> by Justin Levitt<https://electionlawblog.org/?author=4>

Bruce Freed, Dan Carroll, and Karl Sandstrom, at the Harvard Law School Forum on Corporate Governance<https://corpgov.law.harvard.edu/2020/01/03/sec-proposed-proxy-rules-changes-a-risk-to-companies-corporate-political-disclosure-and-accountability/>, connect proposed SEC rule changes, raising ownership thresholds and limiting repeat attempts for shareholder proxy fights, to the battle over disclosure of corporate political spending.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

Scheduling of special elections<https://electionlawblog.org/?p=108685>
Posted on January 3, 2020 4:36 pm<https://electionlawblog.org/?p=108685> by Justin Levitt<https://electionlawblog.org/?author=4>

There’s always a fair amount of controversy around the scheduling of special elections to fill vacancies, particularly when the date seems to create particularly advantageous or disadvantageous terrain.

The latest takes shape in New York<https://buffalonews.com/2020/01/02/court-postpones-action-on-gop-bid-for-quick-27th-district-election/>, for the special election to replace Rep. Chris Collins, who resigned after pleading guilty to insider trading.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

California Democratic Party settles lawsuits alleging harassment and discrimination by former leader<https://electionlawblog.org/?p=108683>
Posted on January 3, 2020 4:35 pm<https://electionlawblog.org/?p=108683> by Justin Levitt<https://electionlawblog.org/?author=4>

The LA Times has the latest<https://www.latimes.com/california/story/2020-01-03/california-democratic-party-settles-lawsuits-alleging-harassment-discrimination> on the continuing fallout from the scandal involving the former chair.
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Posted in political parties<https://electionlawblog.org/?cat=25>

The partisan campaign finance horse race<https://electionlawblog.org/?p=108681>
Posted on January 3, 2020 4:35 pm<https://electionlawblog.org/?p=108681> by Justin Levitt<https://electionlawblog.org/?author=4>

The WaPo summarizes<https://www.washingtonpost.com/politics/trump-and-the-gop-raised-almost-half-a-billion-dollars-last-year--and-still-had-nearly-200-million-heading-into-2020/2020/01/03/10ba1612-2dad-11ea-bcd4-24597950008f_story.html> the reported candidate and party committee hauls for 2019 ($463 million for Trump and the RNC, for example).

It seems fair to compare RNC solo fundraising to DNC solo fundraising, and Trump’s re-elect to Obama’s 2012 re-elect.  But if the point of the horserace tally is to get a rough sense of fundraising enthusiasm for the general election ahead, it’s always struck me as profoundly weird to compare fundraising by one presidential incumbent to fundraising by any individual candidate for an opposing party nomination.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Top DFLers, state party defend law that permits Trump-only GOP primary ballots”<https://electionlawblog.org/?p=108679>
Posted on January 3, 2020 4:34 pm<https://electionlawblog.org/?p=108679> by Justin Levitt<https://electionlawblog.org/?author=4>

The real story isn’t that state party officials are defending state party associational rights<http://www.startribune.com/top-dflers-state-party-defend-law-that-permits-trump-only-gop-primary-ballots/566666341/> under the First Amendmetn (even if they also benefit opposing parties).  The real story is the practical recognition that litigation now begins to creep up on getting the ballots out.  The primary season is upon us.
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Posted in election law and constitutional law<https://electionlawblog.org/?cat=55>, political parties<https://electionlawblog.org/?cat=25>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Chief Justice Roberts warns we’re taking “democracy for granted.” His rulings haven’t helped.”<https://electionlawblog.org/?p=108677>
Posted on January 3, 2020 4:34 pm<https://electionlawblog.org/?p=108677> by Justin Levitt<https://electionlawblog.org/?author=4>

Ian Millhiser critiques<https://www.vox.com/2020/1/3/21046493/chief-justice-roberts-annual-report-democracy> what he sees as a disconnect between the Chief’s year-end report on the judiciary and our democracy<https://electionlawblog.org/?p=108628>, and the Chief’s actions on the judiciary and our democracy.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Voting Rights Act<https://electionlawblog.org/?cat=15>

“Leaked Trump Camp Tape Reignites Concerns Over GOP ‘Ballot Security’ Plans”<https://electionlawblog.org/?p=108675>
Posted on January 3, 2020 4:33 pm<https://electionlawblog.org/?p=108675> by Justin Levitt<https://electionlawblog.org/?author=4>

Tierney Sneed at TPM<https://talkingpointsmemo.com/news/trump-campaign-official-consent-decree-leaked-tape> highlights the audio Rick blogged before the holidays<https://electionlawblog.org/?p=108510>, about the lapse of the consent decree between the DNC and RNC governing “ballot security” efforts.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, political parties<https://electionlawblog.org/?cat=25>

“Man, 81, Pleads Guilty To Voting in N.H. and Mass.”<https://electionlawblog.org/?p=108673>
Posted on January 3, 2020 4:33 pm<https://electionlawblog.org/?p=108673> by Justin Levitt<https://electionlawblog.org/?author=4>

If this<http://indepthnh.org/2020/01/03/man-81-pleads-guilty-to-voting-in-n-h-and-mass/> is the proof of the busloads of voters<https://www.usatoday.com/story/news/politics/2017/02/14/fact-check-no-evidence-busing-voters-new-hampshire/97896228/>, those are very, very small buses.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

New York made a few election law changes in 2019<https://electionlawblog.org/?p=108671>
Posted on January 3, 2020 4:32 pm<https://electionlawblog.org/?p=108671> by Justin Levitt<https://electionlawblog.org/?author=4>

Greenberg Traurig, in The National Law Review<https://www.natlawreview.com/article/new-york-election-law-2019-year-review-summary-key-statutory-changes>, have you covered on some of the basics.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, election administration<https://electionlawblog.org/?cat=18>

Primary voting begins today …<https://electionlawblog.org/?p=108667>
Posted on January 2, 2020 1:38 pm<https://electionlawblog.org/?p=108667> by Justin Levitt<https://electionlawblog.org/?author=4>

… in the Oscars race.  It’s an alternative voting system<https://www.oscars.org/sites/oscars/files/92aa_rules.pdf> for nominations (and in a few categories, for the final result):

In the nominations voting, the marking and tabulation of all ballots shall be according to the preferential, weighted average, or reweighted range voting system. Votes for achievements in motion pictures not on the Reminder List will not be counted in the nominations balloting. Tabulation of final ballots shall be according to the plurality or preferential system. No “write-in” votes shall be counted on the final ballot.

There’s a good explanation here<https://www.goldderby.com/article/2019/2020-oscar-nominations-voting/> using last year’s Best Actress contenders, and FairVote (among others) will periodically put out explanations of its own<https://www.fairvote.org/how_ranked_choice_voting_leads_to_fair_representation_in_oscar_nominations>.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>, primaries<https://electionlawblog.org/?cat=32>

Justin Levitt   (he/him/his)
Associate Dean for Research
Professor of Law / Gerald T. McLaughlin Fellow

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