[EL] ELB News and Commentary 3/24/21

[Rick Hasen]

“G.O.P. and Allies Draft ‘Best Practices’ for Restricting Voting”<https://electionlawblog.org/?p=121294>
Posted on March 23, 2021 6:59 pm<https://electionlawblog.org/?p=121294> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/03/23/us/politics/republican-voter-laws.html?action=click&module=Top%20Stories&pgtype=Homepage>

In late January, a small group of dedicated volunteers from the conservative Heritage Action for America met with Republican legislators in Georgia, delivering a letter containing detailed proposals for rolling back access to voting. Within days, bills to restrict voting access in Georgia began flooding the Legislature.

Of the 68 bills<https://www.brennancenter.org/our-work/research-reports/state-voting-bills-tracker-2021> pertaining to voting, at least 23 had similar language or were firmly rooted in the principles laid out in the Heritage group’s letter and in an extensive report it published two days later<https://www.heritage.org/election-integrity-facts>, according to a review of the bills by The New York Times.

The alignment was not coincidental. As Republican legislatures across the country seek to usher in a raft of new restrictions on voting, they are being prodded by an array of party leaders and outside groups working to establish a set of guiding principles to the efforts to claw back access to voting.

Heritage, for instance, has claimed credit for a new Arizona law, signed last week by Gov. Doug Ducey, that requires the secretary of state to compare death records with voter registrations. The state representative who sponsored the bill thanked one of the Heritage volunteers in a Facebook post after it passed.

Party leaders and their conservative allies are planning to export successful statutory language from one state to others, like the text of Alabama’s voter ID law. They are also drafting what they describe as “best practices” principles for completely new legislation, with the impetus often coming from outside groups like the Heritage Foundation.

And the Republican National Committee has created an “election integrity’’ committee, a group of 24 R.N.C. members tasked with developing legislative proposals on voting systems. The committee is populated with officials who were deeply involved in the “stop the steal” effort to overturn former President Donald J. Trump’s election loss last year and who have refused, more than two months after President Biden’s inauguration, to admit publicly that his victory was legitimate.

The widespread coordination underscores the extent to which the dogma of voter fraud is embedded in the Republican Party, following Mr. Trump’s campaign of falsehoods about the 2020 election. Out of power in both Congress and the White House, the party views its path to regaining a foothold in Washington not solely through animated opposition to Mr. Biden’s agenda, but rather through an intense focus on re-engineering the voting system in states where it holds control….

The policies, according to Jessica Anderson, the Heritage Action executive director, are largely rooted in the work of Hans von Spakovsky, a lawyer who has worked on voting battles for decades, including a voter identification law in Georgia that was ruled discriminatory in 2005. He also helped to run the now-defunct voter-fraud commission that Mr. Trump created after the 2016 election. Other Heritage officials, such as John Malcolm, have helped craft the proposals.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Joe Manchin Faces Home State Pressure to Oppose Fellow Democrats’ Voting Bill”<https://electionlawblog.org/?p=121292>
Posted on March 23, 2021 6:54 pm<https://electionlawblog.org/?p=121292> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/joe-manchin-faces-home-state-pressure-to-oppose-democrats-voting-bill-11616518816?mod=politics_lead_pos7>:

West Virginia election officials are lobbying Democratic Sen. Joe Manchin to oppose his party’s voting-rights legislation<https://www.wsj.com/articles/democrats-ambitions-run-headlong-into-filibuster-11614883418?mod=article_inline>, again underscoring his pivotal role as the Senate’s most prominent centrist.

Mr. Manchin is the only senator on the Democratic side of the chamber who isn’t listed as a co-sponsor of the legislation. Last week he told reporters he was still reviewing it. All 49 other Senate Democrats back the bill, which would loosen state voter-identification requirements, expand mail-in voting and mandate online and same-day voter registration as well as early voting, among other steps.

The top West Virginia election official, Republican Mac Warner, is headed to Washington to testify before the Senate Rules Committee on Wednesday about the legislation, and at least one member of Mr. Manchin’s staff was on a call with state and county officials Monday. Mr. Manchin’s office didn’t respond to requests for comment.

The voting-rights fight in the 50-50 Senate again puts the spotlight on Mr. Manchin, whose objections forced changes to unemployment payments<https://www.wsj.com/articles/what-to-know-about-unemployment-benefits-in-1-9-trillion-covid-19-relief-bill-11615294187?mod=article_inline> in the recent coronavirus aid law<https://www.wsj.com/articles/house-set-to-approve-covid-19-relief-bill-11615372203?mod=article_inline>. He also has opposed the $15 an hour minimum wage<https://www.wsj.com/articles/biden-wants-a-15-minimum-wage-heres-what-people-say-it-would-do-to-the-economy-11612348201?mod=article_inline> backed by many Democrats, saying a lower number would be better.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voting rights clash hurtles Senate toward nuclear breakdown”<https://electionlawblog.org/?p=121290>
Posted on March 23, 2021 6:50 pm<https://electionlawblog.org/?p=121290> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/03/23/voting-rights-senate-477681>

There’s no better preview of the voting rights buzzsaw that’s about to splinter the Senate than the current disagreement between Amy Klobuchar and Roy Blunt.

Klobuchar and Blunt are a notably effective bipartisan pair on many issues, running the Rules Committee in near-alignment during its thorough probe of the Jan. 6 Capitol insurrection. But the goodwill between the Midwesterners falls apart when it comes to the voting rights package that Democrats are championing.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Lessig: “This is no time to compromise on democracy reform”<https://electionlawblog.org/?p=121288>
Posted on March 23, 2021 6:48 pm<https://electionlawblog.org/?p=121288> by Rick Hasen<https://electionlawblog.org/?author=3>

Larry Lessig responds <https://www.washingtonpost.com/opinions/2021/03/23/this-is-no-time-compromise-democracy-reform/> to concerns I and others have raised<https://www.washingtonpost.com/outlook/2021/03/16/hr-1-voting-reforms/> against HR 1, by arguing that a broader bill makes it more likely to pass.

I remain very skeptical about that.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



Joshua Spivak: California Recall’s Plurality Voting Conundrum: How unusual is that Newsom can lose his seat and gain more votes than his replacement?<https://electionlawblog.org/?p=121286>
Posted on March 23, 2021 1:05 pm<https://electionlawblog.org/?p=121286> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Joshua Spivak of the Recall Elections Blog<http://recallelections.blogspot.com/>:

Attention is now being paid to one factor of the recall of California Governor Gavin Newsom (D) – the way the recall operates and whether it is “fair.” California’s recall law uses a one-day, two-step process. There is an up or down vote on whether Newsom, where he needs to win a majority (or a tie) to stay, combined with a concurrent vote on the replacement candidate, which only counts if Newsom loses. The replacement candidate only needs a plurality to be elected. Newsom is not allowed to run to replace himself. The result of this structure is that Newsom’s replacement can win office with a tiny fraction of the vote that Newsom received in losing office.

Despite the fact that there were 135 candidates on the replacement ballot, this did not occur in the 2003 gubernatorial recall, when Arnold Schwarzenegger received almost 200,000 more votes in the replacement race than Gray Davis/No on Recall received. However, over the last 10 years, there have been at least five instances where the elected official who was kicked out in the recall outdrew the winner of the replacement race, including one last year in Santa Ana<https://www.livevoterturnout.com/Orange/LiveResults/en/Index_4.html>, as well as the most recent state-level recall election, State Senator Josh Newman<https://ocvote.com/data/election-results-archives#c-1655> in 2018.

The issue of whether a recall victor should be able to receive fewer votes than the removed official is not new. Recall laws across the country have seen attempts to solve the problem of how to choose a new candidate. Idaho uses a “Queen of the Hill”<https://recallelections.blogspot.com/2021/03/idaho-does-march-9-idaho-recall-results.html> provision (the amount of votes in favor of the recall has to top the votes received by the official in their victory). Some local jurisdictions, as well as other countries, require what I call an “absentee veto<https://recallelections.blogspot.com/2021/02/taiwan-kaohsiung-city-councilor.html>” – where total voter turnout in a recall needs to be higher than a set percentage of the population in order for the recall to count.

Variation in recall laws has always been the rule, not the exception. The early comprehensive study of the recall in California (Bird & Ryan’s book published in 1930) notes that in the cities of California alone “…there has developed such a variety of treatment of all the features of the law that it is difficult to think of any possible innovation left untried.” (58)

In the 19 (or possibly 20) states in the US that allow recalls against Governors or state level officials, the primary divisions in recall structure are

1) a Yes or No vote or just a new election;

2) a replacement race or filling the position in the matter set out by the law (i.e. the Lieutenant Governor takes over) ;

3) whether a replacement race should be the same day as the recall or held on a different day.

The differences breakdown as follows by state:

Yes or No, Same Day Replacement: California, Colorado

Yes or No, Different Day Replacement, Georgia, Illinois (though primary may be the same day), Louisiana, Minnesota, Montana, New Jersey, Rhode Island

Yes or No, replaced by Lt. Governor: Alaska, Idaho, Kansas, Michigan (only for the Governor, changed in 2012. All other recalls in the state use the New Election model), Oregon (No Lieutenant Governor, replaced by the Secretary of State), Washington.

New Election: Arizona, Nevada (if no other candidate runs, then it seems it is a yes or no vote), North Dakota, Wisconsin

Recall Trial: Virginia<https://recallelections.blogspot.com/2019/02/virginia-can-governor-be-recalled-and.html> (probably doesn’t impact the Governor, may hit other state officials).

Even within these divisions, there are variations. In some places, candidates are allowed to run in the replacement race, which has led to the odd result of a candidate being defeated and then replacing themselves.

The Yes or No with a new election may seem unfair, but the most recent states to adopt the recall (Illinois, Minnesota, New Jersey, Rhode Island, Georgia and Montana) have all opted for this method with a replacement race.

States have also changed their laws over time. Oregon moved to the automatic replacement model (actually, filling the replacement by law rather than election) in the early years of having the recall; Michigan made<https://recallelections.blogspot.com/2012/12/michigan-analysis-of-proposed-changes.html> this change for Governor back in 2012.

Even California, which has had the same provision since 1911<https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1023&context=ca_ballot_props>, seemingly had a New Election structure in one of its most important early recalls, against state Senator Edwin Grant. Contemporary reports claim that Grant lost by 531 votes to his predecessor Eddie Wolfe. None of the stories seem to explain the discrepancy in how the recall law worked, though it is likely that the election simply used San Francisco’s charter law New Election provision.

It may seem unfair that Newsom or any other official can lose their position to a replacement who gains fewer votes. But California voters have had 110 years to change this structure. The legislature has not been that shy in tinkering with recall laws – as we saw in 2017 with the adoption of a signature removal law<https://www.mercurynews.com/2017/06/15/california-democrats-use-budget-bill-to-change-recall-election-rules-help-colleague/>. Other states like Oregon and Michigan have seen their recall model changed. It may be difficult, but if California voters really wanted the law changed, they could have done it. The structure, put in place<https://ballotpedia.org/California_Proposition_8,_Recall_of_Elected_Officials_Amendment_(October_1911)> with more than 76% of the vote<https://archive.org/details/statementofvoteo1886cali/page/n257/mode/2up?view=theater> in favor, should be respected.
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Posted in recall elections<https://electionlawblog.org/?cat=11>


“Trump’s Former Lawyer Now Argues ‘No Reasonable Person’ Would Believe Her Voter Fraud Lies Were ‘Fact’; Powell is facing billion-dollar lawsuits after accusing voting technology companies of rigging the election”<https://electionlawblog.org/?p=121284>
Posted on March 23, 2021 8:43 am<https://electionlawblog.org/?p=121284> by Rick Hasen<https://electionlawblog.org/?author=3>

Zoe Tillman<https://www.buzzfeednews.com/article/zoetillman/trump-lawyer-sidney-powell-dominion-lawsuit> for BuzzFeed:

Sidney Powell argued Monday that she couldn’t be sued for defamation for repeatedly promoting false conspiracy theories about the 2020 election being rigged because “no reasonable person would” believe that her comments “were truly statements of fact.”

In the months after the election, the Texas-based attorney became one of the most public faces of a campaign to discredit President Joe Biden’s win. Vowing to “release the Kraken<https://www.nytimes.com/2020/11/17/technology/release-the-kraken-a-catchphrase-for-unfounded-conspiracy-theory-trends-on-twitter.html>,” she pushed the lie that the election was stolen from former president Donald Trump. In numerous TV and public appearances, as well as in court, Powell spread conspiracy theories that two voting equipment companies, Dominion Voting Systems and Smartmatic, were part of a Democrat-backed scheme to “steal” the election by rigging voting systems to flip votes for Trump to Biden, count ballots more than once, and fabricate votes for Biden.

Now facing billion-dollar lawsuits from both companies and having lost all of her court cases<https://www.buzzfeednews.com/article/zoetillman/trump-supreme-court-election-loss> challenging the election, Powell is on the defensive. On Monday, her legal team filed a motion to dismiss<https://assets.documentcloud.org/documents/20519858/3-22-21-sidney-powell-defending-the-republic-motion-to-dismiss-dominion.pdf> Dominion’s $1.3 billion lawsuit, or at least to move it from the federal district court in Washington, DC, to Texas. They argued that the election fraud narrative that Powell had spent months touting as grounds to undo the presidential election was “hyperbole” and political speech entitled to protection under the First Amendment.

Even if Powell’s statements were presentations of fact that could be proven as true or false, her lawyers wrote, “no reasonable person would conclude that the statements were truly statements of fact.”

Powell deflected blame to the Trump supporters who adopted the conspiracy theories and lies that she and other Trump allies pushed and that ultimately fueled the insurrection at the US Capitol on Jan. 6. Her lawyers wrote that she was just presenting her “opinions and legal theories on a matter of utmost public concern,” and that members of the public who were interested were “free” to look at the evidence and make up their own minds or wait to see how the evidence held up in court.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Dems sound alarm at prospect of overturning Iowa race”<https://electionlawblog.org/?p=121282>
Posted on March 23, 2021 8:25 am<https://electionlawblog.org/?p=121282> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/03/22/democrats-iowa-race-477497>

The prospect of a floor vote to overturn a contested congressional race in Iowa has suddenly become a real dilemma for House Democrats’ most vulnerable members.

Moderate Democrats are privately squirming over the possibility that they could be forced to choose a winner in the race for Iowa’s 2nd district, where the GOP candidate, now-Rep. Mariannette Miller-Meeks, won by just six votes — the smallest margin of any candidate in decades. Her opponent, Rita Hart, declined to appeal through state channels and instead took her challenge directly to the Democratic-run House.

A handful of nervous Democrats have spoken up publicly as the House Administration Committee reviews the case. But behind the scenes, more moderates are voicing concern about the dynamics of possibly unseating a GOP lawmaker — particularly after they hammered Republicans for trying to do just that to President Joe Biden, which led to a deadly insurrection in the U.S. Capitol.

The topic even surfaced at a call on Monday between Democratic Congressional Campaign Committee officials and the party’s most vulnerable members — a discussion that, at times, grew tense as lawmakers aired concerns about the looming committee decision.
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Posted in recounts<https://electionlawblog.org/?cat=50>


“27. From Filibuster to Representation: Is the Senate Broken? (with Rick Hasen, Barbara Arnwine and Cynthia Richie Terrell)”<https://electionlawblog.org/?p=121280>
Posted on March 23, 2021 8:06 am<https://electionlawblog.org/?p=121280> by Rick Hasen<https://electionlawblog.org/?author=3>

Thrilled to be back on Ms. Magazine’s “On the Issues” podcast with my great UCI Law colleague, Michele Goodwin. Listen<https://msmagazine.com/podcast/27-from-filibuster-to-representation-is-the-senate-broken-with-rick-hasen-barbara-arnwine-and-cynthia-richie-terrell/>!
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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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