[EL] ELB News and Commentary 6/17/21

[Rick Hasen]

“Manchin moves shake up Dem strategy for massive elections bill”<https://electionlawblog.org/?p=122689>
Posted on June 17, 2021 7:54 am<https://electionlawblog.org/?p=122689> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/06/16/manchin-gop-elections-bill-494878>

In an interview on Wednesday afternoon, Manchin said he’d done the best he could to put together a proposal he could support. He acknowledged party leaders might not go along: “I couldn’t vote for it in the form it is. Now, whether anybody is going to change it … [the memo] might not, might not change their mind. I understand that and I respect that.”

Manchin is making clear he’s not against everything in the elections bill: He supports expanded early voting and a ban on partisan gerrymandering, according to a copy of his memo<https://www.politico.com/f/?id=0000017a-15e9-d33b-a37f-1defe4c70000> obtained by POLITICO. But he also wants new voter ID requirements and is pushing for more flexibility for state officials to remove voters from voter rolls, both of which run counter to the design of the elections bill that already passed the House….

Schumer began the process of bringing a piece of legislation shaped by Rules Committee Democrats to the floor for a vote next week, which will need 60 votes to advance. A spokesperson said that legislation could be the vehicle for changes sought by Manchin.

Among the provisions that Manchin opposes or is uneasy about in the elections bill his party’s dubbed S1 are no-excuse absentee voting and public financing of elections. And some senior House Democrats who shepherded the voting bill through their chamber are listening to the Democratic Senate’s gregarious 50th voter.

“I like a lot of what I saw,” House Majority Whip Jim Clyburn (D-S.C.) said in a brief interview. He called the memo a “great first step” toward getting something into law.

The memo follows a Monday meeting attended by GOP senators as well as civil rights groups. Attendees of the Monday meeting included Sens. Lindsay Graham (S.C.), Susan Collins (Maine), Mitt Romney (Utah) and Tim Scott (S.C.), according to senators and sources familiar with the meeting. In addition, Manchin invited Sens. Richard Burr (N.C.), Ben Sasse (Neb.), Dan Sullivan (Alaska), Thom Tillis (N.C.), and Todd Young (Ind.).

“I did it because I was asked by Sen. Manchin,” Graham said. “We have differences on S. 1 but I’d like to make voting easier. Maybe have some uniform standards on how you do mail-in balloting. There might be some things we can do … He’s always trying to find a way forward on stuff.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republican governors’ misleading spin on new voting restrictions”<https://electionlawblog.org/?p=122687>
Posted on June 17, 2021 7:48 am<https://electionlawblog.org/?p=122687> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo fact checker.<https://www.washingtonpost.com/politics/2021/06/17/republican-governors-misleading-spin-new-voting-restrictions/>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Joe Manchin and Computer Models<https://electionlawblog.org/?p=122685>
Posted on June 16, 2021 6:12 pm<https://electionlawblog.org/?p=122685> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Joe Manchin’s memo<https://www.washingtonpost.com/context/manchin-memo-on-voting-legislation/7f38ab4b-3224-4dce-bf89-7e0a28d18b96/?itid=lk_inline_manual_3> outlining his views on the For the People Act includes the following policy that he supports: “Ban partisan gerrymandering and use computer models.” In light of Manchin’s centrality to the legislative process, it’s worth unpacking how computer models can be used in redistricting—and how they would be used under the current text of H.R. 1 / S. 1.

1. Proof of Concept: First, redistricting algorithms can be used to prove that a “better” map than the enacted plan could have been drawn. Suppose that the enacted plan is highly biased in a party’s favor, and that the party argues that the bias is attributable to the plan’s compliance with nonpartisan criteria: compactness, respect for county and municipality boundaries, and so on. Redistricting algorithms can then be deployed to definitively rebut this claim. If it’s possible to produce a map that’s less biased than the enacted plan, and that satisfies the nonpartisan criteria at least as well, then the enacted plan’s bias can’t be justified by those criteria.

2.  Generation of an Optimal Map: Second, well-intentioned line-drawers can use redistricting algorithms to identify an “optimal” (or at least a very good) map. Line-drawers must simultaneously follow a wide range of requirements: equal population, the Voting Rights Act, state constitutional criteria, and if H.R. 1 / S. 1 becomes law, partisan fairness and respect for communities of interest, neighborhoods, and political subdivisions. Humans are surprisingly good at achieving multiple redistricting goals at the same time. But computers are better. They can often produce maps that dominate the best human product on every specified dimension.

3. Generation of a Gerrymander: Third, by the same token, partisan line-drawers can use redistricting algorithms to find a map that’s highly advantageous for their party while still complying with all nonpartisan criteria. Again, humans are skilled at crafting gerrymanders whose districts look reasonable and violate no law. Again, though, computers are better, often coming up with maps that are even more biased (and even better-looking) than any human creation.

4. Production of a Comparison Set: Lastly, redistricting algorithms can be used to generate an ensemble of maps with which the enacted plan is compared. The usual idea is for the maps in the ensemble to perform at least as well as the enacted plan in terms of every nonpartisan goal the plan was trying to achieve—but to be created without any consideration of partisan data. After the maps have been produced, partisan data is then used to calculate the bias of both those maps and the enacted plan. If the enacted plan is more biased than most or all of the maps in the ensemble, that’s powerful evidence that the plan was designed with a partisan motive.

So which of these uses would be required, permitted, or prohibited by H.R. 1 / S. 1 (as it currently stands)? Two different provisions would encourage (though not compel) redistricting algorithms to be employed as proof of concept. First, s. 2403(b)(2)(B)(ii) states that a plan has the effect of unduly favoring or disfavoring a party if its bias exceeds a certain threshold and there exist “alternative plans, which may include, but are not limited to, those generated by redistricting algorithms,” which are less biased and still compliant with all other legal requirements. Redistricting algorithms would thus be one intuitive way to establish the existence of less biased, legally compliant, alternative maps.

Second, s. 2403(b)(4) states that no plan shall be found to violate the ban on partisan gerrymandering “unless one or more alternative plans could have complied with” the Constitution’s equal population requirement and the Voting Rights Act “without having the effect of unduly favoring or disfavoring a political party.” Again, redistricting algorithms are a logical method for demonstrating that equipopulous, VRA-compliant, reasonably fair maps could have been created.

H.R. 1 / S. 1 would further permit (without encouraging) redistricting algorithms to be used for the generation of an optimal map and/or the production of a comparison set. A commission sharing Manchin’s enthusiasm for computer models could deploy one to design a map that satisfies all legal requirements. Of course, this isn’t the only way to craft a lawful plan. Likewise, a plaintiff seeking additional evidence about an enacted plan’s partisan intent or effect could try to show that the plan is more biased than most or all of the maps in the computer-generated ensemble. But no such showing is required by H.R. 1 / S. 1, and it would often be easier for a plaintiff to prove partisan intent and effect in other ways.

Lastly, H.R. 1 / S. 1 would prohibit redistricting algorithms from being used for the generation of a gerrymander. Any such usage would plainly evince “the intent . . . of unduly favoring or disfavoring any political party.” Any gerrymander worth its salt would also exceed the bill’s bias threshold of one seat for smaller states and two seats for larger states.

It’s impossible to tell from Manchin’s cryptic reference to “computer models” whether he entirely agrees with H.R. 1 / S. 1’s current approach to redistricting algorithms. But I hope he does. In particular, I hope he doesn’t want to force plaintiffs to show that the enacted plan is more biased than most or all computer-generated maps. Despite recent technical advances, there remain significant concerns about the representativeness of computer-generated maps. If they’re not representative of the relevant universe of maps, then they’re not a suitable benchmark for comparison. Additionally, computer-generated maps created without consulting partisan data may be biased in one or another party’s favor. This bias would then be “baked in” as the legal ideal—even if it’s possible, even easy, to design unbiased maps for the jurisdiction in question. For these reasons, I hope that by “computer models” Manchin meant nothing more, and nothing less, than what’s already in H.R. 1 / S. 1.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Uncategorized<https://electionlawblog.org/?cat=1>


Pam Fessler, the Dean of Journalists Covering Voting Rights, is Retiring from NPR<https://electionlawblog.org/?p=122682>
Posted on June 16, 2021 4:58 pm<https://electionlawblog.org/?p=122682> by Rick Hasen<https://electionlawblog.org/?author=3>

I share the bittersweet news that Pam Fessler<https://www.npr.org/people/2100470/pam-fessler>, who has been covering voting-related issues for NPR, is retiring July 9.

Pam has covered voting rights longer and better than anyone else on this beat. Her reporting is always deep, careful, and absent of hyperbole or rumor. It’s a politically fraught area but she manages to speak to everyone who matters and to get to the heart of these difficult issues. She’s the consummate professional, and her reporting on these issues is going to be important decades from now for understanding the historical record of our difficult times.

Pam has been with NPR for 28 years and a reporter for 47, so she’s certainly earned a rest. But the field is going to suffer without her voice. I hope she finds a way to stay involved in voting and democracy issues as she enjoys her retirement.

In addition to covering voting, Pam has also covered poverty and philanthropy at NPR. And she’s author of the award-winning book, Carville’s Curse: Leprosy, Stigma, and the Fight for Justice<https://wwnorton.com/books/9781631495038>.

It’s truly the end of an era, and I will miss our frequent conversations about the state of, and how to improve, American elections and democracy.

Here’s to a long and healthy retirement, Pam!
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Posted in election law biz<https://electionlawblog.org/?cat=51>


“F.E.C. Dismisses Case Against Democrats Over Outreach to Ukraine”<https://electionlawblog.org/?p=122680>
Posted on June 16, 2021 4:51 pm<https://electionlawblog.org/?p=122680> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/06/16/us/politics/fec-ukraine-trump.html>

The Federal Election Commission has dismissed a complaint by an ally of President Donald J. Trump accusing the Democratic Party and one of its former consultants of violating campaign finance laws by working with Ukraine to help Hillary Clinton’s 2016 campaign by damaging Mr. Trump’s.

An unusual bipartisan combination of members of the commission voted against pursuing a complaint filed in 2017<https://www.documentcloud.org/documents/20891983-foundation-for-accountability-and-civic-trust-complaint-against-the-dnc-alexandra-chalupa-august-8-2017> by Matthew G. Whitaker, a former federal prosecutor and staunch defender of Mr. Trump who was later appointed acting attorney general<https://www.nytimes.com/2018/11/07/us/politics/whitaker-mueller-trump.html>.

He filed the complaint after Mr. Trump and his White House began publicly calling for investigations<https://www.thetrumparchive.com/?searchbox=%22%E2%80%9CUkrainian+efforts+to+sabotage+Trump+campaign+-+%5C%22quietly+working+to+boost+Clinton.%5C%22%22> of the matter in an effort to deflect attention from revelations that Mr. Trump’s son Donald Trump Jr. and other campaign advisers met with a Kremlin-connected Russian lawyer<https://www.nytimes.com/2017/07/08/us/politics/trump-russia-kushner-manafort.html> at Trump Tower during the 2016 campaign.

Mr. Whitaker claimed in his complaint that the Democratic National Committee and a consultant who had worked for it, Alexandra Chalupa, violated a prohibition on foreign donations by soliciting damaging information and statements from Ukrainian government officials about Paul Manafort, who was Mr. Trump’s campaign chairman at the time….

he commission — which is composed of three members selected by each party — voted 4 to 2 in April that there was not probable cause to believe that Ms. Chalupa and the Democratic National Committee broke the law, according to documents released Wednesday<https://www.fec.gov/data/legal/matter-under-review/7271/>.

The four commissioners voted against a recommendation by the commission’s general counsel to find probable cause that Ms. Chalupa and the Democratic National Committee violated the foreign donation ban by trying to arrange an interview in which Petro O. Poroshenko, the Ukrainian president at the time, might say something critical about Mr. Manafort.

While the four commissioners issued statements disputing the general counsel’s characterization that Ms. Chalupa’s communications with the embassy prompted the ban, they also offered very different ideological concerns.

The three Republican commissioners said in a statement accompanying the decision<https://www.fec.gov/files/legal/murs/7271/7271_44.pdf> that they had “grave constitutional and prudential concerns” about the general counsel’s reading of the law, which they cast as an overreach. Ms. Chalupa’s communication with the embassy, they wrote, “did not ask that Ukrainian officials convey a thing of value within the meaning of a ‘contribution’ to the D.N.C.”

The Republicans were joined in voting against probable cause by Ellen L. Weintraub, a Democratic commissioner since 2002, who cited concerns about Russian disinformation<https://www.fec.gov/files/legal/murs/7271/7271_46.pdf> as a basis for her vote.
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Posted in federal election commission<https://electionlawblog.org/?cat=24>


“Democrats Should Leap at the Chance to Take Joe Manchin’s Deal”<https://electionlawblog.org/?p=122678>
Posted on June 16, 2021 1:55 pm<https://electionlawblog.org/?p=122678> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2021/06/democrats-should-take-joe-manchin-deal.html> for Slate. It begins:

Sen. Joe Manchin, who thus far has opposed Democrats’ big election reform bill, has finally made his counteroffer<https://www.politico.com/f/?id=0000017a-15e9-d33b-a37f-1defe4c70000>. On Wednesday, the West Virginian proposed a series of changes to the “For the People Act” that could win his vote. Democrats should grab the deal, even though it is not perfect, is still unlikely to pass, and doesn’t yet address the greatest threat in upcoming elections: the danger of election subversion….

With new pressure<https://www.axios.com/progressives-biden-manchin-democrats-bold-1b282977-0afa-4311-845f-d1441284efce.html> on Manchin since he again backed the filibuster and stated his explicit opposition to the initial version of the For the People Act earlier this month, he finally released his counteroffer on Wednesday. It includes a number of the most important voting rights and campaign finance priorities of the original bill, including a requirement of 15 days of early voting in federal elections, automatic voter registration, limits on partisan gerrymandering, and improved campaign finance disclosure. He’s also on board with extending campaign finance provisions to communications on the internet and to currently non-disclosing “dark money” groups, prohibiting false information about when, where, and how people vote, and an updated preclearance process.

Yes, Democrats should jump at the opportunity to pass such a bill, but it is also fair to acknowledge it is far from perfect. Many of the darlings in the For the People Act are not<https://twitter.com/ProfNickStephan/status/1405233421878693893> on Manchin’s list, such as felon re-enfranchisement, public financing of congressional elections, restructuring the often-deadlocked Federal Election Commission, and limiting state voter purges. Not only would the Manchin proposal continue to allow states to engage in voter purges, it also will require some form of voter identification for voting in federal elections, though in a more relaxed form than some of the strict rules some states have enacted. It also would weaken some of the standards for restoring preclearance under the John Lewis bill, making it harder to get a jurisdiction covered by the requirement and easier for a jurisdiction to get out from under its coverage.

Again, this is a good deal being offered to Democrats, and Democrats should grab it. Voter identification is not necessarily bad, if it is implemented fairly, has ways for people lacking ID to still vote, and is funded fully by the government. Many of the items on the Democratic wishlist not here are much less urgent than what is being offered and can be pursued another time….

Ultimately, the biggest problem with the Manchin counteroffer is its failure to address the danger of election subversion<https://www.nytimes.com/2021/04/23/opinion/republicans-voting-us-elections.html>—that Republicans are reworking state election laws to make it easier for partisan officials to miscount votes to alter election outcomes. A key provision of the For the People Act that works against election subversion is a requirement for all states to use paper ballots in all elections. Did Manchin leave that off the list because he was just listing highlights or because he opposes the provision? Or is it because West Virginia is one of the few states experimenting<https://www.npr.org/2020/04/28/844581667/states-expand-internet-voting-experiments-amid-pandemic-raising-security-fears> with Internet voting? I hope it is the former: having a paper record of votes that can be counted independently by courts or other neutral bodies is an essential bulwark against election subversion. And there are other provisions for fair election review that were excluded from the initial bill and that are missing from Manchin’s proposal, which need to be added as well, such as those requiring transparency in the vote counting process.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“‘Pure Insanity’: How Trump and His Allies Pressured the Justice Department to Help Overturn the Election”<https://electionlawblog.org/?p=122676>
Posted on June 16, 2021 1:53 pm<https://electionlawblog.org/?p=122676> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo deep dive.<https://www.washingtonpost.com/politics/interactive/2021/trump-justice-department-2020-election/>
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>



--
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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