tag:theconversation.com,2011:/ca/topics/election-law-38856/articlesElection law – The Conversation2024-02-06T18:57:10Ztag:theconversation.com,2011:article/2223582024-02-06T18:57:10Z2024-02-06T18:57:10ZMore than 78 ‘friends’ of the Supreme Court offer advice on the 14th Amendment and Trump’s eligibility<figure><img src="https://images.theconversation.com/files/573765/original/file-20240206-32-y14p79.jpeg?ixlib=rb-1.1.0&rect=13%2C0%2C4336%2C2927&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">US President Donald Trump speaks to supporters from the Ellipse near the White House on Jan. 6, 2021, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-to-supporters-from-the-news-photo/1230450752?adppopup=true">Brendan Smialowski/AFP via Getty Images</a></span></figcaption></figure><p>Members of the U.S. Capitol Police targeted with “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299404/20240131142752665_Trump%20v.%20Anderson%20--%20Amicus%20Brief.pdf">brutal violence</a>” on Jan. 6, 2021, <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298895/20240126151819211_23-719%20Brief.pdf">25 historians of the U.S. Civil War and Reconstruction</a>, the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299385/20240131142241099_trump%20amicus%20brief..1.30.24.Final.pdf">San Francisco Taxpayers Association</a> and <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">dozens of other parties</a> have weighed in at the U.S. Supreme Court with their opinions about the case that has the potential to disqualify Donald Trump from the 2024 presidential election.</p>
<p>The justices will hear oral arguments in that case, <a href="https://www.oyez.org/cases/2023/23-719">Trump v. Anderson</a>, on Feb. 8. 2024. The plaintiffs, a group of Colorado voters, claim that under <a href="https://theconversation.com/colorado-voters-seeking-to-disqualify-trump-from-the-ballot-tell-supreme-court-jan-6-will-forever-stain-us-history-221714">Section 3 of the 14th Amendment</a> to the U.S. Constitution, Trump is not constitutionally qualified to run for president because he “engaged in insurrection or rebellion” against the U.S. Constitution. When the Colorado Supreme Court ruled that Trump could not appear on that state’s ballot, Trump appealed the decision to the U.S. Supreme Court. </p>
<p>While the Supreme Court will ultimately determine Trump’s fate, the numerous parties who have chimed in aim to add context and additional arguments for the justices to consider. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of nine people in black robes, seated in two rows." src="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The U.S. Supreme Court’s nine justices, who will determine whether the Constitution’s 14th Amendment bars presidential candidate Donald Trump from the ballot.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243791674?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
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<h2>78 amicus briefs</h2>
<p>As with many cases before appellate courts, and especially those before the Supreme Court, outside interested parties can file what are called an amicus brief. The filers are referred to as <a href="https://www.law.cornell.edu/wex/amicus">“amicus curiae,” Latin for a “friend of the court</a>.” They are not a party to the case but rather someone or a group who volunteer advice in a case before the court. </p>
<p>The purpose of amicus briefs varies. They can be used to share specialized knowledge with the courts. In their Trump v. Anderson amicus brief, constitutional law scholars <a href="https://law.yale.edu/akhil-reed-amar">Akhil Reed Amar of Yale Law School</a> and <a href="https://law.ucdavis.edu/people/vikram-amar">Vikram David Amar of University of California, Davis, School of Law</a> write about <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/295994/20240118094034746_Trump%20v%20Anderson.pdf">the history and significance</a> of the first insurrection, which occurred in the 1860s. They describe this as an effort to “prevent the lawful inauguration of duly elected Abraham Lincoln.” </p>
<p>Others file amicus briefs to advance or further an argument. Some may discuss the potential effects of possible decisions. All share a common thread: Amicus briefs are filed to help the court shape the ruling in the case.</p>
<p>In Trump v. Anderson, the amicus filers who support Trump filed 34 briefs. Filers who support Anderson, the plaintiff whose name is on the case, filed 30 briefs. In addition, 14 briefs were filed in support of neither party. </p>
<p>The total of 78 amicus briefs filed is lower than other recent and controversial cases before the Supreme Court. For instance, in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, the case that ultimately overturned the constitutional guarantee of a right to abortion, there were approximately 140 amicus briefs filed. In a recent affirmative action case, <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">Students for Fair Admissions Inc. v. Harvard</a>, which concluded that universities cannot use race as a consideration in admissions decisions, amici filed approximately 100 briefs. </p>
<p>While the total number of briefs filed in this case is notably lower, it is important to note that the Supreme Court expedited Trump v. Anderson, almost certainly because the presidential campaign is well underway. While normally there is a period of months to file amicus briefs in cases, the court’s expedited timeline directed amicus filers that they had less than four weeks to file their briefs. </p>
<h2>Constitutional or unconstitutional?</h2>
<p>In his amicus brief, U.S. Sen. Ted Cruz, a Republican from Texas and former presidential candidate himself, argues that the Colorado Supreme Court’s decision to remove Trump from its ballots was an <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">unconstitutional encroachment on Congress’ powers</a> </p>
<p><a href="https://www.c-span.org/person/?40188/MichaelLuttig">Former U.S. Appeals Judge J. Michael Luttig</a> was part of a group of amicus filers made up of “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299107/20240129171610494_23-719_Amici%20Brief.pdf">former officials</a> who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.” Their brief argues that the Supreme Court is well within its constitutional authority to determine the constitutional qualifications of the presidency, and that “Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly elected President.” </p>
<p>Constitutional law scholars such as Berkeley’s <a href="https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/#tab_profile">Erwin Chemerinsky</a> and Yale’s <a href="https://law.yale.edu/bruce-ackerman">Bruce Ackerman</a> argue in their filing that <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299220/20240130143600068_23-719%20Amici%20BOM%20Floyd%20Abrams%20et%20al%20PDFA.pdf">Trump’s rhetoric is not protected by the First Amendment</a>. Thus, they write, the First Amendment should not affect how the court interprets and applies Section 3. </p>
<p>And the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/296994/20240118104059498_No.%2023-719_Brief.pdf">National Association for the Advancement of Colored People argues that the court</a> should give consideration to the 14th Amendment’s commitment to equal protection and multiracial democracy because the drafters of the amendment had a “practical concern about how insurrectionists would respect the rights of those whom they did not believe were entitled to rights.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of angry-looking people in front of the U.S. Capitol, a white-domed building." src="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pro-Trump protesters gather in front of the U.S. Capitol on Jan., 6, 2021, in Washington, D.C. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-trump-protesters-gather-in-front-of-the-u-s-capitol-news-photo/1230457865?adppopup=true">Jon Cherry/Getty Images</a></span>
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<h2>Unexpected friends</h2>
<p>Although legal scholars and politicians frequently file amicus briefs in cases, this case also generated significant interest from nontraditional amici. </p>
<p>An unspecified number of Capitol Police officers who fought against the rioters on Jan. 6, 2021, to protect senators and representatives argue that the First Amendment should not apply because Trump’s speech was <a href="http://www.supremecourt.gov/DocketPDF/23/23-719/299404/20240131142752665_Trump%20v.%20Anderson%20--%20Amicus%20Brief.pdf">“integral to unlawful activity</a>.”</p>
<p>The San Francisco Taxpayers Association’s brief claims that Trump is disqualified because, in addition to engaging in an insurrection, Trump also engaged in a “rebellion against the Constitution, by knowingly <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299385/20240131142241099_trump%20amicus%20brief..1.30.24.Final.pdf">disregarding the presidential oath of office</a>.” This rebellion, as they note, is a separate basis for disqualification under Section 3 of the 14th Amendment. </p>
<p>And international scholars who study democracies, political violence and the rule of law write that Trump’s actions following the November 2020 election “are alarmingly similar to activities that have <a href="http://www.supremecourt.gov/DocketPDF/23/23-719/299402/20240131142658027_2024.01.31%20Final%20Brief%20of%20Democracy%20Experts.pdf">destroyed democracies in other countries</a>.” </p>
<p>Even voters who say they “have a constitutional interest in a ballot” filed amicus briefs in this case. Voters in New Hampshire argue that all Americans have a constitutional right to “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299369/20240131133403242_Brief%2001%2031%2024.pdf">a ballot free of such an insurrectionist</a>” as Trump.</p>
<h2>‘Great peril’ for the nation</h2>
<p>Most of the amicus briefs in this case, however, reiterate the litigants’ core arguments. Trump’s supporters argue that Section 3 <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">does not apply to the office of the president</a>. Even if it did, they assert, Trump’s speech should be protected by the First Amendment. Moreover, they argue that Section 3 requires an act of Congress to enable its enforcement. </p>
<p>Anderson’s supporters who seek Trump’s disqualification argue that Section 3 does apply to the president. They also argue that <a href="https://theconversation.com/colorado-voters-seeking-to-disqualify-trump-from-the-ballot-tell-supreme-court-jan-6-will-forever-stain-us-history-221714">Trump engaged in an insurrection</a> as evidenced by the violence on Jan. 6, 2021. Further, they argue that Section 3 automatically applies unless Congress acts by removing the disqualification disability.</p>
<p>And both sides argue that the Supreme Court must decide the issue now because any delay will “<a href="http://www.supremecourt.gov/DocketPDF/23/23-719/297014/20240118112848137_23-719.Amicus.Foley.Ginsberg.Hasen.pdf">place the Nation in great peril”</a>. </p>
<p>Whether the Supreme Court relies on any of the amicus briefs is up to the justices’ discretion. But without any doubt, this case is monumental – likely more consequential than <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep531/usrep531098/usrep531098.pdf">Bush v. Gore</a>, which decided the outcome of the 2000 presidential election in George W. Bush’s favor. While the court’s self-imposed deadline to release its decision is the end of June, it is reasonable to expect a decision in this case sooner rather than later.</p><img src="https://counter.theconversation.com/content/222358/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>34 groups filed briefs with the Supreme Court in favor of keeping Donald Trump on the ballot, 30 favored disqualifying him as an insurrectionist, and 14 simply added legal information to the record.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2115822023-08-15T03:31:12Z2023-08-15T03:31:12ZFulton County charges Donald Trump with racketeering, other felonies – a Georgia election law expert explains 5 key things to know<figure><img src="https://images.theconversation.com/files/542726/original/file-20230815-6385-nfovfk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County Superior Court Judge Robert McBurney receives documents from court clerk Che Alexander on August 14, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-superior-court-judge-robert-mcburney-receives-news-photo/1599897578?adppopup=true">Megan Varner/Getty Images</a></span></figcaption></figure><p><em>An Atlanta, Georgia, <a href="https://www.ajc.com/politics/trump-18-others-indicted-for-trying-to-overthrow-2020-georgia-election/PQ3N2YBIDRDJFLJGFLEBZUWM6I/">grand jury indicted</a> former President Donald Trump on Aug. 14, 2023, charging him <a href="https://www.law.cornell.edu/wex/racketeering">with racketeering</a> and 12 other felonies related to his alleged attempts to overturn his 2020 election defeat in the state.</em></p>
<p><em>Eighteen of Trump’s allies and associates, including former Trump attorney Rudolph Giuliani and former White House chief of staff Mark Meadows, were <a href="https://www.documentcloud.org/documents/23909548-trump-georgia-criminal-indictment">also indicted</a> for racketeering and other felony charges for their alleged involvement in the scheme.</em></p>
<p><em>This marks <a href="https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html">Trump’s fourth indictment in five months</a> – and the second to come from his efforts to undo the election results that awarded the presidency to Joe Biden. Fani Willis, the district attorney of Fulton County, Georgia, <a href="https://www.atlantanewsfirst.com/2023/07/24/timeline-donald-trumpgeorgia-investigation/">started investigating</a> Trump’s involvement in this alleged scheme, as well as that of Trump’s colleagues, in February 2021.</em></p>
<p><em>In January 2021, one month before the investigation started, Trump <a href="https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-call-georgia.html">placed a phone call</a> to Georgia Secretary of State Brad Raffensperger and pressed him to <a href="https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-elections-a7b4aa4d8ce3bf52301ddbe620c6bff6">“find” enough votes</a> to overturn Biden’s win.</em> </p>
<p><em>The Conversation U.S. spoke with <a href="https://scholar.google.com/citations?user=AI_UyLUAAAAJ&hl=en">Anthony Michael Kreis</a>, a scholar of Georgia’s election laws, to understand the significance of the charges laid out in the <a href="https://www.documentcloud.org/documents/23909543-23sc188947-criminal-indictment">98-page indictment</a>. Here are five key points to understand about the precise nature of the charges and why <a href="https://www.nytimes.com/live/2023/08/14/us/trump-indictment-georgia-election#trump-georgia-rico-charges">racketeering is at the center</a> of them.</em></p>
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<a href="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two black cars that say 'sheriff' on it block off a street in front of a walk over that says Fulton County and nearby government buildings." src="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Police officers block off a street in front of the Fulton County Courthouse on August 14, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-sheriff-officers-block-off-a-street-in-front-news-photo/1614302634?adppopup=true">Joe Raedle/Getty Images</a></span>
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<h2>1. Racketeering is different from conspiracy charges</h2>
<p><a href="https://www.pbs.org/newshour/politics/why-georgias-rico-law-could-be-key-in-the-states-case-against-trump">With a Racketeer Influenced and Corrupt Organizations, or RICO, charge</a>, Willis presents a narrative that there were a large number of people involved in this case, but that they didn’t necessarily sit down at some point and over cocktails and say, “We are going to engage in this criminal act,” which would be a traditional conspiracy case. She is painting this picture of people winking and nodding and working toward this end goal of overthrowing the election, but without some kind of expressed agreement. </p>
<p>The Georgia RICO law allows her to rope in a lot of people who allegedly were involved with this kind of approach. </p>
<p>To be able to bring conspiracy charges, she would have to have an expressed agreement and a concrete act in furtherance of that conspiracy. And here there really wasn’t quite a plan – it is essentially a loose organization of people who are all up to no good. </p>
<h2>2. Georgia – and Willis – have used racketeering charges before</h2>
<p>Traditionally in Georgia, <a href="https://www.axios.com/2023/08/14/trump-georgia-rico-charges-fani-willis">RICO</a> has been used to prosecute people engaged in very violent kinds of activity – for street gangs and the Mafia, in particular. It has also been used in other contexts. </p>
<p>The most notable is the Atlanta public school cheating prosecution in 2015, when a <a href="https://www.washingtonpost.com/education/2022/02/01/atlanta-cheating-schools-scandal-teachers/">number of educators</a> were charged with manipulating student test scores. They wanted to make the public schools look better for various reasons. But they didn’t all know exactly what the other people were doing. </p>
<p>Willis <a href="https://www.jacksonville.com/story/news/2015/04/01/11-atlanta-public-schools-educators-convicted-racketeering-test/15657062007/">was the assistant district attorney prosecuting that racketeering</a> case. It’s a tool that she likes to use. And it is a tool that can be really hard for defendants to defend against. Eleven of the 12 defendants were convicted of <a href="https://www.usatoday.com/story/news/nation/2015/04/01/atlanta-schools-cheating-scandal-verdict/70780606/">racketeering in 2015</a> and received various sentences, including up to 20 years in prison. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Fanni Willis looks straight ahead at the camera and sits at a wooden table." src="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fanni Willis, the district attorney of Fulton County, Georgia, is seen inside her office in September 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fani-willis-the-district-attorney-of-fulton-county-georgia-news-photo/1246123003?adppopup=true">David Walter Banks</a></span>
</figcaption>
</figure>
<h2>3. Georgia law poses particular risks to Trump</h2>
<p><a href="https://law.justia.com/codes/georgia/2021/title-16/chapter-14/">Georgia’s RICO law</a> is much more expansive than the federal version of the law. It allows for a lot more different kinds of conduct to be covered. That makes it very easy to sweep people into one criminal enterprise and it’s a favorite tool for prosecutors. </p>
<p>And the punishments for violating the state’s RICO are harsh. There is a <a href="https://www.newsweek.com/donald-trump-rico-georgia-charges-fani-willis-1818509">minimum five-year sentence</a> for offenders, and there can be a lengthy prison sentence for any co-defendants, as well. </p>
<p>But it also introduces a new dynamic, which Trump might not be used to. There is a big incentive for people who are listed as co-defendants to cooperate with the state and to provide evidence, in order to escape punishment and secure favorable deals.</p>
<p>This is probably the biggest risk to Trump, and the likelihood that he would be convicted in Fulton County rests with this. The other people involved in this are not all household names, and presumably have families and friends and don’t want to go to prison. They may well find themselves in a position to want to give evidence against Trump. </p>
<p><iframe id="tYrfU" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/tYrfU/12/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>4. It’s ultimately about election law</h2>
<p>It looks like Georgia election law is taking a slight backseat to some of these other possible charges – of false swearing, giving false statements – which is not quite an election conspiracy, or election interference, which are distinct charges under Georgia law. </p>
<p>The important lesson here is that Willis is essentially bringing an election conspiracy charge under RICO, so it is an election law violation by another name. </p>
<p>What she is vindicating is not only the rights of Georgians to vote and have their votes counted. Willis is also preserving the integrity of the election system – to not have poll workers harassed, to not have people making false statements about the elections in courts of law, and to not have <a href="https://apnews.com/article/fulton-county-election-investigation-trump-georgia-fb5240cf854eb546b027f950646268c2">people tamper</a> with an election.</p>
<h2>5. This could influence future key elections</h2>
<p>Georgia has some serious contested elections <a href="https://ballotpedia.org/Georgia_elections,_2024">ahead in 2024</a> and 2026. And people need to have faith in the system, the process, as well as in the institutions and the people. Fani Willis has a very important goal here – which is to expose the wrongs for what they were, to show people what happened here and to what degree it was criminal, if she can prove that. It’s also about reassuring people that if others engage in this kind of conduct, they will be penalized.</p><img src="https://counter.theconversation.com/content/211582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Michael Kreis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fulton County District Attorney Fani Willis’ RICO charges against Trump are targeting election law violations, but by another name. The charges can result in a minimum five years in prison.Anthony Michael Kreis, Assistant professor of law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2107762023-08-04T12:28:28Z2023-08-04T12:28:28ZTrump’s political action committee wants a $60 million refund on paying his legal fees – 3 key things to know about PACs<figure><img src="https://images.theconversation.com/files/540535/original/file-20230801-21-mmzd9z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">One of Donald Trump's PACs has nearly dried up its resources by paying his legal fees.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/campaign-buttons-on-top-of-hundred-dollar-bills-royalty-free-image/486249544?phrase=Super+PAC&adppopup=true">iStock/Getty Images Plus </a></span></figcaption></figure><p><em>Save America, one of former President Donald Trump’s political organizations, is <a href="https://www.nytimes.com/2023/07/29/us/trump-pac-legal-fees.html">seeking a US$60 million refund</a> from Make America Great Again, Inc., another Trump political organization that is less strictly regulated by federal rules.</em> </p>
<p><em>Save America has paid Trump’s legal fees connected to multiple investigations into alleged criminal activities and is now down to less than $4 million in its account, The New York Times reported on July 31, 2023. It <a href="https://www.nytimes.com/2023/07/31/us/politics/trump-pac-filing.html">started 2022 with $105 million</a> in the bank.</em></p>
<p><em>Trump’s use of political action committees, often known as PACs, to pay his <a href="https://www.washingtonpost.com/national-security/2023/07/29/trump-lawyers-pac-deoliveira-loyal/">mounting legal fees</a> has raised questions about these organizations and how they spend money.</em> </p>
<p><em>First, what’s a PAC, anyway?</em></p>
<p><em>We <a href="https://www.nytimes.com/2023/07/31/us/politics/trump-pac-filing.html">asked Richard Briffault,</a> a scholar of campaign finance law, to explain what is behind PACs and whether using them to pay for personal legal expenses is permitted. Here are three key points to understand:</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People walk through Times Square, in front of a large poster that says 'Super Trump' and shows Trump's face on a Superman body, flying." src="https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540536/original/file-20230801-17-os5s85.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People walk past a Times Square digital billboard created by a pro-Trump super PAC in 2016.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-walk-at-the-corner-of-47th-street-and-7th-avenue-as-news-photo/605881900?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. PACs are not all made equal</h2>
<p>PACs are organizations that raise and spend money on federal elections. A PAC may contribute money to a candidate or political party, or spend independently to promote or attack a candidate or party. </p>
<p>Corporations, labor unions and other ideological groups <a href="https://issueone.org/wp-content/uploads/2018/10/Leadership-PACs-Inc.pdf">originally set up PACs</a> many decades ago as a way to participate in federal elections. Most PACs today are either connected to a sponsor organization or <a href="https://www.fec.gov/updates/statistical-summary-of-21-month-campaign-activity-of-the-2021-2022-election-cycle/">have a particular issue agenda</a>. These PACs typically donate to or spend money in support of multiple candidates. </p>
<p>Some PACs, however, are directly created by candidates or their supporters.</p>
<p>Trump’s situation involves two particular kinds of PACs: a leadership PAC <a href="https://www.opensecrets.org/political-action-committees-pacs/save-america/C00762591/summary/2022">named Save America</a> and a super PAC named <a href="https://www.opensecrets.org/political-action-committees-pacs/make-america-great-again-inc/C00825851/summary/2022">Make America Great Again, Inc.</a> </p>
<p>Leadership PACs, which date <a href="https://issueone.org/wp-content/uploads/2018/10/Leadership-PACs-Inc.pdf">back to the late 1970s</a>, are created by candidates or officeholders to support other candidates for federal office, but not the <a href="https://www.fec.gov/campaign-finance-data/leadership-pacs-and-sponsors-description/">candidate’s own campaign</a>. They allow candidates to help fellow party members, strengthen their party’s position and boost their own efforts to win leadership positions. </p>
<p>A super PAC, meanwhile, is a PAC that does not contribute to candidates directly at all, but instead spends money independently to <a href="https://www.fec.gov/help-candidates-and-committees/filing-pac-reports/registering-super-pac/">promote or oppose candidates</a>. Like other PACS, a super PAC can pay for advertising, polling, opposition research and get-out-the-vote efforts. But the super PAC cannot coordinate its activities with the candidate it is supporting.</p>
<p>Super PACs emerged in 2010 following a controversial <a href="https://www.fec.gov/legal-resources/court-cases/speechnoworg-v-fec/">court of appeals decision</a>. The ruling found that if a PAC does not directly contribute to or coordinate with a candidate, the ordinary limits on money contributions to PACs do not apply. </p>
<p>Federal law caps individual donations to most PACs, including leadership PACs, <a href="https://www.fec.gov/resources/cms-content/documents/contribution_limits_chart_2023-2024.pdf">at $5,000 per year</a>.</p>
<p>The lack of caps on donations to super PACs is what merits the modifier “super.”</p>
<p>The case that gave rise to super PACs involved an independent organization not connected to any campaign or candidate. But some super PACs, <a href="https://www.thedailybeast.com/trump-hates-lobbyistsexcept-the-ones-running-his-super-pac">including Trump’s,</a> are also created by people closely associated with a candidate and devote their spending entirely to the support of that candidate. </p>
<p>Because contribution limits do not apply to super PACs, they have become an essential component of <a href="https://www.minnesotalawreview.org/wp-content/uploads/2019/07/Briffault_MLR.pdf">election campaigns</a> over the last 13 years.</p>
<h2>2. PACs can sometimes pay legal fees</h2>
<p>Campaign money is supposed to be used for campaign purposes and not for what election law refers to as <a href="https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/">“personal use,”</a> such as a political candidate’s home mortgage. </p>
<p>It is illegal to use campaign money to <a href="https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/">pay for personal expenses</a> that would have occurred whether or not the candidate was running for office. </p>
<p>The Federal Election Commission <a href="https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/">has ruled that campaign</a> funds can be used to pay a candidate’s legal fees if an investigation relates directly to the election or the candidate’s time in political office. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man looks at a wall covered in photos and text, including one plaque that says 'welcome to the big, beautiful Trump museum.'" src="https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540537/original/file-20230801-19-svyedc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Democratic super PAC, American Bridge, created a Trump museum in Cleveland, showcasing parts of the former president’s life he would rather keep quiet.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-visits-exhibits-at-a-so-called-trump-museum-in-news-photo/577714990?adppopup=true">William Edwards/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. Trump’s case enters murky territory</h2>
<p>The Federal Election Commission ruling means that election funding laws could allow Trump to use money from his PAC to pay for legal fees in connection with the <a href="https://apnews.com/article/trump-new-york-hush-money-f8ad2bd8845d1295db439719b4987e54">New York hush money</a> case – which relates to Trump’s 2016 presidential campaign – as well as the federal and <a href="https://www.nytimes.com/2023/07/31/us/trump-georgia-prosecutor-election.html">Georgia investigations</a> of Trump’s role in challenging the results of the 2020 election. </p>
<p>But money raised for a campaign could probably not cover the Department of Justice’s <a href="https://www.npr.org/2023/07/27/1190619704/trump-charged-with-additional-count-in-mar-a-lago-documents-case">Mar-a-Lago documents case</a>, which does not involve either Trump’s campaign or his time in office. </p>
<p>The FEC has, in some cases, <a href="https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/">also determined that a politician</a> may use campaign funds to pay for up to 50% of legal expenses that do not relate directly to allegations arising from campaign or officeholder activity.</p>
<p>This is true if the politician is required to provide substantive responses to the media while a candidate, regarding alleged illegal activity. So, campaign money might be used in the Mar-a-Lago case.</p>
<p>What’s unclear – and possibly unlawful – is whether Trump’s leadership PAC, Save America, can pay for Trump’s legal expenses. </p>
<p>This is because leadership PACs are supposed to spend money on other political candidates, not the candidate who controls the leadership PAC. And in this case, <a href="https://ballotpedia.org/Save_America">Save America is controlled by Trump</a>. </p>
<p>It’s also not clear whether the money transfers from the super PAC Make America Great Again, Inc, to Save America <a href="https://campaignlegal.org/sites/default/files/2022-11/Trump%20Save%20America%20PAC%20Complaint%20%28Final%29.pdf">are consistent with the legal requirement</a> that super PACs operate independently of a candidate’s campaign. </p>
<p>The request for refunds only underscores that concern.</p>
<p>The Federal Election Commission monitors any PAC-related legal issues or violations of election law. But given that the commission is facing <a href="https://shpr.legislature.ca.gov/sites/shpr.legislature.ca.gov/files/Ravel%20-%20FEC%20Dysfunction.pdf">“dysfunction and deadlock,”</a> as a former FEC chair has said, there is unlikely to be clarification or enforcement anytime soon.</p><img src="https://counter.theconversation.com/content/210776/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Briffault does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There are different kinds of PACs, but it is not clear if Trump’s use of them to pay his large legal fees violates election or campaign finance laws.Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2086172023-06-27T23:54:43Z2023-06-27T23:54:43ZSupreme Court says state lawmakers can’t just ignore state law when drawing voting districts or choosing presidential electors<figure><img src="https://images.theconversation.com/files/534445/original/file-20230627-34413-o3m7yd.jpg?ixlib=rb-1.1.0&rect=32%2C25%2C4252%2C3006&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">North Carolina's election districts have been under debate and review for years.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtRedistrictingNorthCarolina/222fd61aef6f49068f853e6b69b0a235/photo">AP Photo/Gerry Broome</a></span></figcaption></figure><p><em>For months, legislators, legal scholars and people simply interested in democracy and elections were fixated on a case before the Supreme Court, <a href="https://www.oyez.org/cases/2022/21-1271">Moore v. Harper</a>. Those following the case, which asked the justices to rule on the “independent state legislature doctrine,” have held their collective breath awaiting the outcome, which could have changed fundamental aspects of U.S. elections and politics.</em> </p>
<p><em><a href="https://law.richmond.edu/faculty/hchamber/">Henry L. Chambers Jr.</a>, a law professor at the University of Richmond, wrote earlier for The Conversation <a href="https://theconversation.com/independent-state-legislature-doctrine-now-before-supreme-court-could-reverse-200-years-of-progress-in-giving-more-say-over-elections-to-the-people-186282">about the case</a>, saying “Adoption of a strong independent state legislature doctrine would leave partisan gerrymandering unregulated at both the state and federal levels. State legislatures, unconstrained by state law, could then create aggressively gerrymandered congressional districts, possibly leading to an ever more partisan Congress with accompanying gridlock and policy failures.”</em></p>
<p><em>We asked Chambers to help readers understand <a href="https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf">the court’s opinion</a>, issued on June 27, 2023.</em> </p>
<h2>What question did the Supreme Court answer in this opinion?</h2>
<p>The court considered whether a state legislature could have the last word, with no review by state courts, regarding gerrymandered congressional districts they created. State legislatures have always been bound by the U.S. Constitution and by federal laws, so they had to draw lines consistent with the federal <a href="https://www.britannica.com/event/Voting-Rights-Act">Voting Rights Act</a>, for example. But the question was whether a state legislature could draw whatever congressional districts it wanted without review by state courts under state law. If so, state legislatures might also have more freedom to affect the choice of state electors in presidential elections. </p>
<p>At issue was a legal theory called the “independent state legislature doctrine,” which the court considered in a dispute over gerrymandered North Carolina congressional districts. In early 2022, North Carolina state courts found the Legislature violated the state constitution when it drew congressional districts favoring Republicans. The <a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">Legislature claimed</a> the U.S. Constitution gives it authority, unfettered by state courts’ interpretation of the state constitution or laws, to regulate congressional elections, and asked the Supreme Court to agree.</p>
<p>The court did not agree.</p>
<p>In cases that involve the legislative action, courts typically consider whether the legislature has contravened state law. If the legislature has, it has made a mistake, and the legislative action tends to be reversed. </p>
<p>This decision merely reiterates what most people always thought the law was: Legislatures cannot legislate in ways that are inconsistent with the law that governs their actions and their state. This conclusion seems obvious, like saying the sky is blue or water is wet.</p>
<h2>Does this decision apply only to partisan gerrymandering by state legislatures?</h2>
<p>This case focused on partisan <a href="https://www.brookings.edu/articles/moore-v-harper-who-has-the-power-to-set-state-election-rules/">gerrymandering</a> of congressional districts. However, it may apply more generally to rules for congressional elections, such as where, when and how such elections will be run. If the state constitution explains how congressional elections will be run, the state legislature must abide by those provisions. </p>
<h2>What happens next in terms of partisan gerrymanders drawn by state legislatures?</h2>
<p>Partisan gerrymanders are subject only to state constitutional and <a href="https://www.law.cornell.edu/wex/statute">statutory law</a> – the written laws enacted by the legislature. In the 2019 ruling, <a href="https://www.oyez.org/cases/2018/18-422">Rucho v. Common Cause</a>, the Supreme Court deemed partisan gerrymandering a political question, not subject to regulation by the federal Constitution. In that ruling, the court noted state constitutional and statutory law could be used to stop partisan gerrymandering. </p>
<p>However, states need not regulate partisan gerrymandering. A state constitution may allow partisan gerrymandering by failing to prohibit it, essentially saying, “The people don’t care about partisan gerrymandering.” </p>
<p>Racial gerrymandering is still subject to regulation by the U.S. Constitution, federal law, such as the <a href="https://www.britannica.com/event/Voting-Rights-Act">Voting Rights Act</a>, and state law.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person stands in front of a large map showing electorai districts in North Carolina." src="https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534447/original/file-20230627-34413-lkeda3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Some North Carolina legislators claimed they could make election district boundaries wherever they wanted, regardless of existing state laws, but the U.S. Supreme Court disagreed.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtRedistrictingNorthCarolina/222fd61aef6f49068f853e6b69b0a235/photo">AP Photo/Gerry Broome</a></span>
</figcaption>
</figure>
<p>Now that the court has clarified that a legislature’s congressional redistricting is subject to review by state courts, the issue will become whether a state court has appropriately interpreted state statutory law or state constitutional law if it strikes down a congressional redistricting plan. </p>
<p>If a court interprets state law reasonably in invalidating a redistricting plan, it acts appropriately. If a court interprets state law too aggressively in invalidating a redistricting plan, it invades the legislature’s prerogatives. </p>
<p>Federal courts will decide when the state courts have gone too far. The less obvious the interpretation used by the court to limit the state legislature, the less likely federal courts will allow that interpretation to constrain the legislature. However, the Supreme Court provided no guidance in this decision on when state courts have gone too far.</p>
<h2>Will this ruling affect the 2024 presidential election?</h2>
<p>Had the court decided the case differently, bedlam could have ensued. Legislatures might have attempted to circumvent state law that defines how presidential electors are chosen. </p>
<p>Many folks argue such chicanery could never happen, because once presidential electors are chosen on Election Day, then that’s it. But if the court had suggested a legislature is not bound by its state constitution, some people might make arguments to sow discontent during the weeks between the election and the inauguration. </p>
<p>Other safeguards might have stopped the harm, but the fear of trouble would have been real. </p>
<p>Fortunately, that has been avoided. </p>
<p><em>This story includes material from an <a href="https://theconversation.com/independent-state-legislature-doctrine-now-before-supreme-court-could-reverse-200-years-of-progress-in-giving-more-say-over-elections-to-the-people-186282">earlier story on the case</a> by the same author.</em></p><img src="https://counter.theconversation.com/content/208617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry L. Chambers Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s official: State courts can review lawmakers’ election-district boundary decisions to ensure they comply with state law.Henry L. Chambers Jr., Professor of Law, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1947752022-11-17T13:27:55Z2022-11-17T13:27:55ZA brief history of Georgia’s runoff voting – and how this year’s contest between two Black men is a sign of progress<figure><img src="https://images.theconversation.com/files/495703/original/file-20221116-24-sa3q0h.jpg?ixlib=rb-1.1.0&rect=354%2C0%2C2640%2C1908&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Barack Obama raises hands with Stacey Abrams and U.S. Sen. Raphael Warnock at a Oct. 28, 2022, campaign event in Georgia.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-barack-obama-raises-hands-with-democratic-news-photo/1244303190?phrase=raphael%20warnock&adppopup=true">Elijah Nouvelage/Getty Images</a></span></figcaption></figure><p>In the U.S., all elections are administered by the states. But not all states use the same rules. </p>
<p>Georgia uses a version of <a href="https://ballotpedia.org/Runoff_election">runoff voting</a>, which entails two rounds of voting. Typically, if a candidate wins more than 50% of the votes in the first round, that candidate is declared the winner. If not, the two candidates with the most first-round votes face off in a second round of voting.</p>
<p>There’s historically been concern that such a runoff system disadvantages Black candidates. Former Assistant U.S. Attorney General <a href="https://www.latimes.com/archives/la-xpm-1990-08-10-mn-191-story.html">John R. Dunne</a> once argued that Georgia’s runoff voting system has had “a demonstrably chilling effect on the ability of Blacks to become candidates for public office.”</p>
<p>U.S. Rep. <a href="https://www.washingtonpost.com/opinions/james-clyburn-runoff-elections-voting-rights/2020/12/22/2eb0827e-446c-11eb-b0e4-0f182923a025_story.html">James E. Clyburn</a> of South Carolina similarly argues that runoff voting has “purposefully diluted Black votes” and has been successful at “keeping Black candidates from reaching elected office.”</p>
<p>Yet on Dec. 6, 2022, Georgians will vote in a runoff election between Democratic incumbent <a href="https://warnockforgeorgia.com">Raphael Warnock</a> and Republican challenger <a href="https://www.teamherschel.com">Herschel Walker</a> – both of whom are African American men. </p>
<p>So, is runoff voting <a href="https://theconversation.com/a-brief-history-of-georgias-runoff-voting-and-its-racist-roots-150356">racist</a>? Or isn’t it?</p>
<figure class="align-center ">
<img alt="Two Black men and and a Black woman are standing in voting booths as they cast their ballots." src="https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495740/original/file-20221116-12-hbu4xu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Community members voting in Atlanta on Nov. 8, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/community-members-arrive-to-their-local-polling-location-to-news-photo/1244607986?phrase=georgia%20voters%20midterms&adppopup=true">Megan Varner/Getty Images</a></span>
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</figure>
<h2>A brief history of runoff voting in Georgia</h2>
<p>In <a href="https://www.georgiaencyclopedia.org/articles/counties-cities-neighborhoods/county-unit-system">1917</a>, Georgia adopted the “county unit system,” which was a way of voting that operated <a href="http://rbrl.blogspot.com/2011/10/county-unit-system-eh.html">similarly</a> to <a href="https://theconversation.com/why-does-the-electoral-college-exist-and-how-does-it-work-5-essential-reads-149502">the way the U.S. Electoral College works</a>.</p>
<p><a href="https://www.usa.gov/election">For presidential elections</a>, each state is allocated a number of electoral votes <a href="https://theconversation.com/how-is-the-american-president-elected-67632">based on</a> the size of its congressional delegation, which in turn is partially based on its population. As such, more populous states have more electoral votes than less populous states. </p>
<p>Similarly, under <a href="https://journals.sagepub.com/doi/10.1177/106591296101400409">Georgia’s county unit system</a>, more populous counties were allocated more votes in statewide elections than less populous counties. Each county’s votes were then awarded to whoever won that particular county.</p>
<p>The Electoral College gives <a href="https://theconversation.com/what-could-replace-the-electoral-college-138769">proportionately more power</a> to <a href="https://theconversation.com/electoral-college-benefits-whiter-states-study-shows-142600">less populous states</a>. Similarly, the county unit system <a href="https://www.georgiaencyclopedia.org/articles/counties-cities-neighborhoods/county-unit-system/">favored less populous counties</a>, while more populous counties were underrepresented.</p>
<p>This was particularly <a href="https://theconversation.com/a-disputed-election-delivered-3-governors-to-georgia-at-the-same-time-147816">harmful to the influence of African American voters</a>, who largely lived in the more populous <a href="https://www.bloomberg.com/news/articles/2019-02-28/black-majority-cities-are-increasing-in-number">urban</a> counties.</p>
<p>In <a href="https://caselaw.findlaw.com/us-supreme-court/372/368.html">1963</a>, the U.S. Supreme Court declared the county unit system unconstitutional, as it violated the standard of “<a href="https://www.law.cornell.edu/wex/one-person_one-vote_rule">one person, one vote</a>.” </p>
<p>In response, Georgian legislators began looking for a new electoral system that could similarly, yet legally, <a href="https://www.insider.com/georgia-runoff-law-jim-crow-segregationist-denmark-groover">suppress the African American vote</a>. Later that year, <a href="https://www.georgiaencyclopedia.org/articles/government-politics/denmark-groover-1922-2001/m-10807/">Denmark Groover</a>, a <a href="https://www.georgiaencyclopedia.org/articles/government-politics/denmark-groover-1922-2001/">member</a> of the Georgia House of Representatives, <a href="https://www.nps.gov/subjects/tellingallamericansstories/upload/CivilRights_VotingRights.pdf">proposed</a> the adoption of runoff voting, as it “would again provide protection which … was removed with the death of the county unit system.”</p>
<p>The most common voting system used in the U.S. is <a href="https://ballotpedia.org/Plurality_voting_system">plurality voting</a>, in which the winner of an election is the candidate who receives the most votes. A potential downside of this system is that, if a lot of candidates are running for one office and the vote is split several ways, the candidate with the highest number of votes may have a relatively low percentage of the overall vote, winning with a plurality, not a majority. </p>
<p><a href="https://www.jstor.org/stable/27893308?seq=1">The fear among many white Georgians</a> was that if elections were left to plurality voting, the white vote could be split among several different candidates. If African Americans all voted for a Black candidate, that person could end up winning the election with the most votes overall, even if their winning percentage was relatively low.</p>
<p>To prevent this, Groover and his allies <a href="https://www.nytimes.com/1990/08/10/us/us-files-suit-against-georgia-charging-bias-in-election-laws.html">pushed for the adoption of runoff voting</a> as an opportunity to “prevent the Negro bloc vote from controlling the elections.” </p>
<p>In <a href="https://www.nps.gov/subjects/tellingallamericansstories/upload/CivilRights_VotingRights.pdf">1964</a>, Georgia lawmakers adopted Groover’s proposal.</p>
<h2>Runoff voting is popular across the world</h2>
<p>Runoff voting has been around for a while, and it has been used in a variety of contexts. <a href="https://link.springer.com/book/10.1007/978-3-319-03856-8">Germany</a> began experimenting with this type of voting in the late 1800s, after which it spread to <a href="https://journals.sagepub.com/doi/pdf/10.1177/0010414018762369">Norway</a> in 1906, and then <a href="https://www.electoral-reform.org.uk/is-there-proportional-representation-in-france/">France</a> in 1928. Runoff voting <a href="https://www.nap.edu/read/9897/chapter/12#422">was later adopted by</a> several former French colonies after they obtained independence. After the collapse of the Soviet Union, several more newly independent countries decided to embrace the system.</p>
<p>Today, runoff voting is used in more than 40 countries across Asia, Africa, Europe and the Americas.</p>
<p>In addition to Georgia, several other U.S. states also use runoff voting in some capacity, <a href="https://www.ncsl.org/research/elections-and-campaigns/primary-runoffs.aspx">including</a> Alabama, Arkansas, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Texas and Vermont. </p>
<p>The <a href="https://ballotpedia.org/Top-two_primary">top-two primary</a> used in California, Nebraska and Washington, as well as Louisiana’s <a href="https://www.pbs.org/newshour/politics/louisiana-uses-a-jungle-primary-for-its-elections-what-does-that-mean">so-called</a> “<a href="https://ballotpedia.org/Jungle_primary">jungle primary</a>,” are also variations of runoff voting.</p>
<p>Alaska, Maine and several cities around the country have recently adopted <a href="https://theconversation.com/what-is-ranked-choice-voting-a-political-scientist-explains-165055">ranked choice voting</a>. This system is sometimes referred to as “<a href="https://dictionary.cambridge.org/us/dictionary/english/instant-runoff">instant runoff voting</a>,” because it too can be viewed as a type of runoff voting.</p>
<p>As a <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">scholar</a> of voting systems, <a href="https://doi.org/10.1080/13642987.2018.1499622">I have found</a> that <a href="https://doi.org/10.1371/journal.pone.0243094">runoff voting</a> tends <a href="https://doi.org/10.1371/journal.pone.0262026">to produce better policies</a>. This is because <a href="https://doi.org/10.1371/journal.pone.0217650">runoff elections often favor candidates who lean to the center</a>, and <a href="https://doi.org/10.1080/00323187.2018.1560590">center-leaning candidates seem to be more likely to respect human rights</a> and provide better representation of a larger portion of the electorate.</p>
<figure class="align-center ">
<img alt="A black man dressed in a suit stands behind a microphone as he gives a campaign speech." src="https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495719/original/file-20221116-18-wepfv1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">U.S. Senate candidate Herschel Walker, a Republican, speaks to supporters of former U.S. President Donald Trump during a GOP rally on March 26, 2022, in Commerce, Ga.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/heisman-trophy-winner-and-republican-candidate-for-us-news-photo/1239537207?phrase=herschel%20walker%20trump&adppopup=true">Megan Varner/Getty Images</a></span>
</figcaption>
</figure>
<h2>A sign of progress</h2>
<p>In a 1984 deposition, <a href="https://www.mupress.org/Macon-Black-and-White-An-Unutterable-Separation-In-the-American-Century-P569.aspx">Groover candidly testified</a> that he was “a segregationist” who “had many prejudices” and he didn’t “mind admitting it.” Although Groover was a racist, and although he pushed for runoff voting in Georgia for racist reasons, this does not mean that runoff voting as a system is inherently racist.</p>
<p>Rather, it shows how people can be racist.</p>
<p>If preventing a minority candidate from winning is the primary concern for a majority of voters, then runoff voting will prevent minority candidates from winning. </p>
<p>Before <a href="https://theconversation.com/rev-raphael-warnocks-historic-us-senate-win-broke-more-barriers-than-you-may-think-154120">Warnock’s historic victory</a> in 2021, Georgia had elected not a single African American U.S. senator, governor, lieutenant governor or secretary of state in either a runoff or a general election.</p>
<p>The fact that Warnock is now facing off against Walker, another African American man, suggests that preventing a minority candidate from winning is no longer the primary concern for a majority of Georgian voters. Rather than race, it seems that <a href="https://theconversation.com/abortion-is-not-influencing-most-voters-as-the-midterms-approach-economic-issues-are-predominating-in-new-survey-191836">other concerns</a> now guide most Georgians’ voting. </p>
<p>In a sense, <a href="https://theconversation.com/us-midterms-five-reasons-why-the-election-results-matter-194007">regardless of who wins</a>, Georgians can be proud that the state seems to be taking a small step toward a future in which <a href="https://www.npr.org/2010/01/18/122701268/i-have-a-dream-speech-in-its-entirety">the content of one’s character matters more than the color of one’s skin</a> – and one in which a voting method originally passed to bar Black people from public office seems now to have failed in its goal.</p>
<p><em>Editor’s note: This story incorporates material from an earlier story <a href="https://theconversation.com/a-brief-history-of-georgias-runoff-voting-and-its-racist-roots-150356">published on Nov. 23, 2020</a></em>.</p><img src="https://counter.theconversation.com/content/194775/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Runoff elections in Georgia have a racist past, but the contest between Raphael Warnock and Herschel Walker for US Senate is a sign of progress.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1933792022-11-09T21:26:14Z2022-11-09T21:26:14ZI’m an election law expert who ran a polling station this election – here’s what I learned about the powerful role of local officials in applying the law fairly<figure><img src="https://images.theconversation.com/files/494531/original/file-20221109-18607-2rmr90.jpeg?ixlib=rb-1.1.0&rect=25%2C38%2C8575%2C5673&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Local residents wait in line to receive their ballots before casting their vote, Tuesday, Nov. 8, 2022, in West Des Moines, Iowa.
</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2022AmericaVotes/41457c44fbbd45c28d627b651fdb984e/photo?Query=election%20iowa&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=10313&currentItemNo=23">AP Photo/Charlie Neibergall</a></span></figcaption></figure><p><em><a href="https://scholar.google.com/citations?user=PSynZNoAAAAJ&hl=en">Derek Muller</a> is a nationally recognized expert in election law at the University of Iowa College of Law, where he studies and teaches about the role of states in the administration of federal elections. In late October he <a href="https://www.supremecourt.gov/DocketPDF/21/21-1271/244002/20221026132512289_21-1271_Amicus%20Brief.pdf">submitted an amicus brief to the U.S. Supreme Court</a> on a case that could drastically reshape U.S. elections, addressing the <a href="https://theconversation.com/the-supreme-court-is-back-in-session-with-new-controversial-cases-that-stand-to-change-many-americans-lives-heres-what-to-expect-190819">independent state legislature theory</a>. But Muller doesn’t just understand election law from an ivory tower perch. On Election Day, he was a precinct chair in Iowa City, running a polling station inside the University of Iowa. The Conversation U.S. asked him to reflect on what it’s like to be both a election law scholar and an election worker.</em> </p>
<h2>You occupy a pretty high place in the world of election law scholars. But here you are, participating at the most basic level in an election and in our democracy.</h2>
<p>I’ve worked as a poll worker several times in California and in Iowa. It’s just a remarkable opportunity to see boots on the ground, what the effects of the law can be in the day-to-day administration of an election. And it’s a very practical way of giving back to the community and participating in a way that can help voters at the most important points of their contact with the democratic process. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C301%2C222&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haried man in a plaid shirt working at a computer next to a printer." src="https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C301%2C222&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=556&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=556&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=556&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Election law scholar Derek Muller checking in a voter on Election Day 2022 at a polling place on the campus of the University of Iowa.</span>
<span class="attribution"><span class="source">Derek Muller</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Did you see anything different this election from previous ones you’ve worked?</h2>
<p><a href="https://sos.iowa.gov/elections/results/index.html">Turnout was higher than 2021</a> in Iowa. But that was an off-year election. I think there’s been a return to in-person voting in a lot of places. Whether that’s because of COVID-19 or whether that’s because of changes to absentee ballot rules like those in Iowa, it’s not clear. Otherwise, it was pretty typical of how I’ve seen the elections run in the county before.</p>
<h2>What was your precise job?</h2>
<p>As a precinct chair, my responsibility is to make sure that I contact the other precinct election officials who are working the day. I collect the supplies the night before that we’re going to need for the election. I help set up and organize the precinct ahead of the polls opening and assign people to different functions. I troubleshoot any problems that arise from the other officials. We had an election observer in the room at all times from one of the parties, so they check in with me. </p>
<p>If there were problems I couldn’t solve, then it was up to me to contact our rover, essentially a supervisor who “roves” across six different precincts, or the county auditor’s office if other problems arose. </p>
<h2>Did you get any sense from voters what they were thinking about?</h2>
<p>Occasionally, some people made comments about the process because they were frustrated if they didn’t have the right ID or their ID was expired. And then there are the other people who were really excited – it’s their first time voting, they want to have a selfie or they’re really excited about how easy the process is, or they’re really grateful that these workers are spending 15 hours sitting there, so you get a range of statements from voters. I think people are always pleased to do their civic duty. They’re enthused to get a sticker and head out the door. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C301%2C222&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haried man in a plaid shirt working at a computer next to a printer." src="https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C301%2C222&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=556&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=556&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494522/original/file-20221109-18400-o5zngv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=556&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Election law scholar Derek Muller checking in a voter on Election Day 2022 at a polling place on the campus of the University of Iowa.</span>
<span class="attribution"><span class="source">Derek Muller</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Was there something you saw that might inform your work as a scholar, or something that your scholarship informed in terms of what you did there?</h2>
<p>I see how election officials have discretion; how the way they phrase things can have an effect on the voters. </p>
<p>If somebody doesn’t have the right proof of residency, for instance, it’s kind of discretionary what an election official does. </p>
<p>Do you say, “If you can go home and find your proof of residency and bring it in, that would be great. We’d love to get you registered today so we can have the opportunity for you to vote. But you know, there’s only two hours left in the polls being open.” </p>
<p>Or do you say, “I don’t think you’re going be able to get home and find that and get back, so we can have you cast a provisional ballot.” But if you encourage that they might fill that ballot out, and never come back to cure it, so their vote won’t count. </p>
<p>You’re trying to provide opportunities for voters to consider things that really give them a choice without driving them into a direction that can skew the decision-making. That’s really hard. </p>
<h2>In that interaction, you have the power to make their vote more or less likely to count.</h2>
<p>Yes.</p>
<p>On the other side, as a scholar doing this Election Day work, I realize that we have these laws that we write and think they make sense until they play out on the ground. And then election officials are supposed to juggle things. </p>
<h2>Can you give us an example?</h2>
<p>You have the statutes on the books about proof of residency. For instance, if you’re trying to establish residency on Election Day, you need a utility bill, or a cellphone bill. </p>
<p>But questions arise where somebody who wants to vote says, “I have this statement from the university to my home address billing me for services” or “I have a health care bill” or a heating bill. Do these things count? You don’t have a lot of guidance there, and you’re trying to make your best judgment call.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot from a University of Iowa website telling people where they could vote." src="https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=275&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=275&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=275&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=345&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=345&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494519/original/file-20221109-17-676tr5.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=345&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The University of Iowa provided voter information on its website.</span>
</figcaption>
</figure>
<h2>In late October you submitted an amicus brief to the Supreme Court on the independent state legislature theory. Less than two weeks later, you’re sitting at a table signing in voters. What’s that like?</h2>
<p>I like both. Writing academic works and articles is important. Writing big-idea amicus briefs to the Supreme Court is important, and I’m honored to have <a href="https://www.supremecourt.gov/DocketPDF/19/19-518/137980/20200312151033489_Prof.%20Derek%20T.%20Muller%20brief.pdf">done a little bit of that</a>. I don’t know that I’ve had as much influence as others have had, but we’ll see what the Supreme Court has to say. </p>
<p>But there’s no better way of seeing how these laws play out in the voting process than seeing it at the ground level. We have all these ideas about how elections work, but you can’t understand the law’s implications until you get there and see a lot of volunteers, a lot of senior citizens or retirees who are participating in running the process. And then there’s the added benefit of working in my community.</p>
<h2>Did the political maelstrom in the rest of the country affect your polling place in Iowa?</h2>
<p>In places like Arizona, Pennsylvania, Wisconsin or Michigan there was just a lot of heat, rhetoric and a lot of energy spent by Republicans talking about the election process and the election system. And that trickled into the primaries in those states and in other states where there are senators or governors on the ballot. In Iowa, you didn’t have people who are openly questioning our election process.</p>
<h2>What about recent concerns about many election officials coming from a partisan background?</h2>
<p>Working with election officials, including our auditor in Johnson County, you learn how professional these officials and their staff are, and the care and attention they put into their work, year in and year out, to make these things run smoothly. They don’t want problems. There can be consequences for a poorly run election. People might not want you to serve in that job again.</p>
<p>In Iowa, they do a really good job of having bipartisan balance on every precinct. Whenever there’s anything involving tabulation of ballots, there’s always a bipartisan team at every precinct who’s involved in that. They do a good job of trying to eliminate some of the politics from the process. I think, for the most part, election officials want the election run as smoothly as possible, and they’re doing everything they can to that end.</p><img src="https://counter.theconversation.com/content/193379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derek T. Muller does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What’s it like for an election law scholar to work at a polling place on Election Day? A law school professor sees how election laws work – or keep election workers guessing – at the ground level.Derek T. Muller, Professor of Law, University of IowaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932092022-11-02T12:52:38Z2022-11-02T12:52:38ZGuns at voting sites have long sparked fears of intimidation and violence – yet few states ban their presence<figure><img src="https://images.theconversation.com/files/492814/original/file-20221101-26784-5t4agc.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3583%2C2139&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Voters have encountered armed poll 'watchers' in Mesa, Ariz.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2022ArizonaBallotDropBoxes/c2b7393bf15d44d5b571724ecdf7e0ed/photo?Query=Mesa,%20Arizona&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=11633&currentItemNo=4">AP Photo/Ross D. Franklin</a></span></figcaption></figure><p>A couple in Mesa, Arizona, was dropping off their ballots on Oct. 21, 2022, for the forthcoming midterm election when they saw <a href="https://www.npr.org/2022/10/29/1132589130/group-can-monitor-arizona-ballot-drop-boxes">two people carrying guns and dressed in tactical gear</a> hanging around the Maricopa County drop box. The <a href="https://twitter.com/MaricopaVote/status/1583976792062185472">armed pair left when officers later arrived</a>.</p>
<p>It wasn’t an isolated incident. A lawsuit filed Oct. 24 by Arizona Alliance for Retired Americans and Voto Latino noted that on several occasions “armed and masked individuals” associated with the group Clean Elections USA had <a href="https://www.democracydocket.com/wp-content/uploads/2022/10/2022-10-24-AZ-Dropbox-Intimidation-Complaint-FINAL-v.F26.pdf">gathered at drop boxes in the county</a> “with the express purpose of deterring voters.”</p>
<p>Voter intimidation is <a href="https://azsos.gov/elections/guidance-voting-location-conduct">a crime in Arizona</a> – as it is <a href="https://everytownlaw.org/report/election-protection/">throughout the country</a>. In the case of Maricopa County, a <a href="https://www.azmirror.com/2022/11/01/temporary-restraining-order-issued-in-arizona-drop-box-intimidation-case/">judge ruled on Nov. 1</a> that the actions of the individuals – who present themselves as anti-voter fraud activists – crossed the line and <a href="https://www.documentcloud.org/documents/23257286-arizballotboxestro110122">issued a restraining order</a>. Under the order, people associated with Clean Elections USA are now barred from openly carrying firearms within 250 feet of a ballot box. Concealed firearms will be permitted, though, and the restriction only affects individuals connected to Clean Elections USA.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1583976792062185472"}"></div></p>
<p>The presence of armed individuals at voting sites adds to concerns over the prospects of election-related intimidation and violence, which have deepened in recent years.</p>
<p>As Rachel Kleinfeld, senior fellow in the Democracy, Conflict, and Governance Program at the nonpartisan Carnegie Endowment, recently reported to the congressional committee looking into the Jan 6. attack on the Capitol, political violence “<a href="https://carnegieendowment.org/2022/03/31/rise-in-political-violence-in-united-states-and-damage-to-our-democracy-pub-87584">is considered more acceptable</a>” by the public than it was five years ago.</p>
<p>False charges of stolen elections – such as those repeatedly made by former President Donald Trump – are “<a href="https://carnegieendowment.org/2022/03/31/rise-in-political-violence-in-united-states-and-damage-to-our-democracy-pub-87584">a major instigator</a> of political unrest,” Kleinfeld noted, although she added that extremists in both political parties have reported a greater willingness to resort to political violence.</p>
<p>These concerns are far from hypothetical: As of this fall, <a href="https://www.axios.com/local/phoenix/2022/10/19/fbi-arizona-top-state-threats-election-workers">more than 1,000 threats</a> to election officials – some <a href="https://www.justice.gov/opa/pr/texas-man-arrested-making-election-related-threats-government-officials">explicitly mentioning gun violence</a> – were under review by federal law enforcement agencies. Responding to the situation in Arizona, the Department of Justice on Oct. 31 <a href="https://www.justice.gov/crt/case-document/file/1548171/download">noted that the presence of armed individuals</a> raises “serious concerns” of voter intimidation.</p>
<p>Such concerns are fanned by the fact that only <a href="https://www.politifact.com/article/2022/mar/31/most-states-dont-explicitly-ban-guns-polls-some-la/">seven states</a> ban all gun-carrying at polling places. <a href="https://www.politifact.com/article/2022/mar/31/most-states-dont-explicitly-ban-guns-polls-some-la/">Five more states</a> bar the carrying of concealed guns at polling places. But in swing states like Florida, Nevada, North Carolina, Ohio, Pennsylvania and Wisconsin, people are allowed to carry guns even while they are voting.</p>
<p>The lack of a federal ban on firearms at voting sites has prompted Senator Chris Murphy, D-Conn., to introduce in Congress the <a href="https://www.murphy.senate.gov/newsroom/press-releases/ahead-of-midterms-murphy-introduces-legislation-to-keep-voters-and-election-workers-safe-from-guns-at-the-polls">Vote Without Fear Act</a>, proposed legislation that would “prohibit the possession of a firearm within 100 yards of any federal election site.”</p>
<h2>Pitched battles, and voter intimidation</h2>
<p>To be sure, election-related violence is a <a href="https://www.washingtonpost.com/outlook/2020/09/30/guns-polling-places-intimidation/">part of America’s past</a>. For example, the anti-immigrant Know-Nothing party of the 1850s <a href="https://www.smithsonianmag.com/history/immigrants-conspiracies-and-secret-society-launched-american-nativism-180961915/">often employed armed violence</a> using an array of weapons, and Democrat-Whig <a href="https://www.newyorker.com/magazine/2020/09/14/our-long-forgotten-history-of-election-related-violence">party battles</a> erupted in the 1830s. Throughout the middle of the 19th century, such cities as Philadelphia, Baltimore and New Orleans at times witnessed <a href="https://www.newyorker.com/magazine/2020/09/14/our-long-forgotten-history-of-election-related-violence">pitched battles</a> between warring political factions at election time. And lethal violence was used extensively after the Civil War to systematically <a href="https://www.law.cornell.edu/supct/html/08-322.ZX.html">terrorize and disenfranchise</a> Black voters in the South.</p>
<p>Yet many people in the United States also believed from the start that guns and violence were contrary to the values of a democratic nation, especially, though not limited to, during times of elections. As early as 1776, <a href="https://firearmslaw.duke.edu/laws/1776-del-const-art-28/">Delaware’s state Constitution</a> stated: “To prevent any violence or force being used at the said elections, no person shall come armed to any of them.” It further stipulated that, to protect voters, a gun-free zone would be put in place within a mile of polling places for 24 hours before and after election day.</p>
<p>In its state Bill of Rights of 1787, <a href="https://history.nycourts.gov/nys-bill-rights-1787/">New York decreed</a> that “all elections shall be free and that no person by force of arms nor by malice or menacing or otherwise presume to disturb or hinder any citizen of this State to make free election.”</p>
<p>In <a href="https://global.oup.com/academic/product/the-gun-dilemma-9780197643747?cc=us&lang=en&">my own research on historical gun laws</a>, I found roughly a dozen states that specifically barred guns during elections or at polling places in laws enacted between the 1770s and the start of the 20th century. But even more importantly, from the 1600s through the 1800s, I found that at least three-quarters of all Colonies and later states enacted laws criminalizing gun-brandishing and display in any public setting – and that would certainly include voting stations at election time.</p>
<p>As I discuss in my new book, “<a href="https://global.oup.com/academic/product/the-gun-dilemma-9780197643747?cc=us&lang=en&">The Gun Dilemma</a>,” early American lawmakers well understood that public gun-carrying, by its very nature, was intimidating. And that extended not only to brandishing a gun, meaning displaying one in a threatening manner, but also to mere gun display – simply showing a gun in a public setting. </p>
<p>Modern studies confirm this understanding. Analysts in fields including <a href="https://www.psychologytoday.com/us/blog/get-psyched/201301/the-weapons-effect">psychology</a> and <a href="https://doi.org/10.1146/annurev-criminol-061020-021528">criminology</a> have concluded that the mere presence of guns increases aggression and violence. To cite a different analysis, <a href="https://acleddata.com/2022/01/05/updated-armed-demonstration-data-released-a-year-after-the-6-january-insurrection-show-new-trends/?utm_source=The+Trace+mailing+list&utm_campaign=589479c541-">a study of over 30,000 demonstrations</a> in the U.S. from 2020 to 2021 found that when guns were present, protests were over six times more likely to turn violent or destructive.</p>
<h2>Creating an ‘island of calm’</h2>
<p>According to polls, wide majorities of Americans oppose public gun-carrying. A 2017 study <a href="https://doi.org//10.2105/AJPH.2017.303712">reported</a> that from two-thirds to over four-fifths of respondents opposed public gun-carrying in various settings, including at the polls. And as recently as 2018, the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/585/16-1435/#tab-opinion-3915294">affirmed</a> that Election Day polling places should be “an island of calm in which voters can peacefully contemplate their choices.” </p>
<p>Both history and modern research support the conclusion that the presence of guns in public defeats this goal. Indeed, they can induce “great fear and quarrels,” or so said New Jersey <a href="https://firearmslaw.duke.edu/laws/the-grants-concessions-and-original-constitutions-of-the-province-of-new-jersey-page-289-290-image-293-294-1881-available-at-the-making-of-modern-law-primary-sources/">in a law passed in 1686</a>.</p><img src="https://counter.theconversation.com/content/193209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Spitzer is a member of the National Rifle Association and the Giffords organization. </span></em></p>Election-related violence isn’t unheard of in the US. A scholar of gun laws explains how the threat is only increased by allowing people to carry firearms as they vote.Robert Spitzer, Distinguished Service Professor Emeritus of the Political Science Department, State University of New York CortlandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1920002022-10-20T13:14:03Z2022-10-20T13:14:03ZGeorgia’s GOP overhauled the state’s election laws in 2021 – and critics argue the target was Black voter turnout, not election fraud<figure><img src="https://images.theconversation.com/files/490194/original/file-20221017-15431-t9lss5.jpg?ixlib=rb-1.1.0&rect=765%2C64%2C2829%2C2328&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Black man and his son leave a polling location in Atlanta after casting a vote in the Georgia primary election on May 24, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voter-and-his-son-leave-the-park-tavern-polling-location-news-photo/1240876683?phrase=georgia%20voting%20%202022%20primary&adppopup=true">Jessica McGowan/Getty Images</a></span></figcaption></figure><p>In the <a href="https://www.nbcnews.com/politics/elections/19-states-enacted-voting-restrictions-2021-rcna8342">rash of election reform laws</a> enacted after former President Donald Trump’s false claims of fraud during the 2020 presidential election, <a href="https://www.nbcnews.com/politics/elections/-concerned-black-voters-fear-changes-georgia-voting-laws-rcna17391;">few were tougher</a> than SB 202 – the <a href="https://www.legis.ga.gov/api/legislation/document/20212022/201498">Election Integrity Act</a> – passed in 2021 in Georgia, a state long known for <a href="https://www.theguardian.com/us-news/gallery/2020/nov/01/georgia-voter-suppression-in-pictures">its history of suppressing </a> the Black vote, especially in response to growth in Black political influence. </p>
<p>Media attention focused on SB 202’s <a href="https://www.gpb.org/news/2022/06/14/shortened-georgia-runoff-poses-hurdles-for-voters-officials">shortened runoff periods</a> from nine to four weeks, limits on who can turn in absentee ballots and a <a href="https://www.ajc.com/politics/food-and-water-ban-at-the-polls-upheld-in-georgia-elections/XQVWU5KSXFC4JN7JLKSBKV2LSI/">partial ban on offering food or water</a> while waiting in line to vote. </p>
<p>But other parts of SB 202 have drawn especially strong charges of racism from Black voters, Democrats and <a href="https://fairfight.com/wp-content/uploads/2021/04/TOP-50-Reasons-Why-SB202-Is-Harmful-to-Voters.pdf">voting rights activists</a>. </p>
<h2>Details of the new Georgia law</h2>
<p>One part of the law restricts the use of drop boxes, used most <a href="https://www.lawyerscommittee.org/georgias-sb202-is-a-culmination-of-concerted-efforts-to-suppress-the-participation-of-black-voters-and-other-voters-of-color/">extensively by voters of color</a>. </p>
<p>A second involves the State Elections Board, the state agency charged with administering elections in a nonpartisan way. The Board, now composed of four Republicans and one Democrat, is subject to review by the GOP-controlled state legislature and has the authority to <a href="https://www.ajc.com/politics/prospect-of-georgia-election-takeover-fuels-concerns-about-vote-integrity/CFMTLFW6TZFH7O4LLNDZ3BY4NE/">take over election boards</a>, including in counties with Democratic majorities and large populations of Black and other voters of color.</p>
<p>Finally, the <a href="https://www.legis.ga.gov/api/legislation/document/20212022/201498">new law</a> allows any Georgia voter to challenge an unlimited number of other voters in their county.
That <a href="https://www.theguardian.com/us-news/2022/oct/05/georgia-voter-suppression-registration-challenges">provision already led to consequences</a> after the state’s May 24, 2022, primary and <a href="https://www.cnn.com/2022/09/29/politics/georgia-voter-challenges/index.html">foreshadows potential problems</a> after the upcoming midterm elections. </p>
<p>According to <a href="https://newgeorgiaproject.org/">the New Georgia Project</a>, a voting rights group that is tracking the impact of the new law, <a href="https://www.cnn.com/2022/09/29/politics/georgia-voter-challenges/index.html">about 64,000 challenges</a> were filed statewide – with about 37,000 of them in the Atlanta area alone – and at least 1,800 mostly Black or Democratic voters’ names already have been removed from the voter rolls.</p>
<p>While the state Board of Registrars <a href="https://www.reuters.com/world/us/georgia-county-validates-thousands-voters-challenged-by-trump-allies-2022-09-22/">upheld the voting rights of the vast majority of challenged voters</a>, voting experts disagree on how voting rules <a href="https://theconversation.com/some-states-are-making-it-harder-to-vote-some-are-making-it-easier-but-its-too-soon-to-say-if-this-will-affect-voter-turnout-in-2022-176102">impact voter turnout or erode public trust</a>, especially in a state with <a href="https://www.theguardian.com/us-news/gallery/2020/nov/01/georgia-voter-suppression-in-pictures">a history of discriminatory voting laws</a> that affect people of color. </p>
<p>SB 202’s supporters argue that the overhaul <a href="https://www.nytimes.com/2022/05/23/us/politics/georgia-voter-turnout.html">expands voting hours and does not suppress Black voting</a>. </p>
<p>Critics counter that the 98-page bill, <a href="https://theconversation.com/challenges-to-voters-are-growing-before-the-midterms-and-have-a-long-history-as-a-way-of-keeping-down-the-black-vote-192217">similar to others across the country</a>, was <a href="https://publicintegrity.org/politics/elections/who-counts/voting-rights-under-attack-in-georgia-as-state-turns-purple/">a thinly disguised effort</a> to target voters of color because it restricts voting mechanisms used most extensively by Black voters, especially in reaction to the recent growth in political power by Black Georgians.</p>
<h2>Georgia’s growing Black political power</h2>
<p>For the last 20 years, Georgia has seen <a href="https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-virus-outbreak-georgia-7a843bbce00713cfde6c3fdbc2e31eb7">a shift in its state politics</a>, largely the result of an influx of Black Americans who <a href="https://www.brookings.edu/research/a-new-great-migration-is-bringing-black-americans-back-to-the-south/">have moved back to the South</a> since 2000 and tend to vote Democratic. </p>
<p>Black voters <a href="https://www.pewresearch.org/fact-tank/2020/12/15/black-eligible-voters-have-accounted-for-nearly-half-of-georgia-electorates-growth-since-2000/ft_2020-12-15_georgiaevs_01a/">accounted for half of the state’s 1.9 million increase</a> in eligible voters between 2000 and 2019. </p>
<p>With close to <a href="https://www.pewresearch.org/fact-tank/2020/12/15/black-eligible-voters-have-accounted-for-nearly-half-of-georgia-electorates-growth-since-2000/ft_2020-12-15_georgiaevs_02/">700,000 more voting-age Black Americans</a> moving to the Atlanta area of Fulton County since 2000 – and another 200,000 to nearby Cobb and Gwinnett counties – Black voters in 2018 helped Democrat <a href="https://www.npr.org/2018/11/16/668753230/democrat-stacey-abrams-ends-bid-for-georgia-governor-decrying-suppression">Stacey Abrams</a> come within about 55,000 votes – 50.2% to 48.8% – of becoming the first Black person and first woman of any race to become Georgia governor. </p>
<p>She lost the race to GOP incumbent Brian Kemp, whose victory <a href="https://www.nbcnews.com/politics/elections/federal-judge-rules-stacey-abrams-group-voting-rights-lawsuit-rcna50287">withstood several legal challenges</a> filed by Abrams alleging <a href="https://www.npr.org/2018/11/16/668753230/democrat-stacey-abrams-ends-bid-for-georgia-governor-decrying-suppression">election irregularities</a>. </p>
<figure class="align-center ">
<img alt="standing near an American flag, a black womanis giving a speech while holding a microphone with one hand and gesturing to the crowd with her other." src="https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/489814/original/file-20221014-20-xwffc4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Georgia gubernatorial candidate Stacey Abrams speaks to supporters on July 28, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/georgia-gubernatorial-candidate-stacey-abrams-speaks-to-news-photo/1242171129?phrase=Georgia%27s%20Gubernatorial%20Election&adppopup=true">Megan Varner/Getty Images</a></span>
</figcaption>
</figure>
<p>Georgia Democrats had much more success in 2020. Black turnout helped <a href="https://www.theguardian.com/us-news/2022/oct/05/georgia-voter-suppression-registration-challenges">Joe Biden win the state</a> in the presidential election and saw two Democrats – <a href="https://www.senate.gov/senators/117thCongress/warnock-raphael.htm">Raphael Warnock</a>, a Black man, and <a href="https://www.ossoff.senate.gov/">John Ossoff</a>, a Jewish man – <a href="https://www.cnn.com/2021/01/06/politics/black-voter-turnout-georgia-senate-runoff/index.html">win the state’s two U.S. Senate seats</a>. </p>
<p>Critics suggest that SB 202’s passage following this rise in 2020 Black turnout mirrors <a href="https://www.gpb.org/news/2020/10/12/battleground-ballot-box-the-history-of-racist-voting-laws-in-georgia">a historical pattern of voter disenfranchisement</a> after a rise of Black voter strength. This pattern, which began right after the Civil War, contributed to <a href="https://www.oupress.com/author/laughlin-mcdonald/">historian Laughlin McDonald’s</a> conclusion in his <a href="https://journals.openedition.org/transatlantica/825">“A Voting Rights Odyssey: Black Enfranchisement in Georgia”</a> that “no state was more systematic and thorough in its efforts to deny or limit voting and officeholdings by African-Americans after the Civil War.”</p>
<h2>Backlash after the Civil War</h2>
<p>In 1868, Black citizens were 44% of the state’s population, and voting-age <a href="https://www.georgiacarry.org/cms/wp-content/uploads/racist-roots-of-ga-gun-laws.pdf">Black men outnumbered white men</a> in 65 of Georgia’s 137 counties.</p>
<p>Along with the power of growing Black political organizations such as <a href="http://www.npshistory.com/publications/nhl/theme-studies/reconstruction-era.pdf">the Loyal Leagues</a>, <a href="https://www.loc.gov/exhibits/african-american-odyssey/reconstruction.html">Reconstruction</a> led to an influx of Black Georgians to elected office in the late 1860s and early 1870s, including the “<a href="https://www.savannahnow.com/story/opinion/2022/04/10/bill-honor-ga-original-33-lawmakers-fails-get-vote-general-assembly/9516023002/">original 33” Black members of the Georgia General Assembly</a> and members of elected boards of education.</p>
<p>The white-dominated Democratic party responded to these seismic shifts in political power by not only forcibly replacing Black elected school board members with white Georgians selected by all-white grand juries, but also imposing strict vagrancy laws.</p>
<p>These not only restricted the mobility of Black men – and thus their ability to organize – but they also led to convictions of Black men on charges of vagrancy, thus depriving them of the right to vote.</p>
<p>In his book, McDonald describes the reality for Black Georgians trying to vote. At the polls, McDonald writes, Black voters were required to prove that they had paid poll taxes at a time when political violence by white supremacists was a constant.</p>
<p>From 1867 to 1872, McDonald reveals, “at least a quarter of the state’s Black legislators were jailed, threatened, bribed, beaten, or killed.”</p>
<p>The pattern of violence against Black elected officials continued throughout the early 20th century. From 1908 to 1962, no Black Georgian <a href="https://www.ajc.com/blog/politics/how-leroy-johnson-and-carl-sanders-desegregated-the-state-capitol-1963/7tKi9xNsOqcZmUkFM34kLI/">held a seat in the state legislature</a>. </p>
<h2>Voting under Jim Crow</h2>
<p>Despite those obstacles, Black political power continued to grow. </p>
<p>The movement of Black people to jobs in Georgia’s industrializing cities resulted in the growth of strikes and boycotts. In some cases, as in the <a href="https://digitalcommons.georgiasouthern.edu/cgi/viewcontent.cgi?article=1355&context=etd_legacy">Georgia Railroad strike of 1909</a>, white union members resented the employment of Black, nonunion firefighters and staged numerous strikes that ultimately led to federal mediation. </p>
<p>But urban-based industrialization also led to the multiracial, class-based <a href="https://www.georgiaencyclopedia.org/articles/history-archaeology/populist-party/">Populist Party in the early 1890s</a> that appealed to Black voters who made up almost half of the state’s population. </p>
<p>The response was <a href="https://www.ferris.edu/HTMLS/news/jimcrow/links/misclink/examples.htm">Jim Crow</a>, a systematic set of restrictions that <a href="https://us.macmillan.com/books/9781250244420/fourthreats">historians Suzanne Mettler and Robert Lieberman</a> described as “changing the rules for how elections were run, in ways that would cripple the political opposition once and for all.”</p>
<p>Jim Crow laws included a strengthened <a href="https://history.house.gov/HistoricalHighlight/Detail/37045#:%7E:text=The%20poll%20tax%20exemplified%20%E2%80%9CJim,in%20state%20and%20local%20elections.">poll tax</a> and <a href="https://www.thirteen.org/wnet/jimcrow/voting_literacy.html">literacy tests, both of which aimed to block voting by Black voters,</a>, reestablishment of the “white primary” where <a href="https://kinginstitute.stanford.edu/encyclopedia/supreme-court-declares-white-primary-unconstitutional">only whites could vote in the key Democratic Party races</a>, and stricter residency requirements that limited Black people’s ability to organize. </p>
<p>The impact was significant: According to <a href="https://press.uchicago.edu/ucp/books/book/chicago/T/bo3612558.html">Richard M. Vallely</a>, a political science professor at Swarthmore College, Black voter turnout in Georgia for presidential elections fell from 42% in 1880 to 33% in 1892, 7% in 1900 and 2% in 1912. </p>
<h2>White supremacy in the 1940s</h2>
<p>A further example of white conservative reaction to expanded Black political activity took place right after World War II. In Georgia’s 1946 gubernatorial election, the candidacy of <a href="https://www.georgiaencyclopedia.org/articles/government-politics/eugene-talmadge-1884-1946/">Democratic incumbent Eugene Talmadge</a> was threatened by a significant rise in Black registrations, from about 20,000 in 1940 to more than 125,000 in 1946.</p>
<p>In addition, the U.S. Supreme Court had outlawed the white primary and the poll tax. More importantly, Black-led organizations, often involving Black veterans, such as the <a href="https://www.historians.org/annual-meeting/past-meetings/supplement-to-the-121st-annual-meeting/atlanta-in-the-civil-rights-movement-part-two">All-Citizen Registration Committee</a> and <a href="https://www.georgiaencyclopedia.org/articles/government-politics/atlanta-negro-voters-league-anvl/">the Atlanta Negro Voters League</a>, continued to expand throughout the state. </p>
<figure class="align-center ">
<img alt="A white man dressed in a business suit is standing on stage as dozens of other white men sit in chairs and listen to his speech.." src="https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=463&fit=crop&dpr=1 600w, https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=463&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=463&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=582&fit=crop&dpr=1 754w, https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=582&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/489807/original/file-20221014-10772-d4z8ar.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=582&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Governor Eugene Talmadge of Georgia speaking during Flag Day ceremonies in 1933.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/photo-shows-governor-eugene-talmadge-of-georgia-speaking-news-photo/515355578?phrase=eugene%20talmadge%20georgia&adppopup=true">Bettmann/Getty Images</a></span>
</figcaption>
</figure>
<p>In response to the increase in Black voter registrations, Talmadge-led white supremacy forces mailed thousands of mimeographed forms to challenge and disqualify Black voters across the state. </p>
<p>Whereas few if any white registrants were challenged in any county, <a href="https://www.jstor.org/stable/40580970">historian Joseph l. Bernd</a> found that Blacks voters were challenged in more than 30 counties, and an estimated 15,000 to 25,000 were purged.</p>
<p>The result was <a href="https://www.atlantahistorycenter.com/blog/the-three-governors-controversy/">a Talmadge victory</a> despite the fact that his opponent – James Carmichael – won 16,000 more popular votes.</p>
<h2>National stakes</h2>
<p>Of course, much has changed in Georgia since the days of Talmadge.</p>
<p>But the almost immediate passage of new election laws at a time of growing Black political strength <a href="https://www.ajc.com/opinion/opinion-voter-challenges-have-troubling-history-in-ga/FEFYSHRGSRBHXIIXJGKU6DHKYA/">suggests the persistence of a white backlash</a> in Georgia. </p>
<p>In a politically divided state such as Georgia, voter turnout is crucial. </p>
<p>Out of nearly 5 million ballots cast in the 2020 presidential campaign, for instance, Joe Biden beat Donald Trump by only 11,779 votes.</p>
<p>The balance of power in the U.S. Senate may rest on <a href="https://www.wabe.org/black-voters-are-responsible-for-turning-for-georgia-blue-in-2020/">the outcome of the race</a> between Warnock and <a href="https://www.theatlantic.com/ideas/archive/2022/10/herschel-walker-perfectly-embodies-gop/671758/">GOP candidate Herschel Walker</a>.</p>
<p>Though the race is still too close to call, one thing is clear: If the record turnout at <a href="https://apnews.com/article/2022-midterm-elections-voting-georgia-presidential-florida-dfbe7f00418a35c70c9d53fa3a260111">May’s primaries was any indication</a>, Georgia election officials will be swamped sorting out challenges in a replay of the state’s 1946 governor’s race.</p><img src="https://counter.theconversation.com/content/192000/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard F. Doner does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a state where elections have turned on Black voters, the recent GOP overhaul of Georgia election laws has many voting rights activists and Democrats concerned that turnout may be affected.Richard F. Doner, Goodrich C. White Professor (Emeritus) of Political Science, Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1917112022-10-13T12:21:29Z2022-10-13T12:21:29ZIt’s taking more time to cast a ballot in US elections – and even longer for Black and Hispanic voters<figure><img src="https://images.theconversation.com/files/488876/original/file-20221009-59000-q1tu3w.jpg?ixlib=rb-1.1.0&rect=1022%2C1107%2C5235%2C3068&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Voters line up at a polling station in Houston to cast their ballots during the Texas presidential primary on March 3, 2020.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voters-line-up-at-a-polling-station-to-cast-their-ballots-news-photo/1204959570?phrase=2020%20election%20voting%20lines%20houston&adppopup=true">Mark Felix/AFP via Getty Images</a></span></figcaption></figure><p>Despite the COVID-19 pandemic, the November 2020 election brought out about 155 million voters. That represented 67% of Americans over 18, and it was the <a href="https://electionlab.mit.edu/sites/default/files/2021-09/Lessons-Learned-in-the-2020-Election.pdf">highest voter turnout of any modern election</a>.</p>
<p>Americans also set records in the percent and number of people <a href="https://abcnews.go.com/Politics/2020-early-voting-data-continues-hit-record-numbers/story?id=73701061">voting early</a> and <a href="https://www.census.gov/library/stories/2021/04/what-methods-did-people-use-to-vote-in-2020-election.html">by mail</a>, continuing a decadeslong trend away from voting only on election day.</p>
<p>That was the good news.</p>
<p>The 2020 elections also saw record numbers of Americans <a href="https://www.nytimes.com/interactive/2021/01/04/upshot/voting-wait-times.html">forced to wait longer to vote</a>, partly because of the increased number of voters and the difficulties of safely voting during a lethal pandemic. Tellingly, as in <a href="http://websites.umich.edu/%7Elawrace/disenfranchise1.htm">the past</a>, if you waited over 30 minutes to cast a vote, you were more likely to be a <a href="https://www.nytimes.com/interactive/2021/01/04/upshot/voting-wait-times.html">low-income Black American</a>. </p>
<p>Since 2012, when more than <a href="https://www.pewtrusts.org/en/research-and-analysis/articles/2015/01/22/the-presidential-commission-on-election-administration-1-year-later">5 million Americans</a> were forced to wait longer than an hour to cast their ballots, long waits have become a visible indicator of voting problems.</p>
<p>The <a href="https://www.eac.gov/news/2014/01/22/presidential-commission-election-administration-presents-recommendations-president#:%7E:text=WASHINGTON%2C%20Jan.,experience%20in%20casting%20their%20ballots.">Presidential Commission on Election Administration</a> stated in 2014 that <a href="http://web.mit.edu/supportthevoter/www/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf">“No citizen should have to wait more than 30 minutes to vote</a>.” </p>
<p>Eight years later, that goal is further away than before. Where you are and who you are significantly affect how long it will take you to vote. As well as demanding more time and commitment – including arrangements for child care if needed – long waits can <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7438211/">discourage future voting</a>. </p>
<h2>Increasing wait times</h2>
<p><a href="http://electionlab.mit.edu/sites/default/files/2020-12/How-we-voted-in-2020-v01.pdf">Average waits</a> nationally increased to 14.3 minutes in 2020 from 10.4 minutes in 2016, a 40% jump. These waits were concentrated in poorer neighborhoods with a higher percentage of nonwhite voters.</p>
<p>A further indication that waiting is a growing problem was its <a href="https://www.liebertpub.com/doi/epdf/10.1089/elj.2022.0041">addition in 2022 to the voting inconvenience category</a> by the <a href="https://costofvotingindex.com/">Cost of Voting Index</a> project, which measures the ease or difficulty of voting in individual states.</p>
<figure class="align-center ">
<img alt="Hundreds of people dressed in winter jackets wait in line to vote." src="https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=344&fit=crop&dpr=1 600w, https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=344&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=344&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=432&fit=crop&dpr=1 754w, https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=432&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/488875/original/file-20221009-58641-jav3jm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=432&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Hundreds of voters wait in line at an early voting site in Farmingville, N.Y., on Oct. 27, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/hundreds-of-voters-wait-in-line-to-vote-at-the-early-voting-news-photo/1283547806?phrase=2020%20election%20voting%20lines%20US&adppopup=true">John Paraskevas/Newsday RM via Getty Images</a></span>
</figcaption>
</figure>
<p>While the great majority of Americans waited only a few minutes to vote in 2020, a significant minority did not. </p>
<p>One in 7 voters – 14.3% – waited longer than the 30-minute 2014 goal set by the Presidential Commission on Election Administration, compared with 1 in 12 – 8.3% – in 2016. And 1 in 16 voters – <a href="https://costofvotingindex.com/data">6.3%</a> – surveyed by the <a href="https://electionlab.mit.edu/">MIT Election Data Science Lab</a> waited over an hour. </p>
<p><a href="https://costofvotingindex.com/data">Twelve states</a> – including Alabama, Georgia, New York, Indiana and Maryland – exceeded that average. In 2020, Delaware voters reported the <a href="https://medium.com/mit-election-lab/how-we-voted-in-2020-8534ee1f30ea">highest average wait</a> at 35 minutes – up strikingly from 5 minutes in 2016. South Carolina had the second-longest wait at 30 minutes, up from its nation-leading 20 minutes in 2016. </p>
<p>But the time spent waiting in line to cast a ballot is only the most visible cost of voting. </p>
<p>The full cost not only includes the actual vote, but also the time and effort of registration, staying registered and the nonpartisan counting and administration of the vote. Most <a href="https://theconversation.com/good-faith-and-the-honor-of-partisan-election-officials-used-to-be-enough-to-ensure-trust-in-voting-results-but-not-anymore-189510">election administration officials</a> are partisan figures, though they are expected to <a href="https://www.cartercenter.org/resources/pdfs/news/peace_publications/democracy/new-models-keeping-partisans-out-election-admin-013122.pdf">administer the election</a> in a nonpartisan manner.</p>
<h2>Partisan voting laws</h2>
<p>Political parties are using the voting process itself as a way to gain advantage.</p>
<p>Researchers have found a <a href="https://electionlab.mit.edu/sites/default/files/2021-07/pomante-esra-2021.pdf">correlation</a> between the number of Republican legislators in a state and the greater the cost to vote will be <a href="https://www.brennancenter.org/our-work/research-reports/patterns-introduction-and-passage-restrictive-voting-bills-are-best">disproportionately to Black voters</a>. </p>
<p>In at least one state, <a href="https://doi.org/10.1287/mnsc.2022.4497">Florida</a> from 2004 to 2016, as the number of Democratic voters increased in a county, so did the number of voters per poll worker, thus increasing the potential for waiting and other delays. </p>
<p>Strict voter identification laws appear to <a href="https://www.journals.uchicago.edu/doi/epdf/10.1086/716282">disproportionately affect minority voters</a> but not overall voter turnout, although <a href="https://electionlab.mit.edu/research/voter-identification">the full impact of these laws remains uncertain</a>.</p>
<p>In 2021-22, 21 states passed <a href="https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-october-2022">42 laws making voting more difficult</a>. Some of those laws include imposing new photo ID requirements, limiting Election Day registration and requiring voters to provide identification numbers when they apply to vote by mail.</p>
<p>On the other side, 25 states passed 62 laws making voting easier. In June 2022, for example, New York Governor Kathy Hochul <a href="https://www.governor.ny.gov/news/governor-hochul-signs-landmark-john-r-lewis-voting-rights-act-new-york-law">signed into law</a> the landmark <a href="https://www.nysenate.gov/legislation/bills/2021/S1046">John Lewis Voting Rights Act</a> that created new legal protections against voter suppression, vote dilution and voter intimidation.</p>
<p>Despite the greater number of bills that made voting easier, the restrictive laws were more encompassing, often rolling back successful pandemic-based efforts to encourage early and absentee voting. Despite research showing <a href="https://www.pnas.org/doi/epdf/10.1073/pnas.2007249117">no partisan advantage</a> to early and absentee voting, restrictive laws were passed <a href="https://www.brookings.edu/blog/fixgov/2021/10/26/voter-suppression-or-voter-expansion-whats-happening-and-does-it-matter/">primarily in Republican states</a> and expansive laws primarily in Democratic states. </p>
<figure class="align-center ">
<img alt="A gigantic banner with the words Early Voting hangs on a wall above dozens of people waiting to vote." src="https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/488877/original/file-20221009-66750-19zbt7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Voters line up inside State Farm Arena, Georgia’s largest early voting location, for the first day of early voting in the general election on Oct. 12, 2020, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voters-line-up-inside-of-state-farm-arena-georgias-largest-news-photo/1229030627?phrase=2020%20election%20voting%20lines%20Georgia&adppopup=true">Jessica McGowan/Getty Images</a></span>
</figcaption>
</figure>
<h2>A question of fairness</h2>
<p>The effect of these laws on turnout is <a href="https://theconversation.com/some-states-are-making-it-harder-to-vote-some-are-making-it-easier-but-its-too-soon-to-say-if-this-will-affect-voter-turnout-in-2022-176102">uncertain</a>, especially if they inspire a <a href="https://www.nber.org/papers/w25522">“backlash mobilization” or civic education efforts</a>. Lawsuits may block some laws. In early October 2022, a Montana state judge <a href="https://www.nytimes.com/2022/10/07/us/politics/montana-lifts-voting-restrictions.html">deemed three laws unconstitutional</a> – one that required additional identification if voting with a student ID, another that halted third-party ballot collection and a third that banned same-day voter registration. </p>
<p>The last two laws would have <a href="https://dailymontanan.com/2022/09/30/judge-strikes-down-three-montana-voting-laws-as-unconstitutional/">adversely affected Native Americans</a>, who might live 50 miles from a polling place. </p>
<p>In September 2021, the GOP-controlled Texas legislature passed <a href="https://www.texastribune.org/2021/09/01/texas-voting-bill-greg-abbott/">a new election law </a> that restricted early voting, tightened absentee voting, instituted new rules for voter assistance and added criminal penalties for some violations. </p>
<p>One ramification occurred during the 2022 primary, when Texas election officials <a href="https://www.texastribune.org/2022/04/06/texas-mail-in-ballot-rejection-voting/">rejected over 12% of absentee ballots</a>, a huge increase from the normal 1% to 2%. </p>
<p>While <a href="https://www.texastribune.org/2022/04/06/texas-mail-in-ballot-rejection-voting/">rejections equally affected voters</a> in Republican and Democratic Texas primaries, strict rules about who could vote absentee meant most of those disqualified voters were <a href="https://www.texastribune.org/2022/04/06/texas-mail-in-ballot-rejection-voting/">over 65 or had disabilities</a>. </p>
<p>Depending on who was the majority party, Texas Democratic and Republican politicians have long led the nation in <a href="https://www.theguardian.com/us-news/2020/mar/02/texas-polling-sites-closures-voting">making voting difficult</a> for Black citizens since the end of the Civil War, and more recently once Republicans gained power in the 1980s.</p>
<p>In 2020, Republican Governor Greg Abbott <a href="https://www.texastribune.org/2020/10/27/texas-voting-elections-mail-in-drop-off/">restricted ballot drop boxes</a> to only one per county, giving the 4.7 million people in the 1,778 square miles of Harris County, which is <a href="https://www.census.gov/quickfacts/harriscountytexas">20.3% Black</a>, the same ability to drop off their ballot as the 10,500 people in the 275 square miles of Franklin County, which is <a href="https://www.census.gov/quickfacts/franklincountytexas">4.8% Black</a>. </p>
<p>Before the ban, Harris County intended to <a href="https://lawyerscommittee.org/wp-content/uploads/2020/10/Texas-Drop-Boxes.pdf">provide 11 ballot boxes</a> for easier access. Abbott claimed he was increasing ballot security, but the reality was that he increased the difficulty for city dwellers, <a href="https://citymonitor.ai/government/the-urban-rural-divide-only-deepened-in-the-2020-us-election">who increasingly lean Democratic</a> and nonwhite, to vote. </p>
<p>Perhaps the country’s most restrictive election law, <a href="https://vote.cae.gatech.edu/get-informed/sb202-election-integrity-act-2021">Georgia’s Election Integrity Act of 2021</a>, reduced mail and early voting while making the State Election Board a more political office. Fulton County, the largest county with over a million people <a href="https://www.census.gov/quickfacts/fultoncountygeorgia">and is 44.7% Black</a>, will be <a href="https://www.fultoncountyga.gov/inside-fulton-county/fulton-county-departments/registration-and-elections/sb-202-changes">limited to eight ballot drop boxes</a> – all indoors – instead of the usual 38 outdoor drop boxes. In addition, the law banned the county from using mobile voting buses. </p>
<p>Media attention, however, focused on <a href="https://www.ajc.com/politics/food-and-water-ban-at-the-polls-upheld-in-georgia-elections/XQVWU5KSXFC4JN7JLKSBKV2LSI/">a ban on offering food or water to voters</a> within 150 feet of a polling place or within 25 feet of voters waiting in line. An exception was made for poll workers and election judges who can provide water to voters.</p>
<p>Just as some nonprofits have helped states <a href="https://civicdesign.org/fieldguides/accessible-forms-print-pdf/">improve the clarity and legibility of their ballots</a>, so too could similar nonpartisan expertise of <a href="https://knowledge.wharton.upenn.edu/article/long-waiting-times-voting-put-democracy-line/">resource optimization and supply chain management improve the administration of elections</a>.</p>
<p>Like other state governments, Georgia could minimize the time needed to vote if it provided the resources, training and communication to its staff that administers elections, and thus encourage American citizens to exercise their ability to vote. </p>
<p>“A cornerstone of our election process is fundamental fairness,” Matthew Weil, the <a href="https://bipartisanpolicy.org/policy-area/elections/">Bipartisan Policy Center Elections Project</a> director, stated. “If different people are experiencing the election system, the voting experience, quite unequally, <a href="https://www.nytimes.com/interactive/2021/01/04/upshot/voting-wait-times.html">that’s a problem</a> – full stop.”</p><img src="https://counter.theconversation.com/content/191711/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Coopersmith is a Democrat and has contributed to numerous campaigns, causes, and organizations, including the Brennan Center. He prefers to vote early.</span></em></p>A 2014 US Presidential Commission set a guideline that voters should not have to wait more than 30 minutes to cast their ballots. In some voting districts, it’s taking longer than an hour.Jonathan Coopersmith, Professor of History, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1908192022-09-30T19:19:45Z2022-09-30T19:19:45ZThe Supreme Court is back in session, with new controversial cases that stand to change many Americans’ lives – here’s what to expect<figure><img src="https://images.theconversation.com/files/487386/original/file-20220929-24-y1wyxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court is set to start its latest term on Oct. 3, 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/two-civilians-walk-past-the-fenced-off-united-states-supreme-court-picture-id1411738675">Robert Nickelsberg/Getty Images</a></span></figcaption></figure><p>Following a <a href="https://theconversation.com/a-seismic-change-has-taken-place-at-the-supreme-court-but-its-not-clear-if-the-shift-is-about-principle-or-party-190815">dramatic year of controversial rulings</a>, the Supreme Court began hearing new cases on Oct. 3, 2022, with a full agenda. </p>
<p>The court <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">overturned abortion rights</a> and <a href="https://theconversation.com/supreme-court-sweeps-aside-new-yorks-limits-on-carrying-a-gun-raising-second-amendment-rights-to-new-heights-183486">expanded gun rights</a> in June 2022 as the <a href="https://www.yahoo.com/video/conservative-supreme-court-spells-america-095209727.html">new conservative supermajority</a> began to exert its influence. </p>
<p>Some of the court’s most important upcoming cases focus on the <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/">future of affirmative action</a>, <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">equal treatment of LGBTQ people</a>, and the <a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">control of election laws</a>. The court will hear the cases in the fall and then likely issue rulings in spring 2023. </p>
<p>As a <a href="https://www.springer.com/series/16259">close observer of the court</a>, <a href="https://scholar.google.com/citations?user=-aGQIZwAAAAJ&hl=en">I think</a> this term’s rulings will continue to reject the court’s previous liberal decisions and instead reflect a conservative interpretation of the historical meaning of the Constitution. At least three of those upcoming rulings are likely to profoundly influence people’s everyday lives in the United States. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person walks through brick gates, with a large brick building in the background." src="https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/487387/original/file-20220929-14-nwwafp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One of the Supreme Court’s most publicized cases this term focuses on whether Harvard University unfairly discriminates against Asian American student applicants.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/scenes-around-harvard-yard-at-harvard-university-in-cambridge-ma-on-picture-id1237976584">Suzanne Kreiter/The Boston Globe via Getty Images</a></span>
</figcaption>
</figure>
<h2>Affirmative action</h2>
<p>College admissions and scholarships can alter the trajectory of a life. </p>
<p>College administrators want diverse student populations but are less clear about which categories – including race, ethnicity, gender, sexual identity and wealth – should influence admission and financial aid decisions. When it comes down to the specifics of which people are underrepresented in higher education, and which are overrepresented, the questions become thorny. </p>
<p>Many different groups feel that they are being mistreated when their specific circumstances and histories are taken into account.</p>
<p>The Supreme Court <a href="https://www.scotusblog.com/case-files/terms/ot2022/">will hear two lawsuits</a> on Oct. 31, 2022, brought by the anti-affirmative action organization <a href="https://studentsforfairadmissions.org/">Students for Fair Admissions</a>. This group argues that Harvard and other schools blatantly discriminate against Asian students. But the claim is a proxy for all other preferences grounded in identity, including those in favor of Black applicants and those disadvantaging whites. </p>
<p>The two cases – one against <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/">Harvard</a> and the other against the <a href="https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-university-of-north-carolina/">University of North Carolina</a> – address private as well as public institutions. </p>
<p>Nine states currently have laws <a href="https://www.nytimes.com/2022/08/26/us/affirmative-action-admissions-supreme-court.html">that ban</a> affirmative action in college admissions. The extent and focus of existing <a href="https://www.acenet.edu/Policy-Advocacy/Pages/Law-Courts/Diversity-in-Admissions.aspx">diversity policies vary widely</a>. </p>
<p>Universities justifying their diversity policies argue that the <a href="https://constitution.congress.gov/browse/amendment-14/">14th Amendment</a> and its guarantee of “equal protection of the laws” encourage giving an advantage to historically oppressed groups. </p>
<p>The opponents of affirmative action argue that the 14th Amendment was <a href="https://www.supremecourt.gov/DocketPDF/20/20-1199/169941/20210225095525027_Harvard%20Cert%20Petn%20Feb%2025.pdf#page=34">meant to uphold racial neutrality</a>, meaning all individuals should be treated the same, regardless of race. In this view, the Constitution forbids considering race in almost any decisions that influence individual advancement.</p>
<p>The core conflict is whether the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">equal protection clause</a> protects <a href="https://www.thoughtco.com/equity-vs-equality-4767021">equality or equity</a>. </p>
<p>If is it equality – the same treatment of all races, regardless – this supports the argument that universities may not give preferences to applicants of one race over another. </p>
<p>If the 14th Amendment is found to guarantee equity – or trying to create equal outcomes for all by favoring historically disadvantaged groups – this supports the argument that affirmative action policies are constitutionally sound, and perhaps even required in public institutions.</p>
<p>The current court, with a conservative majority, almost certainly favors the argument that the equal protection clause endorses equality, not equity. </p>
<p>In a <a href="https://www.npr.org/sections/codeswitch/2014/04/23/306173835/two-justices-debate-the-doctrine-of-colorblindness">2007 ruling on public high schools</a>, for example, Chief Justice John Roberts wrote that “the way to stop discrimination on the basis of race is to stop discriminating <a href="https://www.supremecourt.gov/opinions/06pdf/05-908.pdf#page=48">on the basis of race</a>.” </p>
<h2>LGBTQ equality versus religious liberty</h2>
<p>Another major case, <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">303 Creative v. Elenis</a>, asks the court whether state law can compel a private business to serve LGBTQ clients – or whether the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> protects business owners who violate those laws on religious grounds.</p>
<p>The controversy focuses on a website designer who wants to expand her business to offer personal wedding sites – but not for same-sex couples, as required by <a href="https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/">Colorado’s nondiscrimination laws</a>.</p>
<p>The case comes close to addressing the long-standing conflict between a person’s free exercise of religion, guaranteed by the First Amendment, and a state’s power to enforce the equal treatment of all citizens. </p>
<p>But the question presented in this case focuses on the website designer’s free speech and artistic expression, rather than the <a href="https://theconversation.com/religious-liberty-has-a-long-and-messy-history-and-there-is-a-reason-americans-feel-strongly-about-it-186613">religious motivation</a> at the heart of the conflict. </p>
<p>The court’s recent history of <a href="https://theconversation.com/religious-liberty-has-a-long-and-messy-history-and-there-is-a-reason-americans-feel-strongly-about-it-186613">supporting religious liberty</a> suggests that the website designer will prevail. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People hold up cut-out blue and red maps of states that say things like 'balance power,' and a sign that says 'end gerrymandering now,' outside the Supreme Court." src="https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/487388/original/file-20220929-1555-nmk8bl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest against gerrymandering outside the Supreme Court in March 2019.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/fair-maps-rally-was-held-in-front-of-the-us-supreme-court-on-tuesday-picture-id1153804265">Sarah L. Voisin/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Who controls election laws</h2>
<p>The third major case this term – <a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">Moore v. Harper</a> – is about the control of election law and what is known as the <a href="https://theconversation.com/the-independent-state-legislature-doctrine-could-reverse-200-years-of-progress-and-take-power-away-from-the-people-186282">independent state legislature theory</a>. </p>
<p>The somewhat arcane question is whether only the U.S. Constitution controls state legislatures’ decisions regarding federal elections rules within their states or whether state constitutions and courts can also oversee the election laws that apply to national elections.</p>
<p>In this case, the <a href="https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained">court will rule</a> on whether the North Carolina Supreme Court can strike down and replace the Legislature’s congressional map, which the <a href="https://www.politico.com/news/2022/02/04/north-carolina-congressional-map-struck-down-00005974">state court found</a> was gerrymandered in violation of the North Carolina Constitution.</p>
<p>In an atmosphere of political distrust and <a href="https://www.cbsnews.com/news/elections-democracy-opinion-poll-2022-09-04/">accusations of election fraud</a>, the court will determine who controls federal election law within each state. </p>
<p>The constitutional text on this question is admittedly unclear.</p>
<p>Supporters of the independent state legislature theory argue that because the Constitution <a href="https://constitutionallawreporter.com/article-01-section-04/#:%7E:text=Article%201%2C%20Section%204&text=The%20Times%2C%20Places%20and%20Manner,the%20Places%20of%20chusing%20Senators.">states that</a> congressional election rules “shall be prescribed in each State by the Legislature thereof,” this power applies solely to state legislatures.</p>
<p>This interpretation means that election rules are not constrained by state constitutions, which often have additional protections of <a href="https://www.ncsl.org/research/redistricting/free-equal-election-clauses-in-state-constitutions.aspx">“free and equal” elections</a>, enforced by state courts. Instead, only the U.S. Constitution could constrain state legislatures – and only federal courts, including the Supreme Court, could review these decisions. </p>
<p>Critics of the independent state legislature theory argue that even though the U.S. Constitution tasks state legislatures with overseeing election law, ordinary checks and balances that constrain those legislatures still apply. This would mean that other state officials and state courts maintain their usual role in limiting the power of the legislature, which was not meant to be fully independent.</p>
<p>Concerns about independent state legislatures are partly driven by two fears. One is that if legislatures are truly independent, they may <a href="https://www.npr.org/2022/06/30/1107648753/supreme-court-north-carolina-redistricting-independent-state-legislature-theory">impose discriminatory laws that benefit their party</a> – often Republicans at the state level.</p>
<p>The other fear is that Republican legislatures may attempt to <a href="https://www.theatlantic.com/ideas/archive/2022/07/moore-harper-scotus-independent-state-legislature-election-power/670992">alter the final slate of electors</a> in the 2024 presidential election if former President Donald Trump runs and loses the popular vote in states with GOP legislatures. </p>
<p>This case is partially about trust – whether Americans trust state legislatures or state courts to oversee legitimate elections. And <a href="https://www.pewresearch.org/fact-tank/2019/07/22/key-findings-about-americans-declining-trust-in-government-and-each-other/">trust among the American public</a> is in <a href="https://www.gallup.com/workplace/393401/trust-decline-rebuild.aspx">short supply</a>.</p>
<h2>The year at the court</h2>
<p>The outcomes of this term’s cases will deeply influence American lives and values, especially for college applicants, LGBTQ citizens and people with strong religious beliefs. </p>
<p>The state legislature case is the most difficult to understand, and also perhaps the most influential, because it reflects the broader decline of trust in elections and the growing suspicions of fraud along many dimensions. I believe that this case – however resolved – will lower perceptions of the legitimacy of many future election outcomes.</p><img src="https://counter.theconversation.com/content/190819/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Affirmative action, discrimination against LGBTQ people and election laws are some of the hot-button issues that the Supreme Court will tackle this fall.Morgan Marietta, Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1852172022-06-23T12:48:15Z2022-06-23T12:48:15ZHow Kenya’s degree requirement for top political posts turned into a fiasco<figure><img src="https://images.theconversation.com/files/469997/original/file-20220621-3417-u8d2ba.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Simon Maina/AFP/GettyImages</span></span></figcaption></figure><p>The rush for academic credentials is nothing new ahead of a Kenyan election. Candidates are <a href="https://www.youtube.com/watch?v=o06Hnd0Wmxo">challenged</a> about the existence or <a href="https://www.standardmedia.co.ke/entertainment/city-news/2000175252/did-bishop-margret-wanjiru-get-a-phd-before-her-bachelors-degree">validity</a> of their university degrees, and <a href="https://nation.africa/kenya/news/politics/degrees-on-sale-politicians-fight-fake-academic-papers-allegations--3847722">controversy</a> is common.</p>
<p>This is because, under Kenya’s <a href="https://www.iebc.or.ke/uploads/resources/kqI5cmgeyB.pdf">elections act</a>, contestants for president, senator and, governor seats must show proof of a degree from a university recognised in Kenya. Members of parliament <a href="https://www.standardmedia.co.ke/politics/article/2001438538/senators-pass-bill-scrapping-degree-requirement-for-mps">resisted attempts</a> to extend this requirement to them, and the Kenyan High Court ruled in their <a href="https://www.the-star.co.ke/news/2022-04-13-high-court-rules-out-degree-requirement-for-mp-aspirants/">favour</a>. </p>
<p>It’s not just politicians that are under pressure to produce qualifications. <a href="https://www.the-star.co.ke/news/2022-06-13-many-public-servants-have-fake-degrees-sossion/">Many public servants</a> have used fake degrees in pursuit of job opportunities or promotions. One case <a href="https://www.standardmedia.co.ke/entertainment/the-standard/2001371007/the-story-joshua-waiganjo-mystery-man-who-called-the-shots-in-the-police-force">involved a man</a> who posed as a high-ranking police officer for over 10 years. He hired and fired officers, attended top security meetings and, at least once, flew in a police helicopter to a crime scene.</p>
<p>Even the vice-chancellor of a public university has been questioned over the <a href="https://www.kenyans.co.ke/news/72520-govt-demotes-university-vc-over-questionable-degree">validity of his PhD</a> and the awarding university.</p>
<p>As the 2022 elections approach, Kenyans have <a href="https://nation.africa/kenya/news/politics/degrees-on-sale-politicians-fight-fake-academic-papers-allegations--3847722">witnessed a circus of politicians</a> waving certificates from nondescript institutions or obtained through dubious means. Institutions may produce quality degrees but the problem arises when politicians <a href="https://www.standardmedia.co.ke/thenairobian/politics/2001447271/iebc-to-crack-down-on-integrity-fake-academic-certificates">falsely claim to have earned them legitimately</a>.</p>
<p>The doubt around academic credentials of politicians who seek leadership positions undermines the integrity clause in Kenya’s <a href="https://www.wipo.int/edocs/lexdocs/laws/en/ke/ke019en.pdf">2010 constitution</a>. What counts in a politician is not necessarily their level of education but their morals and ethics. </p>
<h2>What we can learn from the circus</h2>
<p>The <a href="https://aceproject.org/ero-en/regions/africa/KE/kenya-handbook-on-kenyas-electoral-laws-and-system">degree requirement</a> was intended to <a href="https://www.pd.co.ke/news/mps-divided-on-need-to-amend-law-on-degree-requirement-112362/">enhance debate in the house</a> and to have leaders who would balance the roles of oversight, legislation and representation.</p>
<p>The high court <a href="https://www.the-star.co.ke/news/2022-04-13-high-court-rules-out-degree-requirement-for-mp-aspirants/">decided</a> that members of parliament need not have a degree, but it’s mandatory for governor and presidential aspirants. </p>
<p>More than 10 years after it was enacted, it is questionable whether the requirement achieved what was intended. In early June, the Independent Electoral and Boundaries Commission had to <a href="https://www.standardmedia.co.ke/politics/article/2001447317/presidency-iebc-revokes-clearance-certificate-of-walter-mongare">revoke</a> the presidential nomination papers of a candidate it had previously cleared. It turned out he had not met the academic requirements. </p>
<p>That this had escaped the commission’s scrutiny is in itself worrying. The importance of a reliable electoral commission is demonstrated by the fact that the 2017 presidential elections were annulled by the Supreme Court largely because of the <a href="https://www.aljazeera.com/opinions/2017/9/2/why-did-kenyas-supreme-court-annul-the-elections">electoral commission’s bungling of key processes</a>. </p>
<p>There are several points to remember ahead of the elections in August 2022. </p>
<p>One, the fixation on academic credentials is misplaced. The level of education of the political class is not the key to progress. Leadership has never been defined by academic excellence. If this were the case, the 12th Kenyan parliament (2017-2022) – which boasted <a href="https://ke.opera.news/ke/en/education/4539453893e0e1104742f8f0e1ac0c59">15 PhD holders and more than 130 MPs with master’s degrees</a> – would have been the best the country had witnessed. But that was not the case.</p>
<p>The 12th parliament largely kowtowed to the political expediency of the executive and it was one where <a href="https://www.standardmedia.co.ke/politics/article/2001447740/house-of-disgrace-12th-parliaments-ignoble-surrender-to-executive">political partisanship reigned supreme</a>. For example, the parliament failed to enact gender laws, which led to the <a href="https://www.humanrightspulse.com/mastercontentblog/chief-justice-calls-on-the-kenyan-president-to-dissolve-parliament">chief justice recommending to the president</a> that he dissolves parliament for failing to implement its constitutional mandate of gender parity. </p>
<p>Having said this, political actors who use dubious means to secure academic papers they did not work for must face the law. And academic and regulatory institutions must face up to their responsibilities, show their independence and not be used as doormats and ladders by the political class. </p>
<p>Two, the justice system must deal with forgery unambiguously. As the <a href="https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/28595/115477/F-857725769/KEN28595.pdf#page=106">Penal Code</a> states, forging a document or electronic record is an offence punishable by three years in prison.</p>
<p>Many cases, including those of politicians’ <a href="https://nation.africa/kenya/counties/mombasa/high-court-throws-out-case-challenging-hassan-joho-degree-1033900">questionable academic qualifications</a>, have not been dealt with conclusively. </p>
<h2>Fake leadership</h2>
<p>The relationship between degrees and <a href="https://www.youtube.com/watch?v=JlbTvCvSN84">quality leadership</a> is one Kenyans should debate as they head to the elections in August. <a href="https://www.kenyans.co.ke/news/40966-best-and-worst-performing-mps-listed-new-report">The ranking of legislators</a> is mostly based on the contributions of parliamentarians on the floor of the House. But the accomplishment of a development agenda in their respective constituencies should be factored in too when determining the quality of leadership. </p>
<p>Whereas integrity, in terms of presenting academic credentials should be overemphasised, Kenyans should be more worried about a political culture whose consequence is fake leadership that overpromises and under-delivers. What should matter most is the capability of the politician to offer quality leadership and not academic excellence.</p><img src="https://counter.theconversation.com/content/185217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maina wa Mutonya does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The level of education of the political class is not the key to progress.Maina wa Mutonya, Researcher, African and African Diaspora Studies, National School of Anthropology and HistoryLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1654142021-08-10T12:26:04Z2021-08-10T12:26:04ZClaims of voter suppression in newly enacted state laws don’t all hold up under closer review<figure><img src="https://images.theconversation.com/files/415283/original/file-20210809-17-ekmidn.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C8197%2C5456&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Activists at a voting rights rally near the U.S. Capitol on Aug. 3, 2021. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/activists-attend-a-rally-about-voting-rights-and-ending-the-news-photo/1234432343?adppopup=true">Drew Angerer/Getty Images</a></span></figcaption></figure><p>As states across the U.S. enact new laws relating to elections, there have been efforts to capture, in aggregate, the effects of those laws. Reports, found in both journalism and advocacy group statements, that new election laws will “restrict” voting or have an “anti-voter” effect misrepresent what many of the laws will do.</p>
<p>On July 14, 2021, a story in <a href="https://www.washingtonpost.com/politics/2021/06/02/state-voting-restrictions/">The Washington Post described what it called</a> “voting restrictions,” citing figures from a website called the “<a href="https://votingrightslab.org/">Voting Rights Lab</a>,” and noted that “17 states had enacted 32 laws with provisions that tighten rules for voting and election administration.” The Voting Rights Lab describes itself as working to “build winning state legislative campaigns that secure, protect, and defend the voting rights of all Americans.”</p>
<p>The Brennan Center for Justice, <a href="https://www.brennancenter.org/about/mission-impact">a nonprofit with a goal</a> “to reform, revitalize, and when necessary, defend our country’s systems of democracy and justice,” offered a <a href="https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-july-2021">July 2021 “roundup”</a> to assess “the full impact of efforts to suppress the vote in 2021.” The roundup concluded that “at least 18 states enacted 30 laws that restrict access to the vote,” a figure <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/06/statement-by-vice-president-kamala-harris-on-the-anniversary-of-the-voting-rights-act-of-1965/">cited by Vice President Kamala Harris</a> in comments on the anniversary of the Voting Rights Act.</p>
<p>Classifying a law as a voter suppression, as a voting restriction or as a tightening of a rule for voting involves judgment. It anticipates the future effect of a law, and it concludes that the law will have a negative effect. </p>
<p>As <a href="https://scholar.google.com/citations?user=PSynZNoAAAAJ&hl=en">a scholar of election law</a> who has examined the statutes that have been lumped together as “voting restrictions,” I have found that while some could fairly be given that label, many are ordinary rules of election administration that simply don’t merit those labels. Many bills will likely have no discernible effect, much less a negative effect, on the right to vote.</p>
<h2>Routine procedure</h2>
<p><a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:UT2021000H12&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=51c25c48e64cb1636a693f59602e6ee7&mode=current_text">Utah’s House Bill 12</a>, for instance, was enacted unanimously by both houses of the Utah Legislature. </p>
<p>Utah’s bill updates a law about how to remove dead people from the list of registered voters. It increases the communication surrounding death certificates to election officials, and it requires the state election administrator to submit Social Security Administration data about those who have died to county clerks so that clerks may remove them from the list of registered voters. </p>
<p>The Brennan Center lists this as a law that restricts the right to vote; the Voting Rights Lab describes its effect as “unclear.” But this is not a voter purge statute, which can remove living voters from the voter roster. It only removes dead people from the list. It is a routine update to election administration.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A sign that says " src="https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/415287/original/file-20210809-25-uhugze.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 2020, increased numbers of voters cast absentee or early ballots.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/long-lines-of-voters-wait-to-cast-early-voting-ballots-at-news-photo/1229129007?adppopup=true">Mark Makela/Getty Images</a></span>
</figcaption>
</figure>
<h2>Voting trends reflected</h2>
<p>States also updated laws about the size of polling places. The trend <a href="https://electionlab.mit.edu/research/voting-mail-and-absentee-voting">toward increased absentee voting and early voting</a> means fewer voters visit the polls on Election Day. Some states have moved toward <a href="https://www.ncsl.org/research/elections-and-campaigns/vote-centers.aspx">“vote center” models</a>, in which voters are no longer assigned to a single polling place and instead have more geographic flexibility in choosing where they vote. As these other forms of voting increase, the traditional precinct model no longer needs to be as small as it is. Slightly larger precincts allow states to shift money to these other forms of voting opportunities.</p>
<p>The Nevada Legislature unanimously agreed, after hearing only support from county election officials, to <a href="https://www.leg.state.nv.us/Session/81st2021/Bills/SB/SB84_EN.pdf">increase the potential maximum size of a precinct from 3,000 voters to 5,000</a>. County officials <a href="https://www.leg.state.nv.us/App/NELIS/REL/81st2021/ExhibitDocument/OpenExhibitDocument?exhibitId=49844&fileDownloadName=SB%2084_Remarks_Senator%20Nicole%20J.%20Cannizzaro_District%206.pdf">can keep</a> smaller precincts as appropriate. The bill closes no precincts. Counties in Nevada have moved toward vote centers, which allow voters to go to any polling place within the county. But this law, Senate Bill 84, was labeled “<a href="https://tracker.votingrightslab.org/pending/search/NV2021S84">anti-voter</a>” by the Voting Rights Lab and a “<a href="https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-july-2021">restriction</a>” by the Brennan Center.</p>
<p>New York’s <a href="https://www.nysenate.gov/legislation/bills/2021/A7478">Assembly Bill 7478</a> is similar, increasing the potential maximum size of a precinct from 1,150 voters to 2,000. The old rule had been built around the <a href="https://www.governor.ny.gov/news/governor-cuomo-signs-sweeping-package-voting-reforms-law">physical limitations of lever-operated voting machines</a>, as these voting machines could accommodate only 1,000 voters. The machines have been phased out in favor of optical scan ballots, and polling places can now accommodate more voters. The bill passed the Assembly by a vote of 148-0, and the Senate 55-8. The Voting Rights Lab called it “<a href="https://tracker.votingrightslab.org/pending/search/NY2021A7478">anti-voter</a>.”</p>
<h2>‘Much less dramatic’</h2>
<p>Other bills target how elections are funded. The coronavirus pandemic brought <a href="https://theconversation.com/mail-in-votings-potential-problems-only-begin-at-the-post-office-an-underfunded-underprepared-decentralized-system-could-be-trouble-143798">increased costs for mailing ballots and administering a safe election</a>. Grants, including <a href="https://www.cnn.com/2020/09/01/business/zuckerberg-300-million-voting/index.html">US$300 million from Facebook founder Mark Zuckerberg and his wife, Priscilla Chan</a>, were distributed to states and localities to help with the new administrative burdens. </p>
<p>But the decision of a private grantor to give money to some jurisdictions raised questions about whether such efforts were politically motivated and would affect voter behavior and election results. Before the election, <a href="https://www.nytimes.com/2020/09/25/us/politics/elections-private-grants-zuckerberg.html">reporter Ken Vogel at The New York Times</a> wrote about concerns that private subsidizing of elections “raises new legal and political questions.”</p>
<p><a href="https://apnews.com/article/elections-facebook-mark-zuckerberg-d034c4c1f5a9fa3fb02aa9898493c708">State legislatures have responded</a>. <a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:AR2021000H1866&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=5c4190274f966a7d3ea86fa57987bdf7&mode=current_text">Arkansas</a>, <a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:AZ2021000H2569&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=5a73171008c20372f8ffba99b9f7e8ce&mode=current_text">Arizona</a>, <a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:ID2021000S1168&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=39319cd1043f6839b2971a8f798c8ba1&mode=current_text">Idaho</a>, <a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:ND2021000H1256&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=3da6fbe5258c835d20b1d592a2727feb&mode=current_text">North Dakota</a>, <a href="https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HB-110">Ohio</a>, <a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:TN2021000S1534&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=067c4b2a7b62feb11c70352f377ec5db&mode=current_text">Tennessee</a> and <a href="https://custom.statenet.com/public/resources.cgi?id=ID:bill:TX2021000H2283&cuiq=cebcefa4-252a-5dcb-aeb1-7fc87d570de0&client_md=f8f6ef3450cb77a75b211375fffb89d5&mode=current_text">Texas</a> all enacted new laws regulating or prohibiting private funds for election administration, such as buying equipment or paying personnel. Ohio included the rule as a small part of an appropriations bill that passed with wide bipartisan support. The Voting Rights Lab labels all seven laws “anti-voter.”</p>
<p>These efforts to label a law as pro-voter or anti-voter, then to lump those votes into a round number of “voter suppression” efforts, miss important details and context.</p>
<p>Too often, the label is inaccurate. Certainly, with some laws, the effect on voters is going to be more significant. <a href="https://www.wsj.com/articles/justice-department-to-sue-georgia-over-its-new-voting-law-11624632808">Litigation in Georgia</a> over Senate Bill 202, for instance, reveals <a href="https://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html">strong differences in opinion</a> about the bill’s effects.</p>
<p>But it is important to detail what a new law does and not simply offer a conclusion that is really an allegation about it. </p>
<p>When they are examined closely, the effect of many of these new election laws is much less dramatic. A label like “restriction” or “anti-voter” should be used when it’s likely that a voter’s experience is materially altered to make voting more difficult. My examination of these bills suggests that none of them rise to that level.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/165414/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derek T. Muller does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Not all new laws labeled “voter suppression laws” are, in fact, voter suppression laws. An election law expert takes a closer look.Derek T. Muller, Bouma Fellow in Law & Professor of Law, University of IowaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1631982021-06-23T15:09:34Z2021-06-23T15:09:34ZDespite outrage, new state voting laws don’t spell democracy’s end – but there are some threats<figure><img src="https://images.theconversation.com/files/407729/original/file-20210622-28-63leyj.jpeg?ixlib=rb-1.1.0&rect=27%2C9%2C6104%2C4072&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Will new election laws being proposed and passed in states limit people's opportunity to vote? </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voters-wait-in-line-to-cast-ballots-at-savannah-grove-news-photo/1229444017?adppopup=true"> Sean Rayford/Getty Images</a></span></figcaption></figure><p><em>The sky is falling – that’s <a href="https://www.courant.com/opinion/op-ed/hc-op-fight-gop-voter-suppression-20210405-20210405-2clgwszvjzgc3gac56ijmvm2ye-story.html">what you may believe</a> about a rash of new election laws being introduced, largely by the GOP, in statehouses across the country. Alternatively, you may think these laws are absolutely crucial to <a href="https://www.nbcnews.com/politics/elections/georgia-republicans-are-pushing-dozens-election-integrity-bills-black-voters-n1259687">ensure election integrity</a>. The Conversation’s Senior Politics Editor Naomi Schalit interviewed election law scholar <a href="https://scholar.google.com/citations?user=PSynZNoAAAAJ&hl=en&oi=ao">Derek Muller</a> about how he sees these new laws. Muller provides a surprisingly sanguine interpretation of what’s going on. The transcript has been edited for length and clarity.</em> </p>
<h2><a href="https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-may-2021">One group has said</a> that “Americans’ access to the vote is in unprecedented peril.” What do you think?</h2>
<p>I would not say that. These election bills marginally increase the difficulty for some voters by <a href="https://www.washingtonpost.com/politics/2021/06/02/state-voting-restrictions/">reducing some of the options</a>, whether it’s voting by mail or early voting. But many of these bills also <a href="https://www.politico.com/news/2021/06/22/pandemic-voting-changes-495411">expand voting opportunities</a>, and many of them are tinkering at the margins of expansions during the COVID pandemic in 2020. </p>
<p>In some circumstances, voters are no worse off than they were in 2018, and in some circumstances, they are better off. So, while there’s a lot of heated rhetoric, I would say the changes to election law so far have been fairly modest.</p>
<h2>So, if you compare the new laws to what the status of the laws was before those pandemic era expansions, it’s not that dramatic?</h2>
<p>In many states, voting in 2022 and 2024 will not look very much different than it did in 2016. In some cases, there are bigger changes, but many times they’re marginal things not obvious to the vast majority of voters.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1404912394401423366"}"></div></p>
<h2>Critics say these laws make it harder to vote. Are you seeing any evidence of that?</h2>
<p>It depends on how we define “harder.” Let’s pick <a href="https://www.washingtonpost.com/politics/2021/06/02/state-voting-restrictions/#iowa-1">a law in Iowa</a>. You could request absentee ballots up until 10 or 11 days before the election, and <a href="https://www.legis.iowa.gov/legislation/BillBook?ga=89&ba=sf413">now it’s up until 15 days before the election</a>. Is that harder? You can still show up and vote on Election Day, you can still vote early. It’s just that the window of opportunity to request an absentee ballot has narrowed. </p>
<p>On the flip side, does it really discourage many voters or prevent them from being able to vote? I think those are the open empirical questions that will have to be asked in the future.</p>
<p>Anything that limits or constrains voting days where they used to exist before does make it marginally harder. But the question is how significant the marginal cost is.</p>
<h2>Do these laws have measurable effects on turnout?</h2>
<p>I’m not a political scientist, so I’m careful about these kinds of questions. But a lot of the <a href="https://www.annualreviews.org/doi/pdf/10.1146/annurev-polisci-051215-022822">empirical literature is quite mixed</a>. There’s some evidence that some kinds of voter identification laws reduce turnout by a point or two. There are others that suggest they have no discernible impact on turnout.</p>
<h2>Attorney General Merrick Garland has said the <a href="https://apnews.com/article/government-and-politics-donald-trump-voting-rights-voting-dad9ccf2dc69e815af71ce5a4c7bb586">Department of Justice will scrutinize the wave of new laws</a> and take action on any violations of federal law. What does it mean to have the attorney general say this?</h2>
<p>The attorney general can investigate and scrutinize those laws. That’s principally the <a href="https://www.nytimes.com/2021/06/11/us/politics/garland-justice-department-voting-laws.html">attorney general’s power under the Voting Rights Act</a>, to think about initiating claims alleging that the political process is not equally open to participation on the basis of race.</p>
<p>But scrutinizing laws is very different from bringing a lawsuit, and bringing a lawsuit is very different from a court agreeing that the law does have that effect. Complicating matters is the Supreme Court is considering a case about how the Voting Rights Act should be construed – <a href="https://theconversation.com/supreme-court-weighs-voting-rights-in-a-pivotal-arizona-case-160977">Brnovich v. Democratic National Committee</a>. The court might make it actually harder for the Department of Justice to bring those claims in the future. But undoubtedly the department investigating what states are doing will put legislators on their toes to think about how to tailor laws in a way that will not subject them to the department’s wrath.</p>
<h2>Do we know whether these laws affect election outcomes in terms of partisan politics? <a href="https://www.washingtonpost.com/politics/interactive/2021/voting-restrictions-republicans-states/">The criticism</a> is that “the Republicans are putting measures into law that will help them win elections.”</h2>
<p>One question is whether it <a href="https://siepr.stanford.edu/sites/default/files/publications/21-011.pdf">even affects turnout in the first place</a>. Then the next question is, even if it does affect turnout, <a href="https://siepr.stanford.edu/sites/default/files/publications/20-015.pdf">does it benefit one political party over another</a>?</p>
<figure class="align-center ">
<img alt="Democratic House Speaker and Texas Democratic lawmaker Trey Martinez Fischer in serious conversation." src="https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&rect=25%2C0%2C5619%2C3757&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/407724/original/file-20210622-14-f8bsbu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">U.S. Speaker of the House Nancy Pelosi and Texas State Rep. Trey Martinez Fischer, both Democrats, during a news conference at the U.S. Capitol with Democratic lawmakers from Texas about GOP changes to Texas election laws.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/speaker-of-the-house-rep-nancy-pelosi-listens-to-texas-news-photo/1323764239?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<p>So it’s political parties fighting over this, <a href="https://apnews.com/article/donald-trump-coronavirus-pandemic-elections-voting-cfde3aa17d7cecb9e1f2d58f3582dd0d">whether or not it actually has the effects that people think</a>. </p>
<h2>Do moves like this actually backfire by upsetting people who feel targeted?</h2>
<p>Undoubtedly, actions in North Carolina and Georgia over the last several years <a href="https://www.cnn.com/2021/03/28/politics/voting-rights-georgia-souls-polls-blake/index.html">significantly mobilized Democratic voters</a> and voters of color to turn out as a kind of backlash. There were significant Democratic victories in North Carolina <a href="https://www.newsobserver.com/news/politics-government/article248694585.html">and Georgia</a> shortly after controversies over voting laws came to the surface. How you measure that backlash is another political science question, but it remains a viable tool for those who oppose the laws to simply mobilize, get out the vote and elect their preferred candidates.</p>
<h2>How do these laws comport with the general democratic standard of everyone who is eligible can cast a vote?</h2>
<p>We have <a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">dramatically expanded opportunities to vote in the last several decades</a>. Early voting was basically nonexistent 20 years ago, no-excuse absentee voting is now the default in many states, several states mail every eligible voter a ballot. </p>
<p>There are benefits to having so many opportunities, but those come with costs: The systems they create are <a href="https://www.ncsl.org/research/elections-and-campaigns/election-administration-at-state-and-local-levels.aspx">sprawling, they are unwieldy at times</a>, providing many more opportunities for things to go wrong or for people to be skeptical of the outcome. And stretching an election out over six or eight weeks means we’re all voting with different kinds of information at the beginning of an election season versus at the end.</p>
<h2>In some of these laws, state legislatures’ <a href="https://apnews.com/article/donald-trump-politics-legislature-local-elections-bills-73b331234cec8c966bb2308f6ed1696e">involvement in elections has been increased</a> – although I think the public is not necessarily aware of the involvement of partisans in election administration already. Is that a concern?</h2>
<p>Most of our elections are run by partisan officials. Secretaries of state have a Republican or Democratic affiliation, and their role in certifying election results has typically been a pro forma task. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group carrying signs protesting new voting laws on steps inside the Texas Capitol building." src="https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/407731/original/file-20210622-21-9fl7mr.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A group opposing new voter legislation gathers outside the House Chamber at the Texas Capitol in Austin on May 6, 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VotingBills/4d462715b64e409fbc41e1bad25c4426/photo?Query=Voting%20AND%20bills&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=9449&currentItemNo=274">Eric Gay/AP Photos</a></span>
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</figure>
<p>At the same time, especially before the election, there were changes being made by county or state officials, things executive branch officials were doing, that didn’t necessarily comport with what the legislature had expressly provided in non-emergency situations, that caused a lot of friction between the legislature and those officials.</p>
<p>So, some of the proposed or enacted laws try to rein in local officials’ discretion. <a href="https://www.nytimes.com/2021/04/06/upshot/georgia-election-law-risk.html">In Georgia</a>, the legislature will choose one of the members of the Board of Elections to certify elections, instead of allowing the secretary of state to serve on that board. These tweaks happening in states reduce the amount of discretion that election officials have, or allow the legislature to have some say – not a total say – in that election process.</p>
<h2>Is the legislature having “some say” a threat to election integrity?</h2>
<p>It seems like it would increase the threat. For the most part, we’ve seen election administrators be professionals who view this as their full-time job, who see all the inner workings, from day to day, in the two years before an election is held and know what’s going on. As opposed to the legislature, which might view something – after the fact, or when its attention is stretched in other directions – as dubious and wanting to revisit what happened. So, there is that concern.</p>
<p>Now, if the legislature wants to pick its own representative to serve on a board with multiple other people and it’s not going to overwhelm the board, maybe that’s okay. But undoubtedly it does increase the risk of the legislature choosing to meddle as a political branch, in a different way from the election officials who – despite their partisan affiliation – often rise above that.</p>
<h2>What about the <a href="https://www.nytimes.com/2021/05/01/us/politics/republican-pollwatchers.html">proposals to further empower poll watchers</a>?</h2>
<p>I’ve worked many elections as a precinct election official in multiple states and many counties. And I had extensive training before doing that – there’s a bipartisan group that supervises the process and we all take our job very seriously. We want to make sure that eligible voters participate, that we can ensure that only eligible voters cast a ballot, that we count everything carefully at the end of the night.</p>
<p>Poll watchers might not have that training, might be disruptive, might not know what is going on or have a total context of what’s happening. <a href="https://www.cnn.com/2021/05/01/politics/republican-bills-empower-partisan-poll-watchers/index.html">There’s an increased risk from poll watchers</a>, if they show up already skeptical that the precinct election officials are doing their job properly, then that starts to undermine some of the confidence in the electoral process.</p>
<p>You want the campaigns to be confident that the election is being run smoothly and properly, and there should be opportunities to observe and ensure that there are no irregularities happening. But <a href="https://www.reuters.com/article/us-usa-election-voter-fraud-facts-explai/explainer-despite-trump-claims-voter-fraud-is-extremely-rare-here-is-how-u-s-states-keep-it-that-way-idUSKBN2601HG">given the rarity of irregularities actually happening in the United States</a>, increasing the power or number of poll watchers might lead to some unintended consequences, particularly friction at the polls in future elections.</p>
<h2>Do any of these laws concern you as an electoral scholar?</h2>
<p>I’m concerned about changes that appear more to be <a href="https://www.washingtonpost.com/politics/gop-voting-restrictions/2021/02/19/d1fab224-72ca-11eb-85fa-e0ccb3660358_story.html">appeasing the 2020 losers</a> rather than picking the best laws for administering elections going forward. It’s prompted state legislators to be reactive. I’m not a fan of reactive legislation in that sense. </p>
<p>It concerns me that there’s a candidate who loses an election, and many of that candidate’s supporters question the legitimacy of the election itself. I don’t know that these laws, or really any laws, are ever going to restore the public’s confidence in elections. If it’s just the loser doesn’t want to believe in the legitimacy of the outcome, obviously when the candidate himself is undermining those results, that is a much more serious concern.</p>
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<p class="fine-print"><em><span>Derek T. Muller does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Are the election law changes proposed in statehouses across the country really as bad as some say? An election law scholar cuts through the yelling to take a sober look at the new voting landscape.Derek T. Muller, Professor of Law, University of IowaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1510872020-11-30T20:01:32Z2020-11-30T20:01:32ZJames Baker’s masterful legal strategies won George W. Bush a contested election – unlike Rudy Giuliani’s string of losses<figure><img src="https://images.theconversation.com/files/371853/original/file-20201129-16-cdl9s2.jpg?ixlib=rb-1.1.0&rect=29%2C14%2C3174%2C2109&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President George W. Bush, left, with James A. Baker III at the 2018 funeral of George H.W. Bush.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgeHWBush/df5fffb5c65144529fee1e8d8fffff3f/photo?Query=James%20A.%20Baker&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1197&currentItemNo=42">AP Pool</a></span></figcaption></figure><p>With Rudy Giuliani <a href="https://www.washingtonpost.com/politics/trump-election-overturn/2020/11/28/34f45226-2f47-11eb-96c2-aac3f162215d_story.html">flailing through a series of failed election challenges for the Trump campaign</a>, a superb new political biography provides fresh evidence of just how stark the contrast is between the head of Trump’s legal team and George W. Bush’s hyperprepared, efficient and savvy commander-in-chief for the 2000 election political and legal fight, James A. Baker III. </p>
<p>The biography “<a href="https://www.penguinrandomhouse.com/books/253135/the-man-who-ran-washington-by-peter-baker-and-susan-glasser/">The Man Who Ran Washington</a>,” by Peter Baker and Susan Glasser, provides at least three new major revelations, even for those of <a href="https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.biography&personid=20200">us election law experts</a> steeped in that 2000 saga, which culminated in the <a href="https://www.oyez.org/cases/2000/00-949">Supreme Court’s Bush v. Gore decision</a> and Bush’s consequent victory.</p>
<p><a href="https://www.bakerinstitute.org/experts/james-baker-iii/">James Baker</a> had headed two Cabinet departments – Treasury and State – had been White House chief of staff to two presidents and had run four successful presidential campaigns. </p>
<p>But after being strong-armed to relinquish being secretary of state and take over <a href="https://millercenter.org/president/essays/baker-1989-secretary-of-state">George H.W. Bush’s floundering 1992 reelection campaign</a>, Baker failed. That failure, some claim, created a rift in one of the most important political friendships of the late 20th century. </p>
<p>So when Baker got the call the morning after the 2000 election to take command of George W. Bush’s effort to gain the White House, Baker saw it as an opportunity to redeem himself with the Bush family.</p>
<h2>Seeing around corners</h2>
<p>The book’s first revelation comes immediately: 45 minutes after being briefed on the situation that morning of Nov. 8, when Bush’s lead in Florida stood at 1,784 votes out of nearly 3 million cast – and before even a machine recount had taken place that would cut that lead by two-thirds – Baker told others: “We’re heading to the Supreme Court.” </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A series of Florida newspapers with headlines saying it wasn't clear who won the 2000 election." src="https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1453&fit=crop&dpr=1 600w, https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1453&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1453&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1826&fit=crop&dpr=1 754w, https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1826&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/371851/original/file-20201129-19-hcxi30.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1826&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">James Baker had a sophisticated understanding of what would happen in the contested 2000 presidential election.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NightmareCampaignScenarios/ad3af412a178440c83007bc8fe459e44/photo?Query=Bush%20Gore%20Supreme%20Court&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=8&currentItemNo=0">Peter Cosgrove/AP Photos</a></span>
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</figure>
<p>When they expressed surprise, Baker followed up by saying: “It’s the only way this can end.”</p>
<p>Baker’s acumen here was stunning. At this stage, and even later in the saga, a large majority even of election law and Supreme Court experts were highly skeptical that the court would get involved at all. </p>
<p>The widely shared view was that the process of recounts would be resolved completely under Florida law and through Florida’s administrative processes and courts. That’s <a href="https://theconversation.com/the-case-of-biden-versus-trump-or-how-a-judge-could-decide-the-presidential-election-146367">how election challenges, even in federal elections, had always been handled</a>. Baker’s first choice to lead the litigation effort, former Senator John Danforth of Missouri, reflected this common view. </p>
<p>Danforth told Baker, “I just can’t conceive that a federal court’s going to take jurisdiction over a matter relating to state election law … I just can’t believe that.” </p>
<p>Danforth nevertheless agreed to take on the role. But Baker decided Danforth didn’t believe enough in the cause, cut him loose and turned instead to <a href="https://www.washingtonpost.com/archive/politics/2001/05/17/the-two-theodore-olsons/f774f20e-be19-496e-9ff6-310e0c88dc9c/">a former Reagan administration high-level attorney, Ted Olson</a>, who ultimately won in Bush v. Gore. Baker’s immediate judgment that the Supreme Court would become the ultimate decision-maker structured everything he did.</p>
<h2>Breach of judicial confidentiality</h2>
<p>The second revelation in the book is highly disturbing, if accurate. </p>
<p>Litigating the outcome of the 2000 election began with the Gore campaign filing requests under Florida law for manual recounts in four counties. Two weeks after Election Day, the litigation made <a href="https://www.floridasupremecourt.org/News-Media/Presidential-Election-2000">its first appearance before the Florida Supreme Court</a>. Just before the argument was about to begin, Baker was reportedly handed a note from an intermediary who somehow knew that the Florida justices had already decided among themselves that they were going to rule against Bush and had written a draft opinion to that effect. </p>
<p>Given the time urgency to resolve the election, it is neither surprising nor troubling that the court would have moved this quickly and already drafted a decision. But for a party to a case to be told that, and how the court was going to rule, is a remarkable breach in the confidentiality of a court’s internal deliberations. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Florida Supreme Court spokesman announces the ruling in the contested presidential election." src="https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=915&fit=crop&dpr=1 600w, https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=915&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=915&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1149&fit=crop&dpr=1 754w, https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1149&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/371973/original/file-20201130-13-1fp1d7b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1149&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">On Nov. 21, 2000, Florida Supreme Court spokesman Craig Waters announces the court’s 7-0 ruling, on the Capitol steps in Tallahassee, Fla., that amended votes tallies must be accepted in the state contested presidential election.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NightmareCampaignScenarios/757ea0304efb4098b6d2df54946d9ad5/photo?Query=Supreme%20Court%20%22George%20W.%20Bush%22&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=49&currentItemNo=5">Pete Cosgrove/AP</a></span>
</figcaption>
</figure>
<p>Once they got this note, Bush’s lawyer for the argument, Michael Carvin, asserts they decided “to lose and lose big,” in order to bait the Florida Supreme Court into a broad decision that would make U.S. Supreme Court intervention more likely. </p>
<p>Whether Carvin’s self-serving strategic claim is accurate or not, that’s exactly what happened. The Florida Supreme Court approved a manual recount and <a href="https://www.floridasupremecourt.org/News-Media/Presidential-Election-2000">ordered the deadline for certifying the outcome extended by 12 days</a>. The U.S. Supreme Court – to the surprise of many – <a href="https://guides.law.stanford.edu/c.php?g=991108&p=7170216">agreed to hear the case</a>. When it did so, the Supreme Court then unanimously vacated the Florida court’s decision, in the first of the United States Supreme Court’s two decisions concerning the 2000 election. </p>
<h2>Threat of legislative action</h2>
<p>The third revelation involves an issue that has swirled around the current election: <a href="https://theconversation.com/could-a-few-state-legislatures-choose-the-next-president-146950">the possible role of state legislatures in directly appointing presidential electors</a>, rather than permitting the will of the voters to determine who has won the presidential election – and hence the electors – in that state. </p>
<p>Federal law permits a state legislature to appoint electors if the election has “failed” in that state – <a href="https://theconversation.com/why-theres-so-much-legal-uncertainty-about-resolving-a-disputed-presidential-election-146960">a term whose meaning the law does not clarify</a>. </p>
<p>No legislature has invoked this “failed” election provision since at least the Civil War, but there was a great deal of <a href="https://www.lawfareblog.com/state-legislatures-cant-ignore-popular-vote-appointing-electors">concern in 2020 that the Trump campaign’s strategy</a> was to get Republican legislatures in battleground states to do so. </p>
<p>The closest the U.S. has ever come to that happening is Florida in 2000. After the Florida Supreme Court decision that the Bush campaign lost, Baker asserted to the press that the Florida court had changed the rules after the election, by approving a manual recount and extending the deadline for certifying the election by 12 days.</p>
<p><a href="https://www.nytimes.com/2000/11/22/us/counting-the-vote-baker-s-response-to-ruling.html">Then Baker threatened</a>: “So one should not now be surprised if the Florida legislature seeks to affirm the original rules.” </p>
<p>And indeed, in early December, the Florida legislature <a href="https://www.cnn.com/2000/ALLPOLITICS/stories/12/06/fla.legislature/index.html">announced</a> it would convene a special session to discuss appointing Florida’s electors itself. </p>
<p>That much is a matter of public record. But what the new biography reveals is that, while Baker wanted this to be seen as a threat, he did not want Florida’s legislature to go through with it. </p>
<p>Baker presumably wanted the shadow of imminent legislative action to spur the courts to bring closure to the recount process, given that Bush was ahead in the count. </p>
<p>Throughout the process, Baker was just as focused on public perceptions as on the courtroom battles. He believed that, if Florida’s legislature appointed the electors in favor of Bush, it would cripple Bush’s presidency from the start by undermining the legitimacy of his election. </p>
<p>Those most involved in the 2000 election contest believe that the looming <a href="https://www.latimes.com/archives/la-xpm-2000-nov-29-mn-58820-story.html">specter of Florida legislative involvement</a> effectively shaped the overall environment in the way Baker aimed to do. Six days after the Florida legislature’s action, the <a href="https://www.oyez.org/cases/2000/00-949">5-4 Supreme Court final decision in Bush v. Gore</a> ended the recount, without any further action from the Florida legislature – the path to Bush’s victory that Baker had envisioned from the start.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People in Times Square watch Vice President Al Gore concede the race for president to George W. Bush December 13, 2000 on a giant video screen in New York City." src="https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/371974/original/file-20201130-19-hru436.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People in Times Square watch Vice President Al Gore concede the race for president to George W. Bush on Dec. 13, 2000, on a giant video screen in New York City.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-in-times-square-watch-vice-president-al-gore-concede-news-photo/1318806?adppopup=true">Chris Hondros/Newsmakers</a></span>
</figcaption>
</figure>
<h2>Giuliani versus Baker</h2>
<p>In contrast to the Trump campaign’s litigation this year, <a href="https://www.washingtonpost.com/politics/2020/11/17/trump-keeps-losing-court-he-keeps-losing-his-lawyers-too/">with lawyers filing claims, then withdrawing from cases</a>, and new teams of lawyers swooping in at the last minute, Baker’s firm hand at knowing how to structure effective organizations also played a prominent role in Florida in 2000. </p>
<p>Not only did he quickly assemble <a href="https://www.law.com/nationallawjournal/2020/10/02/amy-coney-barrett-would-be-third-justice-who-touched-bush-v-gore-litigation/?slreturn=20201030075009">the most talented conservative lawyers in the country</a>, but, as one example, he assigned different teams of attorneys to state and federal court, to enable greater specialization.</p>
<p>[<em>Get our most insightful politics and election stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-most">Sign up for The Conversation’s Politics Weekly</a>.]</p>
<p>Some Democrats will never forgive Baker, nor the Supreme Court, for their roles in ending the recount before all the ballots were counted – though <a href="https://www.nytimes.com/2001/11/12/us/examining-vote-overview-study-disputed-florida-ballots-finds-justices-did-not.html">a consortium of major newspapers later determined</a> that if the recount had been completed, Bush would have won under 21 of 24 possible standards for what constituted a valid vote. </p>
<p>But Democrats involved in the litigation battles knew the other side had the more effective leader. Indeed, the new Baker biography claims that when Baker was put in charge of the Florida contest, his “reputation was so formidable that Democrats knew they would lose the moment they heard of his selection.”</p>
<p>I can confidently say that thought did not cross the mind of any Democrat when Rudy Giuliani was put in charge this time around.</p><img src="https://counter.theconversation.com/content/151087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Pildes does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>James Baker, the high-powered lawyer chosen by George W. Bush to lead his fight over the contested 2000 election, delivered victory. A new book reveals three crucial reasons why.Richard Pildes, Professor of Constitutional Law, New York UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1495802020-11-05T21:00:15Z2020-11-05T21:00:15ZCongress could select the president in a disputed election<figure><img src="https://images.theconversation.com/files/367800/original/file-20201105-17-1w4l5yf.jpg?ixlib=rb-1.1.0&rect=16%2C102%2C3568%2C2504&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If the House of Representatives selects the president, each state would get a single vote – not one vote per House member. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/dark-sky-over-us-capitol-building-royalty-free-image/164755262?adppopup=true"> iStock/Getty</a></span></figcaption></figure><p>President Donald Trump’s campaign is challenging <a href="https://apnews.com/article/donald-trump-seeks-voting-stop-25762f69b27dfbccc4fd8077fb5fdc91">results of battleground states with lawsuits, hoping to litigate its way to a win in the 2020 election</a>. But the Founding Fathers meant for Congress – not the courts – to be the backup plan if the Electoral College result was disputed or did not produce a winner.</p>
<p>Generally, the framers sought to avoid congressional involvement in presidential elections. As I’ve taught <a href="https://www.holycross.edu/academics/programs/political-science/faculty/donald-brand">for two decades in my college course on presidential selection</a>, they wanted an independent executive who could resist ill-considered legislation and <a href="https://press.princeton.edu/books/paperback/9780691021881/presidential-selection">would not care about currying favor with members of Congress</a>. </p>
<p>That’s why they created the <a href="https://theconversation.com/what-could-replace-the-electoral-college-138769">Electoral College</a>, assigning to state legislatures the responsibility for choosing “electors” who would then determine the president. </p>
<p>But the framers could foresee circumstances – namely, a fragmented race between little-known politicians – where no presidential candidate would secure an Electoral College majority. Reluctantly, they assigned the <a href="https://history.house.gov/Institution/Electoral-College/Electoral-College/">House of Representatives</a> the responsibility to step in if that happened – presumably because as the institution closest to the people, it could bestow some democratic legitimacy on a contingent election.</p>
<h2>Tied or contested election</h2>
<p>The founders <a href="https://history.house.gov/Institution/Origins-Development/Electoral-College/">proved prescient</a>: The elections of 1800 and 1824 did not produce winners in the Electoral College and were decided by the House. Thomas Jefferson was chosen in 1800 and John Quincy Adams in 1824. </p>
<p>Over time, the development of a two-party system with national nominating conventions – which allows parties to broker coalitions and unite behind a single presidential candidate – has basically <a href="https://press.princeton.edu/books/paperback/9780691021881/presidential-selection">ensured that the Electoral College produces a winner</a>. Though the Electoral College has changed significantly since the 18th century, it has mostly kept Congress out of presidential selection.</p>
<p>A <a href="http://www.270towin.com/electoral-college-tie-combinations/">tie in the Electoral College</a> is one way the 2020 election could end up with Congress. In the extremely unlikely scenario that both Joe Biden and Donald Trump get 269 electors, the election would be thrown into the House.</p>
<p>A more likely scenario is that the <a href="https://theconversation.com/trumps-pennsylvania-lawsuits-invoke-bush-v-gore-but-the-supreme-court-probably-wont-decide-the-2020-election-149538">Trump campaign’s litigation</a> winds up getting Congress involved in the 2020 election.</p>
<p>Though courts will decide specific questions of legal interpretation in voting disputes, they do not want to be perceived as deciding the 2020 election result, as the Supreme Court did in 2000. Where possible, judges will decline to hear lawsuits that ask big political questions and leave these issues for the political system to resolve. </p>
<p>Enter Congress. If neither candidate gets to 270 electors due to disputed ballots, the House would have to decide the election. </p>
<p>Though the House has a Democratic majority, such <a href="https://www.politico.com/news/2020/09/27/pelosi-mobilizes-democrats-house-decision-on-presidency-422359?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=00000156-93f5-d63c-a7d6-93ff85830001&nlid=630318">an outcome would almost certainly benefit Trump</a>. Here’s why: In a concession to small states concerned their voices would be marginalized if the House was called upon to choose the president, the founders gave only one vote to each state. House delegations from each state meet to decide how to cast their single vote. </p>
<p>That voting procedure gives equal representation to California – population 40 million – and Wyoming, population 600,000. </p>
<p>This arrangement favors Republicans. The GOP has dominated the House delegations of 26 states since 2018 – exactly the number required to reach a majority under the rules of House presidential selection. But it’s not the current House that would decide a contested 2020 election; it is the newly elected House, and many Nov. 3 congressional races remain undecided. So far, though, Republicans have retained control of the 26 congressional delegations they currently hold, and Democrats have lost control of two states, Minnesota and Iowa. </p>
<p>Evenly divided delegations count as abstentions, and Republican gains in Minnesota and Iowa are moving these states from Democratic to abstentions. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="https://www.gettyimages.com/detail/news-photo/speaker-of-the-house-nancy-pelosi-d-calif-left-and-rep-news-photo/1228708868?adppopup=true" src="https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360596/original/file-20200929-16-mmzt5x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">House Majority Leader Nancy Pelosi is reportedly preparing for the possibility that presidential selection ends up in the House.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/speaker-of-the-house-nancy-pelosi-d-calif-left-and-rep-news-photo/1228708868?adppopup=true">Tom Williams/CQ-Roll Call, Inc via Getty Images</a></span>
</figcaption>
</figure>
<h2>Congressional commission</h2>
<p>Perhaps the most <a href="https://theconversation.com/if-trump-refuses-to-accept-defeat-in-november-the-republic-will-survive-intact-as-it-has-5-out-of-6-times-in-the-past-144843">relevant precedent for a contested 2020 election that winds up in the House</a> is the 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. That election saw disputed returns in four states – Florida, South Carolina, Louisiana and Oregon – with a total of 20 electoral votes. </p>
<p>Excluding those 20 disputed electors, Tilden had 184 pledged electors of the 185 needed for victory in the Electoral College; Hayes had 165. Tilden was clearly the front-runner – but Hayes would win if all the contested votes went for him.</p>
<p>Because of a <a href="https://cdnc.ucr.edu/?a=d&d=SDU18761121.2.10&e=-------en--20--1--txt-txIN--------1">post-Civil War rule</a> allowing Congress – read, Northern Republicans worried about <a href="http://www.umich.edu/%7Elawrace/disenfranchise1.htm?promocode=LIPP101AA?promocode">Black voter suppression</a> – to dispute the vote count in Southern states and bypass local courts, Congress established a commission to resolve the disputed 1876 returns.</p>
<p>As Michael Holt writes in his <a href="https://kansaspress.ku.edu/978-0-7006-1787-6.html">examination of the 1876 election</a>, the 15-member commission had five House representatives, five senators and five Supreme Court justices. Fourteen of the commissioners had identifiable partisan leanings: seven Democrats and seven Republicans. The 15th member was a justice known for his impartiality. </p>
<p>Hope of a nonpartisan outcome was dashed when the one impartial commissioner resigned and was replaced by a Republican judge. The commission voted along party lines to give all 20 disputed electors to Hayes.</p>
<p>To prevent the Democratic-dominated Senate from derailing Hayes’ single-vote triumph over Tilden by refusing to confirm its decision, Republicans were forced to make a deal: Abandon Reconstruction, their <a href="https://theconversation.com/what-everyone-should-know-about-reconstruction-150-years-after-the-15th-amendments-ratification-122117">policy of Black political and economic inclusion in the post-Civil War South</a>. This paved the way for Jim Crow segregation.</p>
<h2>Bush v. Gore</h2>
<p>The 2000 election is the only modern precedent for contested vote returns. </p>
<p>George W. Bush and Al Gore argued for a month over Bush’s slim, 327-vote advantage in Florida’s second machine recount. After a lawsuit in state courts, this political and legal battle was decided by the Supreme Court in December 2000, in <a href="https://supreme.justia.com/cases/federal/us/531/98/">Bush v. Gore</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters hold pro-Bush signs while police do crowd control, with Supreme Court in the background" src="https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360592/original/file-20200929-24-yoml3e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The scene outside the Supreme Court, Dec. 11, 2000.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/demonstrators-gathered-outside-of-the-us-supreme-court-news-photo/51581753?adppopup=true">Shawn Thew/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>But Bush v. Gore was never intended to set a precedent. In it, the justices explicitly stated “our consideration is <a href="https://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore">limited to the present circumstances</a>.” Indeed, the court could have concluded that the issues presented were political, not legal, and declined to hear the case.</p>
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<p>In that case, the House would have decided the 2000 election. The Electoral College must cast its ballots on the first Monday after the second Wednesday in December. This year, that’s Dec. 14. If disputed state vote totals are not resolved by six days prior to that date, Congress can step in, under the <a href="https://www.statutesandstories.com/blog_html/electoral-count-act-of-1887-and-the-election-of-1876/">1887 Electoral Count Act</a>.</p>
<p>This could have happened in 2000, and it is imaginable this year. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/how-congress-could-decide-the-2020-election-146054">article</a> originally published Oct. 9, 2020.</em></p><img src="https://counter.theconversation.com/content/149580/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Brand is affiliated with College of the Holy Cross College Republicans.</span></em></p>Judges are generally reluctant to decide elections, as the Supreme Court controversially did in 2000. As a result, Trump’s flurry of litigation could wind up throwing the election to the House.Donald Brand, Professor, College of the Holy CrossLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1495382020-11-05T20:42:57Z2020-11-05T20:42:57ZTrump’s Pennsylvania lawsuits invoke Bush v. Gore – but the Supreme Court probably won’t decide the 2020 election<figure><img src="https://images.theconversation.com/files/367769/original/file-20201105-17-1arec82.jpg?ixlib=rb-1.1.0&rect=53%2C0%2C6000%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judges can intervene in elections, but the Supreme Court really prefers not to.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/law-and-justice-concept-judges-gavel-scales-royalty-free-image/1139726848">Jantanee Phoolmas/Moment via Getty Images</a></span></figcaption></figure><p>The Trump campaign has <a href="https://www.politico.com/news/2020/11/04/gop-pennsylvania-blocking-ballots-lawsuit-434045">filed two lawsuits in federal court over ballot counting and voting deadlines</a> in Pennsylvania, threatening to take the election to the Supreme Court. Both consciously echo the two main legal theories of <a href="https://www.oyez.org/cases/2000/00-949">Bush v. Gore</a>, the infamous Supreme Court case that decided the contested 2000 presidential election. </p>
<p>But this race is not likely to be decided by the Supreme Court. </p>
<p>There are several reasons, sitting at the intersection of law and politics, why the ghosts of Florida past won’t rise again in Pennsylvania. As a <a href="https://www.memphis.edu/law/faculty-staff/steve-mulroy.php%20%20and%20election%20law%20scholar%20https://www.ssrn.com/index.cfm/en/">law professor</a> who authored a <a href="https://www.e-elgar.com/shop/usd/rethinking-us-election-law-9781839106699.html">book on election reform</a>, I rate success in Trump’s efforts to wrench back Biden’s lead through litigation as a real long shot, though not out of the question.</p>
<h2>Equal protection</h2>
<p>Trump’s latest Pennsylvania lawsuit draws on the “equal protection” argument cited in <a href="https://www.oyez.org/cases/2000/00-949">Bush v. Gore</a>. </p>
<p>In the 2000 case, Democratic candidate Al Gore challenged Florida’s first machine-generated vote count when thousands of voters had problems marking their punch card ballots. The Florida Supreme Court allowed a statewide recount to ensure that all legal votes were counted. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People look closely at a Florida ballot in 2000" src="https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367793/original/file-20201105-21-101lvr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Election officials review a ballot with observing attorneys in Florida, Nov. 22, 2000.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/FLORIDARECOUNT/ba3f4b629c8b4db38afa38c5a11c4bb2/photo">AP Photo/Victor Caivano</a></span>
</figcaption>
</figure>
<p>But the standards for counting the infamous “hanging chads” – incomplete marks on those punch card ballots – varied from county to county. The U.S. Supreme Court held that this lack of uniformity violated the Equal Protection Clause of the Constitution, which <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1907909">guarantees equal weight for votes</a>. The court shut down the recount and declared Bush, the Republican candidate, the winner in Florida – and therefore of the 2000 election. </p>
<p>Republicans are trying a similar play in Pennsylvania with a legal claim <a href="https://assets.documentcloud.org/documents/7281321/11-3-20-Barnett-v-Lawrence-Complaint.pdf">filed on Election Day</a>. </p>
<p>In some Pennsylvania counties, election officials were contacting voters whose mail-in ballots were <a href="https://theconversation.com/in-two-political-battlegrounds-thousands-of-mail-in-ballots-are-on-the-verge-of-being-rejected-148616">disqualified for technical reasons</a> to confirm their signature or fill in missing identifying information, validating their ballot so it will count. Since only some Pennsylvania counties were doing this “ballot curing” process, the Trump camp argues, the state’s lack of uniformity <a href="https://asu.pure.elsevier.com/en/publications/equal-protection-after-bush-v-gore">violates the Equal Protection Clause</a>. </p>
<p>No matter what the lower courts rule, the plaintiffs will likely take this case, which makes a federal constitutional claim, to the Supreme Court. </p>
<p>The court might decline to take it for any number of reasons. One is that in Bush v. Gore, the justices actually cautioned that their decision was unique to Florida’s 2000 vote count and should <a href="https://www.law.cornell.edu/supct/html/00-949.ZPC.html">not be given much weight as precedent</a>.</p>
<h2>State legislatures</h2>
<p>Trump’s other Pennsylvania legal challenge, which was <a href="https://www.scotusblog.com/2020/10/pennsylvania-republicans-return-to-supreme-court-to-challenge-extended-deadline-for-mail-in-ballots/">filed in state court back in September</a>, is also rooted in Bush v. Gore. It invokes an often overlooked concurring opinion in that case, which advanced an alternate theory for handing Bush a win. </p>
<p>The opinion, written by Chief Justice William Rehnquist as a supplement to the majority decision, is rooted in the “plenary authority” of state legislatures to <a href="https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol35/iss4/1/">allocate Electoral College votes</a>. Under <a href="https://constitutioncenter.org/interactive-constitution/article/article-ii">Article II of the Constitution</a>, state legislatures have total power to decide how their Electoral College votes should be awarded – they don’t even have to hold a presidential election if they don’t want to. Whatever their process, Rehnquist wrote, <a href="https://supreme.justia.com/cases/federal/us/146/1/">it should be respected</a>; no court, state or federal, should disturb it. </p>
<p>That “plenary authority” is not controversial. But Rehnquist’s concurrence is. In it, he argued that by ordering an emergency recount whose timing and deadlines deviated from the legislatively provided election rules, Florida’s Supreme Court was usurping the Florida legislature’s plenary authority. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A courtroom scene from 2000" src="https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=379&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=379&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=379&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=476&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=476&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367790/original/file-20201105-24-173zzli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=476&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A witness testifies in one of the Florida cases that led to the U.S. Supreme Court’s Bush v. Gore ruling in 2000.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/john-ahman-a-witness-called-by-the-bush-campaign-answers-news-photo/51972394">Craig Litten/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>This “Article II theory” is considered rather fringe – but Republicans are advancing it in Pennsylvania. </p>
<p>In September, the Pennsylvania courts agreed with the Democratic Party that due to COVID-19-related concerns, mail-in ballots received up to three days after the election <a href="https://apnews.com/article/election-2020-pennsylvania-lawsuits-elections-philadelphia-0f0e6f48361df96d2d74d68ac6838709">could still be counted</a>, even if the post office neglected to affix a legible postmark. In October, the state’s Supreme Court then <a href="https://www.nytimes.com/2020/10/28/us/supreme-court-pennsylvania-north-carolina-absentee-ballots.html">ordered an extension of the receipt deadline for absentee ballots</a>. The GOP challenged this extension in federal court, arguing that Pennsylvania’s Supreme Court was usurping the state legislature’s authority by extending the mail ballot deadline.</p>
<p>Upon appeal, the U.S. <a href="https://www.nytimes.com/2020/10/19/us/supreme-court-pennsylvania-voting.html">Supreme Court twice declined</a> to halt the counting of these late-arriving ballots in Pennsylvania. But it did order that the ballots in question <a href="https://www.nytimes.com/2020/10/28/us/supreme-court-pennsylvania-north-carolina-absentee-ballots.html">be segregated for a possible post-election challenge</a>. </p>
<p>It is generally accepted that federal judges should <a href="https://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-courts">defer to a state court’s interpretation of its own state law</a>. But in <a href="https://www.theindianalawyer.com/articles/supreme-court-issues-flurry-of-last-minute-election-orders">separate opinions written on behalf of four conservative justices</a>, Justices Brett Kavanaugh and Neil Gorsuch used Rhenquist’s opinion on Bush v. Gore to argue that state courts cannot usurp the role of state legislatures. </p>
<p>In effect, these four justices believe Pennsylvania’s top court had no grounds to extend the voting deadline. Should the Supreme Court hear this case again, Justice Amy Coney Barrett – the conservative jurist who <a href="https://www.bbc.com/news/election-us-2020-54700307">recently replaced the progressive Justice Ruth Bader Ginsburg</a> – could become the crucial fifth vote necessary to overturn the Pennsylvania decision.</p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p>
<h2>Court victory unlikely</h2>
<p>That ruling would invalidate all affected Pennsylvania votes, as well as votes anywhere else in the country where courts or administrators changed election rules to make them more flexible. That’s thousands upon thousands of votes, potentially enough to change the election’s outcome.</p>
<p>That outcome could be catastrophic for public confidence in both the Supreme Court and the American electoral process. </p>
<p>These lawsuits could theoretically stop the election from being <a href="https://theconversation.com/who-formally-declares-the-winner-of-the-us-presidential-election-145212">certified by the Electoral College per the normal procedure</a>. But more likely, if the suits had any traction, they would be resolved quickly to meet the Electoral College’s Dec. 12 deadline. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People in Pennsylvania process votes in 2020" src="https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367792/original/file-20201105-16-1d7wxyu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pennsylvania election workers process ballots, Nov. 4, 2020.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXElection2020PennsylvaniaVoteCounting/54d2d6155b234fd096c55f8c2a4f088b/photo">AP Photo/Matt Slocum</a></span>
</figcaption>
</figure>
<p>This scenario looks increasingly less likely. After winning Wisconsin and Michigan, Joe Biden has a number of credible paths to the necessary 270 Electoral College votes without Pennsylvania. If that happens, a Supreme Court ruling there wouldn’t change the outcome of the 2020 election – though it could set an important precedent for later elections.</p>
<p>If there is a Trump loss that doesn’t hinge on Pennsylvania, the Supreme Court may also decline to hear his case. As a rule, the court is reluctant to decide issues unless it has to. </p>
<p>More Trump legal challenges in North Carolina, <a href="https://www.ajc.com/news/georgia-judge-dismisses-trump-campaign-case-in-chatham-ballot-dispute/YKBA6IYQKBB4JCSQEIJBQQT6QI/">Georgia</a> and Michigan are involving the courts in this election. But this <a href="https://electionlawblog.org/?p=118179">litigation won’t be able to reverse a decisive, multi-state Electoral College win</a>.</p><img src="https://counter.theconversation.com/content/149538/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Mulroy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The GOP is hoping the ghosts of Florida past will tilt the race in Trump’s favor. But Joe Biden’s apparent electoral lead in numerous key states may insulate his win from such legal challenges.Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1469592020-10-14T12:29:13Z2020-10-14T12:29:13ZEpic miscalls and landslides unforeseen: The exceptional catalog of polling failure<figure><img src="https://images.theconversation.com/files/362805/original/file-20201011-21-tx638h.jpg?ixlib=rb-1.1.0&rect=57%2C57%2C4713%2C3650&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Wrong.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-harry-truman-holds-up-a-copy-of-the-chicago-daily-news-photo/143128720?adppopup=true">Underwood Archives/Getty Images</a></span></figcaption></figure><p>The question looms in nearly every U.S. presidential election, even in this year’s race: <a href="https://www.theweek.co.uk/108242/us-election-is-it-possible-polls-are-wrong">Could the polls be wrong</a>? If they are, they likely will err in unique fashion. The history of election polling says as much.</p>
<p>That history tells of no greater polling surprise than what happened in 1948, when President Harry <a href="https://thehill.com/opinion/white-house/509107-when-youre-leading-dont-talk-the-hazards-of-glide-path-campaigning">Truman defied the polls</a>, the pundits and the press to defeat Thomas E. Dewey, his heavily favored Republican foe.</p>
<p>Pollsters were certain Truman had no chance. One of them, Elmo Roper, was so confident of Dewey’s victory that he announced two months before the election he would release no further survey data unless a political miracle intervened. </p>
<p>Rival pollsters George Gallup and Archibald Crossley largely completed their poll-taking by mid-October – and missed a decisive shift in support to Truman in the campaign’s closing days.</p>
<p>As I point out in my latest book, “<a href="https://www.degruyter.com/california/view/title/592278">Lost in a Gallup: Polling Failure in U.S. Presidential Elections</a>,” the <a href="https://www.deseret.com/1998/5/18/19380713/pollsters-still-learning-from-1948-debacle">misfire of 1948 was exceptional</a>. And that describes most polling failures in presidential elections: They tend to be exceptional, unlike previous polling errors. </p>
<figure class="align-center ">
<img alt="Candidates Harry Truman and Thomas Dewey in a cartoon featuring many predictions of Dewey's win." src="https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=576&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=576&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=576&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=723&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=723&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362809/original/file-20201011-13-c5wala.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=723&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A cartoon published two weeks before the 1948 election, in which Dewey was projected to win by a large margin.</span>
<span class="attribution"><a class="source" href="https://catalog.archives.gov/id/306150">Clifford Kennedy Berryman, Artist/National Archives, Records of the U.S. Senate, 1789 - 2015</a></span>
</figcaption>
</figure>
<h2>No pattern</h2>
<p>When the polls go wrong, they almost always do so in some unanticipated way. Errors spring from no single template.</p>
<p>This variety helps explain why polling failure is so unpredictable and so jarring. The epic miscall of 1948 has never been duplicated in U.S. presidential elections – although the shock of Truman’s victory may have been <a href="https://www.nytimes.com/interactive/projects/cp/opinion/election-night-2016/trump-repeats-truman-not-quite">rivaled by the profound surprise</a> that accompanied Donald Trump’s win in 2016.</p>
<p>Trump’s victory represented polling failure of another kind: Polls in 2016 were not so much in error nationally as they were in <a href="https://www.nytimes.com/2017/05/31/upshot/a-2016-review-why-key-state-polls-were-wrong-about-trump.html">states</a> such as Wisconsin, Pennsylvania and Michigan. </p>
<p>If Hillary Clinton had carried those states, as polls had indicated, she would have won the electoral votes to become president. But errors in state-level polls upset national expectations, in part because those polls tended to include too few <a href="https://www.politico.com/news/2020/09/21/trump-white-voters-support-418420">white voters without college degrees, a key Trump constituency</a> in 2016 and <a href="https://www.nytimes.com/2020/10/11/us/politics/trump-white-base-pennsylvania.html?action=click&module=Top%20Stories&pgtype=Homepage">this year</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Hillary Clinton on election night 2016." src="https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362806/original/file-20201011-17-qn2ala.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Hillary Clinton’s loss to Donald Trump in 2016 was unexpected and reflected that polls in 2016 were not so much in error nationally as they were in key states.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-democratic-us-presidential-candidate-hillary-clinton-news-photo/621959828?adppopup=true">Brendan Smialowski / AFP/Getty Images</a></span>
</figcaption>
</figure>
<p>Voters changing or making up their minds late in the campaign led in 1980 to another type of polling failure – the unforeseen landslide. Polls that year mostly signaled a close race between President Jimmy Carter and Ronald Reagan. At campaign’s end, the race seemed <a href="https://swampland.time.com/2012/10/31/remembering-1980-are-the-polls-missing-something/">too close to call</a>. </p>
<p>Reagan won by nearly 10 percentage points. </p>
<h2>Failure has different faces</h2>
<p>Election polling is vulnerable to last-minute developments. </p>
<p>For logistical reasons, poll-taking may not be able to catch up with late-breaking revelations that disrupt the public’s perception of a campaign’s dynamic, such as the disclosures before the 2000 election about George W. Bush’s <a href="https://www.nytimes.com/2000/11/03/us/2000-campaign-driving-offense-bush-acknowledges-arrest-for-drunken-driving-1976.html">drunken-driving conviction</a>. </p>
<p>In 1976, Bush was arrested in Maine and pleaded guilty to a DUI violation that he had never publicly revealed. A young television reporter in Maine pursued a <a href="https://www.cnn.com/ALLPOLITICS/time/2000/11/13/ride.html">tip</a> in 2000 and reported the details five days before the election. </p>
<p>As the 2000 campaign closed, most polls signaled Bush was ahead by a few percentage points. </p>
<p>In the end, Democrat Al Gore won the popular vote <a href="https://www.britannica.com/event/United-States-presidential-election-of-2000">but lost the Electoral College</a> in the disputed outcome of voting in Florida. Disclosures about Bush’s DUI conviction may have been enough to <a href="https://www.washingtonpost.com/outlook/2020/09/23/bush-gore-electoral-polls/">cost him a popular-vote victory</a>.</p>
<p>The 2000 outcome represented another variety of polling failure – pointing to the wrong winner in a close race. </p>
<p>It’s a class of failure that emerged 40 years earlier, in the election between John F. Kennedy and Richard M. Nixon. <a href="https://www.nytimes.com/1971/05/01/archives/elmo-roper-pollster-is-dead-predicted-36-roosevelt-victory-adapted.html">Roper’s</a> final pre-election poll suggested a two-point win for Nixon. </p>
<p>As I note in “Lost in a Gallup,” after Kennedy’s razor-thin victory had become clear, Roper’s son and business partner, Burns, sent a memorandum to the company’s staff, declaring: “I’m not about to take any malarkey about having ‘picked the wrong man.’”</p>
<p>But that’s what the Roper poll had done. It pointed to the wrong winner.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Candidates Richard Nixon and John F. Kennedy in a televised debate." src="https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=443&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=443&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=443&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=557&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=557&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362807/original/file-20201011-15-9girdx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=557&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In the 1960 presidential race, pollster Elmo Roper estimated that Richard Nixon, left, would win narrowly over John F. Kennedy. He was wrong.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-vice-president-richard-nixon-and-democratic-news-photo/3231919?adppopup=true">Hulton Archive/Getty Images</a></span>
</figcaption>
</figure>
<h2>Recalling the 1936 debacle</h2>
<p>Another type of polling failure is that of the venerable pollster who is <a href="https://www.cambridge.org/core/journals/social-science-history/article/president-landon-and-the-1936-literary-digest-poll/E360C38884D77AA8D71555E7AB6B822C">singularly and astonishingly in error</a> – as was the Literary Digest in its infamous mail-in survey of 1936. </p>
<p>The Digest was a weekly magazine whose massive mail-in polls had identified the winner in each of the three presidential elections since 1924. Some newspapers acclaimed the Digest’s mass-polling technique for its “uncanny” accuracy.</p>
<p>In 1936, the Digest employed the same methodology that had served it so well. After sending 10 million postcard ballots and tabulating the 2.3 million returned from around the country, the Digest reported that Republican Alf <a href="https://apnews.com/article/61180650de91bba046babcd198c0449f">Landon</a> was bound for a comfortable victory over President Franklin D. Roosevelt. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>Landon ended up carrying two states – Maine and Vermont – and lost the popular vote by 24 percentage points. Roosevelt’s victory was one of the most lopsided in presidential election history. </p>
<p>That also was the year <a href="https://ropercenter.cornell.edu/pioneers-polling/george-gallup">Gallup</a>, Crossley and Elmo Roper initiated their election polls, which relied on smaller samples than the Digest. With varying degrees of accuracy, all three newcomers in 1936 signaled Roosevelt’s victory.</p>
<p>The Digest’s debacle offers an enduring reminder that the roots of polling failure run deep. The stunning miscall occurred at the dawn of modern survey research and introduced a nagging sense about polling’s potential to mislead. </p>
<p>After all, if the great election oracle of its time could err so spectacularly, why would other polls be immune to failure?</p>
<p>The answer: They weren’t, and aren’t, immune.</p><img src="https://counter.theconversation.com/content/146959/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>W. Joseph Campbell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Presidential pollsters in the US have had some embarrassing failures. Here’s a catalog of those miscalls, from the scholar who literally wrote the book on them.W. Joseph Campbell, Professor of Communication Studies, American University School of CommunicationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1364582020-04-17T12:14:40Z2020-04-17T12:14:40ZSome states more ready for mail-in voting than others<figure><img src="https://images.theconversation.com/files/328201/original/file-20200415-153313-qih67k.jpg?ixlib=rb-1.1.0&rect=6%2C0%2C4486%2C2997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Wisconsin voters had to wait in line in April, wearing masks, because they could not vote by mail. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/residents-wait-in-long-line-to-vote-in-a-presidential-news-photo/1209366759">Kamil Krzaczynski/AFP via Getty Images</a></span></figcaption></figure><p>When Wisconsin voters and officials sought to adapt the state’s spring elections to <a href="https://theconversation.com/how-to-protect-elections-amid-the-coronavirus-pandemic-134761">better observe social distancing</a> guidelines, the <a href="https://theconversation.com/why-the-supreme-court-made-wisconsin-vote-during-the-coronavirus-crisis-136102">U.S. Supreme Court refused</a>. One of the changes state officials had asked for was extra time so voters could <a href="https://www.washingtonpost.com/politics/long-lines-form-in-milwaukee-as-wisconsin-proceeds-with-elections-under-court-order/2020/04/07/93727b34-78c7-11ea-b6ff-597f170df8f8_story.html">cast their ballots by mail</a>. </p>
<p>The <a href="https://www.theatlantic.com/family/archive/2020/03/coronavirus-social-distancing-over-back-to-normal/608752/">coronavirus outbreak</a> is set to <a href="https://www.nbcnews.com/politics/2020-election/coronavirus-has-ignited-battle-over-voting-my-mail-here-s-n1178531">last for months</a> or <a href="https://abcnews.go.com/Health/coronavirus-updates-social-distancing-measures-2022-researchers/story?id=70156893">even years</a>. What will that mean for the <a href="https://sos.tn.gov/products/elections/2020-election-calendar">elections</a> – including the presidential one in November – that are on the way? </p>
<p>Calls have come <a href="https://thehill.com/homenews/campaign/492846-historic-shifts-seen-in-support-for-mail-in-voting">from many quarters</a>, both <a href="https://www.npr.org/sections/coronavirus-live-updates/2020/04/07/829320440/sen-elizabeth-warren-calls-for-national-voting-overhaul">Democratic</a> and <a href="https://www.washingtonpost.com/politics/gop-pushes-voting-by-mail--with-restrictions--as-trump-attacks-it-as-corrupt/2020/04/12/526057a4-7bf8-11ea-a130-df573469f094_story.html">Republican</a>, to let <a href="https://www.nytimes.com/2020/03/12/opinion/coronavirus-election-vote-mail.html">all Americans vote by mail</a>.</p>
<p>The Constitution gives the states the <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-4/clause-1">primary responsibility for running elections</a>. Some states are more ready for mail-in voting than others – though <a href="https://theconversation.com/how-to-protect-elections-amid-the-coronavirus-pandemic-134761">congressional action</a> could resolve the matter nationwide.</p>
<p><iframe id="BeCSx" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/BeCSx/7/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>5 states are already there; many more are close</h2>
<p>Colorado, Hawaii, Oregon, Washington and Utah already have full <a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">“vote-by-mail” systems</a>. In the weeks before an election, election officials mail a ballot to every registered voter. Voters can choose to vote in person if they wish, but the vast majority vote remotely by either mailing in or dropping off their ballots.</p>
<p><a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">Three states</a> – California, Nebraska and North Dakota – let individual counties set up vote-by-mail systems, but have not adopted that approach statewide.</p>
<p>And <a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">28 states and the District of Columbia</a> allow what is called “no-excuse absentee voting.”</p>
<p>Under this rule, any registered voter can request an absentee ballot be mailed to them ahead of Election Day. Most states allow voters to <a href="https://www.usvotefoundation.org/vote/voter-registration-absentee-voting.htm">apply for them online</a> or by mail. </p>
<p>Voters receive the ballots by mail, along with a self-addressed, pre-stamped return envelope. They then fill out the ballot and mail it back, or drop it off, to election officials, who then tally the ballots as if they had been cast in person.</p>
<p>None of these places would need to change their laws so that every voter could cast a ballot by mail in November. </p>
<p>But in Washington, D.C., and the 28 “no-excuse” states where voters have to apply for absentee ballots, <a href="https://www.brennancenter.org/our-work/policy-solutions/how-protect-2020-vote-coronavirus">election officials would have to prepare</a> to handle a much <a href="https://www.heraldandnews.com/ap_news/mail-in-absentee-ballot-applications-surge-for-june-primary/image_cebf9273-2af6-53a8-8e01-3ea571946cb9.html">larger number</a> of <a href="https://www.wtoc.com/2020/04/01/ga-sec-state-mails-out-millions-absentee-ballot-applications/">applications</a> – and to process the ballots once they’re sent back. </p>
<p>This would likely mean purchasing more blank ballots and envelopes, as well as buying or relocating vote-counting equipment, and assigning more staff to handle the paperwork involved.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/328202/original/file-20200415-153357-1kr2jkv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An election worker in Washington sorts mailed-in ballots in the state’s March primary election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-election-workers-sorts-vote-by-mail-ballots-for-the-news-photo/1206477809">Jason Redmond/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Some states have strict rules</h2>
<p>There are <a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">17 states</a> that restrict who can get an absentee ballot. They typically require voters to sign a statement certifying that they are ill or elderly, will be out of town, or will otherwise be unable to cast a ballot in person.</p>
<p>At least nine of those states – <a href="https://www.montgomeryadvertiser.com/story/news/2020/03/27/coronavirus-expanded-absentee-ballot-options-could-considered-legislature/2922898001/">Alabama</a>, <a href="https://elections.delaware.gov/services/voter/absentee/index.shtml">Delaware</a>, <a href="https://my.lwv.org/indiana/south-bend-area/article/primary-election-moved-june-2-absentee-vote-mail-rules-relaxed">Indiana</a>, <a href="https://www.sos.la.gov/ElectionsAndVoting/Vote/VoteByMail/Pages/default.aspx">Louisiana</a>, <a href="https://www.bostonglobe.com/2020/03/31/metro/voting-by-mail-new-england-coronavirus-could-lead-biggest-changes-way-americans-vote-more-than-half-century/">Massachusetts</a>, <a href="https://nymag.com/intelligencer/2020/04/in-nh-covid-ruled-a-disability-justifying-voting-by-mail.html">New Hampshire</a>, <a href="https://www.wsj.com/articles/new-yorkers-can-vote-by-absentee-ballot-because-of-coronavirus-11586385420">New York</a>, <a href="https://www.13newsnow.com/article/news/local/virginia/gov-northam-signs-legislation-that-repeals-virginia-vote-id-law-makes-election-day-state-holiday/291-1c4ef0d1-1578-4646-b7b9-93350c29315a">Virginia</a> and <a href="https://www.whsv.com/content/news/West-Virginia-launches-plan-to-send-absentee-ballot-applications-to-all-voters-569129731.html">West Virginia</a> – have already loosened their rules to accommodate the public desire to follow social distancing recommendations, at least for upcoming state, local and primary elections. It is not yet clear whether those eased restrictions will continue to apply for the November election.</p>
<p>The other eight states in this group could loosen their rules too, by an order <a href="https://www.ncsl.org/research/elections-and-campaigns/election-emergencies.aspx">from the governor</a> or the <a href="https://www.nass.org/resources/issue-briefing-election-emergencies-covid-19">state’s top election official</a>, or through a legislative change, depending on their situations. A Texas court has recently <a href="https://www.npr.org/sections/coronavirus-live-updates/2020/04/15/835515753/texas-judge-set-to-order-state-to-allow-all-voters-to-request-mail-in-ballots">ordered such a change in that state</a>, though the state’s Republican attorney general has <a href="https://www.salon.com/2020/04/17/judge-lets-texans-cast-absentee-ballots---but-ag-threatens-felony-charges/">said he will appeal</a>.</p>
<p>However, most states have <a href="https://www.ncsl.org/research/about-state-legislatures/legislative-sessions-and-the-coronavirus">suspended their legislative sessions</a> in the face of the outbreak. They might need to reassemble or devise a means for <a href="https://theintercept.com/2020/03/19/coronavirus-state-legislators-remote-voting/">passing legislation remotely</a> to make those changes.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/328203/original/file-20200415-153347-1q4il6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Nebraska voter puts his ballot in a drop box at a government election office in April. Some states let voters drop off their ballots, in addition to mailing them in.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Nebraska/9d7f47e81b6e4c7da942aefe017c22e0/1/0">AP Photo/Nati Harnik</a></span>
</figcaption>
</figure>
<h2>A national plan?</h2>
<p>Despite all these state differences, it is possible that the coronavirus pandemic will prompt Congress to create a set of rules that apply nationwide. Congress has done this in the past regarding the <a href="https://www.law.cornell.edu/uscode/text/2/7">scheduling of federal elections</a>, <a href="https://www.justice.gov/crt/about-national-voter-registration-act">voter registration rules</a> and other aspects of <a href="https://www.eac.gov/about_the_eac/help_america_vote_act.aspx">election processes</a>. </p>
<p>That’s because Congress has the <a href="https://www.usconstitution.net/xconst_A1Sec4.html">constitutional authority</a> to impose its own regulations for the conduct of federal elections. Members of Congress have already been <a href="https://thehill.com/homenews/campaign/491862-pandemic-sparks-partisan-brawl-over-voting-by-mail">discussing legislation</a> that would require all states to allow vote-from-home solutions for this November’s federal elections. </p>
<p>One such <a href="https://www.klobuchar.senate.gov/public/_cache/files/0/0/00bfcd4c-8bff-4e40-8082-9c509e6bf168/C874798F600EED86B58DED75D3FE5875.naturaldisasterandeba.pdf">bill</a>, introduced by Democratic Sens. Amy Klobuchar and Ron Wyden, would require every state to allow no-excuse absentee balloting by mail for federal elections. </p>
<p>Although a Democratic bill, vote-by-mail has <a href="https://www.inquirer.com/news/mail-in-election-voting-rights-pennsylvania-primary-2020-election-trump-20200413.html">support among</a> <a href="https://www.npr.org/2020/04/11/831978099/even-as-trump-denounces-vote-by-mail-gop-in-florida-and-elsewhere-relies-on-it">Republicans too</a>, and is in use <a href="https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx">in red states</a> as well as blue ones. Despite claims to the contrary by some, there is no evidence that vote by mail would <a href="https://thehill.com/homenews/campaign/493133-study-finds-universal-vote-by-mail-doesnt-provide-advantage-to-either-gop">substantially favor either political party</a>. </p>
<p>Federal laws would not require states to conduct state or local elections by mail, but most states would likely follow suit because it would be much easier to conduct the concurrent state and local elections by the same processes. That would allow more people to decide for themselves how to best protect their health, while also participating in the most fundamental part of a democracy – an election.</p>
<p>[<em>Get facts about coronavirus and the latest research.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-facts">Sign up for The Conversation’s newsletter.</a>]</p><img src="https://counter.theconversation.com/content/136458/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Mulroy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In many states, any voter can ask for an absentee ballot and mail it in – but in others, there are stricter rules about who can vote by mail.Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1361022020-04-14T12:22:52Z2020-04-14T12:22:52ZWhy the Supreme Court made Wisconsin vote during the coronavirus crisis<figure><img src="https://images.theconversation.com/files/327487/original/file-20200413-77375-1owghk3.jpg?ixlib=rb-1.1.0&rect=127%2C42%2C5520%2C3717&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Milwaukee voters wait in a social-distancing line, some wearing masks, before voting in the state's spring elections on April 7.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Wisconsin-Election/ec01e1ad3c9c4435bdeef689d09d0c65/3/0">AP Photo/Morry Gash</a></span></figcaption></figure><p>When Wisconsin voters had to brave the coronavirus pandemic <a href="https://www.washingtonpost.com/politics/long-lines-form-in-milwaukee-as-wisconsin-proceeds-with-elections-under-court-order/2020/04/07/93727b34-78c7-11ea-b6ff-597f170df8f8_story.html">to vote in their state’s April 7 election</a>, it was the latest phase of a nearly 60-year legal and political fight over who can vote in the U.S.</p>
<p><a href="https://nymag.com/intelligencer/2020/04/after-a-disturbing-election-day-now-what-in-wisconsin.html">Wearing masks and gloves</a>, Wisconsin residents who <a href="https://www.politico.com/news/magazine/2020/04/09/wisconsin-supreme-court-partisan-battleground-176292">voted in person</a> were met by election officials in similar attire. That was new. </p>
<p>But it wasn’t new that voters found hundreds of polling places closed and therefore had to wait in line for hours.</p>
<p>A U.S. Supreme Court decision just the day before had ordered Wisconsin to <a href="https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf">hold its in-person election without delay</a>, not allowing extra time for voters to cast their ballots by mail. Critics called the decision one of “<a href="https://www.nytimes.com/2020/04/09/opinion/wisconsin-primary-supreme-court.html">raw partisanship</a>,” “<a href="https://www.theatlantic.com/ideas/archive/2020/04/supreme-courts-hypocrisy-going-get-americans-killed/609598/">an ominous harbinger</a> for what the Court might allow in November in the general election” – and even a “<a href="https://www.nytimes.com/2020/04/10/opinion/sunday/wisconsin-primary-2020-election.html">death threat</a>” aimed at voters.</p>
<p>As someone who <a href="https://openscholarship.wustl.edu/law_lawreview/vol1971/iss2/2/">has long studied</a> the complex intersections of law and politics, I saw the ruling as the latest episode in the fight over the franchise and one of a series of decisions under Chief Justice John Roberts that have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1328654">rejected efforts</a> to protect or extend voting rights.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327492/original/file-20200413-156005-cj7no6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Warren court from 1958 to 1962. Standing, from left: Justices Charles E. Whittaker, John M. Harlan, William J. Brennan, Jr., Potter Stewart. Seated, from left, Justices William O. Douglas and Hugo L. Black, Chief Justice Earl Warren, and Justices Felix Frankfurter and Tom C. Clark.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:US_Supreme_Court_1958-62.jpg">Supreme Court of the United States/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>The Warren court and the vote</h2>
<p>In 1886, the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/118/356/#tab-opinion-1911262">recognized</a> that voting is “a fundamental political right, because [it is] preservative of all rights.” So long as people can vote, the justices reasoned, they could fix any problems democracy might encounter.</p>
<p>Starting in 1962, the court, under Chief Justice Earl Warren, responded to suits brought by civil rights groups by issuing a <a href="https://www.jstor.org/stable/3108678">series of rulings</a> based on that 1886 principle. The decisions effectively declared that <a href="https://scholarship.law.unc.edu/nclr/vol80/iss4/6/">federal courts would ensure that everyone’s vote counted equally</a> and that barriers to voting would be removed wherever possible.</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/369/186/#tab-opinion-1943624">Baker v. Carr</a>, decided in 1962, the Supreme Court held that judges could review the process of drawing boundaries for legislative districts, and that the 14th Amendment’s guarantee of equal protection of the law required those districts to be roughly equal in population.</p>
<p>Two years later, the Warren court <a href="https://www.oyez.org/cases/1963/23">extended this understanding</a> of the 14th Amendment and decided that state legislative districts must guarantee “one person, one vote.” For an 8-1 majority, Chief Justice Warren wrote that because the right to vote was the “bedrock of our political system … any alleged infringement of [it] … must be carefully and meticulously scrutinized.”</p>
<p>In 1966, the court held 6-3 that states <a href="https://supreme.justia.com/cases/federal/us/383/663/#tab-opinion-1945992">could not require voters in state elections to pay a tax</a> before voting. That ruling solidified the court’s role in protecting voters’ free access to cast their ballots. Justice William Douglas wrote for the majority that the right to vote was “too precious, too fundamental to be so burdened or conditioned.”</p>
<p>While the <a href="https://www.press.umich.edu/2204912/representation_rights_and_the_burger_years">Burger</a> and <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3360&context=flr">Rehnquist</a> courts pulled back in some areas of voting rights and were less aggressive in other voting rights cases than the Warren court, they did not aggressively dismantle its legacy – that is, until <a href="https://supreme.justia.com/cases/federal/us/531/98/#tab-opinion-1960860">Bush v. Gore</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327494/original/file-20200413-141875-7vz9qp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supporters of George W. Bush and Al Gore protest outside the Supreme Court building in December 2000.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:56.ElectionProtest.USSC.WDC.11December2000_(21752049743).jpg">Elvert Barnes</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Bush v. Gore and voting rights</h2>
<p>The Supreme Court’s commitment to policing the electoral process in the name of equality and inclusion was shattered when, on Dec. 12, 2000, it <a href="https://supreme.justia.com/cases/federal/us/531/98/#tab-opinion-1960860">stopped a recount</a> in Florida’s closely contested presidential election, ensuring that George W. Bush would become president of the United States.</p>
<p>That 5-4 decision, nearly five years before Bush appointed Roberts to the court, launched an era of <a href="https://ssrn.com/abstract=2772570">bitter partisan division</a> in voting-rights cases that the conservative-majority Roberts court has continued.</p>
<p>In 2008, for instance, the court, dividing 6-3, upheld an Indiana law requiring <a href="https://supreme.justia.com/cases/federal/us/553/181/#tab-opinion-1962669">people to present government-issued identification</a> before being allowed to vote. Despite the <a href="https://www.wired.com/story/voter-id-law-algorithm/">disproportionate burden</a> that law placed on minorities and the poor, who are least likely to have such identification, the justices found it to be a legitimate way for the state to prevent voter fraud.</p>
<p>Five years later, <a href="https://supreme.justia.com/cases/federal/us/570/529/#tab-opinion-1970752">by a 5-4 vote</a>, the Roberts court ended the 1965 Voting Rights Act’s requirement that states with a history of discrimination against minority groups <a href="https://www.justice.gov/crt/about-section-5-voting-rights-act">must get federal approval</a> before changing any voting laws. Roberts himself wrote the majority ruling that the requirement was no longer necessary and it represented an “unconstitutional violation of the power of states to regulate elections.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=472&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=472&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=472&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=593&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=593&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327490/original/file-20200413-149810-1sqlfjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=593&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Roberts court, from 2018. Seated, from left: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court_of_the_United_States_-_Roberts_Court_2018.jpg">Fred Schilling, Supreme Court of the United States/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>The Roberts court’s assault continues</h2>
<p>In 2017, there was a brief break in the Roberts court’s predictable ideological rulings in voting rights and election cases. In an unusual alignment, Justice Thomas joined the four liberal justices to strike down <a href="https://supreme.justia.com/cases/federal/us/581/15-1262/#tab-opinion-37363">a North Carolina law that allowed racist gerrymandering</a>.</p>
<p>But a year later, in yet another 5-4 ruling, the court <a href="https://supreme.justia.com/cases/federal/us/584/16-980/#tab-opinion-3913484">allowed states to purge residents</a> from the voting rolls for, among other things, failing to vote for two years. Ohio claimed it used that failure as a rough way of identifying voters who may have moved and tried to get them to verify their residence by mailing them a postcard. Yet <a href="https://www.nytimes.com/2019/10/14/us/politics/ohio-voter-purge.html">the effect of the law</a> was that many people who showed up to vote for a subsequent election would be prevented from actually voting.</p>
<p>And in 2019, the court again split 5-4, holding that <a href="https://supreme.justia.com/cases/federal/us/588/18-422/#tab-opinion-4114539">courts should stay out of cases</a> alleging that redistricting maps were drawn to favor one political party at another’s expense. The court concluded that while the practice of partisan gerrymandering may be distasteful, it is a political problem, not a legal one.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/327491/original/file-20200413-141875-njkst5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Milwaukee high school gym was converted into a polling place on April 7, with voting booths set apart from each other and election workers wearing masks and gloves.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Wisconsin-Election/6c483b43729a44b0b7a59fb80b68d388/9/0">AP Photo/Morry Gash</a></span>
</figcaption>
</figure>
<h2>The future of voting rights</h2>
<p>That set the stage for the Wisconsin situation, in which the Democratic governor, the Republican-dominated state legislature, the state Supreme Court and a federal district court issued a <a href="https://www.nytimes.com/2020/04/07/us/politics/wisconsin-pandemic-primary-republicans.html">series of contradictory decisions and rulings</a> about whether the election could take place and voters could have extra time to submit absentee ballots.</p>
<p>The five U.S. Supreme Court justices <a href="https://newrepublic.com/article/156855/republican-party-took-supreme-court">appointed by Republican presidents</a> said the case only raised “a narrow, technical question about the absentee ballot process.” They invoked a view articulated by the Roberts court in 2006 that “lower federal courts should ordinarily <a href="https://supreme.justia.com/cases/federal/us/549/1/#tab-opinion-1962255">not alter the election rules</a> on the eve of an election,” even as the nation’s highest court did exactly that.</p>
<p>The court’s liberal justices objected. Led by Justice Ruth Bader Ginsburg, they wrote that they viewed the case as about <a href="https://qz.com/1657742/ideological-alliances-and-divides-on-the-us-supreme-court-charted/">much more than a small technicality</a>, but rather “a matter of utmost importance – to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.” Ginsburg’s dissent warned that “the court’s decision risks that tens of thousands of voters will be disenfranchised.”</p>
<p>That decision sent what I believe to be a clear message to Americans: Don’t turn to the Supreme Court to protect your right to vote, even in the case of a genuine emergency. If the coronavirus crisis was not enough to overcome partisan divisions among the justices about something as fundamental as voting, it is hard to imagine what will. </p>
<p>Americans wanting to protect voting rights face a dilemma. With a federal judiciary no longer willing to protect Americans’ right to vote, it is left to the people themselves to do so by voting for candidates who pledge to protect the franchise. But they may <a href="https://www.yalelawjournal.org/forum/vote-dissociation">have a hard time accomplishing this when elections</a> are made less equal and less inclusive by the Roberts court’s decisions.</p>
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<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court under Chief Justice John Roberts has reversed its decadeslong practice of protecting voters’ rights and removing barriers to casting ballots.Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1286172020-01-13T13:55:04Z2020-01-13T13:55:04ZWhat US election officials could learn from Australia about boosting voter turnout<figure><img src="https://images.theconversation.com/files/308146/original/file-20191220-11939-13wjgmy.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5559%2C1878&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australian voters check in and cast their ballots in a September 2019 federal election.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/auselectoralcom/48801171148/">Australian Electoral Commission</a></span></figcaption></figure><p>Not every country is plagued by rules that limit voters’ participation in elections, as is common in the United States. </p>
<p>In the past five years, <a href="https://www.pbs.org/newshour/politics/house-passes-bill-to-restore-key-parts-of-voting-rights-act">restrictions on voting</a> and <a href="https://www.washingtonpost.com/nation/2019/12/17/georgia-purged-voters-its-rolls-its-second-state-make-cuts-less-than-week/">voter registration purges</a> have limited the number of Americans eligible to cast ballots.</p>
<p>In addition, the U.S. is the only major democracy that still allows politicians to draw their own district lines, an often-criticized <a href="http://www.lpbr.net/2019/03/rethinking-us-election-law-unskewing.html">conflict of interest</a> in which <a href="https://www.nytimes.com/2019/06/27/opinion/gerrymandering-supreme-court.html">public officials essentially pick their voters</a>, rather than the voters picking their officials. That <a href="https://www.theatlantic.com/politics/archive/2017/10/gerrymandering-technology-redmap-2020/543888/">computer-aided</a> <a href="https://www.brennancenter.org/our-work/research-reports/extreme-maps">gerrymandering of electoral districts</a> reduces the number of districts with competitive races, contributing to <a href="https://harvardpress.typepad.com/hup_publicity/2018/07/why-gerrymandering-matters-allan-lichtman.html">low voter turnout</a>. </p>
<p>Perhaps the fundamental problem, though, is that the system yields results the people don’t actually want. Twice in the last two decades, U.S. voters <a href="https://transition.fec.gov/pubrec/fe2000/prespop.htm">chose a president</a>, George W. Bush and Donald Trump, who got <a href="https://www.pewresearch.org/fact-tank/2016/12/20/why-electoral-college-landslides-are-easier-to-win-than-popular-vote-ones/">fewer votes than his rival</a>, Al Gore and Hillary Clinton.</p>
<p>All these problems are avoidable and don’t happen in countries that have different voting laws. Perhaps the best example is Australia, a country which is culturally, demographically and socioeconomically similar to the U.S. In my book “<a href="https://www.e-elgar.com/shop/rethinking-us-election-law">Rethinking U.S. Election Law</a>,” written while I lived and studied their system Down Under, I outline many of the ways Australia has solved voting quandaries that persist in the U.S.</p>
<h2>Mandatory voting, made easy</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=275&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=275&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=275&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=346&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=346&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308149/original/file-20191220-11919-1i3mlrm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=346&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Not voting in Australia? Prepare to part with this.</span>
<span class="attribution"><a class="source" href="https://banknotes.rba.gov.au/australias-banknotes/banknotes-in-circulation/twenty-dollar/">Screenshot from Royal Bank of Australia</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>Australia’s most strikingly different law requires voting. All Australians must <a href="https://www.aec.gov.au/enrol/">register to vote</a> and <a href="https://www.aec.gov.au/About_AEC/Publications/voting/index.htm">actually cast a ballot</a>. Not voting means a small fine (<a href="https://www.news.com.au/national/federal-election/federal-election-2019-what-happens-if-you-dont-vote/news-story/daa05114821daf73288bf0cd422755eb">AU$20</a>, or about US$14) will be imposed. </p>
<p>Australians don’t have to actually vote for a candidate: They can leave it blank, write in “none of the above” or even draw a picture – but they do have to turn in a ballot. As a result, Australia enjoys voter registration and turnout rates <a href="https://www.aec.gov.au/About_AEC/research/files/voter-turnout-2016.pdf">over 90%</a>. </p>
<p>Voting is <a href="https://www.aec.gov.au/Voting/ways_to_vote/">easier in Australia than in the U.S.</a>. All voters can cast their ballots by mail, vote in person ahead of Election Day or show up to the polls on Election Day itself – which is always on a Saturday, when most people are off from work.</p>
<h2>A different way of counting</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1270&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1270&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1270&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1596&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1596&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308150/original/file-20191220-11929-z4sfyq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1596&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Australian voters get to rank the candidates by order of preference.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:2016-ballot-paper-Higgins.png">Hshook/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Australia’s vote-counting rules are also different in important ways. </p>
<p>For its House elections, Australia uses what is called “<a href="https://www.aec.gov.au/learn/files/poster-counting-hor-pref-voting.pdf">preferential voting</a>,” a form of <a href="https://theconversation.com/maine-congressional-election-an-important-test-of-ranked-choice-voting-106960">ranked-choice voting</a>. </p>
<p>Voters are allowed to rank their candidates in order of preference – 1st, 2nd, 3rd and so on. If a candidate’s first-choice votes add up to a majority of the overall ballots cast, that candidate wins, just like in any other system.</p>
<p>If no one wins a majority of the votes cast, the candidate with the fewest first-choice votes is eliminated and their supporters’ votes are redistributed according to these voters’ second choices. This process of eliminating candidates and redistributing those candidates’ supporters continues until one candidate has a majority.</p>
<p><iframe id="Mq0VV" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/Mq0VV/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>This system eliminates what is at times called the “<a href="https://theintercept.com/2018/08/10/ohio-special-election-ranked-choice-voting/">spoiler</a>” problem in U.S. elections, where too many similar candidates split the majority’s vote, allowing a less-preferred candidate to win with a minority of the votes cast. For instance, in 2000, people could have voted for Ralph Nader while also showing that they would have preferred either of the other two candidates for president, Al Gore or George W. Bush.</p>
<h2>Independent redistricting</h2>
<p>Even with ranked-choice voting, any system where a single representative is elected for each district is vulnerable to gerrymandering. The lines can be drawn to give one party more seats than its mathematical vote share warrants. </p>
<p>To reduce that problem, Australia’s election districts are drawn by the <a href="https://www.aec.gov.au/">Australian Electoral Commission</a>, a politically independent commission of nonpartisan technical experts. </p>
<p>It’s well respected for being nonpartisan, with a good <a href="https://www.law.uci.edu/lawreview/vol3/no3/stephanopoulos.pdf">track record</a> of keeping politics out of the redistricting process. </p>
<p>But even the Australian Electoral Commission isn’t perfect. As I detail in <a href="https://www.e-elgar.com/shop/rethinking-us-election-law">my book</a>, <a href="http://www.thebigsort.com/home.php">like-minded people naturally cluster together</a> in communities. That creates what some scholars have called “<a href="http://dx.doi.org/10.1561/100.00012033">unintentional gerrymandering</a>.” In the U.S., for example, Democratic voters overconcentrated in urban areas are unavoidably consolidated into districts with large Democratic supermajorities. That partially explains why, until recently, <a href="https://apnews.com/18d9d490aec84141ab7de31e7fb6cc86/">Republicans controlled the Virginia state legislature</a> for years, even as Democrats won all the statewide and presidential elections.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308151/original/file-20191220-11924-1p9p0of.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This map of 2019 Australian presidential election results shows the shapes of electoral districts are fairly compact.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:2019_Australian_federal_election_-_Vote_Strength.svg">Erinthecute/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Proportional representation</h2>
<p>One way to fix the problem of gerrymandering – whether intentional or otherwise – is to move away from the concept of “winner-take-all” elections, in which 51% of the votes yields 100% of the power. In that system, significant minority voting blocs end up with no representation, leading to frustration and alienation. </p>
<p>For legislative elections, one potential solution could be <a href="http://aceproject.org/ace-en/topics/es/esd/esd02/default">proportional representation</a>, in which a party earning 30% of the vote receives approximately 30% of the seats available. Rather than “winner take all,” this is “majority takes most, and minorities take their fair share.”</p>
<p>Proportional representation systems don’t have single-member districts, like having one congressperson per congressional district. Rather, representatives are elected either at-large or in multi-member districts. With districting eliminated, gerrymandering becomes impossible. Australia uses this system for its Senate, using a different form of ranked-choice voting called the <a href="https://aceproject.org/main/english/es/esf04.htm">single transferable vote</a>. </p>
<p><iframe id="D0bST" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/D0bST/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Like the single-winner ranked-choice voting used in Australia’s House, if no candidate wins enough first-place votes to get a seat, weaker candidates are eliminated and their votes transferred to others based on second and third choices. But single transferable vote systems also reallocate what might be called “surplus” votes of winning candidates – extra votes beyond what candidates need to actually win – to ensure a more proportionate result.</p>
<p>Proportional representation allows third parties to thrive, giving voters more choices. Australia offers a natural experiment between methods: For the last half-century, Australian voters nationwide have chosen single-member House representatives and used proportional representation to elect its Senate.</p>
<p>The result is that the Green Party consistently gets about 10% of the national vote, but zero seats in the House. However, in the Senate it gets about 10% of the seats, giving it a voice in the legislative debate. The difference is the move from winner-take-all in the House to proportional representation in the Senate. In addition, major parties vie to get second-choice support from Green Party backers, so the Greens’ concerns have real influence over national policies.</p>
<p>All these ideas – voting by mail, early voting, Saturday voting, ranked-choice voting, an independent redistricting commission and proportional representation – make Australia’s democracy more inclusive and representative than in the U.S.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Mulroy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many of the problems the US has with its election processes and outcomes are avoidable and don’t happen in countries with different voting laws. Australia is a great example.Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1262962019-11-01T21:40:57Z2019-11-01T21:40:57ZMississippi governor’s race taking place under Jim Crow-era rules after judge refuses to block them<figure><img src="https://images.theconversation.com/files/299870/original/file-20191101-88378-15n5r7r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A lawsuit alleges that the way Mississippi will elect its governor on Tuesday is racist.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mississippi-Elections-Lawsuit/e9d74964a6ce469bbb033ed69d0eba4d/256/0">AP/Rogelio V. Solis</a></span></figcaption></figure><p>A federal judge ruled on Nov. 1 that he would not stop Mississippi voters from electing a governor on Tuesday under an old, Jim Crow-era election law that a <a href="https://assets.documentcloud.org/documents/6102478/Mississippi-Elections-Lawsuit.pdf">civil rights lawsuit</a> argues perpetuates “white supremacy” and violates the principle of “one-person, one-vote.” </p>
<p>U.S. District Judge Daniel Jordan <a href="https://static1.squarespace.com/static/5beeefdbf407b4c074e45ec6/t/5dbc5e0e74c31f282750e68a/1572625934211/Order.pdf">wrote that he had “grave concern”</a> about the unconstitutionality of part of the law. But with the election nearing on Nov. 5, he ruled that time was too short to issue an injunction altering the state’s voting scheme for statewide officers.</p>
<p>Under the state’s current law, a successful candidate for governor of Mississippi must win an outright majority of the popular vote – and a majority of the state’s 122 House districts. </p>
<p>If no candidate does both, the state House gets to select the next governor, <a href="https://ballotpedia.org/Article_V,_Mississippi_Constitution#Section_141">regardless of who got the most votes</a>. <a href="https://theconversation.com/no-african-american-has-won-statewide-office-in-mississippi-in-129-years-heres-why-118319">No African American has been elected statewide since 1890</a>.</p>
<h2>Similar laws once common</h2>
<p>Four African Americans filed a <a href="https://www.documentcloud.org/documents/6102478-Mississippi-Elections-Lawsuit.html">federal civil rights lawsuit</a> in May, asking the court to invalidate the law. Republican legislators in Mississippi defended the law, saying the plaintiffs provide “<a href="https://mississippitoday.org/2019/07/18/hosemann-gunn-say-racial-hostility-in-jim-crow-era-not-reason-to-throw-out-election-provision-today">nothing more than conjecture</a>” that they would be harmed by this election method.</p>
<p>Media coverage of the lawsuit has emphasized, as one story noted, that “no Mississippi candidate who won the most votes for a statewide office has been prevented from taking office because of the other <a href="https://www.apnews.com/3ad297610e314e4a863ebb521b98efd0">requirements</a>.”</p>
<p><a href="https://sites.northwestern.edu/gcohnpostar/">As a historian of 19th-century voting rights in the U.S.</a>, I believe this analysis ignores the history of anti-democratic gubernatorial election laws.</p>
<p>Mississippi now faces its <a href="https://www.washingtonpost.com/politics/paloma/the-trailer/2019/09/03/the-trailer-mississippi-has-a-surprisingly-competitive-gubernatorial-race/5d6d2a46602ff171a5d7338d/">first close gubernatorial election</a> since <a href="https://www.nytimes.com/1999/11/04/us/tight-governor-s-race-will-be-decided-by-mississippi-house-of-representatives.html">1999</a>. </p>
<p>Candidates are from three parties as well as one independent. <a href="https://ballotpedia.org/Attorney_General_of_Mississippi">State Attorney General</a> <a href="https://ballotpedia.org/Jim_Hood">Jim Hood</a>, a Democrat; <a href="https://ballotpedia.org/Lieutenant_Governor_of_Mississippi">Lt. Gov.</a> <a href="https://ballotpedia.org/Tate_Reeves">Tate Reeves</a>, a Republican; <a href="https://ballotpedia.org/Bob_Hickingbottom">Bob Hickingbottom</a>, Constitution Party; and independent <a href="https://ballotpedia.org/David_Singletary">David Singletary</a> are all competing in the election. </p>
<p>In the 19th century, many states had laws similar to Mississippi’s. They were intended to entrench the rule of the party in power.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/293410/original/file-20190920-135128-nduk7w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former U.S. Attorney General Eric Holder supported the filing of the Mississippi lawsuit, saying ‘count all the votes and the person who gets the greatest number of votes wins.’</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mississippi-Elections-Lawsuit/f36cd2804dfb40adbcd61a97a952ce5c/3/0">AP/Seth Wenig</a></span>
</figcaption>
</figure>
<h2>Disenfranchisement by law</h2>
<p>The gubernatorial election law dates to 1890, when it was drafted into Mississippi’s <a href="http://mshistorynow.mdah.state.ms.us/articles/103/index.php?s=extra&id=270">constitution</a> by a nearly <a href="http://mshistorynow.mdah.state.ms.us/articles/103/mississippi-constitution-of-1890">all-white convention</a>. </p>
<p>The Southern Democrats in charge of the convention were intent on <a href="https://www.pbs.org/wgbh/americanexperience/features/grant-kkk/">removing African Americans from politics</a>. The constitution they crafted subjected prospective voters to a literacy test and poll tax – <a href="https://books.google.com/books?id=7aM7DwAAQBAJ&lpg=PP1&dq=mississippi%201890%20constitution&pg=PR3#v=onepage&q&f=false">effectively disenfranchising nearly all African Americans</a>.</p>
<p>They included the majority vote and state House district provision in the constitution as a backstop to preserve white control of <a href="https://newrepublic.com/article/154496/mississippi-quotes-john-roberts-defend-racist-election-law">Mississippi</a>. However, voter suppression and a <a href="https://www.pewforum.org/religious-landscape-study/compare/party-affiliation/by/racial-and-ethnic-composition/among/state/mississippi/">racially polarized</a> electorate have produced few competitive elections in Mississippi, ensuring that the backstop has rarely been necessary. </p>
<p>In the 19th century, many states with similar election laws had much more competitive elections. The bad results these laws produced in close contests demonstrate the worst-case possibilities of Mississippi’s system.</p>
<h2>The crowbar governor</h2>
<p>These anti-majoritarian laws in governors’ races caused what legal scholar <a href="https://books.google.com/books?id=h9XiCgAAQBAJ&lpg=PP1&dq=ballot%20battles%20edward%20foley&pg=PP1#v=onepage&q&f=false">Edward B. Foley</a> termed “a veritable epidemic” of crises during the Gilded Age.</p>
<p>In West Virginia (1888), Rhode Island (1893) and Tennessee (1894), partisan legislatures overruled the voters to install governors in office who had failed to win the most votes. </p>
<p>The 1890 drama in <a href="https://www.courant.com/news/connecticut/hc-xpm-2002-11-03-0211032496-story.html">Connecticut</a> provides the worst example of these laws in action.</p>
<p>Democratic candidates running for governor won the most votes in every Connecticut election during the 1880s. But with multiple parties running, they never captured a majority. The legislature, gerrymandered to favor the Republicans, installed their candidates in office <a href="https://en.wikipedia.org/wiki/Political_party_strength_in_Connecticut">four out of five</a> times, even though they never even won a plurality. </p>
<p>In 1890, the Connecticut legislature was evenly divided between Republicans and Democrats. That year’s gubernatorial election was thrown to the legislature. Deadlock ensued. In a three-way race, where the Democrat had won nearly <a href="https://chroniclingamerica.loc.gov/lccn/sn94053256/1890-11-07/ed-1/seq-4/">4,000 more votes than his Republican opponent</a>, Republicans in the state Senate refused to seat him.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=823&fit=crop&dpr=1 600w, https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=823&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=823&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1034&fit=crop&dpr=1 754w, https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1034&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/293412/original/file-20190920-135078-1skhdt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1034&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Morgan G. Bulkeley, governor of Connecticut, stayed on after his term ended when the legislature was deadlocked on the choice of governor.</span>
<span class="attribution"><a class="source" href="http://bioguide.congress.gov/scripts/biodisplay.pl?index=b001044">U.S. Congress</a></span>
</figcaption>
</figure>
<p>Though the Democrats held the moral high ground, the Republicans had the election law on their side. With the stalemate, the sitting Republican governor, <a href="https://museumofcthistory.org/2015/08/morgan-gardner-bulkeley/">Morgan G. Bulkeley</a> simply stayed in office for two more years.</p>
<p>While Bulkeley’s supporters commended him for stepping in to <a href="https://chroniclingamerica.loc.gov/lccn/sn82015483/1891-01-10/ed-1/seq-2/">“hold the fort,”</a> his unelected tenure provoked a crisis of legitimacy that ground state government to a halt. </p>
<p>When the legislature <a href="https://chroniclingamerica.loc.gov/lccn/sn82015483/1891-04-03/ed-1/seq-2/">refused to appropriate funds</a> for the state budget, Bulkeley borrowed US$300,000 ($8.3 million today) from his family’s company – Aetna Life Insurance – to pay for state <a href="https://chroniclingamerica.loc.gov/lccn/sn94053256/1891-05-09/ed-1/seq-4/">operations</a>. Neighboring states refused to acknowledge the <a href="https://chroniclingamerica.loc.gov/lccn/sn94053256/1891-02-24/ed-1/seq-4/">legality</a> of <a href="https://chroniclingamerica.loc.gov/lccn/sn94053256/1891-02-25/ed-1/seq-4/">arrest warrants</a> he issued. At one point, the Democrats changed the locks on the governor’s office and Bulkeley popped them off with a <a href="https://chroniclingamerica.loc.gov/lccn/sn94053256/1891-03-21/ed-1/seq-4/">crowbar</a>.</p>
<p><a href="https://chroniclingamerica.loc.gov/lccn/sn94053256/1891-02-25/ed-1/seq-4/">“Nothing short of a revolution,”</a> said the disgusted governor of New York, could end the tyranny of the minority in Connecticut. </p>
<p>But Bulkeley’s methods had damaged the Republican Party’s reputation. In the regularly scheduled 1892 election, the Democrat who had won the most votes in 1890, <a href="https://www.nga.org/governor/luzon-burritt-morris/">Luzon B. Morris</a>, won an outright majority and became governor.</p>
<h2>Bad track record</h2>
<p>If the winner of the most votes in the Mississippi gubernatorial election does not also win the majority of House districts, it could set off a crisis of legitimacy in Mississippi similar to the one that took place in Connecticut in 1890.</p>
<p>If that happens <a href="https://static1.squarespace.com/static/5beeefdbf407b4c074e45ec6/t/5dbc5e0e74c31f282750e68a/1572625934211/Order.pdf">the case could return to court</a> for an expedited hearing that could overturn the challenged provision. </p>
<p>Laws that place anti-democratic restrictions on the popular vote have a bad track record in competitive elections. At best they add unnecessary complexity and instability to what should be a simple system.</p>
<p>At worst they undermine the principle of popular rule, damage voters’ faith in democracy and provoke crises of legitimacy. The Mississippi civil rights lawsuit continues after the election. If it succeeds, it will mark a repudiation of Mississippi’s legacy of racial disfranchisement.</p>
<p>If it does not succeed, then Mississippi’s legislature and governor might want to consider Connecticut’s example.</p>
<p><em>This is an updated version of <a href="https://theconversation.com/mississippi-african-american-voters-sue-over-election-law-rooted-in-the-states-racist-past-123077">an article</a> that originally ran on Sept. 23, 2019.</em></p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/126296/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gideon Cohn-Postar is a Fellow at the Chicago Council on Global Affairs.</span></em></p>A Mississippi law that allegedly makes it ‘more difficult for African-
American-preferred candidates to win elections’ will still be in place when voters choose a new governor Tuesday.Gideon Cohn-Postar, Graduate Student in History, Northwestern UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1001192018-07-17T14:04:31Z2018-07-17T14:04:31ZBrexit campaigners fined: what rules did they break and does it make the vote invalid?<p>The Electoral Commission <a href="https://www.buzzfeed.com/hazelshearing/vote-leave-fined-for-breaking-spending-limit?utm_term=.peNNqKw7Q#.waVdmY3lB">has ruled that</a> Vote Leave, the official campaign for leaving the European Union, breached campaigning rules during the EU referendum in 2016 and spent nearly £500,000 over the legal limit. Here’s what you need to know about the case.</p>
<p>Under British electoral law, two designated campaigns (one leave and one remain) had an official spending limit of £7m. There were a number of other independent campaigns, however, that operated with different spending limits. For example, Leave.EU, the campaign fronted by businessman Arron Banks and former (<a href="https://www.standard.co.uk/news/politics/nigel-farage-says-he-is-left-with-no-choice-other-than-to-return-as-ukip-leader-a3883146.html">and future?</a>) UKIP leader Nigel Farage, have <a href="https://www.electoralcommission.org.uk/__data/assets/pdf_file/0018/243009/Report-on-Investigation-Leave.EU.pdf">already been fined</a> by the Electoral Commission for failing to declare £77,380 in a spending return. Had that extra spending been declared, it would have pushed Leave.EU over its allotted limit of £700,000.</p>
<p>The commission was looking into whether Vote Leave effectively funnelled money through third-party campaigns when it hit its official limit. In particular, this case centres around donations to student Darren Grimes and his BeLeave campaign and another to the Veterans for Britain campaign.</p>
<p>It’s important to note that these donations are perfectly legal. Once an official campaign has reached its spending limit and effectively has surplus cash it can donate them to other campaigns. The crucial point, however, is that they can’t tell them how to spend that money. If they do collude with these other campaigns in a meaningful sense, the spending has to be reported as a part of the spending return of the official campaign.</p>
<p>The <a href="https://theconversation.com/q-a-why-is-vote-leave-under-investigation-for-its-brexit-spending-87883">allegation was</a> that Vote Leave had co-ordinated with these smaller campaigns, telling them how to spend their money. It is said to have instructed them to run targeted campaigning through <a href="https://www.theguardian.com/uk-news/2018/mar/31/aggregateiq-canadian-tech-brexit-data-riddle-cambridge-analytica">AggregateIQ</a>, a previously unknown tech start-up in Canada.</p>
<h2>Fines to pay</h2>
<p>The commission has fined Vote Leave £61,000, Grimes and BeLeave £20,000, and Veterans for Britain £250. This is after <a href="http://www.electoralcommission.org.uk/__data/assets/pdf_file/0019/244900/Report-of-an-investigation-in-respect-of-Vote-Leave-Limited-Mr-Darren-Grimes-BeLeave-and-Veterans-for-Britain.pdf">finding</a> “significant evidence of joint working” between the organisations.</p>
<p>The evidence includes Vote Leave giving infrastructure support to Grimes when setting up BeLeave. It directed a Vote Leave contractor to build the BeLeave website and advised Grimes on website content. Grimes used Vote Leave facilities to film videos and take photos while Vote Leave instructed their legal director to draw up a constitution for BeLeave.</p>
<p>The commission ultimately concluded that:</p>
<blockquote>
<p>BeLeave … appears to have had the benefit of Vote Leave data and/or data it obtained via online resources set up and provided to it by Vote Leave to target and distribute its campaign material. This is shown by evidence from Facebook that Aggregate IQ used identical target lists for Vote Leave and BeLeave ads, although the BeLeave ads were not run …Vote Leave and BeLeave told us that the BeLeave AIQ payments were donations, and Vote Leave had no influence over how BeLeave used them. We are satisfied that many parts of this explanation are not consistent with the evidence.</p>
</blockquote>
<p>This means that the entire amount reported by Grimes and BeLeave – £676,015.37 – was “incurred in pursuance of a common plan with Vote Leave”. As such this should not have been treated as the spending of a separate campaign but included in Vote Leave’s spending return. This would bring the total spend of the Vote Leave campaign to £7,449,079. Nearly £500,000 over the legal spending limit.</p>
<p>It should also be noted that £20,000 of the total fine levied to Vote Leave was done so for refusing to cooperate with the Electoral Commission. It “failed, without reasonable excuse, to comply with a requirement imposed by the commission to produce documents by a specific date”.</p>
<h2>What happens now?</h2>
<p>Both Grimes and Vote Leave official David Halsall <a href="https://www.theguardian.com/politics/2018/jul/17/vote-leave-fined-and-reported-to-police-by-electoral-commission-brexit">have been reported to the police</a> and the commission has shared its evidence and investigation files with them in case any other offences may have been committed. These investigations, much like the Conservative election expenses affair from 2016 will trundle on. Do not expect a speedy outcome here.</p>
<p>In the shorter term, <a href="https://www.bbc.co.uk/news/uk-politics-44856992?ns_linkname=news_central&ns_source=twitter&ns_campaign=bbc_breaking&ns_mchannel=social">the war of words has begun</a>. Vote Leave has suggested the report “contains a number of false accusations and incorrect assertions” and that the “supposedly impartial commission is motivated by a political agenda rather than uncovering the facts”. This response is as predictable as it is unhelpful.</p>
<p>The truth is that the Electoral Commission gets it in the neck across the political spectrum whenever a decision goes against any particular partisan position. Depending on who you ask, it’s a <a href="https://in.reuters.com/article/britain-eu-spending/brexit-group-fined-for-breaking-spending-rules-in-eu-vote-idINKBN1IC0HK">“Blairite swamp creation”</a> or an organisation <a href="https://twitter.com/owenjones84/status/938717687517188097?lang=en">“which let the Tories of the hook”</a>. If people are unhappy with the decisions that are being made, it might be worth considering that it’s because they got caught.</p>
<p>Finally, what of the integrity of the referendum result itself? In this, it feels useful to deal in knowns. We do not know, and will probably never know, whether circumventing these rules definitively swung the vote. We do know that the spending rules were circumvented and we also know that rules around election spending are being disregarded fairly regularly. We should also know that the fact that this happened (and continues to happen) is not good for democracy.</p>
<p>These are issues that, believe it or not, are bigger than Brexit. They are about the basis of institutions that are held as fundamental. If they continue to be challenged in this way, there is an urgent need for political actors from all sides to consider whether British electoral laws are fit for purpose.</p><img src="https://counter.theconversation.com/content/100119/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sam Power received funding from the Economic and Social Research Council. </span></em></p>The Electoral Commission has ruled the official campaign to leave the EU broke funding rules.Sam Power, Research Associate in Party Membership and Engagement at the Sir Bernard Crick Centre for the Public Understanding of Politics, University of Sheffield and Associate Tutor, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/834082017-09-04T15:41:44Z2017-09-04T15:41:44ZKenya’s Supreme Court has given an impossible deadline for the repeat election<figure><img src="https://images.theconversation.com/files/184408/original/file-20170902-1101-1x4rhcl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Opposition Kenyan leader Raila Odinga speaks out after the election was declared invalid.</span> <span class="attribution"><span class="source">Reuters/Baz Ratner</span></span></figcaption></figure><p>The Kenyan Supreme Court has found that the August 8 presidential election result is invalid. It blames the electoral commission, not the declared winner, Uhuru Kenyatta. Kenya’s leading newspaper praises the decision as a <a href="http://www.nation.co.ke/oped/Editorial/Supreme-Court-ruling-has-restored-rule-of-law-/440804-4079912-3cupekz/index.html">step towards the rule of law</a>, but I am less sure about what this means for the ability of the political establishment to stick to the terms of the country’s constitution.</p>
<p>The Supreme Court has given the country 60 days to hold fresh elections. The time period is in accordance with section 140 (3) of the <a href="http://www.kenyalaw.org/lex/actview.xql?actid=Const2010">Constitution</a>, but the court failed to tell the public exactly what the Independent Electoral and Boundaries Commission <a href="https://www.iebc.or.ke/">(IEBC)</a> had done wrong. This leaves Kenya with a compromised commission rerunning an election.</p>
<p>Chief Justice David Maraga <a href="https://www.youtube.com/watch?v=bLEQ72t2czs&t=1216s">noted that</a> the court had previously failed to provide a full judgment on the 2013 elections and this had not been received well. He then did exactly the same. Of course, the court had to provide a judgment on the opposition’s petition within 14 days, as stipulated by the Constitution. This is the period before the president-elect is inaugurated. The court would have sparked a constitutional crisis if it had not made any decision.</p>
<p>But by not explaining how the IEBC has failed, the court has created a problem. It’s impossible to organise the next election and reform the commission in the time given.</p>
<h2>Time pressure</h2>
<p>The court gave itself up to 21 more days to deliver its full judgment. This would leave the country with only 39 days before the fresh election. Already, opposition leader Raila Odinga has <a href="https://www.standardmedia.co.ke/article/2001253339/raila-declares-fresh-war-on-iebc-lambasts-international-community">declared</a> that his coalition will refuse to participate in presidential elections under the current leadership of the IEBC. </p>
<p>But, as a newspaper commentator <a href="https://www.standardmedia.co.ke/article/2001253324/why-it-s-not-feasible-to-replace-iebc-commissioners">observes</a>, it’s just not feasible to remove IEBC commissioners without a tribunal, which is then reviewed by parliament. Complicating matters further, three citizens have filed a <a href="https://www.standardmedia.co.ke/article/2001253334/three-kenyans-want-iebc-commissioners-barred-from-polls">separate petition</a> to ask the courts to remove certain IEBC officials over their wrongdoing. </p>
<p>Even once the full judgment is handed down within 21 days of the ruling, it probably won’t indicate criminality at the level of individuals. The Supreme Court was asked only to determine the validity of the election overall. Its full judgment can indicate how the process of the election must be improved.</p>
<p>The election was judged to be void because the electoral commission was at fault. This suggests it must change its procedures – and perhaps its personnel – if better elections are to take place. A new election must avoid the errors of the previous one. </p>
<p>Political scholar Gabrielle Lynch <a href="http://www.nation.co.ke/oped/Opinion/Key-lessons-for-election-team-as-Kenyans-return-to-ballot-/440808-4079934-roelpv/index.html">explains</a> some of the corrections that have to be made. These include the process for transmitting results, the use of security forces and the uneven use of state resources.</p>
<p>Few of these suggested corrections will be feasible within the allotted timeframe.</p>
<h2>Serious problems</h2>
<p>Indeed, the problems are serious. Months before the election was held, the courts <a href="http://www.nybooks.com/daily/2017/08/30/kenya-the-election-and-the-cover-up/">ordered</a> the IEBC to stop printing ballot papers, because of <a href="http://www.theeastafrican.co.ke/news/Dispute-ballot-printing-tender-Kenyan-election/2558-3974504-2no9fv/index.html">claims</a> that the Dubai-based firm Ghurair held too many links to Kenyatta.</p>
<p>The claim against Ghurair was <a href="https://www.the-star.co.ke/news/2017/07/20/nasa-loses-cross-appeal-on-uhuru-links-to-al-ghurair_c1600686">dismissed</a> due to insufficient evidence. But part of the IEBC’s successful defence against the court order was the time pressure of having to hold an election in a few months’ time. If time pressure was a valid reason then, why would it not be now? Why would an even more rushed election be credible? </p>
<p>The <a href="http://edition.cnn.com/2017/08/03/africa/kenya-election-official-chris-msando/index.html">murder</a> of the IEBC’s IT manager, Chris Msando, will now be under even closer scrutiny by the media. But even if the crime was directly related to the muddled tallying of votes, there isn’t time before the rerun to find individuals guilty. It is highly unlikely the full Supreme Court judgment will touch upon this tense topic. And that further reduces the credibility of the current IEBC.</p>
<h2>Credibility concerns</h2>
<p>The wider concerns with the IEBC date <a href="https://www.amazon.co.uk/Shadow-Kenyan-Democracy-Widespread-Expectations/dp/147246768X">back to</a> the “Chickengate” scandal. A UK court found a UK firm had <a href="http://www.businessdailyafrica.com/How-UK-sleuths-unearthed-Kenya-scandal/-/539546/2527142/-/12a1fcrz/-/index.html">bribed</a> the IEBC (then the Interim Independent Electoral Commission) to get the contract to print ballot papers for the 2010 Kenyan constitutional referendum. </p>
<p>The UK co-conspirators were <a href="http://www.bbc.com/news/uk-england-sussex-31444228">found guilty</a>. But no-one from the Kenyan side was put behind bars by Kenyan courts. This created mistrust of the IEBC leaders. The current crisis will revive past anxieties like these, but leave no time for meaningful reform.</p>
<p>In Kenyan elections, local witnesses must sign the official forms to say the local tally is accurate. Central tallying organised electronically must then match with these local forms. The election is considered free and fair if this is done properly. The Supreme Court has ruled that both the IEBC as a whole and its chairperson, Wafula Chebukati, are responsible for the failure on 8 August. </p>
<p>Chebukati has <a href="http://nairobinews.nation.co.ke/news/chebukati-storm-not-quitting/">refused to stand down</a>. His response doesn’t boost public confidence in the institution. If the public is to trust the rerun, he must go. </p>
<h2>Asking for more time</h2>
<p>The IEBC should then petition the Supreme Court to give it more time.</p>
<p>It was done before, when the 2013 election was <a href="http://www.theeastafrican.co.ke/oped/comment/Unrealistic-timelines-blame-for-Kenya-electoral-flaws/434750-3798034-ecoaogz/index.html">delayed</a> because of the difficulty of implementing aspects of the new Constitution. </p>
<p>Section 86 of the Constitution requires the IEBC to collate the results of an election openly and accurately. At present, it can’t meet this requirement because it does not know what it must do differently from before. The IEBC should therefore depend on Section 86 when it asks the Supreme Court for more time.</p><img src="https://counter.theconversation.com/content/83408/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic Burbidge does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>By failing to provide details on what invalidated Kenya’s election, the country’s Supreme Court has created an impossible timeline for organising re-elections within 60 days.Dominic Burbidge, Postdoctoral Researcher, Faculty of Law, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/788632017-06-08T11:30:59Z2017-06-08T11:30:59ZHow votes are counted on election night<p>Welcome to election day. Whether you choose to stay up until dawn eagerly anticipating the results, or go to bed with your fingers crossed – waking to find out the country’s fate in the morning – chances are you’ll see at least some of <a href="http://www.radiotimes.com/news/2017-06-02/everything-you-need-to-know-about-the-2017-general-election-night-coverage">the television</a> and <a href="https://twitter.com/britainelects?lang=en">online coverage</a> from the big night. </p>
<p>This will include journalists reporting from many of the counts going on around the country. There will also of course be the statutory first result, <a href="http://www.telegraph.co.uk/news/0/does-sunderland-always-declare-election-results-first/">which is usually Sunderland</a>, as well as those reporters covering seats which either tend to be marginal or which play host to an important candidate. At other times, though, it can seem like a lot of the evening involves people just standing around in sports halls drinking tea out of polystyrene cups. </p>
<p>But despite the mammoth quantities of hot drinks consumed, there is actually a whole lot more going on at an election count than meets the eye. And as someone who has been there and done it – as a serial general election candidate (1997 to 2015) as well as a party helper – let me give you the inside scoop. </p>
<h2>How it happens</h2>
<p>It starts when the ballot boxes arrive at the count location from the individual polling stations – these can’t start travelling until after the polls close at 10pm. </p>
<p>The first stage is verification: papers are tipped out and counted for each polling district. Counters are checking that the number coming out of the ballot box equals the number that is supposed to be in there. </p>
<p>You will often see crowds of party workers with clipboards and sheets at this point. This is because as the papers are counted and bundled, watchers can get a good idea of the percentage support for each candidate. And combined with turnout information, this begins to give candidates an idea of the likely result. </p>
<p>As long as all the numbers tally, the next stage involves sorting the votes into piles for each candidate. Papers are usually bundled into fifties – which is all done by hand.</p>
<p>At this stage, party activists are checking to make sure that none of their votes go astray. I have personally rescued votes which were about to go into the wrong pile so know how crucial it is in a tight fight to keep an eye on the table. </p>
<p>As the bundles are completed, they are put aside and stacked in piles. This is when the performance of each candidate becomes visually very clear. Postal votes also get counted on election night, and will be added to the stacks. </p>
<p>The whole process can take hours. And if there is more than one contest at the same time – say a local and a general – this can be slower still. But this year, apart from the odd council byelection, the general election vote is on its own – so it shouldn’t be <em>too</em> late to bed for most.</p>
<h2>Spoil sports</h2>
<p>There are of course always a few ballot papers which are judged unclear, or spoiled. In some cases, this is simply because a voter has used a tick instead of a cross. In other cases, there is no vote, or there is a signature or a slogan of some sort. </p>
<p>Counting staff will go through the uncertain papers with party representatives to make decisions on each – and in a very tight fight, arguments can break out over “ownership” of a ballot paper.</p>
<p>At this point, the Returning Officer – this is the person who is legally responsible – will go through the figures with agents from the parties before any declaration of a result is made.</p>
<h2>What about recounts?</h2>
<p>Agents may ask for a recount for a couple of reasons, the main one being that their candidate is very slightly behind, and it’s looking like it could be a close call.</p>
<p>Of course, after a long night, the news of a recount isn’t always welcome. Indeed, I once managed to make myself the most unpopular person in the building by asking for one.</p>
<p>There are two types of recount. A bundle check means simply flicking through each bundle to make sure that all the votes in there are for the same party, while a full recount does what it says on the tin. If a recount changes the lead, the now second placed candidate can ask for another one. </p>
<h2>And the winner is…</h2>
<p>Candidates often turn up to a count when it has been going for a while. Polling day is exhausting enough without having to stand around for hours making stilted conversation. Candidates also prefer to have some idea of their likely fate before arriving.</p>
<p>Of course, on very rare occasions, there can be a tie between candidates, but the bigger the electorate, the less likely this is. A genuine tie would involve drawing lots or straws – which is what <a href="http://www.bbc.co.uk/news/uk-england-tyne-39814634">two candidates in Northumberland</a> had to do in the recent local elections.</p>
<p>When the results are clear, the Returning Officer will then read these out and declare the winner. There is no automatic right for candidates to make a speech, but it has become customary for the winner and immediate runner-up to say something. </p>
<p>For some candidates, this is a key soundbite opportunity and many will have their victory speeches worked out in advance – you can usually tell who has done this because they still sound quite slick, regardless of the hour or the limited amount of sleep they’ve had.</p>
<p>Then after the celebrations, it’s time for a few hours’ sleep, before the winners head off to parliament. And for the losers? Well, after the commiserations, they’ll most likely go back to the day job.</p><img src="https://counter.theconversation.com/content/78863/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paula Keaveney is a member of the Liberal Democrats</span></em></p>The inside story on what happens at an election count.Paula Keaveney, Senior Lecturer in Public Relations and Politics, Edge Hill UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/780442017-05-19T14:52:46Z2017-05-19T14:52:46ZElection laws can’t cope with data harvesting – which suits politicians fine<figure><img src="https://images.theconversation.com/files/170123/original/file-20170519-12263-1vb706d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Little Britain. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/english-people-346580672?src=puo4I9JJ0VByzY6z9mBmow-1-32">Julien Tromeur</a></span></figcaption></figure><p>Political parties are making increasing use of data analytics to track voters’ behaviour on sites such as Facebook and Twitter in order to send them political messages they will find persuasive. Parties <a href="https://www.theguardian.com/politics/2017/may/15/tory-facebook-ads-attack-corbyn-while-labour-avoids-mentioning-him">have been campaigning</a> on Facebook as part of the current UK election and both Labour and the Conservatives are said to have set aside around £1m for the purpose. </p>
<p>Yet there is a lot of uncertainty about exactly what is going on – and growing concerns that <a href="https://www.theguardian.com/technology/2017/may/07/the-great-british-brexit-robbery-hijacked-democracy">the harvesting</a> of social media data was secretly used to influence swing voters in the EU referendum. Elizabeth Denham, the UK Information Commissioner, has <a href="https://iconewsblog.wordpress.com/2017/05/17/information-commissioner-elizabeth-denham-opens-a-formal-investigation-into-the-use-of-data-analytics-for-political-purposes/">launched</a> a formal inquiry into the implications of deploying personal information in this way, focusing on both the referendum and “potentially also … other campaigns”</p>
<p>It is a welcome move, but it is limited to looking at the law around individual privacy and control of personal information. This is governed by <a href="https://www.gov.uk/data-protection/the-data-protection-act">data protection</a> legislation and is mainly about ensuring that voters are not targeted as individuals – as opposed to in larger groups, such as a particular region or pensioners or whatever. </p>
<p>The inquiry will last several months – the political parties <a href="https://www.theguardian.com/technology/2017/may/17/inquiry-launched-into-how-uk-parties-target-voters-through-social-media">deny</a> any wrongdoing – but it will not look at the electoral laws that also exist to protect voters. And this is an area that needs to be closely examined. Data analysis is making it look completely unfit for purpose. </p>
<h2>Campaign spending</h2>
<p>The first problem is the election spending limits. There is a mix of <a href="http://www.legislation.gov.uk/ukpga/1983/2">old rules</a> that set the limit for spending by each candidate in a constituency, and <a href="http://www.legislation.gov.uk/ukpga/2000/41/contents">newer rules</a> that create a cap on national party spending in campaigns. </p>
<p>Targeted social media advertising is being undertaken by central party organisations, since they have the resources to spend on data analytics tools. This may be counted against national spending limits. </p>
<p>But if social media advertising is concentrated on voters in particular marginal constituencies and involve messages connected to local issues likely to determine the campaign in question, it should count as local spending. Candidate limits for constituencies are low (around £15,000; varying according to the number of electors) so parties have an incentive to count social media as national spending. </p>
<p>The law makes no provision for monitoring the content of social media communications to determine if they are “local” or “national”. But even if you created such a regime, it wouldn’t solve the problem. The Electoral Commission has the power to fine parties for such infringements, but the parties would probably just see this as another cost of campaigning. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/170125/original/file-20170519-12231-gnogaq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bird brain.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/young-businessman-drawing-social-media-communication-111035597?src=4KHof-L3NA76GQf6UOUjfg-1-26">Bloomicon</a></span>
</figcaption>
</figure>
<p>Also, the laws apply only to spending during the official election campaign period. Regulation does not extend to the monies spent in the inter-election years, when much of the expensive work of data analysis is being commissioned.</p>
<h2>Political advertising</h2>
<p>Apart from the spending controls, the use of social media in election campaigns is entirely unregulated. This is startling, given the tight legal controls applied to other campaigning methods: <a href="http://www.legislation.gov.uk/ukpga/2003/21/section/321">statute</a> prohibits paid political adverts on TV or radio. (Party election broadcasts use free airtime; parties only need to meet production costs.) This longstanding ban is aimed at protecting our elections from American-style auctioning of airtime to the wealthiest campaigners. </p>
<p>This is about fairness -– the notion of a level playing field. Three years ago the UK government vigorously and successfully <a href="https://strasbourgobservers.com/category/cases/animal-defenders-international-v-uk/">defended the ban</a> before the European Court of Human Rights when a group of animal rights campaigners argued it ran counter to principles of freedom of expression.</p>
<p>Why then should unrestricted social media campaigning be regarded as a good or tolerable electoral practice? If the tool confers advantage on parties with the most resources to fund expensive data analytics, it is surely suspect on the same grounds as banned TV adverts.</p>
<p>There are other issues. Contrary to a <a href="https://www.theguardian.com/politics/2017/may/16/regulation-of-election-campaigning-via-social-media-can-be-improved">recent suggestion</a> by the chief executive of the Electoral Commission, targeted communications to voters on social media are not merely an evolution of traditional letterbox leafleting. They aim to influence voters without making it clear how the data used to tailor the message was gathered or processed. </p>
<p>This disempowers the electorate, making it difficult for voters to assess the communication. Put simply, election messages that don’t openly acknowledge the use of data analytics are an unfair form of campaigning. </p>
<p>Parliament could legislate to prohibit the technique. Or more modestly, it could require that such election communications make clear their use of data analytics. The law could insist that such an acknowledgement be displayed prominently, specifying a minimum font size. </p>
<p>We should not expect speedy reform, however. The government has not even adopted a 14-year-old <a href="http://www.electoralcommission.org.uk/__data/assets/pdf_file/0014/193010/Factsheet-for-political-parties-Electronic-materials-and-imprints.pdf">recommendation</a> from the Electoral Commission that online campaign material be legally required to contain an “imprint” identifying clearly the campaigner who generated the communication. This is a requirement for all printed campaign matter in elections. </p>
<p>Social media communication needs to be recognised formally by election law as a campaign method. Leaving it unregulated, subject only to the flawed rules on spending limits, undermines free and fair elections by devaluing the transparency on which election processes depend. </p>
<p>But since this is a tool that assists political parties to win or retain the power to govern, they have a massive conflict of interest in maintaining the status quo. It is incumbent on the rest of us to shout this from the rooftops until they are shamed into doing the right thing.</p><img src="https://counter.theconversation.com/content/78044/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Heather Green does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Welcome to the new Wild West.Heather Green, Senior Lecturer, Public Law, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.