Election Law Blog | The law of politics and the politics of lawTime 2022-08-08 18:14:44
Since January, judges in Alabama, Georgia, Louisiana and Ohio have found that Republican legislators illegally drew those states’ congressional maps along racial or partisan lines, or that a trial very likely would conclude that they did. In years past, judges who have reached similar findings have ordered new maps, or had an expert draw them, to ensure that coming elections were fair.
But a shift in election law philosophy at the Supreme Court, combined with a new aggressiveness among Republicans who drew the maps, has upended that model for the elections in November. This time, all four states are using the rejected maps, and questions about their legality for future elections will be hashed out in court later.
The immediate upshot, election experts say, is that Republicans almost certainly will gain more seats in midterm elections at a time when Democrats already are struggling to maintain their bare majority.
David Wasserman, who follows congressional redistricting for the Cook Political Report, said that using rejected maps in the four states, which make up nearly 10 percent of the seats in the House, was likely to hand Republicans five to seven House seats that they otherwise would not have won.
Some election law scholars say they are troubled by the consequences in the long run.
“We’re seeing a revolution in courts’ willingness to allow elections to go forward under illegal or unconstitutional rules,” Richard L. Hasen, a professor at the U.C.L.A. School of Law and the director of its Safeguarding Democracy Project, said in an interview. “And that’s creating a situation in which states are getting one free illegal election before they have to change their rules.”
Behind much of the change is the Supreme Court’s embrace of an informal legal doctrine stating that judges should not order changes in election procedures too close to an actual election. In a 2006 case, Purcell v. Gonzalez, the court refused to stop an Arizona voter ID law from taking effect days before an election because that could “result in voter confusion and consequent incentive to remain away from the polls.”
The Purcell principle, as it is called, offers almost no guidance beyond that. But the Supreme Court has significantly broadened its scope in this decade, mostly through rulings on applications that seek emergency relief such as stays of lower court rulings, in which the justices’ reasoning often is cryptic or even unexplained.
Conservatives say the Supreme Court’s wariness of interfering with election preparations is common sense.
“It creates all kinds of logistical issues. Candidates don’t know where they’re running,” said Michael A. Carvin, a lawyer at the firm Jones Day who has handled redistricting cases for Republican clients in a host of states and helped lead the legal team supporting George W. Bush in the 2000 presidential election dispute. Should the original map be upheld later, he said, returning to it would be “triply disruptive to the system.”
Critics argue, though, that the court is effectively saying that a smoothly run election is more important than a just one. And they note that the longstanding guidance in redistricting cases — from the court’s historic one person, one vote ruling in 1964 — is that using an illegal map in an election should be “the unusual case.”
The Purcell doctrine is not always applied to Republicans’ benefit. In March, the court cited an approaching primary election in refusing to block a North Carolina Supreme Court order undoing a Republican gerrymander of that state’s congressional map.
But scholars say such decisions are the exception. “It just so happens that the unexplained rules in election cases have a remarkable tendency to save Republicans and hurt Democrats,” said Steven I. Vladeck, a University of Texas law professor who addresses the issue in a forthcoming book, “The Shadow Docket.”
“It would be one thing if the court was giving us a compelling or even plausible explanation,” he added. “But the granting of a stay these days is often done with no explanation at all.”
Samantha Bradshaw and Shelby Grossman at Lawfare:
Editor’s Note: To fight election-related misinformation, social media platforms often apply labels that let users know the information from a post is misleading in some way. Samantha Bradshaw of American University and Shelby Grossman of the Stanford Internet Observatory explore whether two key platforms, Facebook and Twitter, were internally consistent in how they applied their labels during the 2020 presidential election. Bradshaw and Grossman find that the platforms were reasonably consistent, but it was still common for identical misleading information to be treated differently.
When she started her campaign for governor of Wisconsin, former Lt. Gov. Rebecca Kleefisch, a Republican, acknowledged that President Biden had been legitimately elected.
She soon backtracked. Eventually, she said the 2020 election had been “rigged” against former President Donald J. Trump. She sued the state’s election commission.
But she will still not entertain the false notion that the election can somehow be overturned, a fantasy that has taken hold among many of the state’s Republicans, egged on by one of her opponents, Tim Ramthun.
And for that, she is taking grief from voters in the closing days before Tuesday’s primary.
At a campaign stop here last week, one voter, Donette Erdmann, pressed Ms. Kleefisch on her endorsement from former Vice President Mike Pence, whom many of Mr. Trump’s most devoted supporters blame for not blocking the counting of electoral votes on Jan. 6, 2021. “I was wondering if you’re going to resort to a RINO agenda or an awesome agenda,” Ms. Erdmann said, using a right-wing pejorative for disloyal Republicans.
Ms. Kleefisch’s startled answer — “don’t make your mind up based on what somebody else is doing,” she warned, defending her “awesome agenda” — was not enough.
“I’m going to go with Tim Ramthun,” Ms. Erdmann said afterward.
Ms. Kleefisch’s predicament illustrates how Mr. Trump’s supporters have turned fury over his 2020 election loss and the misguided belief that its results can be nullified into central campaign issues in the Republican primary for governor in Wisconsin, a battleground state won by razor-thin margins in the last two presidential elections. G.O.P. candidates have been left choosing whether to tell voters they are wrong or to engage in the fiction that something can be done to reverse Mr. Trump’s defeat.
Dozens of Republican voters and activists interviewed across the state in the last week said they wanted to see lawmakers decertify the state’s election results and claw back its 10 electoral votes, something that cannot legally be done. Nearly all of them pointed to a July decision from the conservative-leaning Wisconsin Supreme Court, which ruled that drop boxes used to collect ballots during the pandemic were illegal under state law, as evidence that hundreds of thousands of 2020 votes should be thrown out.
“Everybody that I’ve talked to voted for Trump,” said Cyndy Deeg, a food industry worker from Larsen, Wis. “He should be reinstated and resume the position, because he never surrendered it.”
There is no mechanism in Wisconsin law or federal law for a state to retract electoral votes or undo presidential election results two years after the contest, a fact Ms. Kleefisch finds herself explaining to voters, reporters and audiences of televised debates.
Share this: Bloomberg:In the last two years, Republicans have sought to remove state officials who wouldn’t manufacture votes and falsely declare him the winner. They changed the way elections are run in response to his conspiracy theories. Most importantly, they’ve… Continue reading The bipartisan Electoral Count Reform Act has no “fatal flaw,” as some incorrectly argue. Rather, the Senate bill is well-designed to suit its essential purpose of requiring ballots cast in presidential elections be counted according to the rules established… Continue reading For the National Constitution Center’s podcast, the Center’s President and CEO, Jeff Rosen, moderated this discussion. Available at this link. From Aug. 1 piece by Philip Bump in Wash. Post:In February 2021, soon after President Biden took office, CBS News and its pollster YouGov released data showing that most Republicans viewed Democrats in precisely that way. Asked to evaluate… Continue reading Watch here. WaPo:One year ago this month, Wisconsin State Assembly Speaker Robin Vos (R) sat on a private plane with Donald Trump and updatedthe former president on the investigation he had launched into the 2020 election, even though there was… Continue reading AJC:A federal judge ruled Friday that Georgia must end statewide elections for the Public Service Commission because they discriminate against Black voters, a decision that could bar state officials from holding a November election to fill two seats.U.S.… Continue reading You can read the review at this link.
he Republican nominee for Michigan attorney general led a team that gained unauthorized access to voting equipment while hunting for evidence to support former President Donald Trump’s false election-fraud claims, according to a Reuters analysis of court filings and public records.
The analysis shows that people working with Matthew DePerno – the Trump-endorsed nominee for the state’s top law-enforcement post – examined a vote tabulator from Richfield Township, a conservative stronghold of 3,600 people in northern Michigan’s Roscommon County.
The Richfield security breach is one of four similar incidents being investigated by Michigan’s current attorney general, Democrat Dana Nessel. Under state law, it is a felony to seek or provide unauthorized access to voting equipment.
DePerno did not respond to a request for comment.
The involvement of a Republican attorney general nominee in a voting-system breach comes amid a national effort by backers of Trump’s fraud falsehoods to win state offices that could prove critical in deciding any future contested elections.
Election Law Blogger
Professor of Law
UCLA School of Law
Director, Safeguarding Democracy Project
Tabatha Abu El-Haj
Professor of Law, Drexel University Thomas R. Kline School of Law
View posts ›
Frank G. Millard Professor of Law, University of Michigan (on leave)
View posts ›
Bruce E. Cain
Professor of Political Science, Stanford University
View posts ›
Guy-Uriel E. Charles
Charles J. Ogletree Jr. Professor of Law, Harvard Law School
Edward B. Foley
Ebersold Chair in Constitutional Law, The Ohio State University
View posts ›
Heather K. Gerken
Dean and Sol & Lillian Goldman Professor of Law, Yale Law School
View posts ›
Alfred M. Rankin Professor of Law at Yale Law School (on leave)
View posts ›
Professor of Law, Georgetown University Law Center
View posts ›
Professor of Law at LMU Loyola Law School, Los Angeles (on leave)
View posts ›
Derek T. Muller
Bouma Fellow in Law and Professor of Law, University of Iowa College of Law
View posts ›
Spencer A. Overton
Professor of Law,
The George Washington University Law School
View posts ›
James B. McClatchy Professor of Law, Stanford Law School
View posts ›
Richard H. Pildes
Sudler Family Professorof Constitutional Law,NYU School of Law
View posts ›
Kirkland & Ellis Professor of Law, Harvard Law School
View posts ›
Fred W. & Vi Miller Dean and Professor of Law
University of Wisconsin Law School
View posts ›
Vice Dean for Faculty and Academic Affairs and Professor of Law at USC Gould School of Law
View posts ›
Recent Books by Rick Hasen
Cheap Speech: How Disinformation Poisons Our Politics–and How to Cure It
Cheap Speech: How Disinformation Poisons Our Politics--and How to Cure It (Yale University Press, 2022)
Cheap Speech book website
Named one of the best books on disinformation by the New York Times
Election Law–Cases and Materials
Election Law–Cases and Materials (7th edition, Carolina Academic Press, 2022) (with Daniel Hays Lowenstein, Daniel P. Tokaji, and Nicholas O. Stephanopoulos)
Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy
(Yale University Press, 2020)
Legislation, Statutory Interpretation, and Election Law: Examples & Explanations
Legislation, Statutory Interpretation, and Election Law: Examples & Explanations (2d ed. Wolters Kluwer, 2020)
Recent ELB Podcast Episodes
The ELB Podcast
Season 3, Episode 8 Wendy Weiser: Assessing the State of American Elections and Democracy
Season 3, Episode 7: Mike Haas: The Mess with Wisconsin's Elections
Season 3, Episode 6: Deuel Ross: Everything You Wanted to Know About the Alabama Voting Rights Case, But Were Too Confused to Ask
Season 3, Episode 5: Bart Gellman, Jessica Huseman, and Margaret Sullivan: What Can (and Should) Journalists Do to Prevent Election Subversion and Another January 6?
Season 3, Episode 4: Pam Fessler: The Voting Wars and the Media, Then and Now
Season 3, Episode 3: Guy Charles: Race and Election Law in Today's United States
Season 3, Episode 2: Brad Raffensperger & Isabel Longoria: The Risk of Election Subversion
Season 3, Episode 1: Nate Persily: A Redistricting Season Like No Other
More podcast episodes ›
Recent Op-Eds & Commentaries by Rick Hasen
It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear, Slate, June 30, 2022
No One is Above the Law, and that Starts with Donald Trump, N.Y. Times, June 24, 2022
The Jan. 6 Committee Should Be Looking Ahead to Election Threats in 2024, Wash. Post, June 8, 2022
The One Group That Can Stop Elon Musk from Unbanning Trump on Twitter, Slate, May 10, 2022
Facebook and Twitter Could Let Trump Back Online. But He’s Still a Danger, Washington Post, Mar. 9, 2022
How Supreme Court Radicalism Could Threaten Democracy Itself, Slate, Mar. 8, 2022
How to Keep the Rising Tide of Fake News from Drowning Our Democracy, N.Y. Times, Mar. 7, 2022
North Carolina Republicans Ask SCOTUS To Decimate Voting Rights in Every State, Slate, Feb. 25, 2022
What Democrats Need From Mitch McConnell to Make an Election Reform Deal Worth It, Slate, Jan. 4, 2022
No One is Coming to Save Us from the ‘Dagger at the Throat of America,’ N.Y. Times, Jan. 7, 2022
More op-eds and commentaries by Rick ›
Recent Academic Articles and Working Papers by Rick Hasen
Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States, 135 Harvard Law Review Forum 265 (2022)
Research Note: Record Election Litigation Rates in the 2020 Election: An Aberration or a Sign of Things to Come?, Election Law Journal, https://www.liebertpub.com/doi/epdf/10.1089/elj.2021.0050 (2022)
Optimism and Despair About a 2020 “Election Meltdown” and Beyond, 100 Boston University Law Review Online 298 (2020) (part of symposium on my book, Election Meltdown)
Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them, Election Law Journal (2020)
More academic articles by Rick Hasen ›
Recent Books by ELB Contributors
Gerkin – The Democracy Index
The Democracy Index: Why Our Election System Is Failing and How to Fix It
by Heather K. Gerken
Persily – Social Media and Democracy
Social Media and Democracy
(Cambridge Press, 2020)
by Nathaniel Persily and Joshua A. Tucker
Pildes – The Law of Democracy
The Law of Democracy: Legal Structure of the Political Process, 6th ed.
(Foundation Press, 2022)
by Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes, Nathaniel Persily, and Franita Tolson
Tokaji – Election Law in a Nutshell
Election Law in a Nutshell (2d ed., West Academic Publishing, 2017)
by Daniel P. Tokaji
Podcasts by ELB Contributors
Tolson – Free and Fair Podcast
Free & Fair with Franita and Foley
Franita Tolson and Edward Foley
Recent Articles by ELB Contributors
Tabatha Abu El-Haj, Networking the Party: First Amendment Rights & the Pursuit of Responsive Party Government, 118 Colum. L. Rev. 1225 (2018).
Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu & Emily R. Zhang, A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals, 59 Wm. & Mary L. Rev. 1521 (2018).
Edward B. Foley, Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism (May 10, 2021). Ohio State Legal Studies Research Paper No. 61
Anita S. Krishnakumar, Cracking the Whole Code Rule (February 19, 2020). St. John’s Legal Studies Research Paper No. 20-0002, New York University Law Review, Forthcoming
Justin Levitt, Failed Elections and the Legislative Selection of Electors, __ N.Y.U. L. Rev. __ (forthcoming 2021)
Derek T. Muller, Weaponizing the Ballot. 48 Florida State University Law Review 61 (2021)
Spencer Overton, Power to Regulate Social Media Companies to Prevent Voter Suppression. GWU Legal Studies Research Paper No. 2020-23, GWU Law School Public Law Research Paper No. 2020-23, 53 U.C. Davis L. Rev. 1793 (2020)
Nicholas Stephanopoulos, The Sweep of the Electoral Power (October 20, 2020). Constitutional Commentary, Forthcoming, Harvard Public Law Working Paper No. 21-07
<<< Thank you for your visit >>>