How changes to the Democratic presidential primaries may affect 2020 voting

One common phrase I’ve heard at conferences discussing proposed reforms to presidential primaries is something along the lines of, “Reformers are always targeting last cycle’s election.” That is, sometimes reformers are too myopic in trying to fix last cycle’s changes and fail to recognize the unintended consequences it could have on the next cycle—or that changes in events may alter how we view the next cycle.

I want to focus on two items for consideration well ahead of the 2020 Democratic presidential primaries. The first are changes to the Iowa caucuses. The second are changes to the primary calendar. Some speculation follows the observations of each change, with an assumption that a significant number of Democratic candidates (say, at least 10 and probably more than 15 viable candidates) will run, similar to the number in the 2016 Republican presidential nominating contest.

Iowa Caucuses

The Democratic caucuses in Iowa have long had distinctive features. Democratic voters show up at precinct caucus sites and publicly express support for one candidate or another. They group together in wings of the precinct site. Then there’s a period of “realignment,” where supporters of non-viable candidates (those with few supporters) throw their support behind another, more viable candidate. The caucus site names a winner; no popular vote is taken. Those caucus site winners are compiled into an overall distribution of delegates.

Multiple reforms appear to be shaping up for 2020. The caucus will resemble more of a traditional primary, if all the changes are approved. There will be absentee voting, which should dramatically increase popular participation. Raw vote totals will be released.

But it also means that this “realignment” may disappear. This was a potentially crucial opportunity for insurgent candidate Barack Obama in 2008. Reports widely circulated before the Iowa caucuses in 2008 that Bill Richardson, a second-tier candidate, had urged his supporters to throw their support behind Mr. Obama in the event of realignment (the same was true for marginal candidate Dennis Kucinich). The realignment period offered a kind of ranked choice voting. It also prevent too much fragmentation: three candidates—Mr. Obama, John Edwards, and Hillary Clinton—secured about 97% of precincts.

The Iowa caucus changes haven’t been finalized yet, but if the Iowa caucuses look more like a traditional primary, or the Republican caucuses in Iowa in 2016, we would expect to see more fracturing (no candidate broke 30% of the popular vote), more delegates awarded to more candidates, and, potentially, less opportunities for the kind of second-choice realignment that Mr. Obama benefited from in 2008.

2020 Calendar

Many states jockey for an early position in the primaries to exert their influence in the process. Iowa, New Hampshire, Nevada, and South Carolina have received privileged status in recent years. But by the first Tuesday in March, other states may follow suit with primaries.

In 2016, Alabama, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Virginia, and Vermont held Democratic primaries or caucuses on the first Tuesday. In 2020, Arkansas has likely moved its primary back to May; California and North Carolina have moved their primaries up to the first Tuesday in March.

For candidates who survive the early stages, viability may come through home-state advantages, particularly among delegate-rich pools of states. Prospective candidates Elizabeth Warren (Massachusetts), Beto O’Rourke (Texas), and Julian Castro (Texas) all may find strength on this dates; so too would Kamala Harris (California), after California moves up its primary.

It’s worth noting that among the most viable challenger to Donald Trump for the Republican nomination after Super Tuesday appeared to be Ted Cruz—in part because he secured over 200 delegates that day, but largely because Texas’s primary (and 104 delegates of its 155 possible delegates he won) came on that day.

The fortune of the calendar, then, might provide added strength for certain candidates.

Speculation from procedural changes

Yes, much of this is speculative. But it’s worth considering that we often look back at a presidential primary and note certain things that occurred because of the procedures in place. The changes in this cycle will undoubtedly have some impact on the Democratic presidential primaries. We won’t really know what those look like until after the fact, but I hope thinking structurally and drawing some recent comparisons offers some useful perspective ahead of the 2020 presidential primaries.

Election counts and recounts

I’ve occasionally tweeted about election margins and recounts. Given a number of (relatively) close elections, refusals to concede, and retracted concessions, I thought I’d offer a little perspective (and a very little math).

All (or, at this point, nearly all) of the change in the margin between candidates in Florida’s Senate, Governor, and Commission of Agriculture races, and Georgia’s Governor race, have arisen because of mere counting of the ballots. There are lots of (here I’ll focus on legitimate, by far the more common) reasons for late-added votes. Provisional ballots could be deemed valid or cured. Vote-by-mail ballots might permissibly arrive after Election Day in some jurisdictions. But these are typically smaller figures. Slow or inefficient counting, or simply more general administrative failures, by election officials might result in added later totals.

To put it obviously, only after the votes have been counted can there be a recount. It’s there that many hold great interest, but it’s there that little changes.

I draw on a few rough figures form past recounts. Minnesota’s Al Franken netted 527 votes in a recount in 2008 in an election with about 2,885,555 votes cast. That turned his 215-vote deficit into a 312-vote victory (post recount and post litigation). The 527-vote change was just 0.018% of all votes cast. (Note that this reflects a percentage of this change compared to all ballots cast. It is not that there were 527 votes that were added for Mr. Franken; votes were added for Mr. Franken and for Norm Coleman, but Mr. Franken gained 527 votes relative to Mr. Coleman.)

Washington’s Christine Gregoire recount netted 390 votes in a 2004 gubernatorial recount in an election with 2,810,058 votes cast. Her opponent Dino Rossi originally held a 261-vote lead, but after two rounds of recounts Ms. Gregoire was declared the winner by 129 votes. The 390-vote change was just 0.014% of all votes cast. (Again, both Mr. Rossi and Ms. Gregoire increased their vote totals in the recount, but Ms. Gregoire increased them at a faster rate than Mr. Rossi, and that 390-vote difference was this percentage.)

Finally, Donald Trump won Wisconsin’s electoral votes over Hillary Clinton by a reported margin of 22,617 votes in 2016. Green Party candidate Jill Stein demanded a recount, which netted Mr. Trump 131 votes and increased his margin of victory to 22,748 among 2,976,150 votes cast. That 131-vote margin reflected 0.0044% of all votes cast. (This was a much more mundane recount in some respects because neither candidate formally challenged the results.)

The long and short of this is, recounts rarely change much in absolute terms. Even in elections with millions of votes cast, the relative change in the margin of victory is extremely low. It was enough to give Mr. Franken and Ms. Gregoire victories, but it was still very little that changed.

One basic reason that’s the case? Recounts recount every ballot—an obvious proposition, of course. But that means a challenging candidate picks up votes as well as his opponent. To successfully change the outcome of an election during a recount, then, you need either extraordinary luck, or you need to establish that there are systematically more votes for your candidate that were “missed” during the first count—mismarked ballots, hanging chads, provisional ballots that were deemed invalid, and so forth.

That can be a high bar. Typically, we’d expect errors like this to be randomly distributed. But as Florida’s 2000 election showed, one county’s procedures (e.g., the use of punch card ballots and a butterfly ballot design) might differ from another’s, which may disproportionately impact one candidate over another to the extent that one candidate’s support resides more heavily in that county. And as some observers of the 2004 Washington race and the 2008 Minnesota race might argue, out-lawyering your opponent can help net a few more votes, too.

Nonetheless, absent evidence like that, or in the event that there is offsetting evidence that may have disadvantaged candidates relatively equally, we would expect little to change in a recount.

Consider Minnesota again. Mr. Franken netted 1 vote for every 5,475 votes ultimate counted, that 0.018% margin. To win, he had to not simply gain votes; he had to gain votes faster than his opponent. And he did so.

And to Washington, Ms. Gregoire fared even worse. She managed to net just 1 vote for every 7,205 ultimately counted.

For both of them, despite these overwhelming odds, the extraordinarily narrow margins of victory—low three-digit margins—helped.

So where do things stand today?

The last update in Florida’s Senate election shows Rick Scott leading Bill Nelson by 12,562 votes among 8,184,631 votes cast. That’s 0.15%, or about 10 times the gains that Mr. Franken and Ms. Gregoire ultimately made—and that would just pull Mr. Nelson into a tie. (Again, however, recall how I opened this post—much depends on whether this is even the final count, as opposed to gains being made in the recount.)

In Florida’s gubernatorial race, among 8,218,682 votes cast, Ron DeSantis leads Andrew Gillum by a margin of 33,684. That’s 0.41%, or would require Mr. Gillum to net 1 vote for roughly every 244 votes cast. (And, of course, this is a rough figure—more ballots would likely be added to the overall total votes cast as “undervotes,” those that failed to register for any candidate, were added to the totals in a recount.)

Florida’s Commissioner of Agriculture, assuredly less watched, may still be instructive once the recount dust settles. Nikki Fried leads Matt Caldwell by 5,326 votes among 8,055,348 votes cast, or a margin of 0.066%.

In Georgia, Brian Kemp needed to secure more than 50% of the vote to avoid a run-off and win outright, and 3,929,937 votes cast, or about 10,875 votes to spare, a margin of 0.28%. (The math looks a little different when looking at a 50% cut-off rather than his position relative to challenger Stacey Abrams, but this works well enough for now.)

In short—the final count matters a great deal for each of these races. Under almost no recount scenario would anyone other than the projected winners win the recount, if recent history is any guide. Only significant election administration errors—failure to count large quantities of votes in select counties, for instance—would be these margins by overcome by challengers, because they’re the kinds of things that were omitted from the count in the first place. That said, there’s a first time for everything, which is probably the news that keeps hope alive for challengers in these races.

"Cyber Interference in Elections and Federal Agency Action"

I have this piece up at the Harvard Law Review Blog, Cyber Interference in Elections and Federal Agency Action. It begins:

Pop quiz: which part of the federal government is tasked with preventing cyber interference in our elections?

Congress has refused to say. We have reached a point of a significant gap between an important federal need and existing federal power. And in the absence of that federal power, federal agencies have stepped into the gap and extended their authority into domains unanticipated by Congress.

A few thoughts on the tempest in Randolph County, Georgia

When election officials in Randolph County, Georgia engaged in the routine practice of election administration, they probably didn’t anticipate a campaign of fearmongering littered with falsehoods to be waged against them.

Randolph County is a rural county with about 4300 registered voters spread over nine precincts. About 55% of registered voters are African-American. Most of the voters—about 60%—are concentrated in just two precincts. Those precincts are 63% African-American, and coincidentally 63% of voters in those two precincts preferred Hillary Clinton in the 2016 presidential election.

There are seven other precincts spread around the county, but they are smaller, and in some cases much smaller. One of those precincts, for instance, has just 73 registered voters.

Keeping polling places open on Election Day can be costly. Voters increasingly vote before Election Day, casting absentee ballots or participating in early voting. Many don’t vote at all. Election officials also noted that these polling places require costly upgrades to make them compliant with disability access laws. They proposed closing these seven of the least-used districts.

Before 2013, election changes like these would have needed prior approval from the Department of Justice under the Voting Rights Act. The Supreme Court in 2013 held that “things have changed” in the South, and that seeking prior approval was no longer needed. Critics of the Supreme Court’s decision have hastily pointed to this episode as demonstration that things haven’t changed and that voter suppression pervasively rears its ugly head in the South. The facts show otherwise.

The American Civil Liberties Union began a public relations campaign demonizing county officials. It led with sinister charges” “7 of 9 precincts” or “75% of polling places” would be closed. “Precincts with 40% of the county’s voters” sounds much less dire, even if that’s more truthful.

The ACLU then claimed that these were racially motivated closings, noting that the county’s population is a majority African-American. But that, too, is a misleading charge. The seven precincts that will close are mostly white and just 42% African-American. Those precincts supported Donald Trump in 2016 with 55% of the vote.

If this is a sinister plot by white officials to suppress African-American voters, it’s the most incompetent plan one could develop. The precincts that will close disproportionately affect white voters and Republicans.

Do the closures affect African-Americans? Certainly. They also affect white & Hispanic voters. But claims of "suppression" suggest that election officials targeted African-Americans, a tough claim to make given that white voters face the brunt of the closures.

Individual precinct closures may disproportionately affect African-Americans. Consider the proposed closure of one precinct with 318 registered voters there, 96% African-American. Then again, we can pick out other precincts, too. There’s one precinct that's 89% white that will close (just 73 registered voters); another that's 83% white will close (just 103 voters).

These facts didn’t stop the ACLU from cherry-picking the 318-voter precinct. They found an uncritical media eager to help spread the misinformation. The Associated Press repeated a series of allegations levied by the ACLU against Randolph County election officials, reading more like a press release than journalism.

This isn’t to say that Randolph County election officials did a very good job. They proposed shuttering these polling places weeks before a statewide general election, and these sites had been used just weeks earlier in the primary election. A longer lead time with better communication to the public might have prevented the fallout.

It might be the case that some voters do have a harder time getting to the polls, or that some voters have to switch to early voting or absentee voting. Those are difficult tradeoffs every election administrator must face, Randolph County included. One hopes they’ve thought through this process more carefully than their action plan suggests.

But administrative mistakes hardly rise to the level of voter suppression, the conscious and deliberate effort to prevent African-American voters from participating in the political process.

That said, the right result was reached--given the lack of information and late notice, it was a welcome decision when the county opted not to close polling locations this fall.

That said, it's worth emphasizing that the political process worked well--no litigation, no order from a judge. Indeed, even in the absence of Section 2 of the Voting Rights Act, a rural county's poll closures became national news. Perhaps for the incorrect hyperbolic reasons described above--but a non-judicial solution nonetheless.

In these anxious political times, fearmongering seems to be the weapon of choice among partisans. But careful attention to detail reveals that the allegations of nefarious plots in Randolph County appear to be no more than less than ideal choices by government officials acting in good faith. Let’s hope that the rhetoric cools ahead of Georgia’s 2018 election.

Forthcoming article: "The Democracy Ratchet"

Over at SSRN, I've posted a draft of The Democracy Ratchet, forthcoming in the Indiana Law Journal. Comments welcome! The abstract:

Litigants seeking to lift burdens on the right to vote and judges adjudicating these claims have an unremarkable problem—what is the benchmark for measuring the nature of these burdens? Legal theories abound for claims under the constellation of rights known as the "right to vote." And when a legislature changes a voting practice or procedure, courts may have an easy benchmark—they can consider what the right to vote looked like before and after the enactment of the new law, and they can evaluate a litigant’s claim on that basis. Recently, federal courts have been relying on this benchmark for the principal causes of action litigants might raise after a new law has been enacted—a Section 2 challenge under the Voting Rights Act, a freedom of association claim subject to the Burdick balancing test, and an Equal Protection analysis derived from Bush v. Gore. And frequently, courts have found that new laws that eliminate once-available voting practices or procedures fail.

I describe this new practice as the Democracy Ratchet. But it is only recently that a convergence of factors have driven courts to (often unwittingly) adopt the Democracy Ratchet more broadly. So while a legislature can expand such opportunities, courts scrutinize cutbacks on such opportunities with deep skepticism—deeper than had no such opportunity ever existed. The ratchet tightens options, squeezing the discretion that legislatures once had.

This Article seeks to solve the puzzle of how courts have scrutinized, and should scrutinize, legislative changes to election laws. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines of the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to a point where a version of the Democracy Ratchet might be incorporated into the test. It concludes that these causes of action do not include a substantive Democracy Ratchet. Part IV turns to determine how the Democracy Ratchet might be used. It concludes that the Democracy Ratchet is best identified as an evidentiary device and a readily-available remedy for courts fashioning relief. It then offers suggestions for its appropriate use. Part V identifies some concerns with existing use of the Democracy Ratchet and instances in which it may be incorrectly used. It offers guidance for courts handling changes to election laws. Part VI concludes.

Quick thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky

Here are a few quick running thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky. This post will be updated. The transcript PDF is here. (As an I aside, I wrote an article about the concept of "ballot speech," or the contents of the ballot itself as communicating expressive and informative content for voters, in this piece in the Arizona Law Review. Mansky involves a related question on restrictions on speech in the polling place.)

Express advocacy? Justice Kagan early in the argument, along with Justice Kennedy, wondered about more narrowly-drawn rules on matters like express advocacy for or against a particular candidate rather than broader political messages. That might be an attractive option for a Court looking to fashion a rule that offers the state some flexibility to regulate in the future.

Content and overbreadth: Justice Alito later pressed on this issue to wonder if candidate-based content might be somehow a separate matter properly subject to regulation. Justice Kagan in particular was concerned about how a proper overbreadth challenge might look. Justice Gorsuch later in the argument wondered about Minnesota acting as "outlier" when examining whether Minnesota had a compelling interest to justify the potential (as he said, "often undocumented") chilling effect.

Scope of intimidation: Chief Justice Roberts wondered about this notion of "decorum" in the polling place, emphasizing that freedom from intimidation is a distinct issue. At the same time, he wondered, "maybe bitter, sharp, political campaign going on, and maybe, just before you cast your vote, you should be able to have a time for some quiet reflection or to do that important civic obligation in peace and quiet without being bombarded by another campaign display." Later Justice Kennedy wondered about the difficulty of enforcing decorum if it largely turned on individualized determinations from polling officials.

Late in the oral argument, Justice Kagan wondered about how to evaluate "decorum." The courtroom was a good place for decorum, she thought. But she wondered why the polling place sounded "a little bit church-like," when it came at the end of "often a rowdy political process."

First Amendment issues at all? Justice Kennedy wondered, "Why should there be speech inside the election booth at all, or inside the what you call the election room?" From a justice usually known for his robust First Amendment views, this struck me as notable. Justice Ginsburg jump in to join the concern.

Facial challenge: One related question to the overbreadth concern was the scope of the challenge, as a facial challenge as opposed to as-applied. The Court's doctrine in this area has not been the most coherent, so I won't dig into issues now. But Chief Justice Roberts wondered about the "tiniest little logo" as being subject to the law and somehow affecting "decorum" as potentially a problem.

Arbitrary enforcement and defining political matters: Justice Alito wondered about the risk of arbitrary enforcement and the difficulty of election officials line-drawing in the application of this statute. In a series of hypotheticals testing this limit, Justice Alito got the state's attorney to say that a T-shirt with "the text of the Second Amendment' Could be viewed as political, but notthe text of the First Amendment. (Oral arg. transcript at 40.) It highlighted a very basic problem with a statute that had as broad a scope as Minnesota suggested--and perhaps suggests that the Court would require something narrower.

Justice Alito later worried about partisan election judges determining the political connotations of materials. The state's response? This is not terrible unusual, given that election judges make all kinds of determinations.

Burson: The Court showed no interest in overruling Burson. (But such things may remain unsaid....) Late in the oral argument, Justice Gorsuch seemed satisfied that Burson would be the narrower case of "campaign speech," compared to Minnesota's law of "additional political speech." But, returning to the definitional concerns of the Court noted earlier, that may not be satisfactory.

Compelling interests: Near the end, Chief Justice Roberts emphasized that it did not appear that the state's interest were "terribly strong." Only time will tell....

New essay draft: "Legal Quandaries in the Alabama Senate Election of 2017"

I have posted a new essay forthcoming in the Alabama Law Review, entitled Legal Quandaries in the Alabama Senate Election of 2017. Here is the abstract:

President Donald Trump’s decision to nominate Alabama Senator Jeff Sessions as his Attorney General resulted in a vacancy in the Senate and triggered a special election. The special election, however, revealed the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically.

This Article traces a series of legal quandaries that arose from the special election, some of which remain open questions for future Alabama elections, and for United States Senate elections more generally. Part I examines the scope of the Alabama Governor’s power to call for a special election under the Seventeenth Amendment and state law. Part II scrutinizes the complications for replacing a late-withdrawing candidate and for counting votes cast for a candidate who resigns. Part III identifies proposed gambits, from postponing the election to write-in campaigns, that never came to fruition. Part IV examines the timing surrounding certification of election results in Alabama. Part V looks at gaps in Alabama’s recount and election contest procedures. Finally, Part VI identifies the most significant opportunities to clarify Alabama law and to properly interpret the Seventeenth Amendment to avoid uncertainty in future elections.

I have a very short turnaround before submitting the final draft for editing, but I welcome any comments or feedback!

A small data point on an emergency designation in a California election

Emergencies and elections don't get along well. The threat of emergencies, like acts of terrorism or massive weather events, remain a concern in elections, but we seem to lack many structures in place to handle such events.

Fires in Sonoma County, California prompted Governor Jerry Brown on October 19, 2017 to sign an executive order declaring an all mail ballot election for the November 7 election.

I was a bit skeptical of what I thought to be a fairly late emergency declaration and wondered how it might play out. Granted, it's an admittedly low-turnout election, but on the surface it appears that canceling in-person voting had a negligible impact, if any, on turnout.

The 2013 election had 6364 absentee and 1248 precinct ballots for 35.2% turnout. The 2015 election had 7003 absentee and 1235 precinct ballots for 33.0% turnout. Surely, a high percentage of voters already casting absentee ballots helps minimize any damage from canceling precinct voting. The final results this election were 6590 absentee for 31.2% turnout--a decline, but no bigger than the previous off-year-over-year decline.

I'm certainly not equipped to address matters like the competitiveness of the candidates or contentiousness of the issues or any of the many other confounding variables that could affect turnout. But, it's a small data point to consider in the larger scheme of thinking about how to handle emergencies and elections.