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Brennan Center

The math on redistricting

It’s not just that Republicans drew themselves a favorable map. It’s that they drew a durable favorable map.

Thanks to those very effective Republican redistricting maps, Texas Democrats would have to improve their statewide election results by more than 10 percentage points to gain more than one seat in the 36-member U.S. House delegation, according to a report from the non-profit Brennan Center for Justice.

The political maps in Texas and elsewhere across the country could ultimately protect the Republican majority in the U.S. House even if it turns out to be an otherwise mediocre midterm election for the president’s political party.

Overall, Republicans have a 24-seat advantage in the U.S. House. Democrats have an advantage over Republicans in recent polling, the report says, but gerrymandering makes a party switch much less likely. To win two dozen seats, by Brennan’s figuring, Democrats would have to win the national popular vote by 11 percentage points.

“Even a strong blue wave would crash against a wall of gerrymandered maps,” the report says.

The 2016 elections put 25 Republicans and 11 Democrats in the state’s delegation to the U.S. House. Democrats got 42 percent of the state’s votes that year, according to the report’s authors. A modest improvement in the share — as little as 2 percent — could move a seat from the Republicans to the Democrats. It’s not hard to figure out that the 23rd Congressional District that runs along the border is what’s in play here; it’s the only true swing seat in the state, regularly primed to go to whichever party is having the better election year.

But here’s the house-on-stilts aspect to the maps. According to the Brennan Center’s projections, the Democrats could improve their statewide vote share by as much as 7 points — to 49 percent — and that’s still the only congressional seat they would pick up.

Listen carefully right now and you’ll hear protests from other parts of the state, like CD-32 in Dallas and CD-7 in Houston, where optimistic Democratic challengers are vying to unseat Pete Sessions and John Culberson. They might be right. The study isn’t trying to predict races. It’s trying to show how strongly the Republicans cemented their advantage in Texas, given normal conditions. Actual mileage may vary.

It would take a tsunami — a double-digit leap in Democrat’s percentage share — to gain more than a single seat in Texas. Something like that would still leave the Republicans in the majority, but it would be a 19-17 advantage instead of the 25-11 edge they have now. “For Democrats to win more than one-third of seats under the 2011 Texas map, they would need to win close to half the vote,” the report says.

The report is here and the executive summary is here. It looks at multiple states and is worth reading for its methodology and thoroughness. One way to look at this is that if Democrats can get to fifty percent of the statewide vote, then there are an awful lot of Congressional seats that would be poised to topple in their direction. Republicans drew this map on the quite reasonable so far assumption that Dems will not get to a majority of the statewide vote, but if that assumption were to fail they’d go from a trickle to a flood in a big hurry.

If it’s too daunting to think about like that, the way I look at it is that the magic number for Democrats is 2.7 million, which is to say 75% of their 2016 vote total. I’ve noodled around with the numbers before now, and that’s where things get interesting, in multiple districts. Not just Congressional districts, either – State Senate seats start to flip as well. On the one hand, that’s a huge increase over the usual off-year total. On the other hand, it’s asking people who have at least some history of voting to vote this year. Democrats gained 800,000 votes from 2004 to 2008, so a big jump can happen. What this report is saying, and I agree with it, is that this is what needs to happen. Are we up to it?

SOS halted from handing over voter info

Good.

Still the only voter ID anyone should need

A Texas district judge has issued a temporary restraining order preventing Texas Secretary of State Rolando Pablos from handing voter information to President Donald Trump’s voter fraud investigation commission.

The order, which came out Tuesday, adds Texas to a growing list of states not complying with the president’s investigation into the 2016 elections, which Trump says suffered from large-scale voter fraud.

Judge Tim Sulak of the Austin-based 353rd Texas Civil District Court issued the order in response to a lawsuit filed July 20 by the League of Women Voters of Texas, its former president Ruthann Geer and the Texas NAACP against Pablos and Keith Ingram, the Texas Elections Division director in the the secretary of state’s office. The lawsuit seeks to stop the state from handing over voter data from the state’s computerized voter registration files to the Presidential Advisory Commission on Election Integrity. The suit argues that doing so would reveal voters’ personal information, “which may be used to solicit, harass, or otherwise infringe upon the privacy of Texas voters.”

[…]

The League’s current president, Elaine Wiant, said the organization is especially concerned that releasing the data could make millions of voters’ personal information public, making it vulnerable to commercial use. Texas law forbids public voter information from being used commercially, but with the presidential commission, Wiant said “there is no guarantee how it will get used.” Wiant also said the League is concerned that releasing the data would make voters’ birthdates public.

“In today’s world, that is just way too much information to be made available to the public,” Wiant said. “There are serious security concerns.”

The order, which expires Oct. 17 or with further order from the court, says that handing over voter information could cause “irreparable” injury. Without “appropriate safeguards,” the order argues, the data is likely to become public, potentially violating voters’ privacy rights, their interests in “avoiding commercial solicitation, chilling of their First Amendment rights, and the diminution of their efforts to encourage voting.”

See here and here for the background. There will be a hearing on the 16th, at which time this will presumably be extended or rescinded. In the meantime, the Trump commission has other legal problems to worry about. Let’s hope this is the end of it in Texas.

Lawsuit filed over giving voter data to bogus Trump commission

I missed this last week.

Still the only voter ID anyone should need

The League of Women Voters of Texas and the Texas NAACP said Thursday they have sued Texas Secretary of State Rolando Pablos over plans to release voter information to President Donald Trump’s election commission.

Texas law requires that safeguards be met to ensure such data isn’t used improperly, the groups said, and they must be followed before any data is sent to the Presidential Advisory Commission on Voter Integrity.

“The Secretary of State should strictly follow state law if he releases any voter information to the Commission,” Elaine Wiant, president of the League of Women Voters of Texas, said in a news release. “Releasing personal information could result in identity theft, causing great harm to Texas voters. Further, we fear that the Commission’s goal is voter suppression, not voter participation.”

See here for the background. This is separate from the open records request made by the ACLU of Texas. The suit was filed in state court in Travis County, and it alleges that the request violates Texas election statutes. . You can see the complaint here – it’s a bit dense for me, so I’ll leave it to the lawyers to offer an opinion. It’s fine by me if these plaintiffs succeed in getting an injunction, and as noted by the Brennan Center, Texas is not the only state where such a lawsuit has been filed. We’ll see how it goes – among other things, I’ll be very interested to see how the state responds to this. How hard will they fight for this if a judge puts a halt to it? It’s not clear to me that it’s in the Republican leadership’s best political interests to go balls to the wall on this one.

Your periodic reminder that non-citizens very rarely vote

I know you don’t need a reminder, being sophisticated followers of the news and all, but here it is anyway.

Since Donald Trump won the Electoral College vote in November, our new commander-in-chief has consistently attacked the legitimacy of popular vote totals that showed his rival, Hillary Clinton, well ahead of him on election day. “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally,” Trump tweeted in November. Although he has doubled down on the claim in several subsequent statements, offering an estimate of three to five million illegal votes and complaints about specific states, Trump has failed to provide evidence of widespread fraud.

Myrna Pérez, a Texas native and civil rights lawyer, won’t take the president at his word. As head of the Voting Rights and Elections project at New York University’s Brennan Center for Justice, Pérez has seen states around the country—Texas included—rushing to respond to voter fraud threats. “As someone who’s driven by data, as someone who researches elections, as someone who is in the business of making sure our elections represent the voices of actual Americans, I’m very troubled at the policies we see that seem to not have any science or data behind them,” Pérez says.

Pérez, a graduate of San Antonio’s Douglas MacArthur High School who now teaches at Columbia and NYU law schools, decided to check if Trump’s claims of massive voter fraud had any empirical backing. Her team at the Brennan Center reached out to all 44 counties in the U.S. that are home to more than 100,000 non-citizens. The team also contacted several of the largest and most diverse counties in the three states—California, New Hampshire, and Virginia—where Trump made specific claims of “serious voter fraud.” Forty-two counties responded to Perez’s queries, including Harris, Dallas, Tarrant, Bexar, Travis, and El Paso counties in Texas. The counties Pérez’s team interviewed accounted for over 23.5 million votes in the 2016 election. However, the county elections administrators reported a combined total of only 30 fraudulent noncitizen votes in 2016—about .00001 percent of the votes totaled.

“Noncitizen voting in Texas, as in the rest of the country, is rare,” Pérez concludes. As for the nationwide total of fraudulent votes, she says her methodology doesn’t offer a reliable estimate, but that there is no way it’s three to five million people. “Not even close,” she says.

Pérez’s criticisms are echoed by elections administrators around Texas—the people work to assure that eligible voters can cast a ballot and ineligible voters cannot. “I have not seen the numbers to support that,” says El Paso County elections administrator Lisa Wise, referring to Trump’s three to five million claim. “The integrity of elections is a priority for this department, and I believe that it is intact until I see differently.” Bexar County elections administrator Jacquelyn Callanen also backs that sentiment. “I welcome the light being shined on this, to show that our records are well-maintained,” Callanen says. “We stand for integrity. We take such pride and we do such, I think, a magnificent job of list maintenance and voter participation.”

You get the idea. I will point out, as I have done with stories about how incredibly rare other forms of voter fraud are, that our current Attorney General and our previous Attorney General would each sell their soul (well, maybe they’d sell your soul) to bust and convict any number of non-citizens they could catch in the act of voting. The fact that they have conspicuously failed to do so over a multi-year and multi-election period of time should tell you something.

Redistricting trial week begins

This will be the main event of the week.

Eight months ahead of the 2018 primaries, Texas and its legal foes on Monday will kick off a week-long trial that could shake up races across the state.

The state and minority rights groups have been squabbling for six years over new political district boundaries drawn following the 2010 census. As part of a long-winding legal battle, a panel of three federal judges this week will reconvene in a federal courthouse here to consider the validity of the state’s political maps and whether changes should quickly be made to the state’s House and Congressional boundaries ahead of the midterm elections. At issue is whether the current boundaries violate the voting rights of millions of Texans of color.

The showdown comes months after the panel of judges found fault with the state’s 2011 drafts of the political maps. In a pair of rulings this spring, the judges also found that Texas lawmakers intentionally discriminated against minority voters in crafting them.

Those rulings did not require an immediate remedy because the state has been running elections since 2013 under court-drawn maps that were crafted amid an election scramble and later adopted by the Legislature.

But the judges are now turning their attention to the existing boundaries.

There’s an overview of how we got here and what is at stake in that story and also in this Statesman story, which notes the time factor:

Don’t expect immediate gratification. When the trial closes Friday or Saturday, the judges will take the matter under advisement — though a written ruling is expected relatively quickly as the court labors under looming election deadlines.

State officials have advised the court that any new maps would have to be ready by around Oct. 1 to meet deadlines for setting precinct lines and to allow candidate filing for the 2018 primaries to begin, as scheduled, in mid-November. Complicating the timing will be the inevitable appeal that the losing side will make directly to the U.S. Supreme Court.

If new maps are needed, the judges likely will order additional input on how to redraw district boundaries, lawyers said Friday.

The maps in question are the Congressional and State House maps that were implemented in 2013. Those maps in turn are basically identical to the interim maps created in 2011 after preclearance was rejected; the Lege adopted them with a couple of tweaks. The state claims that since the current maps are based on ones that had been drawn by the court, they cannot be discriminatory. The plaintiffs note that the 2013 maps differ only a little from the 2011 maps, which were ruled to be discriminatory, and that many of the problematic elements of the 2011 maps exist in the same form in the 2013 maps. The trial this week is to answer the question whether the existing maps are discriminatory, and if so what should replace them and also should the state be bailed back into preclearance under Section 3 of the Voting Rights Act. This Brennan Center article explains it better than I just did, with more details.

Here’s the Trib Day One story. A couple of highlights:

With Texas becoming less white each day, lawyers for minority rights groups opened their push for new maps by parsing the state’s demographic growth, which shows that the population of eligible white voters has significantly declined since 2010.

When asked by federal district Judge Orlando Garcia how this relates to the 2013 maps, the Mexican American Legislative Caucus’ lawyer, Jose Garza, indicated it was proof that Texans of color don’t have proportional representation under the maps currently in place.

“Even today … minorities are underrepresented when measured against population data and population figures,” Garza said.

MALC also presented an alternative map to demonstrate that the state House boundaries could have been drawn in a way that minimized the slicing of municipalities and created additional “opportunity districts” where minority voters are able to select their preferred candidates.

Creating that type of district was not a legislative priority when the House took on redistricting in 2013; lawmakers only made “cosmetic changes” that didn’t “improve the overall map for minority opportunity,” former state Rep. Trey Martinez Fischer testified before the court.

In 2011, state lawmakers drew legislative and congressional maps following the 2010 census, but they were immediately challenged in court on the basis that they diluted the voting strength of Hispanic and black voters. The court drew interim maps amid an election scramble, and the Legislature in 2013 moved to adopt them.

Martinez Fischer argued that efforts to improve those maps for minority representation were rebuffed by the Republican majority.

“It was almost all upon deaf ears,” Martinez Fischer said.

All the plaintiffs’ briefs for the trial can be found here. The demonstration map mentioned in the story for the State House is H391, and C285 is for Congress, with the former drawn by MALC and the latter by MALC, LULAC, and the Perez plaintiffs. There more of these – go to http://gis1.tlc.state.tx.us/, choose a Shaded Plan, change the Category to All, and scroll down. The last maps listed for each type will be the ones being shown in the trial. Michael Li of the Brennan Center is live-tweeting the trial, so follow along with him for the play-by-play. I’ll do my best to keep up as well.

SCOTUS takes on Wisconsin partisan gerrymandering case

Monday’s big news.

Partisan gerrymandering exists because the Supreme Court allows it to exist. Although such gerrymanders are a form a viewpoint discrimination, which violates the First Amendment, Republican appointees to the Supreme Court have been reluctant to even let federal courts consider partisan gerrymandering cases — much less strike down actual gerrymanders.

That could all change, however, as the Supreme Court just announced it will hear Gill v. Whitford, a case that presents the most promising challenge to a partisan gerrymander in more than a decade. In Whitford, a divided three-judge panel held, in an opinion by Reagan-appointed Judge Kenneth Ripple, that Wisconsin’s state assembly maps violate the Constitution.

Notably, the plaintiffs’ arguments in Whitford are tailor-made to address a concern Justice Anthony Kennedy, the Court’s ostensible “swing” vote, raised in a 2004 opinion. In Vieth v. Jubelirer, the Court’s other conservatives joined an opinion by Justice Antonin Scalia, which would have slammed the door on partisan gerrymandering suits entirely. Kennedy, however, left the narrowest of cracks open in his separate concurrence.

[…]

Though Kennedy worried about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights” — that is, the fact that it is difficult to come up with an objective test courts can use to determine which maps are gerrymanders — he also concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”

Whitford accepts this challenge by proposing a mathematical formula that judges can use to identify partisan gerrymanders. Gerrymanders work by forcing one party to “waste” votes. Voters are either “cracked,” pushed into districts where their party has no chance of winning; or “packed,” crammed into districts where their party has such an overwhelming majority that additional votes for their candidate are superfluous.

A gerrymander, scholars Nicholas Stephanopoulos and Eric McGhee, who devised the formula at the heart of Whitford, explain “is simply a district plan that results in one party wasting many more votes than its adversary.”

Stephanopoulos and McGhee’s formula counts the number of wasted Democratic votes that results in an election held under a particular map, and compares it to the number of wasted Republican votes. Maps that create a large disparity may then potentially be struck down as gerrymanders if the plaintiffs can also show that they were drawn with partisan intent.

I note this primarily because it’s always of interest when SCOTUS takes up a redistricting case, but also because as the Trib notes, there could be an effect on Texas as well.

But the cases are very different: The Wisconsin case revolves around whether partisanship played too large a role into redistricting, while the Texas case focuses on race. In fact, part of Texas’ argument claims redistricting was indeed based on partisanship — something courts have allowed in the past. “A rule against partisan gerrymandering will have a major impact for communities of color, where partisanship unfortunately has often been used as an excuse for actions that hurt minorities,” [Michael Li, redistricting and voting counsel at New York University’s Brennan Center for Justice] said in a statement.

What’s next? It’s unclear if the Wisconsin case, which the U.S Supreme Court is set to consider in its term that begins in November, could affect the pending case in Texas, because of the different timelines and arguments being made. And the justices must also decide whether they even have the jurisdiction to rule in the Wisconsin case, a question they left open in accepting the case. But the high court could ultimately establish a new limit on the role politics plays into redistricting. If that were to occur, it would almost certainly affect map drawing in Texas going forward and give opponents of the current Texas’ maps a new avenue to challenge them.

The Michael Li statement is here. It seems likely to me that we will have a new Congressional map in Texas for 2018 based on the existing litigation, but there could be further action in the future after SCOTUS rules in the Wisconsin case. I should note that while Wisconsin is one of several particularly egregious states in terms of legislative gerrymandering – we’re talking states that are basically 50-50 at the Presidential level (or considerably bluer, as is the case in Virginia) but where Republicans have a two-thirds majority or close to it in their state House and Senate – Texas isn’t that ridiculous. Going by recent statewide results, you could argue Dems “deserve” somewhere between 58 and 65 House seats, and 12 or 13 in the Senate. That’s not out of the question for them next year if the 2018 winds blow favorably. We’ll see where this goes, and as always all eyes will be on Anthony Kennedy, our true lord and master. Daily Kos, the DMN, the WaPo, Texas Redistricting, and Rick Hasen have more.

So what will the Justice Department do with voter ID now?

We don’t know yet.

Still the only voter ID anyone should need

Hours after President Donald Trump was inaugurated, the Department of Justice filed to postpone a hearing on the Texas Voter ID law. The request was granted. The DOJ had previously argued that the law intentionally discriminated against minority voters, but told the court it needed additional time for the new administration to “brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”

Chad Dunn, attorney for the plaintiffs in the case, expects Trump’s Department of Justice to reverse course. “I figure the government will spend the next 30 days figuring out how to change its mind,” he said, adding that now he expects the DOJ to argue on behalf of the state of Texas, which has held that there was no intent to discriminate against minorities. “The facts did not change – just the personnel.”

The new hearing date has been set for Feb. 28.

Myrna Perez is the deputy director of the Brennan Center’s Democracy Program and leader of the center’s Voting Rights and Elections project. The Brennan Center was also set to offer oral arguments against the ID law on Tuesday, and Perez said she was “disappointed” with the DOJ’s decision to postpone the hearing. “Numerous courts have held that this law harms minority voters in Texas and we think delaying resolution of this case in that matter isn’t good for Texans,” she said.

[…]

The DOJ had previously argued that the law violated the Voting Rights Act and was intended to directly impact the abilities of minorities to vote, as more than 600,000 of them lacked the ID necessary under state law to vote. Dunn now expects the agency to reverse course.

Trump has not yet had an opportunity to nominate, let alone see confirmed, new judges.

“I don’t expect the outcome of this case to change because we’ve elected a new president,” Dunn said. “For people like me who handle civil rights case and the many who came before me to who did the same, we’re used to fighting against government at all its levels.”

See here for the background. It would be a shame, though it would hardly be a surprise, if the Justice Department changed course. I mean, this is GOP doctrine now, and you can’t send any clearer a signal than appointing Jefferson Beauregard Sessions as AG. It would be nice for the Justice Department to stay on the right side of this, but in the end I think Chad Dunn is correct. The facts haven’t changed, and the plaintiffs have had plenty of experience fighting against the government. Vox has more.

More on the STAR Voting System

The Chron updates us on the latest in modern voting technology.

The drumbeat of election rigging and foreign hacking of voting machines have energized ongoing efforts to develop a new model of digital election equipment designed to produce instantly verifiable results and dual records for security.

Election experts say this emerging system, one of three publicly funded voting machine projects across the country, shows potential to help restore confidence in the country’s election infrastructure, most of which hasn’t been updated in more than a decade.

“It’s the hardest thing I’ve ever done in my life. It’s taken years and years to get it done,” said Dana DeBeauvoir, the Travis County clerk and leader of the voting machine project. “Now that we’ve had this election, there’s renewed interest.”

A prototype of the system, dubbed STAR Vote, sits in an engineering lab at Rice University, and bidding is open for manufacturers who want to produce it wholesale. Similar efforts to innovate voting systems are in the works in Los Angeles and San Francisco.

“County clerks in these jurisdictions are the rock stars of running elections,” said Joe Kiniry, CEO of Free & Fair, an election systems supplier currently bidding on contracts to manufacture the designs of both Travis and Los Angeles counties. “If they have success in what they do, it will have, in my opinion, a massive impact on the whole U.S.”

Like any aging digital device, the voting machines are eventually bound to stumble, said Lawrence Norden, deputy director of the Democracy Program at the Brennan Center for Justice. He pointed to Detroit, where the number of votes counted didn’t match the number of voters who signed in. And he noted that reports of machines flipping votes more likely result from aged touch screens than a conspiracy to rig the election.

Yet there is seldom space in county budgets to replace the machines, which cost usually between $3,000 and $5,000 each. The vast majority of electronic voting equipment was purchased with federal funds from the Help America Vote Act of 2002. Most money reached the states by 2004, and there’s no foreseeable second wave of federal aid.

“This is really an oncoming crisis,” said Norden, who interviewed more than 100 election officials for a 2015 report about aging voting equipment published by the Brennan center. “A lot of election officials have been unhappy with the choices that the major vendors are providing.”

[…]

STAR Vote runs automatic audits, comparing a statistical sample of the paper ballots with the digital records to verify results.

“The savings are just enormous over doing a recount,” Stark said.

While other systems allow for comparison of precinct-level data, STAR Vote can compare paper ballots with individual voters’ digital ballots, which are encrypted and posted online.

Officials could take a small sample of printed ballots and compare them with digital results to conclude with high confidence that election results were correct.

The system itself is also inexpensive, built with off-the-shelf tablet computers and printers, which Wallach said will cut the price down to half of the current norm. Advanced software makes up for the cheap hardware, designers said, and they plan to make the software open-source, meaning it is free to use and, unlike current systems, can be serviced by any provider without exclusive long-term contracts.

I’ve written about this before, and while I love the design of the STAR machine, I don’t have much hope of getting to vote on one any time soon. The political climate just doesn’t seem conducive to any effort to improve the voting experience, and the lip service we got from Greg Abbott back during the peak Trump-whining-about-rigged-elections period has surely gone down the memory hole. The one possible way in that I can see for these devices is their lower cost. At some point, enough of the current voting machines will become sufficiently inoperable that replacement will be needed, and a cheaper device ought to have an advantage. Let’s hope the process of getting a manufacturer in place goes smoothly.

(NB: “Wallach” is Rice professor Dan Wallach, who as I have noted before is a friend of mine.)

Voter fraud: Still a myth

Just a reminder, in case you needed one.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Politicians and voting rights advocates continue to clash over whether photo ID and other voting requirements are needed to prevent voter fraud, but a News21 analysis and recent court rulings show little evidence that such fraud is widespread.

A News21 analysis four years ago of 2,068 alleged election-fraud cases in 50 states found that while some fraud had occurred since 2000, the rate was infinitesimal compared with the 146 million registered voters in that 12-year span. The analysis found only 10 cases of voter impersonation, the only kind of fraud that could be prevented by voter ID at the polls.

This year, News21 reviewed cases in Arizona, Ohio, Georgia, Texas and Kansas, where politicians have expressed concern about voter fraud, and found hundreds of allegations but few prosecutions between 2012 and 2016. Attorneys general in those states successfully prosecuted 38 cases, though other cases may have been litigated at the county level. At least one-third of those cases involved nonvoters, such as elections officials or volunteers. None of the cases prosecuted was for voter impersonation.

“Voter fraud is not a significant problem in the country,” Jennifer Clark of the Brennan Center, a public policy and law institute, told News21. “As the evidence that has come out in some recent court cases and reports and basically every analysis that has ever been done has concluded: It is not a significant concern.”

Lorraine Minnite, a political science professor at Rutgers University-Camden who wrote a book on the phenomenon in 2010 called “The Myth of Voter Fraud,” said in an interview that she hasn’t seen an uptick in the crime since. “Voter fraud remains rare because it is irrational behavior,” she said. “You’re not likely to change the outcome of an election with your illegal fraudulent vote, and the chances of being caught are there and we have rules to prevent against it.”

[…]

Texas Gov. Greg Abbott has called voter fraud “rampant” in Texas. A records request from News21 to the Office of the Attorney General of Texas shows that more than 360 allegations of voter fraud were sent to the attorney general since 2012. Fifteen of those cases were successfully prosecuted. Four of those convicted were voters – the rest were elections officials or third-party volunteers.

Minnite, who has studied voter fraud for 15 years, said that actual instances of fraud lie somewhere between the number successfully prosecuted and the number of allegations. In her experience, few allegations meet the criteria of fraud: “intentional corruption of the electoral process” by voters.

“Large numbers getting reduced, reduced, reduced at each level is the pattern that I’ve seen over and over and over again,” Minnite said. “The assumption should be the reverse of what it is. It should be ‘We’ve got a lot of errors here.’”

We’ve covered a lot of this before, so you know the drill. The logistics of vote fraud by impersonation have never made any sense, especially when compared to fraud by mail ballot, compromising electronic voting machines, or corrupting the vote counting process, but then it was never about making sense. Look at it this way: If voter fraud really is as “rampant” as Greg Abbott claims it is, then he was massively incompetent as Attorney General at rooting it out. And Ken Paxton isn’t any better at it, either. By their own logic, they were and are terrible failures as Attorney General.

Anyway. News21 is “a cornerstone of the Carnegie-Knight Initiative on the Future of Journalism Education”, which you can read about at that link. This story was part of their impressively large Voting Wars project, which features a load of stories about the process, politics, and demographics of voting. Check it out.

Is the Evenwel decision the last word on “one person one vote”?

Maybe not.

With a long-running legal struggle raging over one of the nation’s strictest voter identification laws, Texas was already a prime battleground in a war between conservatives and liberals over voting rights. And on Monday, experts here and elsewhere say, the Supreme Court may have opened a second front.

The court said unanimously that the state could take into account all of its 27 million residents when it carves its territory into voting districts for the State Senate, regardless of whether they can vote in elections. It was a setback for conservatives who want to limit that redistricting population to eligible voters, and a resounding affirmation of the one-person-one-vote principle that has governed most redistricting nationwide for decades.

But it was probably not the final word because the court was silent on whether any other population formula could be used to draw new voting districts. And within hours, advocates on both sides of the issue indicated that Texas or another conservative-dominated state was bound to do just that, probably after the 2020 census triggers a new round of redistricting nationwide.

“This has been an issue that has bubbled up in the courts and in the realm of social science pretty consistently,” said Edward Blum, the president of the Project on Fair Representation, the conservative advocacy group that brought the lawsuit. He said the group would urge political officials to abandon the one-person-one-vote formula for a more limited guideline, something that almost certainly would lead to a second court battle. And the state of Texas, the defendant in the group’s lawsuit, indicated in court filings that it would prefer to have that option.

“The big case isn’t this case, but the next case,” said Daniel P. Tokaji, a professor at Ohio State’s Mortiz College of Law and an authority on elections law.

Maybe yes.

“The court went as far as it possibly could go in casting a pall on the possible idea of challenging this again with an alternative method of counting,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, on a press call with reporters Monday. She and others pointed to a footnote in Ginsburg’s opinion that suggested she doubted it would even be possible to draw districts the way the challengers were advocating without ignoring other traditional redistricting principles.

“That language very firmly closes the door on the idea that trying to [use] something other than total population is a good idea,” Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, said on the same press call.

That’s not to say that Blum and others won’t try, but their argument for why states should think they’d be allowed to do so just got a lot harder with the language in the majority opinion.

“Any state that’s thinking about doing that is going to have to think that there’s a very serious risk that they’re going to get tied up in a lot of litigation,” Sam Bagenstos, a University of Michigan law professor who previously worked in the Department of Justice’s Civil Rights Division, told TPM.

But it’s not just for legal reasons that states have largely stuck to using total population to draw their districts. As Evenwel revealed, there is an absence of data that is a reliable as the census’ total population numbers. And it’s not just Democratic-leaning minority populations that would be negatively affected. Districts with a lot of children, for instance, could also be at risk, a reality Ginsburg also nodded to in her opinion.

“There’s certainly people who will try to make the argument and see if any legislature will bite,” said Michael Li, counsel for the Brennan Center’s Democracy Program, a non-partisan organization that defends voting rights. “States really have chosen to do total population for a lot of good reasons, both the political consequences and that the data is much much better.”

See here for the background. I don’t expect a zealot like Edward Blum to go away – this is his life’s work – but the commentary I read after the decision was handed down suggests it won’t be easy. A state would have to draw a Blum-style map and then defend it in court. If they took that route, the key question would be whether their Blum map would be stopped by the courts while the litigation was ongoing, or would they get to use something like it as has been the case with the 2011/2013 maps? In that case, there’s much to be gained and little to lose, but if not you could wind up spending a ton on litigation and in the worst case having the door permanently slammed on this approach. Check back in 2021 and we’ll see if Texas or some other state takes up the challenge.

Our obsolete voting machines

From the Brennan Center:

Executive Summary

In January 2014, the bipartisan Presidential Commission on Election Administration (PCEA) issued a stern warning that should be of grave concern to all Americans: There is an “impending crisis … from the widespread wearing out of voting machines purchased a decade ago. … Jurisdictions do not have the money to purchase new machines, and legal and market constraints prevent the development of machines they would want even if they had funds.”

This report, nearly two years later, documents in detail the extent of the problem and the steps we must take in the coming years to address it. Over the past 10 months, the Brennan Center surveyed more than 100 specialists familiar with voting technology, including voting machine vendors, independent technology experts, and election officials in all 50 states. In addition, we reviewed scores of public documents to quantify in greater detail the extent of the crisis. We explore the current challenge in three parts: (1) the danger, looking at the age of machines around the country relative to their expected lifespans and the problems that we can expect; (2) the new technologies that can help solve the problem going forward; and (3) recommended solutions to the impending crisis.

Among our key findings:

  • Unlike voting machines used in past eras, today’s systems were not designed to last for decades. In part this is due to the pace of technological change. No one expects a laptop to last for 10 years. And although today’s machines debuted at the beginning of this century, many were designed and engineered in the 1990s.
  • While it is impossible to say how long any particular machine will last, experts agree that for those purchased since 2000, the expected lifespan for the core components of electronic voting machines is between 10 and 20 years, and for most systems it is probably closer to 10 than 20.
    • The majority of machines in use today are either perilously close to or exceed these estimates. Forty-three states are using some machines that will be at least 10 years old in 2016. In most of these states, the majority of election districts are using machines that are at least 10 years old.
    • In 14 states, machines will be 15 or more years old.
    • Nearly every state is using some machines that are no longer manufactured and many election officials struggle to find replacement parts.
  • The longer we delay purchasing new equipment, the more problems we risk.
    • The biggest risk is increased failures and crashes, which can lead to long lines and lost votes.
    • Older machines can also have serious security and reliability flaws that are unacceptable today. For example, Virginia recently decertified a voting system used in 24 percent of precincts after finding that an external party could access the machine’s wireless features to “record voting data or inject malicious data.
    • Smaller problems can also shake public confidence. Several election officials mentioned “flipped votes” on touch screen machines, where a voter touches the name of one candidate, but the machine registers it as a selection for another.
  • Election officials who believe they need to buy new machines do not have sufficient resources.
    • Election jurisdictions in at least 31 states want to purchase new voting machines in the next five years. Officials from 22 of these states said they did not know where they would get the money to pay for them.
    • Based upon recent contracts and assessments provided by election officials, the Brennan Center estimates the initial national cost of replacing equipment over the next few yearscould exceed $1 billion, though that could be partially offset by lower operating costs and better contracts than are currently used in many jurisdictions.
    • As election jurisdictions diverge in how they respond to the crisis, we see an increasing divide among, and even within, states in the ability to ensure elections can be conducted without system failures and disruption.
    • A preliminary analysis by the Brennan Center lends support to the concern expressed by some officials that without federal or state funding, wealthier counties will replace aging machines, while poorer counties will be forced to use them far longer than they should.

These are troubling findings, but our study also provides hope for the future. Technology has changed dramatically in the last decade, offering the possibility of machines that are more reliable, more usable, and less expensive. Several recent innovations — often driven by election officials who have worked with vendors, academics, and voters — could point the way to more affordable and flexible 21st century machines. While such advances may help us in future years, they will not resolve today’s crisis. There is no escaping the immediate need to plan and set aside sufficient funds to buy new machines.

See here for the press release, and here for the full report. This is from a couple of months ago, and I’ve had it in my queue since then, but as we’re about to have a couple of maximal-turnout elections this year, it seemed like a good time to bring this up. Travis County is doing what it can to pioneer newer, better, and more secure voting machines, but it’s hard to imagine the rest of the state following their lead. We might spend $8 million defending an unconstitutional voter ID law, but we won’t spend a dime on new voting machines until we absolutely have to. Which most likely means once there’s been a proven catastrophe of some kind. Such a catastrophe need not happen in Texas – this is a national problem – but heaven help us if it happens in next year’s Presidential election. I don’t even want to think about the possibilities there. Link via Daily Kos.

Fifth Circuit to hear Texas voter ID appeal

There’s more than one big appellate case being heard today.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The Texas voter identification law will make a stop at a federal appeals court in New Orleans on Tuesday on a likely path to the U.S. Supreme Court.

Texas Solicitor General Scott Keller and lawyers representing plaintiffs, including the U.S. Justice Department, will present arguments to a three-judge panel, with a ruling to come later.

The Texas case, one of several legal challenges of state voter ID laws, is unique because a judge found evidence of intentional racial discrimination by legislators in crafting the law, said Richard Hasen, a law professor at the University of California, Irvine, and an expert in election law.

“It is Texas’ motivations on trial,” Hasen said. “Texas is going to be out there front and center, arguing that the finding is wrong.”

[…]

The panel of judges will have to decide if Ramos was “clearly wrong” in her ruling, and that could be a hard decision for any appellate court, said Myrna Pérez, director of Voting Rights and Elections Project at the Brennan Center for Justice at New York University. “There was a very strong record in this case.”

Two plaintiffs’ lawyers will participate in the oral arguments: Erin Flynn with the U.S. Justice Department, and Chad Dunn, who is representing the lead plaintiffs in the Texas case — U.S. Rep. Marc Veasey, D-Fort Worth, and the League of United Latin American Citizens.

Dunn said he intends to show the judges the “overwhelming evidence against this law” and how it compels them to reach the same conclusion as Ramos.

“It’s not that Texas can’t adopt an identification law for voting, it’s that the individual decisions made with this law make it unconstitutional,” Dunn said, noting the narrow list of valid IDs needed to vote.

As a review, Judge Ramos ruled against the voter ID law in October, but it was allowed to be enforced after the Fifth Circuit (naturally) lifted Judge Ramos’ stay on the ruling. In late November the plaintiffs asked the Fifth Circuit to hurry up with the appeal already; I’m not sure if the timing of this hearing reflects a favorable response to that or not. In any event, here we are, and for once things are a tad bit different:

The three-judge panel set to hear arguments on the Texas voter ID case includes two Democratic appointees.

On the panel: Chief Judge Carl Stewart, appointed by President Bill Clinton; Judge Catharina Haynes, appointed by President George W. Bush; and Judge Nannette Brown, appointed by President Barack Obama.

Who knew such a thing was even possible? The panel’s decision can still be appealed to the full court, and then to SCOTUS, so let’s not get ahead of ourselves. There are other lawsuits against state voter ID laws, but this one is farther along than they are, and would be first in line at SCOTUS when it comes to that. I’m very eager to see what these judges make of the appeals. The Brennan Center has a three part series on people who were directly affected by the enforcement of voter ID last November, and the Huffington Post and Texas Election Law Blog have more.

UPDATE: Here’s the Trib story, which reminds us that putting Texas back under the auspices of preclearance is also at stake.

Defense to begin in voter ID lawsuit

Entering the home stretch.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The Texas voter ID trial with national implications is shifting its focus in U.S. District Judge Nelva Gonzales Ramos’ courtroom Tuesday.

After a week of testimony largely opposed to the law, the State of Texas’ legal team is slated to begin making its case for the law’s constitutionality and necessity after opponents rest their case Tuesday morning at the courthouse.

Closing arguments from both sides are likely to come Thursday after two sessions of witness testimony from the state’s side, but the final verdict from Ramos could be weeks away.

Attorney Chad Dunn, representing one of the plaintiffs fighting the law, told the Caller-Times on Monday the smaller amount of testimony planned for the state’s defense could shed light on how the case will be seen by Ramos.

“The State doesn’t have much of a defense,” Dunn said. “After three-and-a-half years litigating to enforce this law and millions of dollars spent, the state is still unable to justify the tremendous burden this puts on voting.”

As noted before, the best and most comprehensive coverage of the voter ID trial has been by the Brennan Center for Justice. Here are their updates from Monday and Tuesday, which brings us up to date. My guess is that the state won’t trot out an affirmative defense so much as they’ll put on a few witnesses to try to undermine the plaintiffs’ case. Given the fervent belief that some folks have in the shibboleth of in-person vote fraud and the AG’s recent embrace of sock puppet witnesses, the potential for some kind of chicanery is non-trivial. We’ll see what path they go down. The Lone Star Project has more, and see also this Vice News overview of the voter ID saga.

The best coverage of the voter ID trial

Still the only voter ID anyone should need

Still the only voter ID anyone should need

You want to know what’s going on with the voter ID trial, which enters its second and likely final week today, go check out the Brennan Center for Justice, which has daily coverage that would put any newspaper to shame. Here’s a sample of what they’ve written so far:

Further daily dispatches will be on this page, and there’s also their Twitter feed if you can’t wait that long. The main page has more information in addition to their trial reporting, so go take a nice long look. If that still isn’t enough, copies of all the court documents can be found at the Moritz Law School repository. I trust that will be enough to hold you off. Thanks to the Texas Election Law Blog for the heads up.