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Fair Game or Stacked Deck - The Texas A_M University System

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					The Electoral Process



          Fair Game or Stacked Deck?
I. Gerrymanders: The Fix Is In?
                     n ORIGINAL
                       GERRYMANDER
                       nNamed for Elbridge
                        Gerry, Governor of
                        Mass., 1810-12
                       nLater Vice President
                        under Madison
                       nPlan 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
Descriptive and Substantive
Representation, 1975-1996
               60                                                                        45
                                                    Votes in
               58                                                                        40
                                                    Support
               56                                                                        35




                                                                                              Number of Black Reps.
                                                                                         30
               54
  Vote Score




                                                                                         25
               52
                                                                                         20
               50
                                                         Number of                       15
               48                                    Black Representatives               10
               46                                                                        5
               44                                                                        0
                    94   95   96   97   98     99       100    101   102     103   104
                                             Congress
                                                                              Substantive
 Emerging tradeoff between descriptive                                        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:

                          Mean           Median
       Baseline           62.3%          50.2%
       Proposed           65.9%          69.2%
 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                                                  Republicans                   Black Dems




                                 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 15th
   Amendment 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
Ashcroft & Substantive Representation

Descriptive
                               Pareto
                               Frontier
              2        3
                  SQ
              1            4



                                          Substantive
Ashcroft & Substantive Representation

Descriptive
                                Pareto
                                Frontier
              2         3
                   SQ

              X
              1             X
                            4



                                           Substantive
                  Pre-Ashcroft
Ashcroft & Substantive Representation

Descriptive
                                Pareto
                                Frontier
              2         3
                   SQ

              X
              1             4



                                           Substantive
                  Post-Ashcroft
Ashcroft & Substantive Representation

Descriptive
                                 Pareto
                                 Frontier
                2        3
                    SQ

               X
               1             4   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
a. 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
a. Most gerrymanders – even partisan ones –
   attempt to preserve most incumbents.
b. Single-state neutrality is difficult – if all
   Republican states go neutral, Democrats
   could gain huge majorities by continuing to
   gerrymander their states
c. 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

1. 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)
2. 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

1. Laws may be poorly written
2. No deliberation during the writing of
   proposition
  – Only on whether to accept proposition
3. Interest group capture
  – Qualification, signature gathering have high costs
  – Special interest tend to dominate process
4. 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?
A. Systems of representation
  1. Single-member simple plurality districts (SMSP)
     a. Produce strategic voting and two-party systems
     b. Minimize representation of dispersed minorities, may
        maximize representation of concentrated minorities
     c. Facilitate single-party majority government by turning
        pluralities into majorities
     d. Value some votes more than others in vote-to-seat
        conversions
     e. Create incentives to gerrymander
2. At-Large Elections

a. Minimize representation of minorities
b. Give parties greater power than individual
   candidates
Natural experiment: SMSP (House) vs. At-
Large (Senate) elections
3. PR and STV
a. Proportional Representation: Seats
   allocated on basis of vote share
  i.   Maximizes representation for dispersed
       minorities
  ii. Encourages third parties
  iii. Reduces impact of negative ads (reducing single
       opponent’s vote share might not increase own
       share)
  iv. 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
1. Adoption: Alternative to previous drafts that
   had Congress appoint President.
2. 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)

a. Voter-Ignorant Theory
 i.  First part favors small states over large ones, if all
     states are equally divided (fewer votes = more
     likely your vote is needed)
 ii. 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
a. Mistakes more likely:
   i.   Untested designs. Example: “Butterfly ballot” in
        Hershey
   ii. First-time voters make more mistakes.
   iii. Democrats: Review of optical-scan ballots in Florida
        2000 showed Gore voters more likely to “overvote” than
        Bush voters
b. 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

1. Provisions for major parties: Usually given
   special treatment
2. Filing fees – 7% of job’s annual salary in
   Florida!
3. Forced primaries – Arkansas requires self-
   funded party primaries in 69 of 75 counties,
   forbidding convention nominations.
4. 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
1.   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
2.   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?
A. Widely-supported values are incompatible
  1. Get Out the Vote: Voting is a fundamental right that
     must never be abridged
  2. Voter Integrity: Only legal votes should be counted
  3. Agreements: Both assume democratic elections are
     best, citizens should choose their leaders,
     government must be accountable, etc
4. Incompatibility
a.        Get Out the Vote efforts may increase fraudulent
          voting
     i.   Those hired to register voters have incentives to register
          fake/ineligible ones
     ii. Multiple registration opportunities / bans on voter
          purges make it difficult to remove voters who become
          ineligible (crime, relocation, death)
     iii. Motor-voter enables ineligible people with driver’s
          licenses to register (generally aliens and felons)
     iv. Easy registration = easy fraud
     v. Fraud most pronounced in registration rather than
          actual voting
      b. Voter Integrity efforts suppress
      legitimate votes
i.     Photo ID imposes costs of documentation on voters,
       especially poor, disabled, and elderly (non-mobile)
ii.    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
1. Partisanship
  a. 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.
  b. 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
a. 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)
b. 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
a. Photo ID requirements
  i.   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
i.     Punishment of felons vs. citizenship for those who
       “repay their debt to society”
ii.    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
A. 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)
B. 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
1. Abuses by law enforcement
   (rare) Examples:
  a. Waller County DA and Prairie
     View A&M students 2004 (DA
     ignores 1978 court order)
  b. 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
a. Misinformation
  i.  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)
  ii. 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
i.     Definition: Voter registration analysis and challenges
       conducted via use of mailing lists
ii.    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
iii.   Problem: Prevents military personnel and others entitled
       to vote from voting. Easy to target mailings to only
       minority neighborhoods.
iv.    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)

1. Restricted “issue ads” targeting candidates
   60 days before election – if funded by
   corporations, unions, or political nonprofits
2. Banned “soft money” for national parties
3. Prohibited contributions from foreign
   nationals and minors
4. 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”

1. Soft Money to State Parties
2. Hard Money Limits Doubled
3. “Issue” attack ads unlimited (after citizens
   United)
4. 527 Groups and “independent
   expenditures”
Top Contributors to 527s (9/16/12)

 Mostly pro-
  Democratic
  unions
Top 527s (9/16/12)
C. Remaining “Loopholes”

1. Soft Money to State Parties
2. Hard Money Limits Doubled
3. “Issue” attack ads unlimited (after citizens
   United)
4. 527 Groups and “independent
   expenditures”
5. 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:
Races        Democrats      Republicans
President    $357 million   $337 million
House        $335 million   $445 million
Senate       $204 million   $234 million
TOTALS       $896 million $1.02 billion
   COMBINED = Just under $2 billion
D. Texas: Campaign Finance

1. Laws
 a. No contribution limits
 b. Weak disclosure rules
 c. 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

a. “Clean Money, Clean Elections” – Public
   Financing
b. Campaign Finance Amendment – Allow
   regulation of individual expenditures
c. 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
1. The old-fashioned way: rig the machines and stuff
   ballot boxes (poll watchers make this difficult today)
2. The big-city way: supporters register in multiple
   precincts, vote in all of them (has become risky so
   few volunteer)
3. The easy way: absentee ballots
     a. Nearly every recent “stolen election” involved massive
        absentee ballot fraud
     b. Both parties afraid to touch absentee ballots – Elderly (Pro
        -Dem) and Military (Pro-Rep) both use extensively.
4. The subtle way: deprive them of voting machines
   (many people won’t wait in line for eight hours to
   vote)

				
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