[EL] ELB News and Commentary 5/17/21

[Rick Hasen]

“Jail Time and Big Fines: G.O.P. Seeks Harsh Penalties for Poll Workers”<https://electionlawblog.org/?p=122172>
Posted on May 17, 2021 7:35 am<https://electionlawblog.org/?p=122172> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/15/us/politics/republican-voting-bills-poll-workers.html>

Anita Phillips has been an election judge in Texas for 17 years, responsible for managing a precinct in Waco, a city of roughly 135,000 people. But over the last four years, the civic duty she prized has become arduous. Harassment by partisan poll watchers has grown increasingly caustic, she has found, and helping voters is ever more treacherous amid a thicket of new rules.

Those regulations are likely to grow stricter: Republican lawmakers in Texas, following in the footsteps of their counterparts across the country, are pressing forward with a voting bill that could impose harsh penalties on election officials or poll workers who are thought to have committed errors or violations. And the nationwide effort may be pushing people like Ms. Phillips to reconsider serving their communities.

“It’s just so taxing,” Ms. Phillips said. “And if me — I’m in my 40s, and I’m having this much stress — imagine every election worker and election judge that is 65 and over with severe health issues. This is supposed to be a way for them to give back. And it’s supposed to be something that makes them feel good about what they’re doing, but now they’re starting to feel like, ‘Are we going to be safe?’”

Ms. Phillips is one of millions of citizens who act as foot soldiers of the American democratic system, working long hours for low pay to administer the country’s elections. Yet this often thankless task has quickly become a key target of Republicans who are propagating former President Donald J. Trump’s lies about the 2020 election. In their hunt for nonexistent fraud, they have turned on those who work the polls as somehow suspect.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Democrats confront reality on voting rights: Congress probably isn’t coming to the rescue”<https://electionlawblog.org/?p=122170>
Posted on May 17, 2021 7:29 am<https://electionlawblog.org/?p=122170> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/voting-rights-for-the-people/2021/05/16/bb65909a-b458-11eb-ab43-bebddc5a0f65_story.html>

Yet the most important Democrat to the fate of voting legislation didn’t even attend the meeting and thus wasn’t part of the discussion. Sen. Joe Manchin III (D-W.Va.) was in his home state, attending an event with first lady Jill Biden and actress Jennifer Garner — not huddled in a Capitol Hill conference room seeking a way forward.

Manchin is the only Senate Democrat not to have co-sponsored the bill, and he has expressed serious misgivings about the For the People Act — and, more generally, moving forward on any type of voting legislation without Republican buy-in….

Manchin said he instead supports an alternative — a refurbishment of the Voting Rights Act of 1965 now known as the John Lewis Voting Rights Advancement Act, named after the late Georgia congressman and civil rights icon, that would reestablish Justice Department oversight over voting laws in jurisdictions with a history of discriminatory practices, including eight southern states plus Alaska..

Manchin, in fact, suggested he would extend the preemptive federal reviews, known as “preclearance,” to voting laws in all states and territories — a massive expansion of the landmark law that broke the back of Jim Crow.

But, according to interviews with lawmakers, it is no more likely that bill could pass an evenly divided Senate than the For the People Act. Manchin on Wednesday reiterated he is unwilling to overturn the filibuster, the Senate’s 60-vote supermajority rule, and key Republicans said they were uninterested in supporting the John Lewis legislation.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Republicans’ conflicting message: Embracing Trump election lie is key to prominence, just stop asking us about it”<https://electionlawblog.org/?p=122168>
Posted on May 17, 2021 7:26 am<https://electionlawblog.org/?p=122168> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/mccarthy-stefanik-cheney-trump/2021/05/15/c0cc23aa-b4b7-11eb-ab43-bebddc5a0f65_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


CBS News Poll: Two-Thirds of Republicans Believe Joe Biden Not Legitimate Winner of 2020 Election; Almost Half Think Changing Voting Rules Should Be Prioritized Over Messages to Attract More Voters<https://electionlawblog.org/?p=122165>
Posted on May 17, 2021 7:17 am<https://electionlawblog.org/?p=122165> by Rick Hasen<https://electionlawblog.org/?author=3>

Sigh:<https://www.cbsnews.com/news/republicans-liz-cheney-opinion-poll/>
[cid:image002.png at 01D74AEF.A553F120][cid:image003.png at 01D74AEF.A553F120]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A new wave of election directors step in to fill Pa.’s many vacancies — with little training and varying experience”<https://electionlawblog.org/?p=122163>
Posted on May 17, 2021 7:06 am<https://electionlawblog.org/?p=122163> by Rick Hasen<https://electionlawblog.org/?author=3>

Spotlight PA:<https://www.spotlightpa.org/news/2021/05/pa-primary-voting-ballot-election-directors-county-training/?mc_cid=0f1647b9ca&mc_eid=ad111eb949>

Among the most stressed-out folks in local government this week will be the former manager of the USA Field Hockey team, a congressman’s past chief of staff, and an ex-political science professor.

They’ll all be running elections in Pennsylvania for the first time during Tuesday’s primaries — and they will do it under the microscope of a skeptical GOP electorate galvanized by Republicans in the state legislature.

After what election directors described as a “nightmare” election in 2020 <https://www.spotlightpa.org/news/2020/12/pennsylvania-election-2020-officials-retiring-nightmare/> — in which huge changes to Pennsylvania’s voting process were complicated by the pandemic and partisan misinformation fueled by former President Donald Trump and his allies — at least 25 of their peers left their jobs.

Five months later, most of those positions have been filled, but not everyone has the same level of experience as their predecessors. For the newest election directors, their first real test will come Tuesday, when thousands of Pennsylvanians will cast a ballot<https://www.inquirer.com/politics/election/a/pennsylvania-primary-election-2021-ballot-voting-guide-20210503.html> in the primaries.

“The view from the consumer side of the counter, and the view from this side of the counter, is tremendously different,” said Bob Morgan, who started as Luzerne County election director a mere six weeks ago after leaving a job as U.S. Rep. Matt Cartwight’s chief of staff. “It’s a little bit like drinking from the firehose.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Group that can’t find systemic voter fraud eager to help combat systemic voter fraud”<https://electionlawblog.org/?p=122161>
Posted on May 17, 2021 6:58 am<https://electionlawblog.org/?p=122161> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2021/05/14/group-that-cant-find-systemic-voter-fraud-eager-help-combat-systemic-voter-fraud/>

The whole Mother Jones report<https://www.motherjones.com/politics/2021/05/heritage-foundation-dark-money-voter-suppression-laws/> provides an interesting insight into how outside groups can (and often have) pushed legislation that they themselves have helped draft behind closed doors. But here we’ll diverge to make another point.

That is this: Anderson and von Spakovsky are making claims about demonstrated fraud that a database operated by the Heritage Foundation itself can’t back up.

I make this point with some regularity because the Heritage Foundation’s database of fraud cases is often cited as evidence of the rampant scale of fraud. You can find it online; it claims<https://www.heritage.org/voterfraud/search> to have demonstrated 1,322 “proven instances of voter fraud.” But when you look at what’s presented, you see all of the caveats that aren’t mentioned. Like that the database goes back to the mid-1980s. Or that it includes a number of cases of fraudulent voter registration by third parties, which is not generally included in assessments of “voter fraud.”

In fact, as I’ve pointed out before, the database includes only one example of a fraudulently cast ballot from the 2020 general election. That’s not the only such case, mind you. Local news reports indicated 16 such incidents<https://www.washingtonpost.com/politics/2021/05/04/despite-gop-rhetoric-there-have-been-fewer-than-two-dozen-charged-cases-voter-fraud-since-election/?itid=lk_inline_manual_19> when I looked for examples earlier this month. If that were every demonstrated case and each of those votes was counted (which they weren’t), that would amount to one instance of voter fraud for every 10 million votes tallied in 2020. Being struck by lightning is four times as common<https://www.investopedia.com/managing-wealth/worth-playing-lottery/>.

In other words, Anderson is going on cable television and driving an effort to pass new voting restrictions by asserting that fraud is a real threat demanding of legislative response — when even the tally compiled by her parent organization makes obvious that it isn’t.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Man charged with wife’s murder illegally cast her ballot for Trump, officials say: ‘I just thought, give him another vote’”<https://electionlawblog.org/?p=122159>
Posted on May 17, 2021 6:54 am<https://electionlawblog.org/?p=122159> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/nation/2021/05/15/murder-voter-fraud-trump-morphew/>

The county clerk immediately knew something strange was going on last fall. A mail ballot had arrived from Suzanne Morphew — a woman missing since May.

“There’s posters all over our town,” said Lori Mitchell, the clerk and recorder in Chaffee County, a Colorado community of about 20,000 rocked by Morphew’s disappearance last Mother’s Day. “Constant things in the news about her. There’s people at the grocery store passing out fliers.”

The ballot didn’t have Morphew’s signature as required, Mitchell said. But someone had signed on the “witness” line: The woman’s husband, Barry Morphew.

“I was stunned,” Mitchell recalled. “I couldn’t believe it. I was like, what in the world is going on?”

For a long time, she said, it was just something fishy that her office reported to law enforcement. Then Barry Morphew was charged this month with murdering his wife<https://www.washingtonpost.com/nation/2021/05/06/barry-suzanne-morphew-murder-arrest/?itid=lk_inline_manual_8>. This week, things got stranger still: Barry was also accused of casting his wife’s ballot in a fraudulent vote for President Donald Trump.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Chinese businessman with links to Steve Bannon is driving force for a sprawling disinformation network, researchers say”<https://electionlawblog.org/?p=122157>
Posted on May 17, 2021 6:51 am<https://electionlawblog.org/?p=122157> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2021/05/17/guo-wengui-disinformation-steve-bannon/>

A sprawling online network tied to Chinese businessman Guo Wengui has become a potent platform for disinformation in the United States, attacking the safety of coronavirus<https://www.washingtonpost.com/coronavirus/?itid=lk_inline_manual_2> vaccines, promoting false election-fraud claims and spreading baseless QAnon conspiracies, according to research published Monday by the network analysis company Graphika.

The report<https://graphika.com/reports/ants-in-a-web/>, provided in advance to The Washington Post, details a network that Graphika says amplifies the views of Guo, a Chinese real estate developer whose association with former Trump White House adviser Stephen K. Bannon became a focus of news coverage last year after Bannon was arrested aboard Guo’s yacht<https://www.washingtonpost.com/national-security/stephen-bannon-arrested-charged/2020/08/20/6d46847c-e2ea-11ea-b69b-64f7b0477ed4_story.html?itid=lk_inline_manual_4> on federal fraud charges.

Graphika said the network includes media websites such as GTV<https://gtv.org/>, for which Guo last year publicly said he was raising funds<https://www.youtube.com/watch?v=MStWXetSVmA>, along with thousands of social media accounts that Graphika said amplify content in a coordinated fashion. The network also includes more than a dozen local-action groups over which Guo has publicly claimed an oversight role<https://web.archive.org/web/20200927181210/https:/gnews.org/384813/>, Graphika found.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“The Evolution of Elise Stefanik”<https://electionlawblog.org/?p=122154>
Posted on May 17, 2021 5:49 am<https://electionlawblog.org/?p=122154> by Richard Pildes<https://electionlawblog.org/?author=7>

From The National Review<https://www.nationalreview.com/2021/05/the-evolution-of-elise-stefanik/>. I had not been aware of these facts:

Like Senators Ted Cruz and Josh Hawley, Stefanik pointed to the doubts on the part of some Americans about the election’s legitimacy as a reason to reject certification of the results. But then she went a step further to assert as fact that widespread voter fraud had actually occurred.

In a written statement, Stefanik said that in Georgia “more than 140,000 votes came from underage, deceased, and otherwise unauthorized voters — in Fulton County alone.”

If Stefanik’s statement were correct, that would mean that more than 25 percent of all ballots cast in Fulton County, home to Atlanta, were illegitimate. Last week, the Georgia secretary of state’s office called Stefanik’s claim “ludicrous.”

“The Georgia Secretary of State’s office knows the age of everyone who voted because they had to be registered in order to vote, and there were no underage voters,” a spokesman for Brad Raffensperger, the Republican who holds that office, said<https://www.cnn.com/2021/05/06/politics/fact-check-stefanik-big-lie-election-trump/index.html> in an email to CNN. “Across the state, we found only 2 votes credited to dead voters. The suggestion that one fourth<https://results.enr.clarityelections.com/GA/Fulton/105430/web.264614/#/summary> of all ballots cast in Fulton County in November were illegal is ludicrous.”

In the Capitol on Wednesday, I asked Stefanik if she stood by her claim that 140,000 votes cast in Fulton County were illegitimate.

“I stand by my statement on the House floor in January, and I stand by my statement that there are serious issues related to election irregularities in the state of Georgia, as well as Pennsylvania, Michigan, [and] Wisconsin,” she replied.

What’s the basis for Stefanik’s claim that 140,000 votes were illegitimate? “The basis for that is that was filed in a court case.”

Does she still think 140,000 votes in Georgia were illegitimate? “I think there are questions that are important for the American people to hear answers to,” Stefanik replied.

But again, Stefanik did not present the wild claim of widespread voter fraud in Georgia as a question in January — she asserted it as a fact, and gave it as a reason that she opposed certification of Georgia’s electoral votes. Now she says she both “stand[s] by” her January statement while suggesting she’s just asking questions.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republican Arizona election official says Trump ‘unhinged'”<https://electionlawblog.org/?p=122152>
Posted on May 16, 2021 9:57 am<https://electionlawblog.org/?p=122152> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2021/05/16/trump-unhinged-arizona-republican-election-488579>

The Republican who now leads the Arizona county elections department targeted by a GOP audit of the 2020 election results is slamming former President Donald Trump and others in his party for their continued falsehoods about how the election was run.

Maricopa County Recorder Stephen Richer on Saturday called a Trump statement accusing the county of deleting an elections database “unhinged” and called on other Republicans to stop the unfounded accusations.

“We can’t indulge these insane lies any longer. As a party. As a state. As a country,” Richer tweeted<https://twitter.com/stephen_richer/status/1393662268542386178?s=20>.

Richer became recorder in January, after defeating the Democratic incumbent.

The former president’s statement came as Republican Senate President Karen Fann has demanded the Republican-dominated Maricopa County Board of Supervisors come to the Senate to answer questions raised by the private auditors she has hired. The Senate took possession of 2.1 million ballots and election equipment last month for what was supposed to be a three-week hand recount of the presidential race won by Democratic President Joe Biden.

Instead, the auditors have moved as a snail’s pace and had to shut down Thursday after counting about 500,000 ballots. They plan to resume counting in a week, after high school graduation ceremonies planned for the Veterans Memorial Coliseum in Phoenix, which they rented for the recount.

Trump’s statement said, in part, that “the entire Database of Maricopa County in Arizona has been DELETED! This is illegal and the Arizona State Senate, who is leading the Forensic Audit, is up in arms.”

Richer and the board say that statement is just plain wrong. In recent days, both he and the board have begun aggressively pushing back at what they see as continuing falsehoods from Republicans who question Trump’s loss.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Arizona audit funding cloaked in secrecy”<https://electionlawblog.org/?p=122150>
Posted on May 16, 2021 9:53 am<https://electionlawblog.org/?p=122150> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2021/05/16/politics/arizona-audit-money-invs/index.html>

Three weeks into the Arizona Senate’s unorthodox audit of the 2020 presidential election results<https://www.cnn.com/2021/04/23/politics/arizona-senate-republicans-election-audit/index.html>, one potential winner seems to be emerging, regardless of any count: Cyber Ninjas, the Florida-based consulting firm being paid to lead the analysis of the votes in populous Maricopa County.Private fundraisers have boasted that they’re funneling hundreds of thousands of dollars to the effort led by the security consulting firm, a company not previously known for election auditing. But there’s little or no scrutiny on where that money is going or how it’s being used.

We offer several ways to reach our journalists securely.<https://www.cnn.com/tips/>A CNN review of state records shows no contractual provisions or safeguards controlling how much money Cyber Ninjas can accept from private contributors, how it can be spent, or even whether it needs to account to the Senate for those funds.In fact, the Senate’s spokesman for the audit acknowledged that the Senate isn’t exercising any oversight or control over Cyber Ninjas’ use of the private funds, which are expected to support the majority of the auditing efforts. The way the funding for the work is structured appears to skirt state transparency laws, CNN’s review found.

Meanwhile, with few restrictions on the scope of its work, Cyber Ninjas, which presents itself as primarily focused on application security, has dived into baseless conspiracy theories, such as looking for bamboo traces in ballots<http://www.cnn.com/2021/05/07/politics/arizona-recount-bamboo-state-senate/index.html> to determine whether ballot boxes were stuffed with fraudulent votes from an unknown Asian country.Along the way, it has made fundamental blunders in the way election audits are traditionally conducted, such as initially providing workers with blue-ink pens<https://www.azcentral.com/story/news/politics/elections/2021/04/23/ariz-senate-audit-off-shaky-start-rules-finalized-fly/7360288002/> that can alter how tabulators read ballots; security lapses that allowed people access<https://www.azfamily.com/news/investigations/cbs_5_investigates/security-lapses-plague-arizona-senates-election-audit-at-state-fairgrounds/article_b499aee8-a3ed-11eb-8f94-bfc2918c6cc9.html> to what should have been secure areas before the audit began; allowing a former lawmaker who appeared on the ballot to be involved in<https://www.azcentral.com/story/news/politics/arizona/2021/04/30/anthony-kern-former-lawmaker-and-november-candidate-helps-recount-arizona-ballots/4895531001/> verifying them; and planning door-to-door canvassing of voters before the Department of Justice warned<https://www.cnn.com/2021/05/06/politics/arizona-election-audit-doj/index.html> such a move could violate federal laws against voter intimidation. Senate President Karen Fann, a Republican, told the DOJ that the Senate would “indefinitely defer” the planned canvass….

The GOP-controlled Arizona Senate allocated $150,000 to the audit, one third paid up front. But that money was expected to cover just a fraction of the work. Now, as state officials project that the audit will continue into the summer, with just 500,000<https://www.cnn.com/2021/05/14/politics/arizona-2020-audit-pause/index.html> of the 2.1 million ballots hand-counted to date, the costs keep climbing.To fuel that effort, Ken Bennett, the Senate’s audit liaison, Fann and others have welcomed private donations. And Trump supporters and conspiracy theorists have jumped in, publicly stumping for funds and claiming to have funneled more than $1.6 million to the audit, while offering scant information about where that money is flowing.Having the audit funded by “undisclosed private money, especially from people who back conspiracy theories about the conduct of the 2020 election, is extremely worrisome,” said Rick Hasen, author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.” “It suggests those people are funding this because they want to see a particular result.”…

On a local TV program<https://azpbs.org/horizon/2021/05/why-the-az-senate-chose-cyber-ninjas-to-handle-the-audit/> May 5, Fann said first that the audit is “not about overturning the election;” then, a minute later, added, “I think we’re going to find some irregularities, that it’s going to say… ‘yeah, there’s this many dead people that may have voted, or this many people that voted that don’t live here anymore.’ We’re going to find those. We know those exist.”

Arizona law covering state bodies that receive public and private funding requires the recipient<https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/35/00149.htm> to report the sources of the private donations and any strings attached; to deposit private funds in a separate account with the State Treasurer; and to account for every expenditure with the state’s Department of Administration.

In this case, however, the Senate is arguing that the audit isn’t subject to these provisions — because the donations are being channeled straight to Cyber Ninjas. The Senate’s attorney, Greg Jernigan, told CNN in an email that the state’s funding law doesn’t apply because the Senate, itself, is not accepting the private funds.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Election law expert breaks down Democrats voting rights proposals”<https://electionlawblog.org/?p=122148>
Posted on May 16, 2021 9:48 am<https://electionlawblog.org/?p=122148> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke with Joshua Johnson on MSNBC. Watch the video<https://www.msnbc.com/the-week/watch/election-law-expert-breaks-down-democrats-voting-rights-proposals-112035397557>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Wisconsin Supreme Court rejects Republican-backed effort on redistricting rules”<https://electionlawblog.org/?p=122145>
Posted on May 14, 2021 2:46 pm<https://electionlawblog.org/?p=122145> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2021/05/14/wisconsin-supreme-court-rejects-republican-backed-redistricting-rules/5094291001/>

Wisconsin Supreme Court justices on Friday rejected a plan meant to ensure lawsuits over new legislative and congressional district boundaries go to them instead of federal judges.

The court voted to deny a request filed last summer<https://www.jsonline.com/story/news/politics/2020/06/03/legal-fight-over-next-round-redistricting-begins-wisconsin/3134235001/> to change state court rules from  former Republican Assembly Speaker Scott Jensen and conservative legal firm Wisconsin Institute for Law & Liberty.

“The court determined that, as drafted, the procedures proposed in this administrative rule petition are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge, and voted to deny the petition,” the order said.

“Our decision in this rule matter should not be deemed predictive of this court’s response to a petition for review asking this court to review a lower court’s ruling on a redistricting challenge or a request that we assume original jurisdiction over a future redistricting case or controversy,” the justices added.

“It remains well-settled that redistricting challenges often merit this court’s exercise of its original jurisdiction.”
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Voting Curbs Show Supreme Court’s Influence (Podcast)”<https://electionlawblog.org/?p=122143>
Posted on May 14, 2021 2:43 pm<https://electionlawblog.org/?p=122143> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke<https://www.bloomberg.com/news/audio/2021-05-14/voting-curbs-show-supreme-court-s-influence-podcast> with Bloomberg’s June Grasso.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Constructing the Right to Vote”<https://electionlawblog.org/?p=122136>
Posted on May 14, 2021 10:10 am<https://electionlawblog.org/?p=122136> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Sellers and Justin Weinstein-Tull have posted this draft<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3845759> on SSRN (forthcoming, NYU L Rev). Here is the abstract:

The right to vote is foundational in our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to breakdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is agnostic about voters’ circumstances and is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.

To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to construct and fund elections systems and effectively administer elections. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent election management, and the right to democratic structure), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.

Looking forward to reading this!
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Further Changes to the John Lewis VRA<https://electionlawblog.org/?p=122134>
Posted on May 14, 2021 9:07 am<https://electionlawblog.org/?p=122134> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Joe Manchin made news<https://www.vox.com/22434054/joe-manchin-voting-rights-act-for-the-people-john-lewis-preclearance-filibuster-senate> yesterday by endorsing H.R. 4 (which would revive Section 5 of the VRA) over H.R. 1 and by recommending nationwide preclearance, applicable to all fifty states. Nationwide preclearance would solve one of the Shelby County Court’s two problems with Section 5: that it differentiated among states, subjecting some but not others to preclearance (and based on decades-old data, to boot). Nationwide preclearance wouldn’t differentiate among states at all. So there’s no way it could violate states’ supposed right to be treated the same as all other states.

However, nationwide preclearance wouldn’t address the Shelby County Court’s other concern: that preclearance itself may no longer be an available remedy under the Fourteenth and Fifteenth Amendments because modern voting conditions supposedly aren’t bad enough anywhere to justify extraordinary federal intervention. As the Court put it, the claim that “the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional . . . . ha[s] a good deal of force.”

There’s another revision to H.R. 4, though, that would solve this problem, too: applying the law to federal elections only. If the law were restricted to federal elections, then Congress could pass it under the Elections Clause of Article I and the Electors Clause of Article II. Crucially, these provisions aren’t limited by the congruence-and-proportionality standard for exercises of Congress’s Fourteenth Amendment enforcement power, and they’re also not limited by Shelby County’s various glosses on Congress’s Fifteenth Amendment enforcement power. Under the Elections Clause, in particular, Congress has essentially plenary authority over congressional elections. It could write a comprehensive code for congressional elections, if it wanted. This greater power certainly includes the lesser power of subjecting all state regulations of congressional elections to preclearance.

This package of nationwide preclearance for federal electoral regulations only would be very effective at stopping voter suppression. Most voting restrictions disproportionately burden minority citizens. Under well-established precedent, that disparate racial impact would lead to preclearance being denied to these measures. The limits on absentee voting, drop boxes, polling place hours, and so on recently adopted by Florida, Georgia, and other states—they’d all be blocked because they’d worsen the electoral position of minority citizens.

But nationwide preclearance for federal electoral regulations only would be mostly impotent against partisan gerrymandering. The reason is that aggressive partisan gerrymanders are perfectly compatible with maintaining (or even increasing) the numbers of minority ability districts. Republican mapmakers, in particular, are usually happy to preserve (or even augment) these districts because they inefficiently pack Democratic voters, leaving fewer Democrats for plans’ remaining districts. As an illustration, consider the 2010s experiences of the southern states formerly covered by Section 5. All of their congressional maps were drawn by Republicans and biased<https://planscore.org/#!2018-ushouse> in a Republican direction (egregiously so in AL, GA, NC, and SC). With the exception of Texas, all of their maps were also precleared. Section 5, that is, did next to nothing in the 2010s to thwart partisan gerrymandering.

Accordingly, if H.R. 4 is to be the vehicle for electoral reform instead of H.R. 1 (per Manchin’s suggestion), it needs to be supplemented by provisions that would stop partisan gerrymandering. The most logical candidates are H.R. 1’s own anti-gerrymandering sections<https://www.congress.gov/bill/117th-congress/house-bill/1/text#toc-H3AB3A5AC01E2454C9905971BF8593487>, which would (1) require states to use independent redistricting commissions for their congressional plans, and (2) prohibit maps that have the intent or effect of unduly favoring a party. I’d prefer H.R. 1 (in its entirety) and H.R. 4 (as last passed by the House) to this combination of a revised H.R. 4 supplemented by H.R. 1’s anti-gerrymandering sections. But if H.R. 1 ultimately has no path forward (because of Manchin), this combination would still be a momentous accomplishment.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Donors gave millions to Garcetti nonprofit but kept their identities secret, Times analysis finds”<https://electionlawblog.org/?p=122132>
Posted on May 14, 2021 6:38 am<https://electionlawblog.org/?p=122132> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<https://www.latimes.com/california/story/2021-05-13/how-donors-give-millions-garcetti-backed-nonprofit-keep-identities-secret>

After Los Angeles Mayor Eric Garcetti took office in 2013, he helped launch a charity fund that allows donors to support diverse programs from environmental initiatives to youth employment.

Since then, Garcetti has reported raising more than $60 million from corporations, foundations, and individuals for the nonprofit Mayor’s Fund for Los Angeles. A Times data analysis found that at least $3.8 million of that total came from contributors who gave through accounts that mask their identity, a practice that alarms ethics watchdogs who say such donations skirt a state law intended to make those donors’ names public.

These contributors used donor-advised funds, a type of charitable giving account offered by some nonprofit foundations and for-profit investment firms that provide a generous tax deduction and, when requested, anonymity.

Donor-advised funds have existed for decades and become popular in recent years<https://www.nptrust.org/reports/daf-report/> among individuals and companies wanting to make charitable gifts. Their use for donations sought by elected officials in California was first reported last month by The Times.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Todd Rokita Goes After Kristen Clarke<https://electionlawblog.org/?p=122130>
Posted on May 14, 2021 6:34 am<https://electionlawblog.org/?p=122130> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Law<https://www.bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiTFdOVyIsImlkIjoiMDAwMDAxNzktNjYyYS1kMTFiLWFkZjktN2VlYjlmYzUwMDAxIiwic2lnIjoiOHJlNktHRWF4K0tja0N4RXJ0N212L2pVWmRjPSIsInRpbWUiOiIxNjIwOTkwNDM0IiwidXVpZCI6IkpTY1VaVUpKYlYxVzVodG9QU1NYbkE9PXhVbk5qQWxzTFZyZFlJU1pSc2VmMXc9PSIsInYiOiIxIn0=?bwid=00000179-662a-d11b-adf9-7eeb9fc50001&cti=LSCH&emc=blwnw_nl%3A4&et=NEWSLETTER&isAlert=false&item=read-button&qid=7107999&region=digest&source=newsletter&uc=1320041183&udvType=Alert&usertype=External>:

President Joe Biden’s nominee to head the Justice Department’s civil rights division, already facing a tough confirmation fight, has received a civil investigative demand from Indiana’s Republican attorney general as part of his probe<https://www.bloomberglaw.com/product/blaw/citation/BNA%2000000178ad84d3b3a378bdcdcbd90001?bna_news_filter=true> into Big Tech content moderation practices.

Kristen Clarke, whose nomination deadlocked in the Senate Judiciary Committee Thursday, received the request from Indiana Attorney General Todd Rokita, who also sent demands to NAACP President Derrick Johnson, Rev. Al Sharpton, and several other activists.

Rokita is investigating whether Facebook Inc., Twitter Inc., Alphabet Inc.’s Google, Apple Inc.or Amazon.com Inc.‘s content management practices violate state consumer protection laws by “censoring” conservative content online. The activists drew Rokita’s attention following a media reportabout a meeting Rokita’s office believes they attended with Facebook CEO Mark Zuckerberg and other tech company executives.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“Using Computer Simulations to Measure the Effect of Gerrymandering on Electoral Competition in the U.S. Congress”<https://electionlawblog.org/?p=122128>
Posted on May 14, 2021 5:44 am<https://electionlawblog.org/?p=122128> by Richard Pildes<https://electionlawblog.org/?author=7>

I hadn’t been aware of this 2019 pape<https://onlinelibrary.wiley.com/doi/epdf/10.1111/lsq.12234>r in Legislative Studies Quarterly by David Cotrell. The piece itself is behind a paywall. Here’s the abstract:

Recent research has leveraged computer simulations to identify the effect of gerrymandering on partisan bias in U.S. legislatures. As a result of this method, researchers are able to distinguish between the intentional partisan bias caused by gerrymandering and the natural partisan bias that stems from the geographic sorting of partisan voters. However, this research has yet to explore the effect of gerrymandering on other biases like reduced electoral competition and incumbency protection. Using a computer algorithm to design a set of districts without political intent, I measure the extent to which the current districts have been gerrymandered to produce safer seats in Congress. I find that gerrymandering only has a minor effect on the average district, but does produce a number of safe seats for both Democrats and Republicans. Moreover, these safe seats tend to be located in states where a single party controls the districting process.

Update: Here is the bottom-line result: “In fact, around 36 marginally Democratic seats are replaced with approximately 18 safe Republican seats and 18 safe Democratic seats as a result of gerrymandering.”

Put another way, in districting done without regard to political outcomes, there would be around another 36 competitive seats. That would increase the number of competitive seats by about 50%.

Note that this is the result without putting any weight on competitiveness in the design of districts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Cognition and Political Ideology in Aging”<https://electionlawblog.org/?p=122124>
Posted on May 13, 2021 3:04 pm<https://electionlawblog.org/?p=122124> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Fisher, Davin Phoenix, Sierra Powell, Myrna Mousa, Shawn Rosenberg, Dana Greenia, Maria M. Corrada, Claudia Kawas, and Annlia Paganini‐Hill new article<https://agsjournals.onlinelibrary.wiley.com/doi/10.1111/jgs.16935>. From the abstract:

In this population of older persons, political identification on the liberal‐conservative spectrum was resilient despite cognitive decline, but its meaning and function were changed. For the cognitively impaired it remained a self‐defining label, but no longer operated as a higher order framework for orienting specific policy preferences. There appeared to be loss of coherence between the political orientation and political policy choices of cognitively impaired individuals. Given the high level of political engagement of these individuals, these results have substantial public policy implications.

This is a topic that could use much more research.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Leaked Video: Dark Money Group Brags About Writing GOP Voter Suppression Bills Across the Country”<https://electionlawblog.org/?p=122121>
Posted on May 13, 2021 12:47 pm<https://electionlawblog.org/?p=122121> by Rick Hasen<https://electionlawblog.org/?author=3>

Mother Jones:<https://www.motherjones.com/politics/2021/05/heritage-foundation-dark-money-voter-suppression-laws/> (leaked video<https://www.motherjones.com/politics/2021/05/heritage-foundation-dark-money-voter-suppression-laws/>)

In a private meeting last month with big-money donors, the head of a top conservative group boasted that her outfit had crafted the new voter suppression law<https://www.motherjones.com/politics/2021/04/republicans-say-georgia-law-wasnt-design-to-suppress-voting-dont-believe-them/> in Georgia and was doing the same with similar bills for Republican state legislators across the country. “In some cases, we actually draft them for them,” she said, “or we have a sentinel on our behalf give them the model legislation so it has that grassroots, from-the-bottom-up type of vibe.”

The Georgia law had “eight key provisions that Heritage recommended,” Jessica Anderson, the executive director of Heritage Action for America, a sister organization of the Heritage Foundation, told the foundation’s donors at an April 22 gathering in Tucson, in a recording obtained by the watchdog group Documented<https://documented.net/> and shared with Mother Jones. Those included policies<https://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html> severely restricting mail ballot drop boxes, preventing election officials from sending absentee ballot request forms to voters, making it easier for partisan workers to monitor the polls, preventing the collection of mail ballots, and restricting the ability of counties to accept donations from nonprofit groups seeking to aid in election administration.

All of these recommendations came straight from Heritage’s list of “best practices<https://www.heritage.org/election-integrity-facts>” drafted in February. With Heritage’s help, Anderson said, Georgia became “the example for the rest of the country.”…

Heritage Foundation fellow Hans von Spakovsky, a former George W. Bush administration official who for two decades has been the driving force behind policies that restrict access to the ballot<https://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth>, spoke alongside Anderson at the donor summit.

“Hans is briefing governors, secretaries of state, state attorney generals, state elected officials,” Anderson said. “Just what three weeks ago, we had a huge call with secretaries of state, right?”

“We’ve now for several years been having a private briefing<https://www.propublica.org/article/no-democrats-allowed-a-conservative-lawyer-holds-secret-voter-fraud-meetings-with-state-election-officials> of the best conservative secretaries of state in the country that has so annoyed the left that they have been doing everything they can to try to find out what happens at that meeting,” von Spakovsky replied.

“So far unsuccessfully,” Anderson said. “No leaks.”…

Other measures Anderson said Heritage drafted included “three provisions” in legislation adopted by Iowa Republicans<https://www.bleedingheartland.com/2021/02/24/revised-gop-election-bill-would-exclude-thousands-more-iowa-voters/> a few weeks before Georgia’s law, including one placing voters on inactive status<https://www.kcrg.com/2021/04/26/iowa-moves-294000-registered-voters-to-inactive-status/> if they sit out one election cycle and removing them from the rolls if they fail to take action, a system that could lead hundreds of thousands of voters to be purged.

“Iowa is the first state that we got to work in, and we did it quickly and we did it quietly,” Anderson said. “We worked quietly with the Iowa state legislature. We got the best practices to them. We helped draft the bills. We made sure activists were calling the state legislators, getting support, showing up at their public hearings, giving testimony…Little fanfare. Honestly, nobody even noticed. My team looked at each other and we’re like, ‘It can’t be that easy.’” (Elias has also filed suit<https://twitter.com/marceelias/status/1369302799075381252?lang=en> against the Iowa law.)
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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