Number 33 in our series of occasional roundups on election law and policy, this time focusing mostly on White House and Department of Justice attempts to meddle in the midterms, and countermeasures by states and others:
Last Wednesday a federal judge told the Department of Justice threats of criminal prosecution against California election officials “must stop.” He probably didn’t mean DOJ should roll out those threats to state election administrators nationwide. DOJ has hinted that it may charge officials with “aiding and abetting” voter fraud if they decline to cull ballots on DOJ’s say-so. But Samantha Trepel writes at Just Security that prosecutors would be highly unlikely to pin such a rap on the officials since, to aid and abet, “as explained in the Ninth Circuit’s model jury instructions, “[i]t is not enough that the defendant… unknowingly or unintentionally did things that were helpful” to the commission of a crime. “The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping the crime’s commission.”
The Trump administration is seeking Supreme Court review following setbacks to its suit demanding that California segregate ballots matching a list of supposedly suspicious names. The suit has already encountered rejection at the district and circuit court levels. Registrars from around the state say they will not violate California law to comply with the federal demands and point to grave flaws in the lists provided, flaws also flagged in a separate affidavit alleging that more than four out of ten names on the lists could not be found in state voter rolls. An affidavit in the case notes that even if the list the feds handed L.A. County had provided a lawful basis to question a registrant’s eligibility, such a registrant would still be entitled under state and federal law to notice and a chance to respond, which could not “be completed between now and the certification deadlines.” Derek Muller notes that under California law “there are mechanisms for the Department of Justice to challenge voters, if it so desired, but that once the time of voting has arrived, the state’s law places the burden ‘upon the challenger to demonstrate—with vote-by-mail ballots, by extraordinary proof—that the voter is not qualified.’ ”
A different court has dismissed the administration’s even flimsier suit against Alaska (filing by state, calling it “meritless” and “unwarranted federal interference,” amicus brief; Rick Pildes speculation on its motives). Alaska’s Supreme Court still hasn’t released the opinion explaining its reasoning why state law did not support removing the schoolteacher from the ballot, and Derek Muller notes the resulting gap.
Donate to the “wrong” Dan Sullivan and get a visit from the FBI in your remote Alaska village. The New York Times has now surveyed just how common it is for major parties to prop up dummy candidacies to draw off or distract opposing voters. Turns out Republicans have even done it in this year’s Alaska Senate and House races, per the Washington Post, which also notes that the tactic is common in states with convention primaries as distinct from Alaska’s all-party ranked-choice system. For examples of same-name dodges, see this space Friday.
Note also several forms of election meddling by President Trump this season that the courts have not been particularly well-suited to counter: his executive orders knocking out a number of big law firms that otherwise would have been expected to argue in court against his election designs; his attempts to put a legal chill on political polling that does not go his way; his campaign of taxpayer-funded ads, which he’s mostly gotten away with notwithstanding a federal judge’s ruling on Friday declaring some of them unlawful (one video’s title: “Every Democrat Voted Against No Tax on Tips”); and his unceasing firehose of attempts to undermine public confidence in the integrity of the election process itself.
What keeps election administrators up at night? Check out our new interview with Tammy Patrick, veteran election administrator and chief executive officer for programs at the National Association of Election Officials’ Election Center. It’s the latest in our Cato online video series on the midterms.
And for a break, check out my piece for the Boston Globe Sunday “Ideas” section on how federalism and the Framers’ decentralized arrangements deserve our gratitude, because they’ve been central in fending off White House meddling.
