SCOTUS Asked to Decide re Hamilton Electors

A recent blog post discussed the case of Michael Baca, a Presidential Elector from Colorado who instead of voting for Hillary Clinton–as required by state law because she won the state’s popular vote–voted for moderate Republican John Kasich.

Along with other Electors in Colorado and elsewhere, Baca was trying to get Republican electors who might be similarly horrified by the prospect of a Trump presidency – it is hard to believe now but there were many in 2016–to help save us from that fate by diverting enough votes to throw the presidential race into the House of Representatives. The U.S. Constitution requires that  when no candidate reaches the 270 votes needed for an Electoral College majority, the House determines who gets to be President from among the top three vote-getters, as has happened on three occasions.

All but two states require Electors to vote for the winner of the state’s popular vote in a winner-take-all manner. Throughout history, a handful of Electors have refused to do so and they have often been referred to as Faithless Electors. Baca, however, who launched his effort with Peter Chiafalo, a Democratic Elector from Washington State, dubbed his group the “Hamilton Electors,” a name with more contemporary cachet thanks to the Broadway musical. He named it after founding father Alexander Hamilton, whose Federalist paper No. 68, described the role of Electors in making the case for having the President chosen by them, rather than by the popular vote.

The State of Colorado refused to count Baca’s vote, removed him, and replaced him with someone who then voted for Clinton. It also threatened Baca with criminal prosecution but did not carry through on the threat.

Baca sued and on August 20, 2019, the Tenth U.S. Circuit Court of Appeals held that states, though they determine how Electors are chosen, cannot dictate to them how they vote, no remove them or punish them for their votes. “The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice,” wrote U.S. Circuit Judge Carolyn B. McHugh, in Baca v. Colorado Department of State. She was joined by Judge Jerome A. Holmes in the 2-1 ruling, with the third judge on the panel, Mary Beck Briscoe, dissenting based on her view that the case was moot.

Now a similar challenge brought by three Hamilton Electors, Chiafalo v. State of Washington, aims to bring the question of Elector discretion before the U.S. Supreme Court. Continue reading SCOTUS Asked to Decide re Hamilton Electors

RULING ALLOWS ELECTOR DISCRETION BUT MIGHT IMPEDE EFFORT TO CIRCUMVENT ELECTORAL COLLEGE

Donald Trump won the Presidency in 2016 despite being trounced by Hillary Clinton in the popular vote.

Thanks to the Electoral College, the profoundly undemocratic body that actually elects our Presidents and Vice-Presidents, Trump’s slight margin of victory in a few key states outweighed the millions more votes cast nationwide by those who preferred Clinton.

The Electoral College has been enshrined in our system from the start, in Article II, section 1, paragraph 3 of the Constitution. It was modified in 1804, with ratification of the Twelfth Amendment, which requires separate votes for President and Vice-President.

Most years, the results of the Electoral College vote match up with the popular vote.  But after 2016, when it thwarted the will of the people for the second time in 16 years (and for two of our last three Presidents), many people realized that we must do something about it if we want to make sure that the person who wins the most votes is the one who becomes President. Continue reading RULING ALLOWS ELECTOR DISCRETION BUT MIGHT IMPEDE EFFORT TO CIRCUMVENT ELECTORAL COLLEGE

MORE VOTERS PURGED WHERE SUPREME COURT LIFTED RESTRICTIONS

When the United States Supreme Court weakened Voting Rights Act protections in 2013, many worried that it would open the floodgates to a new wave of voter suppression.

There was good reason to be concerned, as the Brennan Center for Justice has once again confirmed.

A report it released in July 2018 found that from 2014 to 2016—the two years following the 2013 decision in Shelby County v. Holder, 570 U.S. 529—almost 16 million people throughout the U.S. were removed from voting rolls.  That was almost four million more than the number who were removed from voter lists between 2006 and 2008, a roughly 33% increase that far exceeded the growth in total population (6%) and total registered voters (18%) over that same time frame.

The Brennan Center also found that the purging occurred at a higher rate in those areas, mainly in the South, that because of their history of discrimination had been subject to the protections abrogated by the Supreme Court in Shelby.  For the two election cycles between 2012 and 2016, those so-called preclearance jurisdictions, which were let off the hook by the Shelby ruling, had purge rates significantly higher than elsewhere. The Center calculated that if those jurisdictions had remained subject to the previous constraints, two million fewer voters would have been struck from the lists. Texas alone erased more than 363,000 voters in the first election cycle after Shelby.

Now, a follow-up report, made public on August 1, has found that the heightened rate of voter purges continued between 2016 and 2018. Continue reading MORE VOTERS PURGED WHERE SUPREME COURT LIFTED RESTRICTIONS

In Support of Early Voting

The following editorial appeard on the nj.com website on January 16, 2019:

Starting two weeks before the last election, residents of Essex County, where I live, got to vote early by going to the Turtle Back Zoo education building in West Orange and filling out a vote-by-mail ballot. You first had to complete an application that was processed on the spot. The procedure was time-consuming and somewhat confusing but interest was high and lines were long.

They called it early voting but it wasn’t really. Early voting as done in other states allows voters to cast their ballots up to 46 days before Election Day using voting machines at multiple polling places in each county. What Essex had was a work-around that utilized the vote-by-mail process, because state law does not authorize the real thing.

True early voting might come to New Jersey through a package of reforms that Governor Murphy is proposing, as discussed in a New York Times article on January 9. Continue reading In Support of Early Voting

VOTING MACHINE PILOT DEEMED SUCCESSFUL

Readers of this blog know that I am very concerned about the fact that New Jersey is one of only five states that continues to rely almost entirely on electronic voting machines that do not produce a paper record of the votes cast. That makes it difficult, if not impossible, to detect hacking and prevents a recount.

New voting machines that would create a verifiable paper trail had a test run in November, and it appears to have gone well, for the most part, according to an article in NJ Spotlight.

A portion of a $10 million voting security grant was used for a pilot program in Union, Gloucester, and Essex Counties in which new machines that create a paper record were used on Election Day. Post-election audits utilizing those paper records were also conducted.

In “Progress Seen in Test of Paper Trail Voting Machines That Allow Audit of Results,” Colleen O’Dea writes that this pilot and the accompanying audits were deemed a success.

This was the U.S. Senate race, in which incumbent Robert Menendez fended off a challenge from Republican Bob Hugin and several third-party candidates, that was verified using a risk-limiting audit.

Election audits involve counting a portion of the paper ballots to verify the accuracy of the outcome, where the votes have been cast and/or tabulated electronically. In a risk-limiting type of audit, the percentage of ballots is not a set number but varies depending on the number of votes cast and the margin in the particular race.

Christopher Deluzio, who focuses on election security as Counsel to the Brennan Center’s Democracy Program, called risk-limiting audits the gold standard and described how states are starting to adopt that approach in a July 25, 2018 article, entitled “A Smart and Effective Way to Safeguard Elections.”

New Jersey has a law requiring election audits that was never implemented because 20 of our 21 counties use voting machines that do not produce a paper trail. Pending legislation, A-3991/S-2633, would repeal the auditing law and replace it with a requirement for risk-limiting audits, to be conducted once counties switch to machines that produce the necessary paper record of the votes cast.

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NEW JERSEY APPLESEED STATEMENT ON PROPOSED REDISTRICTING AMENDMENT

New Jersey Appleseed Public Interest Law Center today issued the following statement on the proposed constitutional amendment now pending before the Legislature (SCR152 and ACR205) that deals with how state legislative districts are drawn.

After a careful analysis of the pending proposals to alter the State’s reapportionment commission, New Jersey Appleseed has concluded that the proposal would be marginally more harmful than the status quo to the public interest, and to the interest of New Jersey voters. Nonetheless, for reasons more fully stated below, New Jersey Appleseed urges that the current proposal be rejected and that the Assembly and Senate should remand apportionment reform to an appropriate committee, for the establishment of a significantly new system that involves the creation of a citizen-based or nonpartisan commission.

The current method by which both redistricting and reapportionment are performed in New Jersey is at best characterized as minimally acceptable, but short of a just and fair system to which voters are entitled.

As it has operated to date, one political party insider from each of the two major political parties appoints other political party insiders to the reapportionment commission.  In the last reapportionment commission, in 2011, seven of the eleven members were sitting legislators.  Although the overwhelming presence of sitting legislators who have a self-interest in how districts are drawn is problematic, the current system has some protection against excesses.  Namely, because the maps proffered by each political party’s appointees must earn the support of a nonpartisan member appointed by the Chief Justice of the New Jersey Supreme Court, the map drafters are thereby deterred from offering outrageously gerrymandered maps as some other states have witnessed.  The results of this process in the past have been minimally acceptable, but they have still fallen far short of what is obtainable as a matter of fairness and justice.

New Jersey Appleseed does not find that greater diffusion in who chooses reapportionment commission members is intrinsically bad policy.   We do find it problematic, however, that the current proposal would result in the appointing authorities remaining, as is true under the current system, political insiders with a vested interest in the outcome of the map.

Nor do we find the mandate of a minimum number of competitive districts to be intrinsically flawed.  On the contrary, promoting competitive districts is a legitimate factor for the creation of responsible redistricting and reapportionment plans.  The problem with the proposed redistricting amendment is that, for the remaining districts – those not deemed to be competitive, there is no meaningful protection against them being “packed” and “cracked” in a way that would create a legislative map that is unjust – not just to political parties – but more importantly, to voters.

New Jersey can confidently look to other states that have created redistricting and reapportionment commissions that draw on experienced professionals, yet seek to minimize (though not eliminate) the role of self-interested legislators and political party insiders in the creation of maps.

While these other methods, sometimes called “citizen-based” or “nonpartisan” commissions, vary in their specifics, what they have in common is they rightly grant political parties and officeholders a full opportunity to be heard in regard to map-drawing.  However, they also ensure that legislators and legislative leadership do not serve as, nor do they appoint, a majority of the committee that actually draws the maps. Among others, California, Colorado, and Iowa all have responsible processes that minimize the influence of political party insiders, either as members of redistricting commissions, or with the responsibility of directly appointing members of these commissions.  These states’ processes provide useful templates from which New Jersey voters could obtain redistricting and reapportionment processes that have the public interest at heart, rather than the self-interest that is promoted by both the current system and the pending amendment proposals.

New Jersey Appleseed therefore urges that SCR152 and ACR205 be rejected, and the matter remanded to the appropriate Senate and Assembly Committee for a proposal that creates a citizen-based, rather than a party-based, redistricting and reapportionment system.

The above statement was prepared by New Jersey Appleseed Executive Director Renée Steinhagen and board member Flavio Komuves.

LET’S DO IT RIGHT ON NEW VOTING MACHINES

Two New Jersey towns at opposite ends of the state–Westfield, in Union County, and National Park, in Gloucester–tried out new voting machines on Election Day last week.

Both towns were part of a state pilot program paid for with federal HAVA (Help America Vote Act) Election Security Grants. New Jersey which received roughly $10 million of the $380 million national total, allocated $2.5 million for the pilot, plus another $250,000 for a related pilot to audit the votes cast on the new machines. Continue reading LET’S DO IT RIGHT ON NEW VOTING MACHINES