NPP and DMV

Registering as an independent or "no party preference" does not necessarily reveal much about voter preferences.  Philip Reese reports at the Sac Bee that a surge in NPP registration was largely an artifact of the process:

In the mid-2010s, California passed a “motor voter” law that automatically registered people getting a driver’s license or ID at the DMV, as well as those changing their address — unless they opted out of registration.

Voter registration boomed, rising by nearly 5 million, or 28%, from January 2016 to October 2023.

At first, a huge proportion of the new voters registered as “no party preference.”

When [Paul] Mitchell explored why, he noticed that the DMVs registration form asked residents if they wanted to pick a political party. If they answered “yes,” it would take them to another page where they would choose their party.

“You had to actively say, ‘I want a party,’” he said.

The problem, Mitchell and others said, is that many people don’t like standing in front of a computer at the DMV. To get away quickly, many chose “no.”

“The default dumped them into this big pit of no party preference voters,” said Wesley Hussey, professor of political science at Sacramento State.

The DMV changed the process in 2019, Mitchell said. Instead of asking voters if they wanted to pick a party and then asking them to pick a particular party on a new screen, the DMV created a dropdown menu that immediately allowed voters to choose a party. “Republican” and “Democrat” were on the dropdown list, along with third parties. Voters also have a nearby option for “no party preference.”

The effects were immediate.

In December 2018, before the change went into effect, about 53% of voters who registered at the DMV signed up as Democrats or Republicans, according to registration data collected by Mitchell. Three months later, after the change went into effect, that figure jumped to 74%. The shift has mostly held. During the first ten months of 2023, about 70% of voters registered as either Democrats or Republicans. A DMV spokesman said that the agency “streamlined the political party selection process” in 2019 based on feedback from the Secretary of State.

Hatch Act

Trump's former chief of staff Mark Meadows argued that his case should go to federal court because he was acting in an official capacity.  They were not.  Claire O. Finkelstein at Slare:

[The] activities Meadows was engaging in were highly political in nature, and such activities are strictly forbidden under 5 U.S.C. § 7323(a)(1), otherwise known as the “Hatch Act.” This statute forbids executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” It is designed to prohibit executive branch employees from using their official positions to engage in partisan political activities.

In August of 2020, Richard Painter and I filed a complaint against Secretary of State Mike Pompeo, for example, for the speech Pompeo gave at the Republican National Convention while on a diplomatic mission to Israel. This was a “personal capacity” speech delivered during an official business trip as secretary of state, while Pompeo was representing the United States in his official capacity—a clear Hatch Act violation. While the president and vice president are not subject to the Hatch Act, they are subject to a parallel criminal Hatch Act statute that makes it a crime to coerce political activity on the part of any federal executive branch official. Believing as we did that Trump was indeed attempting to pressure members of the executive branch into engaging in Hatch Act violations themselves, Richard Painter and I filed a criminal Hatch Act complaint under 18 U.S.C. §610 against Trump during the 2020 campaign, alleging that he was coercing political activity on the part of employees in the executive branch by attempting to “intimidate or coerce” them into supporting his aims.

In the Georgia indictment, the Hatch Act plays a critical role: The activities Meadows performed in the run-up to the Jan. 6 attack on the Capitol building constituted a contribution to a partisan political effort to ensure that Trump was declared the winner of the 2020 election, despite having lost that election completely. Such naked political activities cannot be official duties for anyone who is a federal executive branch office holder. The entire Georgia campaign reads like one big Hatch Act violation—a civil Hatch Act violation for federal officeholders like Meadows and a criminal Hatch Act violation for Trump for pressuring his subordinates into civil Hatch Act violations.

It is striking how similar Trump’s behavior in Georgia in 2020 is to the criminal Hatch Act complaint we filed against Trump. The “perfect” phone call with Georgia Secretary of State Brad Raffensperger in which Trump attempted to coerce Raffensperger into coming up with 11,780 votes in order to reverse the results of the election in Georgia was an attempt to intimidate state officers into supporting Trump’s personal political aims—conduct that is precisely what the criminal Hatch Act provision was meant to address in the case of federal officers. In this case, the officers just happened to be state officials for the most part, with the possible exception of Meadows and other federal officials Trump tried to rope into his campaign.

A Caution About Instant Runoff Voting

Beyond the Spoiler Effect: Can Ranked Choice Voting Solve the Problem of Political Polarization?
University of Illinois Law Review, Forthcoming

Nathan Atkinson University of Wisconsin - Madison
Edward B. Foley Ohio State University (OSU) - Michael E. Moritz College of Law
Scott Ganz Georgetown University - McDonough School of Business

Abstract

Ranked-Choice Voting (RCV) is growing in popularity among election reformers, who have coalesced in particular around Instant Runoff Voting (IRV), a specific form of RCV that has recently been adopted in Maine and Alaska and will likely be proposed in many more states as ballot initiatives in the coming years. While reformers hope that IRV can ameliorate extremism and political polarization, this paper presents empirical evidence that undercuts these hopes. For instance, Alaska’s very first election following the state’s adoption of IRV signaled that the method may fail to elect the candidate most preferred by a majority of the state’s voters. Extrapolating from Alaska’s experience, and using a nationally representative sample of over 50,000 voters, we analyze the prospective effects of adopting IRV in every state. This analysis shows that IRV tends to produce winning candidates who are more divergent ideologically from their state’s median voter than do other forms of RCV. And the effect is most pronounced in the most polarized states—precisely the electorates for which IRV is being promoted as an antidote to existing divisiveness. We conclude by highlighting other formulations of RCV that result in more representative outcomes and are thereby better positioned to combat extremism and political polarization.

They explain:

Instant runoff voting does result in the majority rule its advocates tout, but only in the sense that the winning candidate is definitionally preferred to the runner-up candidate by a majority of the electorate. When no more than two candidates are electorally viable, as is frequently the case under two-partyrule, IRV ensures that the candidate with the widest support wins the election. However, a third viable candidate undermines the guarantee that the winner under IRV—or even the runner-up—will be the candidate with the “broadest support from all voters.” In fact, one can easily construct examples where a candidate supported by “a true majority of the voters” is not included in the final two-candidate matchup.

Consider an election with five voters and three candidates: a left-leaning candidate, Linda; a right-leaning candidate, Rachel; and a centrist candidate, Carl. Two voters are liberals and prefer Linda to Carl to Rachel. Two voters are conservatives and prefer Rachel to Carl to Linda. And the lone centrist voter prefers Carl to Linda to Rachel. In an election conducted under IRV, Carl receives only one first-choice vote, and so is eliminated after the first round. The one vote for Carl then transfers to Linda, who wins the runoff election against Rachel by a count of 3-2. Linda does in fact have the “broadest support from all voters” in the contest between Linda and Rachel. However, if the election had been between Carl and Linda, then Carl would have had the “broadest support from all voters,” defeating Linda by a vote of 3-2. Likewise, Carl would have beaten Rachel by the same vote. Yet, because of IRV’s focus on first-place choices in determining the order in which candidates are eliminated from contention, Carl is unable to survive the first ballot. Recall that under Condorcet’s method, Carl would be the most deserving candidate: a majority of voters prefer him to either alternative. But centrist Carl does not win the IRV election when both the liberal and the conservative alternatives have larger bases.

 

Pence on Overturning Elections

 

Video on Trust in Elections

 From Pew:

Ranked-Choice Voting

 Gary Schmitt at AEI:

Another idea for reforming the candidate selection system is ranked-choice voting, in which primary voters rank their candidate choices from most to least favorite. If no candidate wins a majority of the votes in the first round, the candidate with the fewest votes is eliminated; his or her voters’ second choices are distributed among the remaining candidates. This process continues until one candidate gets a majority.

This means that no candidate can be the winner just by getting more votes than any of the other guys. It also means that to win a majority, a candidate will have to appeal to a broader range of eligible voters instead of single-mindedly pursuing a narrow, polarizing block of the voting public. In fact, there is some evidence that in Virginia’s Republican gubernatorial primary this year, ranked-choice voting produced a candidate, Glenn Youngkin, who—while decidedly conservative—showed himself to have enough broad appeal to succeed in a purple, blue-trending state.

No single system is guaranteed to produce candidates who are both popular and fit for office. No selection system can, by itself, fix the current state of our political parties. But an advantage of ranked-choice voting is that it provides a potential corrective to problematic populist campaigning by installing a selection system that can be said to be as democratic as, or even more democratic than, the system currently in place.

Information Disorder

From the Aspen Institute:

The Aspen Institute’s Commission on Information Disorder is making 15 recommendations to help government, private industry, and civil society advance solutions to and reduce the greatest harms in America’s urgent mis- and disinformation crisis. Among many other critical challenges, the ambitious report covers legislative and executive action on transparency, disclosure, and platform immunity; the collapse of local journalism; community-led methods for resisting imbalances of power further propagated by bad actors; and accountability mechanisms for “superspreaders” of lies.

Published in the Commission’s Final Report, launched today, the recommendations together aim to increase transparency and understanding, build trust, and reduce harms. A summary of each is provided at the end of this press release, along with a list of the commissioners.

…

Read the Final Report detailing the recommendations on the Aspen Institute’s website. Those seeking to learn more about the Commission on Information Disorder are invited to visit AspenInfoCommission.org.

RECOMMENDATIONS

What follows is a high-level overview of the final recommendations of the Aspen Institute’s Commission on Information Disorder.

Recommendations to increase transparency

Public interest research

1. Implement protections for researchers and journalists who violate platform terms of service by responsibly conducting research on public data of civic interest.
2. Require platforms to disclose certain categories of private data to qualified academic researchers, so long as that research respects user privacy, does not endanger platform integrity, and remains in the public interest.

High reach content disclosure
Create a legal requirement for all social media platforms to regularly publish the content, source accounts, reach and impression data for posts that they organically deliver to large audiences.

Content moderation platform disclosure
Require social media platforms to disclose information about their content moderation policies and practices, and produce a time-limited archive of moderated content in a standardized format, available to authorized researchers.

Ad transparency
Require social media companies to regularly disclose, in a standardized format, key information about every digital ad and paid post that runs on their platforms.

Recommendations to build trust

Truth and transformation
Endorse efforts that focus on exposing how historical and current imbalances of power, access, and equity are manufactured and propagated further with mis- and disinformation — and on promoting community-led solutions to forging social bonds.

Healthy digital discourse
Develop and scale communication tools, networks, and platforms that are designed to bridge divides, build empathy, and strengthen trust among communities.

Workforce diversity
Increase investment and transparency to further diversity at social media platform companies and news media as a means to mitigate misinformation arising from uninformed and disconnected centers of power.

Local media investment
Promote substantial, long-term investment in local journalism that informs and empowers citizens, especially in underserved and marginalized communities.

Accountability norms
Promote new norms that create personal and professional consequences within communities and networks for individuals who willfully violate the public trust and use their privilege to harm the public.

Election information security
Improve U.S. election security and restore voter confidence with improved education, transparency, and resiliency.

Recommendations to reduce harms

Comprehensive federal approach
Establish a comprehensive strategic approach to countering disinformation and the spread of misinformation, including a centralized national response strategy, clearly-defined roles and responsibilities across the Executive Branch, and identified gaps in authorities and capabilities.

Public Restoration Fund
Create an independent organization, with a mandate to develop systemic misinformation countermeasures through education, research, and investment in local institutions.

Civic empowerment
Invest and innovate in online education and platform product features to increase users’ awareness of and resilience to online misinformation.

Superspreader accountability
Hold superspreaders of mis- and disinformation to account with clear, transparent, and consistently applied policies that enable quicker, more decisive actions and penalties, commensurate with their impacts — regardless of location, or political views, or role in society.

Amendments to Section 230 of the Communications Decency Act of 1996

1. Withdraw platform immunity for content that is promoted through paid advertising and post promotion.
2. Remove immunity as it relates to the implementation of product features, recommendation engines, and design.

 

Counting the Vote

John C. Fortier and Charles Stewart III have an AEI report titled Lessons learned from the 2020 election.  

From the overview:

The 2020 election witnessed a continuation oftrends established in recent elections, whereby vote counting has slowed and the votes counted are disproportionately Democratic the further away from Election Day the counting proceeds. These trends are due to certain types of ballots taking longer to count completely and large urban areas taking longer to complete the vote count. » Despite these national generalities, many states deviated from the national trend. » In 2020, most states counted nearly 100% of their final totals of ballots within 48 hours of polls closing on Election Day. Six states — Iowa, Florida, North Carolina, Oklahoma, Tennessee, and Louisiana — counted nearly one hundred percent of their total ballots within four hours of polls closing. » Research that has looked at the speed with which states reported their votes has concluded that (1) states with more mail ballots are slower to report vote totals, (2) states that limit the pre-processing of mail ballots are slower, and (3) states that allow mail ballots to arrive after Election Day are slower. » The magnitude of the “blue shift,” the pattern whereby later-counted ballots are disproportionately Democratic, depends on when one starts the 4 comparison. Indeed, if one compares final election results with vote reports in the first three hours following polls closing, there was a national “red shift” in 2020. » Many states have certification deadlines that come very close to the “safe harbor” benchmark for certifying elections, thus perhaps giving insufficient time for careful consideration of recounts and challenges.

Election Adaptations During COVID

Kevin Kosar at AEI:

COVID-19 forced states to make myriad adjustments to their elections administration in order to ensure sufficient access to the ballot. Changes included expanding voter access to the use of absentee ballots, extending voter registration deadlines, and increasing the number of polling places, among others. How well did states do in adapting their elections administration?

To answer this question, I turned to Professor Zachary Courser and Professor Eric Helland. They co-direct Claremont McKenna College’s Policy Lab, an interdisciplinary policy research program that teaches students policy writing and research skills that prepare students for work in legislatures, think tanks, and non-governmental organizations. Zach, Eric, and their Policy Lab students spent the past year examining states’ emergency election statutes and election administration adaptations during the pandemic, and they have some interesting findings.

...

You and your students created a scorecard to measure states’ adaptations to make voting accessible during the pandemic. How did you create the scorecard, and which states scored highest?

Before the election, we evaluated state statutes dealing with elections emergencies to understand the legal framework for adaptation during an emergency, and then tracked all the adaptations that states took to ensure access to voting for the general election. We then analyzed which measures were most likely to have an effect on increasing access during the pandemic and assigned each a score accordingly. Adaptations clustered in four main categories: vote-by-mail, drop-off boxes, deadline adjustments, and polling place adjustments. We assigned measures for mail-in voting the highest point value, as we think they did the most to protect health and promote perceptions of safety during the pandemic. As a result, states that already had all-mail elections, or adapted by increasing access to absentee balloting, tended to score higher.

The average grade was a C, and as you can see from the map below, the highest scoring states clustered in the west. Hawaii, Oregon, Washington, and Utah all score A’s, with New Jersey scoring the highest in the nation. Southern states were laggards on access generally, scoring the lowest as a region — with most states rating a D or F. Missouri scored the lowest in the nation.

The 2020 Election

Nathaniel PersilyCharles Stewart III have an article at The Journal of Democracy titled " The Miracle and Tragedy of the 2020 U.S. Election."

The abstract:

The 2020 election was both a miracle and a tragedy. In the midst of a pandemic posing unprecedented challenges, local and state administrators pulled off a safe, secure, and professional election. This article discusses metrics of success in the adaptations that took place—record-high turnout, widespread voter satisfaction, a doubling of mail voting without a concomitant increase in problems often associated with absentee ballots, and the recruitment of hundreds of thousands of new poll workers. However, a competing narrative of a “stolen election” led to a historically deep chasm between partisans in their trust of the election process and outcome.

Foreign Governments Did Not Tamper with Election Results

Joint Statement from the Departments of Justice and Homeland Security Assessing the Impact of Foreign Interference During the 2020 U.S. Elections

Note: The joint report can be viewed here.

The Department of Justice (DOJ) and the Department of Homeland Security (DHS), including the FBI and the Cybersecurity and Infrastructure Security Agency (CISA), released today key findings and recommendations from a joint report to the President issued last month on the impact of foreign governments and their agents on the security and integrity of the 2020 U.S. federal elections.

The Departments investigated multiple public claims that one or more foreign governments owned, directed or controlled election infrastructure used in the 2020 federal elections; implemented a scheme to manipulate election infrastructure; or tallied, changed or otherwise manipulated vote counts. The Departments found that those claims were not credible.

These conclusions are part of a classified report to the President prepared by DOJ and DHS pursuant to section 1(b) of Executive Order 13848, Imposing Certain Sanctions in the Event of Foreign Influence in a United States Election (the EO), issued on Sept. 12, 2018. Although the 1(b) report notes that Russian, Chinese, and Iranian government-affiliated actors materially impacted the security of certain networks during the 2020 federal elections, the Departments found no evidence that any foreign government-affiliated actor manipulated election results or otherwise compromised the integrity of the 2020 federal elections.

The 1(b) report relied on a classified assessment — prepared by the Office of the Director of National Intelligence (ODNI), pursuant to section 1(a) of the EO, about any information indicating that a foreign government acted with the intent or purpose of interfering in the 2020 U.S. federal elections. Whereas the 1(a) report discusses efforts to influence public perceptions and opinion, the scope of the 1(b) report only includes efforts to compromise the security or integrity of election infrastructure or infrastructure pertaining to political organizations, candidates or campaigns used in the 2020 U.S. federal elections. The 1(b) report does not discuss efforts to sway voters or influence opinion.

During the 2020 election cycle, federal, state, local, tribal, territorial, non-governmental and private sector partners nationwide worked together in unprecedented ways to combat foreign interference efforts and support election officials, political organizations, campaigns and candidates in safeguarding their infrastructure. The Departments remain committed to continuously strengthening the nation’s cybersecurity, critical infrastructure, supply chain risk management, public-private partnerships and public messaging to enhance the resiliency of our democratic institutions.

Retired Military Officers on Mail Ballots

Retired Admiral Bill Owens and retired General James Cartwright are both former vice chairmen of the Joint Chiefs of Staff and members of the bipartisan National Council on Election Integrity.  They write at USA Today:

As commissioned officers, we both swore an oath to defend and uphold the Constitution. And today, given the circumstances surrounding this election, our continued sense of duty compels us to speak. We urge every American — regardless of their political affiliation — to trust the final results of this election: Democrat Joe Biden will be the next commander-in-chief.

... 

We wish to underscore our steadfast conviction that the vast majority of election officials are honest, hardworking public servants with the best interests of our nation at heart. And though no human endeavor is flawless, there are safeguards in place to protect the integrity of the process.

Every state maintains concrete steps to authenticate absentee ballots, and each has a deadline by which it will verify its results. The process this year has been carried out with the integrity we expect as Americans. To claim otherwise, without evidence, compromises the sanctity of our democracy.

Much has been made about the significant number of absentee ballots cast by mail because of COVID-19. The reality is that members of the armed forces have successfully voted by mail since the Civil War. During our time in the military, we cast ballots from nearly every corner of the world. Indeed, members of the U.S. military vote from every clime and place, including aboard the International Space Station and onboard submarines deployed worldwide. On every occasion, we and our fellow service members have complete confidence that our ballots will be received and counted.

To put it simply: If voting by mail is acceptable for the members of the military, then it should be acceptable for the rest of our population.

Most Secure Election in History

  From the Cybersecurity and Infrastructure Security Agency (CISA):

The members of Election Infrastructure Government Coordinating Council (GCC) Executive Committee... released the following statement:

“The November 3rd election was the most secure in American history. Right now, across the country, election officials are reviewing and double checking the entire election process prior to finalizing the result. 

“When states have close elections, many will recount ballots. All of the states with close results in the 2020 presidential race have paper records of each vote, allowing the ability to go back and count each ballot if necessary. This is an added benefit for security and resilience. This process allows for the identification and correction of any mistakes or errors. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.

“Other security measures like pre-election testing, state certification of voting equipment, and the U.S. Election Assistance Commission’s (EAC) certification of voting equipment help to build additional confidence in the voting systems used in 2020.

“While we know there are many unfounded claims and opportunities for misinformation about the process of our elections, we can assure you we have the utmost confidence in the security and integrity of our elections, and you should too. When you have questions, turn to elections officials as trusted voices as they administer elections.”

Voting: Comparative Perspectives

 From Pew:

Though the exact policy varies from one place to another, 122 of the 226 countries and territories in the ACE Electoral Knowledge Network have some form of compulsory voter registration. In Argentina, Chile, Hungary, Israel, the Netherlands and elsewhere, such registration is automatic, based on government records such as census counts. In other cases, qualified residents are required to register themselves. Failing to register is punishable by a fine in some places, including New Zealand, Tonga and the United Kingdom.

Another 90 countries and territories have no laws requiring all qualified residents to register to vote, though registration may be required in order to vote. In India – the world’s largest democracy – and Mongolia, voter rolls are compiled automatically through census data collection, though registration is not compulsory. In Austria, voter registration and voting itself were compulsory in at least one province until 2004; today, there is no requirement to register or to vote in Austrian elections. There is no compulsory voter registration in the U.S., though registration is necessary in order to vote in nearly all states and U.S. territories (North Dakota does not have voter registration)

Voting by the Dead (Seriously)

As of this morning, 89.6 million Americans had already voted.

 Wendy Underhill at NCSL:

What happens when an eligible voter casts an absentee ballot and then passes away before Election Day? This question comes up more and more, as absentee/mail voting, and even early in-person voting, gain in popularity.

Do these pre-Election Day votes count? Like everything else related to elections, the answer varies from state to state. By our count, statutes in at least 12 states (Arkansas, Connecticut, Idaho, Florida, Louisiana, Maryland, Massachusets, Minnesota, Montana, New Mexico, North Dakota and Tennessee) direct election officials to count these ballots.

Massachusetts has done so most recently, with the enactment of HB 4820 in July: “The absentee or early ballot of any voter who was eligible to vote at the time the ballot was cast shall not be deemed invalid solely because the voter became ineligible to vote by reason by death after casting the ballot.”

Again by our count, 15 states go the other way and are clear that these ballots are not to be counted: Colorado, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky (by an AG’s opinion, 77-667), Mississippi, Missouri, New Hampshire, New Jersey, Pennsylvania, South Dakota, Virginia (again by an AG’s opinion, 10-104) and Wisconsin.

Regardless of the law, it is hard to retrieve a ballot from someone who has died between casting it and Election Day. Once the absentee ballot has been verified and the ballot is removed from the envelope for counting, the ballot can’t be retraced to the voter—it’s a secret.

Hatch Act and Federal Property

An advisory from the office of Special Counsel, August 9, 2004:

The Office of Special Counsel (OSC) recently has received various complaints concerning the granting of requests from candidates and/or their campaigns to visit federal agencies. Therefore, OSC, pursuant to 5 U.S.C. §1212(f), issues this Hatch Act opinion reminding all federal agencies of the relevant provisions of the Hatch Act governing such requests. This guidance addresses activities relating to federal, state and local political campaigns of candidates in partisan elections, including Presidential candidates.

While the Hatch Act, 5 U.S.C. §§7321-7326, does not govern the actions of an individual who is running for partisan elective office, it does regulate the political activity of federal executive branch employees and District of Columbia government employees. Although the Act permits most covered employees to actively participate in partisan political management and partisan political campaigns, covered employees still are subject to certain prohibitions related to their participation in partisan activities. Two such prohibitions relevant to this opinion are that covered employees may not: 1) use their official authority or influence for the purpose of affecting the result of an election or 2) engage in political activity while on duty; in any room or building occupied in the discharge of official duties by an individual employed or holding office in the government of the United States or any agency or instrumentality thereof; while wearing a uniform or other similar item that identifies the employing agency; or using a government vehicle. 5 U.S.C. §§7323(a)(1) and 7324. Political activity is defined as “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 5 C.F.R. §734.101.

Examples of activities prohibited by the preceding restrictions include the following: authorizing the use of a federal building or office as described above for campaign activities, such as town hall meetings, rallies, parades, speeches, fundraisers, press conferences, “photo ops” or meet and greets; attending or planning such campaign events while on duty or in a federal building or office; or distributing campaign literature or wearing campaign-related items while on duty or in a federal building or office. 

We note that OSC views candidates’ requests to visit federal facilities that are coordinated by candidates’ campaigns as presumptively for a campaign purpose and not official business. This opinion, however, should not be interpreted as prohibiting federal employees from allowing members of Congress and other elected officials from visiting federal facilities for an official purpose, to include receiving briefings, tours, or other official information. Further, nothing in this opinion is intended to impede elected Page 2 of 2 officials from appropriately representing their constituents. Federal agencies should ensure that candidates who visit their facilities to conduct official business do not engage in any political campaign or election activity during the visit.

Based upon the preceding, the Hatch Act should be considered carefully when handling a candidate’s request to visit or use a federal building. We strongly encourage all federal agencies receiving such requests to contact OSC prior to granting such a request. Further, we encourage federal agencies to review their guidelines concerning such visits to insure that they are consistent with the Hatch Act and offer our assistance in this matter. For any additional questions concerning this matter, please contact me at (202) 254-3650.

Problems of Contingent Election

In some states, the results of the 2020 presidential election might be in dispute.  And a 269-269 tie is possible, albeit unlikely.  What then?  Under the 12th Amendment, the newly-elected House picks the president -- with each state getting one vote -- and the Senate picks the vice president.

At LegBranch.org, Kevin Kosar describes three problems:

First, Congress, which is recessed until May 4 because of the pandemic, may have difficulty meeting if COVID-19 continues to menace Washington, D.C. Neither chamber presently has in place rules that enable it to vote remotely.

A second problem for Congress is how to handle a deadlocked state legislative vote on which presidential candidate won. If, say, a state has a presidential election that is too close to call (e.g., Florida in 2000) and its legislature cannot decide on a result, then it is not clear what happens. Each legislative chamber could send its own verdict on who won to Congress. But the 1887 Electoral Count Act (ECA) seems to say the state’s governor should choose, but legal scholars say the law is vague, and it is unclear whether Congress would need to abide by the governor’s choice and how Congress should count the submitted votes. If that were not trouble enough, some legal scholars question the constitutionality of the statute, which invites court challenges to any actions Congress takes under it. The Bush v. Gore battle of late 2000 should have spurred Congress to act. But the fight was toxic and resolved by the high court before the problems were fixed.

Third, and morbidly, Congress presently lacks a procedure to handle the death or disability of a presidential or vice presidential candidate during a contingent election.  Come November, Trump will be 74 and Biden will turn 78, and will have endured a long, hard campaign. Whoever wins will be the oldest person ever elected president. If one of them or their running mates cannot serve, there are no agreed upon rules to provide a substitute candidate. Congress would be without a map for proceeding, and the selection of the president delayed for months.

Federalism and Russian Election Interference

The Senate Intelligence Committee has issued a heavily-redacted report on Russian interference in the 2016 election.  Though it did not discover any evidence that the Russians changed any election tallies, it found that the Russians targeted every state.

Russian efforts exploited the seams between federal authorities and capabilities, and
protections for the states. The U.S. intelligence apparatus is, by design, foreign-facing,
with limited domestic cybersccurity authorities except where the Federal Bureau of
Investigation (FBI) and the Department of Homeland Security (DHS) can work with state and local partners. State election officials, who have primacy in running elections, were not sufficiently warned or prepared to handle an attack from a hostile nation-state actor.
...

In an August 15, 2016, conference call with state election officials, then-Secretary [of Homeland Security Jeh] Johnson told states, "we're in a sort of a heightened state of alertness; it behooves everyone to do everything you can for your own cybersecurity leading up to the election." He also said that there was "no specific or credible threat known around the election system itself. I do not recall—I don't think, but I do not recall, that we knew about [State 4] and Illinois at that point."-- The Committee notes that this call was two months after State 4's system was breached, and more than a month after Illinois was breached and the state shut down its systems to contain the problem. During this call, Secretary Johnson also broached the idea of designating election systems as critical infrastructure.

A number of state officials reacted negatively to the call. Secretary Johnson said he
was "surprised/disappointed that there was a certain level of pushback from at least those who spoke up.... The pushback was: This is our—I'm paraphrasing here: This is our responsibility and there should not be a federal takeover of the election system."

Federalism and the "Election Integrity" Commission

From the Mississippi Secretary of State:

“Our Office has not received any correspondence from the Presidential Advisory Commission on Election Integrity. A copy of such correspondence to another Secretary of State has been forwarded to us. As all of you may remember, I fought in federal court to protect Mississippi voters’ rights for their privacy and won. (See True the Vote v. Hosemann, 43 F.Supp.3d 693 (S.D. Miss. 2014))

In the event I were to receive correspondence from the Commission requesting the following,

‘if publicly available under the laws of the state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information,’

My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great State to launch from.

Mississippi residents should celebrate Independence Day and our State’s right to protect the privacy of our citizens by conducting our own electoral processes.”

Cabinet Appointments

Why don't presidential candidates name their future cabinet appointees in advance?  Title 18, Part I, Chapter 29, Section 599 of the U.S. Code says:

Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.

The law is not entirely clear, however.  Five years ago, Rick Hasen wrote:

Political Wire flags the issue. The federal statute bars making such promises “for the purpose of procuring support in his candidacy.” I read this as requiring proof Gingrich said he would appoint Bolton for the purpose of getting Bolton’s support. More likely, Gingrich made the promise to gain support from voters. I recall a similar issue around alleged promises of employment in the Obama administration to Joe Sestak to get him to drop out of the race against Arlen Specter. After nosing around, I found virtually no prosecutions or caselaw developing such rules.