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Fair Game or Stacked Deck?. The Electoral Process. I. Gerrymanders: The Fix Is In?. ORIGINAL GERRYMANDER Named for Elbridge Gerry, Governor of Mass., 1810-12 Later Vice President under Madison Plan elected Republicans 29-11, even though they received only 57% of the popular vote.

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The Electoral Process

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Fair Game or Stacked Deck?

The Electoral Process


I. Gerrymanders: The Fix Is In?

  • ORIGINAL GERRYMANDER

    • Named for Elbridge Gerry, Governor of Mass., 1810-12

    • Later Vice President under Madison

    • Plan elected Republicans 29-11, even though they received only 57% of the popular vote.


A. Political Gerrymanders

1. Generally regarded as legal

2. Easier with modern technology – Geographic Information Systems used to plot voting patterns


3. Types: Incumbent protection and partisan gerrymanders


4. Simplified Example: Red vs. Blue Gerrymander

  • 50/50 population  75/25 representation

  • Technique = “Packing” light green district


5. Mid-Census Redistricting: Texas 2003

  • Map: Liberal Travis County divided up to reduce liberal representation / increase conservative representation


6. Statistics: Increasingly Effective Gerrymanders


North Carolina’s Gerrymander, 1990


The geography of a partisan gerrymander


North Carolina’s Sea-Connected District 3


The Film

  • Gerrymandering


B. Race-Based Gerrymanders

1. Concepts: Dilution and Packing

  • Republicans sued for packing minorities together or dispersing them in small numbers across districts

  • Democrats sued for transforming majority-minority districts into 40%-minority districts


Example: A divided state

  • Let’s play the gerrymander game (60:40 population)!

    • Everyone votes color first, then policy

    • Blue votes for Blue and united on policy

    • Yellow votes for Yellow but divides 2:1 against Bluish policy


Example: A divided state

  • Option 1: Packing (3 Yellow, 1 Blue) – All Partisans of Color


Example: A divided state

  • Option 2: Majority-Minority (2 Yellow, 2 Blue) – All Partisans of Color


Example: A divided state

  • Option 3: 40/60 (4 Yellow, 0 Blue) – 1 Yellow Partisan, 3 “Bluish” Yellows


2. What does minority representation mean?

  • Is it better for Blue to elect

    • 2 Blue partisans and 2 Yellow partisans

      • OR

    • 3 “Bluish” (pro-Blue agenda) Yellow and 1 Yellow partisan?

      a. Descriptive representation: People like me are in office

      b. Substantive representation: People who vote the way I want are in office


3. Recent findings

a. Point of equal opportunity now ≈ 40%

  • Recent elections have seen African-American candidates win 11 of 15 Southern seats from 40-50% districts

    b. Drawing districts to maximize the number of minorities elected: 62%

    c. There is now a tradeoff between descriptive & substantive representation


Substantive

Descriptive

Descriptive and Substantive Representation, 1975-1996

60

45

Votes inSupport

40

58

35

56

30

54

25

52

Vote Score

Number of Black Reps.

20

50

15

Number of

48

Black Representatives

10

46

5

44

0

94

95

96

97

98

99

100

101

102

103

104

Congress

Emerging tradeoff between descriptive and substantive representation?


3. Recent findings

a. Point of equal opportunity now ≈ 40%

  • Recent elections have seen African-American candidates win 11 of 15 Southern seats from 40-50% districts

    b. Drawing districts to maximize the number of minorities elected: 62%

    c.There is now a tradeoff between descriptive & substantive representation

    d. Reason is lower polarization on race by whites


Electability: High Polarization


Electability: Low Polarization


d. Decreased racial voting in recent decades: Electoral Equations

94th Congress

99th Congress

104th Congress

South

East

Other

Decreased racially-polarized voting within the electorate.


Measuring Substantive Representation

  • Great leaps have been made in the past two decades in the analysis of voting behavior

    • This is now commonly used as a measure of members’ policy preferences

  • Not because voting is the only important act

    • But because it correlates with constituency service, committee work, etc.

  • For substantive representation of black interests, define a legislator’s Black Support Score:BSS= % of votes cast with the black majority


White Dem.

Black Dem.

South Carolina

State House

Rep.


Georgia State Senate, 1999-2002


Overall Expected Representation

  • Can compare plans by calculating the expected substantive representation

    • Combines prob. of election and support scores

    • For Georgia, this was:

  • Real argument is over the distribution of these scores, not over descriptive vs. substantive representation


Trends, 1974-2004

  • Show changes in

    • Election probabilities

    • Substantive representation

    • Maximizing plans

  • Results:

    • Greater crossover in voting means point of equal opportunity is under 50% BVAP

    • Southern Democrats become more liberal

    • A tradeoff emerges between substantive and descriptive representation


White Dems

White Dems

Black Dems

Probability

Probability

Republicans

Black Dems

Republicans

Black Dems

White Dems

Black Dems

Republicans

Probability

Probability

Republicans

White Dems


Substantive Representation, 1974-2000


e. Implications for Substantive Representation

  • In the 1970s: 100%

    • Concentrate African-American voters as much as possible

    • Essentially, no white will vote for black representatives

  • In the 1980s: 65%

    • Strategy is still to elect African-Americans to office

  • In the 1990s & 2000s: 45%

    • Still a good chance of electing African-Americans

    • Now better to spread influence across districts


C. The Law on Redistricting


1. Article I, Section 2:

“The House of Representatives shall be composed of members chosen every second year by the people of the several states… Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers… The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative…”


2. Apportionment Act of 1842

  • In 1842:

    • 6 states elected Representatives at large (winner take all) – equal to a 100% partisan gerrymander

    • 25 states used single member districts (or only had one district)

  • The Act mandated SMD:

    • “should be elected by districts composed of contiguous territory equal in number to the number of representatives to which said state may be entitled, no one district electing more than one representative.


3. The Fate of the 1842 provisions

  • Some states ignored the 1842 Act; their representatives were seated anyway

  • Parts were repealed, reinstated, and finally wiped out by Wood v. Broom (1932), which held that apportionment acts extended only until the next such act

  • Some states retained at-large election until the late 1960s

  • 1967: PL 90-196 mandates SMD but not contiguity


4. The Supreme Court in the 1960s

a. Baker v. Carr (1962): Court has the power to hear challenges to constitutionality of districts under the Equal Protection Clause. Suggests “one person, one vote” standard.

  • Tennessee had not redistricted since 1901, leading to huge population disparities between districts (up to 10:1)

  • Dissent: “Plaintiffs here invoked the right to vote and have their vote counted, but they are permitted to vote and their vote is already counted. The complaint being made here is that their vote is not powerful enough. They should seek relief in the legislative system, not the courts.”


  • b. Reynolds and Wesberry (1964)

    • Wesberry v. Sanders: Article I Section 2 requires House districts to be as nearly equal in population as possible

    • Reynolds v. Sims: Equal Protection Clause extends “one person, one vote” standard to state legislatures


    5. Section V of the Voting Rights Act of 1965

    a. “Covered” jurisdictions (< 50% voting in 1960/1964 and used a device to limit voting -- including most of the South) need federal approval for changes in laws that might affect voting

    • Redistricting, at all levels

    • Changes in Electoral Systems

    • Annexation/De-annexation of suburbs, etc.


    5. Section V of the Voting Rights Act of 1965

    b. Act prohibits “retrogression:” the purpose or effect of discriminating against voters based on race, color, or language minority group (Latinos, Asian-Americans, Native Americans). Examples:

    • Going back to at-large elections from districts

    • Annexing suburbs to dilute minority voting power in the city as a whole

      c. Unique: prior restraint on state actions

      d. Not permanent; renewed for 25 years in 2006

      e. Upheld by Supreme Court as valid exercise of 15thAmendment powers; under renewed challenge


    6. Race and Redistricting in the 1990s (all 5-4 conservative-liberal splits)

    a. Shaw v. Reno (1993): States may not draw districts solely on basis of race (violates Equal Protection Clause), even under the VRA

    b. Miller v. Johnson (1995): Need not maximize voting power of minorities where they are minorities

    c. Bush v. Vera (1996): Majority-minority districts not required, will be struck down if race is primary reason for drawing; de facto requirement for compactness and contiguity


    Bush v. Vera Majority Opinion:

    • “[B]izarre shape and noncompactness cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial. . . . [C]utting across pre-existing precinct lines and other natural or traditional divisions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of identity and thus intensifies the emphasis on race.”


    Limits on Majority-Minority Districts?

    • Race cannot be only reason to draw a district

    • Districts must be contiguous (one solid block).

    • Not much of a limit: This “earmuff” district in Illinois connects two Latino neighborhoods with I-294 corridor


    d. Georgia v. Ashcroft (2003)

    • Georgia reduced majority-minority districts to create minority-competitive districts (i.e. about 45% African-American)

    • Appealed to the Supreme Court as Georgia v. Ashcroft

    • Court ruled for Georgia, stating that:

      • Retrogression is about more than electing minorities to office

      • Minorities could choose to trade off descriptive and substantive representation

      • Court relied heavily on the fact that most African-Americans vote Democratic


    Georgia v. Ashcroft: Measuring Retrogression in Electability

    • Forget categories; just use the probability of electing a minority candidate in each district

      • Estimate this using “S-curves”

    • Then add up the probabilities to get the expected number of minorities elected

      • Can consider the variance of this distribution, too

    • For Georgia, the proposed plan had slightly fewer expected minorities elected

      • Problem with overpopulated districts


    Ashcroft & Substantive Representation

    Descriptive

    Pareto

    Frontier

    Substantive


    Ashcroft & Substantive Representation

    Descriptive

    Pareto

    Frontier

    SQ

    Substantive


    1

    2

    3

    4

    Ashcroft & Substantive Representation

    Descriptive

    Pareto

    Frontier

    SQ

    Substantive


    1

    2

    3

    4

    Ashcroft & Substantive Representation

    Descriptive

    Pareto

    Frontier

    SQ

    X

    X

    Substantive

    Pre-Ashcroft


    1

    2

    3

    4

    Ashcroft & Substantive Representation

    Descriptive

    Pareto

    Frontier

    SQ

    X

    Substantive

    Post-Ashcroft


    1

    2

    3

    4

    Ashcroft & Substantive Representation

    Descriptive

    Pareto

    Frontier

    SQ

    X

    P

    Substantive

    A move to P is now non-retrogressive


    D. Accidental Gerrymanders: State Lines and Racial/Ethnic Plurality

    If the US was 100% regionally segregated:

    34 Non-Latino White states

    8 Latino states

    7 African-American states

    1 Asian-American state

    Reality: 50 Non-Latino White states


    E. Who should decide?

    1. Does the system make a difference?


    a. Legislatures are biased


    b. Courts are biased


    2. Proposals for Reform

    • Legislative Services Bureau

    • Rules: The four criteria for the Bureau's plans, in descending order of importance, are:

      • population equality,

      • contiguity,

      • unity of counties and cities (maintaining county lines and “nesting” house districts within senate districts and senate districts within congressional districts), and

      • compactness.

    • Forbidden: political affiliation, previous election results, addresses of incumbents, or any demographic information other than population.


    b. Math: Shortest Spline Algorithm

    • For N Districts:

      • Let N=A+B where A and B are as nearly equal whole numbers as possible. (For example, 7=4+3.)

      • Among all possible dividing lines that split the state into two parts with population ratio A:B, choose the shortest.

      • Repeat within each part, until N districts created.

    • Advantages: Simple, cheap, unbiased.

    • Disadvantages: Ignores geographic features and communities with common interests


    Shortest Spline: Example

    • Before:

    • After (sketch):


    Is geography important? Arizona’s “Grand Canyon” District 2


    c. Compactness

    • “Isoperimetric Quotients”

      • Compare the area of a circle with a district’s border to the area it actually encompasses

      • Try to minimize this number

    • Effect: Attempt to create nearly-circular districts if possible


    3. Obstacles to Reform

    • Most gerrymanders – even partisan ones – attempt to preserve most incumbents.

    • Single-state neutrality is difficult – if all Republican states go neutral, Democrats could gain huge majorities by continuing to gerrymander their states

    • Binding national reform requires constitutional amendment


    II. Direct Democracy

    A. Origins in Progressive Movement: Advocated measures to destroy political machines and instead have direct participation by voters in the nomination of candidates and the establishment of public policy.


    B. Types

    • Initiative: A process in which a proposal for legislation is placed on the ballot and voters can either enact or reject the proposal without further action by the governor or legislature. (Directs vs. Indirect)

    • Recall: A process in which voters can petition for a vote to remove officials between elections.


    3. Referendum

    • Popular referendum: A process by which voters can veto a bill recently passed in the legislature by placing the issue on a ballot and expressing disapproval. Also called direct referendum.

    • Bond referendum: A process of seeking voter approval before a government borrows money by issuing bonds to investors.

    • Advisory referendum: A process in which voters cast nonbinding ballots on an issue or proposal.


    C. Criticisms

    • Laws may be poorly written

    • No deliberation during the writing of proposition

      • Only on whether to accept proposition

    • Interest group capture

      • Qualification, signature gathering have high costs

      • Special interest tend to dominate process

    • Complexity

      • counter-initiatives, long ballots


    5. Racial/ethnic bias?

    a. Risk of “tyranny of the majority”


    b. Recent Findings

    • California study: African-Americans, Latinos and Asians are marginally less likely to vote on the winning side of a ballot initiative.

    • Examples:

      • Proposition 187 (1994)

        • Prohibit undocumented immigrants from using public services (e.g., health care, education)

      • Proposition 209 (1996)

        • Prohibit public institutions from considering race, gender, ethnicity

      • Proposition 227 (1998)

        • Requires all public school instruction to be conducted in English


    III. Voting Methods: Are Ballot Systems Equally Fair?

    • Systems of representation

      • Single-member simple plurality districts (SMSP)

        • Produce strategic voting and two-party systems

        • Minimize representation of dispersed minorities, may maximize representation of concentrated minorities

        • Facilitate single-party majority government by turning pluralities into majorities

        • Value some votes more than others in vote-to-seat conversions

        • Create incentives to gerrymander


    2. At-Large Elections

    • Minimize representation of minorities

    • Give parties greater power than individual candidates


    Natural experiment: SMSP (House) vs. At-Large (Senate) elections


    3. PR and STV

    • Proportional Representation: Seats allocated on basis of vote share

      • Maximizes representation for dispersed minorities

      • Encourages third parties

      • Reduces impact of negative ads (reducing single opponent’s vote share might not increase own share)

      • Progressives adopted in early 20th century municipal elections – paired with STV…


    b. Single Transferable Vote: Your vote ALWAYS matters!

    • Step I: Any candidate with at least the quota of votes is declared elected.

    • Step II: If any candidate has received more than the quota of votes then the excess or 'surplus' of votes is transferred to other candidates remaining in the count. Any candidate who obtains the quota is declared elected and the count returns to Step I. Otherwise it proceeds to Step III.

    • Step III: The candidate with the fewest votes is eliminated or 'excluded' and his or her votes are transferred to other candidates remaining in the count. The process is then repeated from Step I until all seats have been filled.


    4. IRV

    • Also allows rank-ordering of candidates (same ballot as STV)

    • If no candidate receives majority: instant runoff(s)

      • Drop the weakest candidate from the field and assign his/her votes to voters’ second choices

      • Repeat until one candidate has a majority

    • Usage:

      • Cities: San Francisco, Burlington, Oakland, Minneapolis

      • State: North Carolina adopted instant runoff voting for judicial vacancies.

      • Special: Arkansas, Louisiana and South Carolina all use forms of instant runoff voting on ballots for military and overseas voters


    5. Strategic Incentives Under Each System

    • If voters are smart, what tactics will they use?

      • Compromise (vote for lesser evil): Most intense in SMSP and At-Large, less in IRV and STV

      • Push-Over (if favored candidate likely to make the runoff, then cast top vote for extremist on other side, not popular moderate on other side): IRV, STV


    6. Rewarding Sincerity: Approval Voting

    • Method: Vote checks off all acceptable candidates

    • Minimizes strategic voting:

      • Voting for someone never reduces the chance they are elected

      • Never necessary to vote for less-liked candidate to avoid disliked candidate’s election

    • Reduced incentives for negative campaigning

    • Danger: Can result in lowest common denominator win (OK to many, but loved by none)


    B. The Electoral College

    • Adoption: Alternative to previous drafts that had Congress appoint President.

    • Goals = independence of executive from Congress, give slave states ability to block more populous states, distrust of democracy


    3. How Democratic is the Electoral College?

    p (your vote counts) = p (your vote determines your state) * p (your state determines the election)

    • Voter-Ignorant Theory

      • First part favors small states over large ones, if all states are equally divided (fewer votes = more likely your vote is needed)

      • Second part also favors small states (disproportionate number of electoral votes)


    b. Actual Effects

    • States are not evenly split


    • As of Sept 17, 2012


    b. Actual Effects

    • States are not evenly split

    • Advantage goes to voters in “swing states”


    • As of Sept 17


    2008 Election


    2008 Election


    b. Actual Effects

    • States are not evenly split

    • Advantage goes to voters in “swing states”

    • Disfavors minorities because they are disproportionately concentrated in large and less-competitive states


    Effect on Minorities

    If influence of average non-Latino white voter = 1.00, then…

    • Average African American voter = .94

    • Average Latino voter = .90

    • Average Jewish voter = .91

    • Average Asian-American voter = .97

    • Average immigrant voter = .89


    4. Is there support for direct popular election?

    • Problem: 2000 election polarized voters on the issue, turning a consensus issue into a partisan one. Evidence:


    Support for direct election of the President (2004)


    C. Fairness of Voting Systems

    1. Machine Error


    a. Punch Cards Worst – but “Old” Paper Ballots Work Well


    b. Voters Adapt to Electronic Voting


    c. Paper Trails and Recounts

    • Most electronic voting machines made by Diebold

    • Machines easily hackable

    • No voter-verifiable paper trail  no way to perform manual recounts or prove fraud


    2. Human error

    • Mistakes more likely:

      • Untested designs. Example: “Butterfly ballot” in Hershey

      • First-time voters make more mistakes.

      • Democrats: Review of optical-scan ballots in Florida 2000 showed Gore voters more likely to “overvote” than Bush voters

    • Problem: Instruction by poll workers may be biased. (Reports in 2004 that some poll workers showed people how to vote for Kerry – others described possibility of carefully steering a few votes to different candidates)


    D. Ballot Access Laws

    • Provisions for major parties: Usually given special treatment

    • Filing fees – 7% of job’s annual salary in Florida!

    • Forced primaries – Arkansas requires self-funded party primaries in 69 of 75 counties, forbidding convention nominations.

    • Petition requirements limit access


    a. Signature Requirements


    Texas


    b. Other petition obstacles: Timing, Credentials, Challenges

    • West Virginia

      • Must circulate petition before primary.

      • Crime to approach anyone without saying “If you sign my petition, you cannot vote in the primary.”

      • Illegal to circulate petition without "credentials" from election officials.

      • If anyone who signs a candidate's petition then votes in a primary, the signature of that person is invalid. (Impossible to know who will actually vote in the primary, too late to get signatures after the primary)


    Illinois: Lee v. Keith

    • Seventh Circuit struck down Illinois rules on Sept 18, 2006.

    • No independent state legislative ballot access since 1980.

    • Rules:

      • Nominating petitions must be filed 323 days before election

      • Required signatures = 10% of vote in last election for the office sought

      • Anyone who signs the petitions is barred from voting in any party primary

      • All signatures must be collected within 90 days of the deadline


    E. The Law of Voting Systems

    • No right to vote for President or even Presidential electors: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States...” – Bush vs. Gore

    • Equal Protection Clause: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another…It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” – Bush vs. Gore


    3. Voting Rights Act of 1965

    Section 2 Regulates Voting Arrangements

    • Made illegal all voting arrangements that “deny or abridge” minorities’ right to vote

      • E.g., at-large voting for city councils

    • This section is nation-wide and permanent


    III. Voter Integrity or Voter Suppression?

    • Widely-supported values are incompatible

      • Get Out the Vote: Voting is a fundamental right that must never be abridged

      • Voter Integrity: Only legal votes should be counted

      • Agreements: Both assume democratic elections are best, citizens should choose their leaders, government must be accountable, etc


    4. Incompatibility

    • Get Out the Vote efforts may increase fraudulent voting

      • Those hired to register voters have incentives to register fake/ineligible ones

      • Multiple registration opportunities / bans on voter purges make it difficult to remove voters who become ineligible (crime, relocation, death)

      • Motor-voter enables ineligible people with driver’s licenses to register (generally aliens and felons)

      • Easy registration = easy fraud

      • Fraud most pronounced in registration rather than actual voting


    b. Voter Integrity efforts suppress legitimate votes

    • Photo ID imposes costs of documentation on voters, especially poor, disabled, and elderly (non-mobile)

    • Registration purges eliminate legitimate voters

      Example -- Florida tried to purge felons in 2000 but up to 80% of list was erroneous: felons from non-disenfranchisement states, people with the wrong names, people with restored voting records, people charged but not convicted, etc.


    iii. Preventing registration fraud also prevents registration

    • Punishing registration fraud means threatening voter-registration drives with criminal penalties for mistakes

    • Creating an “intent to defraud” element makes the threat of punishment ineffective (difficult to prove intent)


    B. Government Action

    • Partisanship

      • Republicans tend to support purges, photo ID, and stiff penalties for illegally voting (Voter Integrity). They fear that people prohibited from voting will vote more than they fear being unable to vote.

      • Democrats tend to support automatic or same-day registration (Get Out the Vote). They fear being unable to vote more than that people prohibited from voting will vote.


    2. Federal Laws

    • 24th Amendment – Bans poll tax. Used by US District Court to overturn Georgia’s Photo ID Act in 2005

      • But US Supreme Court upheld Indiana law (6-3) in 2008. Key difference = free photo ID (but not free documents)

    • Voting Rights Act (Section 4): Banned states from imposing most “tests or devices” on individuals’ right to vote

      • Literacy Tests

      • “Good Character” Requirements

      • Language Barriers (added in 1975 -- controversial)

      • Together with Section V (preclearance): Used to block Texas Voter ID law (presumption against state, discriminatory effect proven, no free alternative ID) by District Court panel  appealed


    c. Help America Vote Act of 2002

    • First-time voters who register by mail must show identification -- driver's license, government ID card or other specified documentation -- in order to vote

    • Requires accessible polling machines for disabled and non-English speakers

    • Requires centralized registration lists

    • Imposes standards of accuracy on voting machines

    • Creates “provisional ballot” for non-verified voters instead of challenge system


    3. State Laws

    • Photo ID requirements

      • Tend to reduce minority voting  challenges under VRA (minorities 4-5 times as likely to lack photo ID as non-Latino whites).

        June 2005 Milwaukee County study: 47% of African American adults, 43% of Latino adults have valid drivers license (compared to 85 percent of non-Latino white adults).


    b. Voting Machine Regulations

    • Require machines to be manually audited for accuracy, voter-verified paper trails (VVPR)


    c. Felony Disenfranchisement: Another Clash of Values

    • Punishment of felons vs. citizenship for those who “repay their debt to society”

    • Disproportionately affects minority voters (= initial purpose when adopted after Reconstruction)

      Currently disenfranchised: 13% of African-American men, about 7% of Latino men, about 3% of non-Latino white men.


    % Adult Population Disenfranchised


    IV. Voter Intimidation and Suppression

    • Overt threats are rare – VRA makes them felonies, local police usually investigate threats. Even subtle intimidation is rarely tolerated. (Example: GOP planned to videotape voters/license plates in minority precincts in some NC counties in 1998. Justice Department threatened to prosecute under VRA)

    • Intimidation usually targeted at minorities – Voting patterns make it possible to infer a group’s likely political impact based race/ethnicity. Other targeted groups = college students, elderly.

      Example of strategic vote suppression: In 2004, Michigan state Rep. John Pappageorge (R-Troy) was quoted in the Detroit Free Press as saying, “If we do not suppress the Detroit vote, we're going to have a tough time in this election.” (African Americans comprise 83% of Detroit’s population.)


    C. Vote Suppression Strategies

    • Abuses by law enforcement (rare) Examples:

      • Waller County DA and Prairie View A&M students 2004 (DA ignores 1978 court order)

      • South Dakota’s 2004 primary: Native Americans prevented from voting after photo IDs demanded (which are not required under state or federal law)


    2. Exploiting fears of law enforcement (more common)

    a. Jesse Helms and the “Voter Registration Bulletins”

    • Jesse Helms = Divisive Politics

      • Margins of Victory: 54-46, 55-45, 52-48, 53-47, 53-46.

    • 1990 Senate Election (NC) – Jesse Helms vs. Harvey Gantt

      • Close election: Gantt has early lead

      • 125,000 North Carolina voters (97% African American) sent postcards that said:

        • They are not eligible to vote if they have moved (false)

        • If they tried, they could be prosecuted for vote fraud (also false)

    • Helms wins.

    • 1992: Helms campaign charged with violating Voting Rights Act of 1965, admits guilt. No penalty.


    b. 1998: Threats continue

    • Dillon County, SC: State Rep. Son Kinon (R) mails 3000 African-Americans brochures:

      “You have always been my friend, so don't chance GOING TO JAIL on Election Day!...SLED agents, FBI agents, people from the Justice Department and undercover agents will be in Dillon County working this election. People who you think are your friends, and even your neighbors, could be the very ones that turn you in. THIS ELECTION IS NOT WORTH GOING TO JAIL!!!!!!”


    c. 2002: Flyer distributed in African-American districts in Baltimore, November 4


    d. 2003: Philadelphia

    • Voters in African American areas challenged by men carrying clipboards, driving a fleet of 300 sedans with magnetic signs designed to look like law enforcement insignia.


    e. 2004: Many Cases


    2004: Milwaukee


    2004: Prairie View A&M

    • Historically-black university

    • District Attorney threatens to prosecute students who register to vote

    • After lawsuits, Texas Attorney General steps in to contradict DA


    2006: Letter to Latinos in California from Nguyen (R) campaign (English translation)


    2008: Letter to Virginia Tech College Students

    • “The Code of Virginia states that a student must declare a legal residence in order to register…By making Montgomery County your permanent residence, you have declared your independence from your parents and can no longer be claimed as a dependent on their income tax filings — check with your tax professional.” False: US Tax Code allows students to be dependents even if they have a different residence.

    • “If you have a scholarship attached to your former residence, you could lose this funding.” No known example – ever.

    • Effect: More than 1000 students withdraw their registration applications

    • College students are common targets for intimidation, regardless of color (often outnumber local voters). Most common in local elections.


    3. Suppressing the Vote Without Intimidation

    • Misinformation

      • 1990 Texas (Gregg County): Elderly sent postcards advising them to discard absentee ballots and walk into the polls (must cancel absentee ballot well before voting at the polls)

      • 2002 Louisiana runoff – flyers distributed to public housing claim that election will be delayed by three days if it rains


    iii. Franklin County, Ohio (2004)


    Texas, 2010

    • Texas has no law prohibiting deceptive election practices


    Wisconsin,2012 recall

    • Anti-Walker group sends out letters with names and voting history of neighbors, ostensibly to “get out the vote”


    b. Illegal Means

    2004: Republican committee in New Hampshire jams Democrats’ lines to prevent voter transportation  Felony convictions result.


    c. Vote Caging

    • Definition: Voter registration analysis and challenges conducted via use of mailing lists

    • Technique: Mail postcards or flyers marked “do not forward / return to sender,” make a list of those returned, challenge those voters at the polls as nonresidents

    • Problem: Prevents military personnel and others entitled to vote from voting. Easy to target mailings to only minority neighborhoods.

    • Status: Republican Party agreed to consent decree following 1986 elections that prohibited caging targeting minorities or conducted via mass mailings. Memos show technique used in 2004 election, and suit underway over use of foreclosure lists in Michigan to compile challenges for 2008.


    4. General patterns mirror the values divide on voting

    • Democrats more likely to be identified with fraudulent voting

    • Republicans more likely to be identified with vote suppression

    • Electoral Math: 1 fraudulent vote = 1 vote suppressed. Unclear which one is more rampant.

    • Can both be eliminated?


    V. Campaign Finance: Government for Sale?


    A. Bipartisan Campaign Reform Act (BCRA)

    • Restricted “issue ads” targeting candidates 60 days before election – if funded by corporations, unions, or political nonprofits

    • Banned “soft money” for national parties

    • Prohibited contributions from foreign nationals and minors

    • Imposed tougher disclosure rules, including “Stand by Your Ad” provisions


    B. Citizens United v. FEC (2010, 5-4)

    • Relied on FEC v. Wisconsin Right to Life, Inc (2007, 5-4)

    • Largely overturned McConnell vs. FEC (2003 5-4 decision upholding BCRA)

    • Held that corporations are people for First Amendment purposes – struck down the “issue ads” limitations


    C. Remaining “Loopholes”

    • Soft Money to State Parties

    • Hard Money Limits Doubled

    • “Issue” attack ads unlimited (after citizens United)

    • 527 Groups and “independent expenditures”


    Top Contributors to 527s (9/16/12)

    • Mostly pro-Democratic unions


    Top 527s (9/16/12)


    C. Remaining “Loopholes”

    • Soft Money to State Parties

    • Hard Money Limits Doubled

    • “Issue” attack ads unlimited (after citizens United)

    • 527 Groups and “independent expenditures”

    • Corporate Subsidiaries


    Example: AIG helps Pataki, May 13, 2003

    • Note the sequentially-numbered checks from the same bank account


    D. Who Pays? (9/16/12)


    Totals as of Sept 16, 2012:


    D. Texas: Campaign Finance

    • Laws

      • No contribution limits

      • Weak disclosure rules

      • No public financing


    2. Local Races (2012)

    • TX-31: Incumbent is John Carter (R) – About $700,000 (against non-reporting opponent)


    2. Local Races (2012)

    • TX-25: Incumbent is Lloyd Doggett (D) – Raised $1.3 million against $85,000 by opponent (15:1 ratio)


    2. Statewide Data


    2. Statewide Data

    Senate race: Open Seat contest between Ted Cruz (R - $8.8 million) and Paul Sadler (D - $200,000)


    E. Alternatives

    • “Clean Money, Clean Elections” – Public Financing

    • Campaign Finance Amendment – Allow regulation of individual expenditures

    • Hands-Off – Treat all contributions as protected speech


    VI. Stolen Elections?

    A. Definition: Invented or deliberately destroyed ballots altered the winner

    • Difficulty: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.” – Bush v. Gore


    B. Presidential Elections


    1. Hayes vs. Tilden: 1876

    • South Carolina, Florida, Louisiana contested by Republicans (fraud, threats of violence alleged)

    • Republican election boards award victory in state races to Republican governors and legislatures

    • Republican legislatures then award all disputed electoral votes to Hayes by subtracting sufficient “fraudulent” Democratic votes from returns

    • Note: Supreme Court considered too partisan to hear dispute (Electoral Commission created by Congress)

    • Commission votes on party lines (8-7) to award all electoral votes to Hayes


    2. 1960: JFK vs. Nixon

    • Close election in many states, including Texas, Illinois

    • RNC requests recounts in 11 states

      • Most find no irregularities

      • Texas: Federal courts dismiss Republican challenge

      • Illinois: Recount of Cook County finds 943 new Nixon votes (4500 needed)

      • Hawaii: Recount awards state to Kennedy

    • Most political scientists: Fraud occurred (esp. in Cook County) but didn’t tip the election


    3. Bush vs. Gore: 2000

    • Gore received more votes in Florida than Bush (post-election recount of “over” and “under” votes by press organizations)

    • BUT Gore’s proposed recount (“under” votes only) would not have revealed enough spoiled Gore ballots  Different decision in Bush vs. Gore would probably not have led to Gore win!


    4. 2004: Kerry vs. Bush

    • Clear evidence of vote fraud (participation rates over 100%)

    • Some partisanship in vote challenges: Partisan judges tend to differentially uphold provisional ballots

    • No evidence that scale of fraud was sufficient to alter result


    C. Other Elections

    • Clear examples of stolen elections exist at other levels of government

      • LBJ wins the Democratic Senate primary in Texas, 1948  If fraud didn’t get him elected, it wasn’t for lack of trying (both sides probably committed fraud with THOUSANDS of ballots – but LBJ controlled more election supervisors and less than 200 votes determined the winner)

        • 200 “extra” ballots were “found” – all cast in alphabetical order and marked in the same handwriting and with the same dark ink


    Louisiana 1996

    • Landrieu (D) defeats Jenkins (R) by 5788 votes. Jenkins submits affidavits alleging more than 7000 fraudulent votes, although some later recant. Senate investigation upholds the election


    Miami 1997: Brazen Fraud

    • “Winning” Democratic mayoral candidate Suarez (by a few hundred votes):

      • Employed local organized crime figures to forge hundreds of absentee ballots in the name of elderly, nonresident, or dead people

      • Offered homeless people $10 to cast fraudulent absentee ballots in others’ names

      • People interviewed by Miami Herald openly admit voting despite being nonresidents. Herald concludes that people simply don’t care about the election law.

    • March 1998: Court throws out 4740 absentee ballots due to evidence of tampering, orders “losing” Republican candidate installed as mayor


    D. How to steal an election

    • The old-fashioned way: rig the machines and stuff ballot boxes (poll watchers make this difficult today)

    • The big-city way: supporters register in multiple precincts, vote in all of them (has become risky so few volunteer)

    • The easy way: absentee ballots

      • Nearly every recent “stolen election” involved massive absentee ballot fraud

      • Both parties afraid to touch absentee ballots – Elderly (Pro-Dem) and Military (Pro-Rep) both use extensively.

    • The subtle way: deprive them of voting machines (many people won’t wait in line for eight hours to vote)


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