TPM Cafe: Opinion

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Rep. Duncan Hunter (R-CA 50th) is facing possible criminal liability for a colorful litany of alleged misdeeds, such as paying for five mistresses with campaign money. But among the more unique allegations leveled against Rep. Hunter includes using campaign funds to fly his pet rabbit Eggburt on a vacation. Why are these crimes? Because our nation’s campaign finance laws limit who can pay for what.

This is a lesson that even the President still needs to learn.

Here’s some campaign finance history: Many American campaign finance laws were inspired by political scandals. Perhaps most infamously, the money in politics shenanigans in President Nixon’s 1972 re-election campaign included using illegal campaign funds to finance an illegal burglary of the DNC’s headquarters in the Watergate building. Revelations about Watergate led to the enactment of the Federal Election Campaign Act (FECA), which still governs campaigns. A long forgotten scandal about insurance companies secretly funding the Republican Party in 1904 led to the Tillman Act, which bans corporate contributions to campaigns. Fear of Nazis influencing American elections during World War II led to a ban on foreigners’ spending in U.S. elections.

In campaign finance law, it matters a great deal which way the money flows. In many instances, money flowing one way is perfectly legal. But reverse the direction, and you’ll have investigators in FBI flak jackets at your door asking questions about criminal violations.

(The laws I’ve run through here are all federal. But it’s worth remembering that each of the 50 states have their own campaign finance laws. Some states are more strict and others are more permissive.)

Back to Rep. Hunter and his jet-setting pet rabbit Eggburt. Money in federal campaigns is meant to be used for — drum roll please — federal campaigns. There are rules against using campaign funds for personal use. Just ask ex-Congressman Jesse Jackson Jr., who went to prison for using campaign funds to buy Michael Jackson memorabilia.

And remember, which way the money flows is important. While it would be perfectly legal for Rep. Duncan Hunter to give his campaign an unlimited amount of money pursuant to a Supreme Court case called Buckley v. Valeo, Rep. Hunter was not allowed to dip his hand into his campaign’s till and treat it like his personal piggy bank. Perhaps because of government’s allegations about Rep. Hunter’s five mistresses, Rep. Hunter’s wife Margaret Hunter just flipped, so watch this space to see whether federal prosecutors can convict him for his alleged illegal personal use of over $200,000 in campaign funds.

Many have heard of Citizens United v. FEC, which allows corporations to spend money on political ads. What’s less known is that corporations are still banned under the Tillman Act from giving money to federal candidates directly. But when it comes to corporations in politics, it (again) makes a big legal difference who is paying whom. For instance, the Trump Campaign is allowed to rent locations from the Trump Organization for rallies at fair market rates. But the Trump Organization’s corporate arms cannot give money or things of value to the Trump Campaign under the 1907 Tillman Act. Even though this statute is over a hundred years old, it is still good law. In fact, the Supreme Court just turned down the opportunity to strike the Tillman Act in a recent case in 2019.

And finally the direction of money flows is important when it comes to foreign spending in U.S. elections. The law bans American political campaigns from accepting or soliciting a thing of value or money from a foreign national. But the money can go the other way. This prohibition, for instance, does not stop an American campaign from hiring a foreign national, so long as the foreign national is not given decision-making control over a campaign or PAC.

Thus, there is a huge difference between a law firm paying ex-MI6 British subject Christopher Steele to do research into an American presidential candidate, which is permitted under U.S. law, and accepting money from a foreign national, which is not allowed. A campaign paying money to a foreign national is kosher. But any offers of things of value or money from a foreign national to an American political campaign are banned.

Trump should know the difference, since Trump’s 2016 campaign hired a British firm called Cambridge Analytica, which is fine (so long as the foreign nationals working there didn’t take over control of the campaign). Meanwhile, any offers of help from a foreign government to the same campaign could lead to a multiple-year federal investigation by a special prosecutor.

So to sum up: rich individuals can self-finance a political campaign to their heart’s content; federal candidates can pay corporations for campaign expenses like buying bunting; and Americans campaigns can hire foreign nationals to do limited tasks. But what is not allowed includes: (1) corporations’ dumping money into federal campaigns, (2) foreigners’ dumping money into any American political campaign, and (3) paying for a Congressman’s pet rabbit to fly with him on his campaign’s dime. Oh and bonus (4) paying for mistresses with campaign money is also a big no-no.

Word to the wise: If you want bunny Eggburt along for the ride, pay for it yourself out of pocket. The same goes for paramours.

 


Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, a Brennan Center Fellow and the author of the book “Political Brands.”

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It’s nothing new to argue about the use of Holocaust language and imagery to add weight to contemporary political or moral arguments. There is a great deal of very accessible public writing on this topic — most recently an incredibly poignant piece by Dara Horn about the Holocaust museum industry and the lessons it imparts — and also, of course, a vast library of academic scholarship on these issues. Every year, I watch students grapple with a passage in David Shipler’s 1986 book “Arab and Jew” in which a Palestinian prisoner at the Ansar prison camp, built by Israelis in Southern Lebanon, tells a Holocaust survivor that “Ansar is Auschwitz.”

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

America awaits Supreme Court decisions later this month on two critical cases — the legality of the new citizenship question on the 2020 U.S. Census and the constitutionality of partisan gerrymandering of congressional districts. 

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It first appeared at Harvard’s NiemanLab, and was used with permission of the authors. 

 

New technologies used to produce deepfakes are rapidly advancing and becoming more accessible, allowing users to make compelling video and audio clips of individuals doing and saying things they never did or said. Users can, for instance, synthesize an individual’s voice, swap one person’s face onto another person’s body in a video, or alter a video interviewee’s words merely by re-writing a transcript. Recorded audio-visual media is becoming more and more malleable, facilitating an ease of editing almost analogous to text.

The technology offers a host of potential benefits in entertainment and education, from multi-lingual advertising campaigns to museums bringing dead artists back to life. But it can also challenge aural and visual authenticity and enable the production of disinformation by bad actors. Deepfakes have the potential to wreak havoc in contexts such as news, where audio and video are treated as a form of evidence that something actually happened. So-called “cheapfakes,” such as the widely circulated clip of House Speaker Nancy Pelosi, have already demonstrated the potential for low-tech manipulated video to find a ready audience. The more advanced technology creates a whole new level of speed, scale, and potential for personalization of such disinformation.

The goal of this article is to stimulate reflection on the ethics and governance of these emerging technologies. Specifically, we’re focused on the use of these technologies in the context of the 2020 U.S. election and seek to encourage debate about potential responses by various stakeholders. What should social media platforms, journalists, technology developers, and policymakers do to ensure that the outcomes of democratic processes aren’t negatively impacted by deepfakes?

To do this, we have developed a set of scenarios that describe an array of possible uses (arguably, misuses or unethical uses) of deepfake technology in the 2020 elections. These speculative fictions explore how current state-of-the-art technology could be deployed by actors with various motivations to impact election outcomes. The scenarios describe a rich and complex constellation of how the technology might interact with human behavior. The situations generate a number of ethical issues and point to dimensions of elections in which norms, policy, regulation, or technical intervention might be needed or helpful to protect the integrity of the 2020 election.

The set of scenarios purposely includes a variety of different actors (candidates or campaign staffers, external entities like PACs or foreign governments), motivations for those actors (to support a candidate, to hurt a competitor, to undermine the process), modalities of media (audio, video, image), phases (early vs. late), channels for distribution (social media, podcasts, chat apps), and mechanisms for influencing voters (discrediting a candidate’s reputation by association, exaggerating a candidate’s views, suggesting a candidate engaged in corruption, providing evidence of a candidate’s hypocrisy, inciting a campaign’s base, intimidating voters, undermining or attacking the election process, and more).

From an ethical perspective, all of the situations described in the scenarios are problematic insofar as they involve deception. However, they vary in the actors that produce and/or distribute the deepfake, the kind of damage they attempt to do, and how the deception can be counteracted. One overarching question is how these variations affect the ethical nature of the situation.

We developed the scenarios with an eye to making them plausible — describing what you might reasonably believe could happen — rather than merely possible. The challenge for you, then, is to consider what might make the plausible less probable. What can be done now — in the way of establishing norms, rules, policies, etc. — to avoid the worst outcomes (or at least make them less likely)? The scenarios and brief reflections on each are below. We’d love to get your feedback as to whether we have achieved our goals.

 


 

Scenario No. 1

A small veterans’ organization would like to see Seth Moulton win the Democratic primary because, although he is not the only candidate with military experience, he is the only one with significant combat experience and the only one making veterans’ issues a central component of his campaign. The group becomes a political action committee (PAC) and raises funds to make a promotional video for Moulton. The video consists of a combination of video clips with a voiceover that valorizes his bravery. One of the clips is a synthesized depiction of an incident in Iraq when Moulton heroically saved the lives of several members of his platoon. The video is posted on YouTube without any indication that one portion is synthesized. Thousands view the video; hundreds make comments. From the comments, it is apparent that some viewers believe the video is real footage taken by a reporter present at the event. Other comments include complaints from soldiers in Moulton’s platoon who claim that the depiction is an exaggeration of what happened. Because of the comments the video has mixed effects: Some are convinced that Moulton is a true hero, a quality that they would like in a president; others, including many cable news reporters, focus on the negative comments and the deceptiveness of the video.

This scenario illustrates a situation in which a deepfake video is used by a PAC motivated to promote a candidate by valorizing his military record. It’s used early in the campaign, so there is time for reaction. One of the most salient ethical questions posed by this scenario is whether (and ultimately how) the synthesized nature of a video should be disclosed. The scenario is complicated on this matter because only one component of the video is synthesized. Another, perhaps more subtle issue has to do with the extent to which exaggerations of a candidate’s record are okay, particularly when the candidate has not consented. Exaggeration of a candidate’s qualifications has always been an issue in elections, but deepfakes expand the possibilities for doing so. 

 


 

Scenario No. 2

The race is neck and neck only three days before the 2020 general election between Donald Trump and Elizabeth Warren. The winner may largely come down to turnout. Trump advisors develop a strategy to get out the vote among his base: disaffected white voters. Campaign staff synthesize a deepfake video of Warren in a supposed closed-door meeting with a few members of the Congressional Black Caucus and post it on Twitter and YouTube. In the cellphone-quality video, she’s heard saying disparaging and hateful things about white men in the United States. In a matter of hours, Warren as well as other people falsely depicted in the video publicly proclaim that the video is a fake. CNN and MSNBC quickly spread the word that the video is likely a fake. Nevertheless, it spreads virally across social media, propelled and further amplified by troll and bot accounts. The video enrages Trump’s base, many of whom are unaware of the debunks or simply don’t care, and spurs them to the polls for record turnout on the right.

This scenario illustrates a situation in which a deepfake is used by campaign staff to hurt an opposing candidate by attributing to her extreme views that will incite the campaign’s base. Platforms play different roles here, as distributors and amplifiers not only of the lie but also of its debunks. This scenario depicts the generic concern about the use of deepfakes — that is, that they will be used by one candidate (and/or their supporters) to distort and misrepresent a competitor. In addition, misrepresenting a competitor can energize a candidate’s supporters. The scenario also points to the challenge of countering the effects of the deception, especially when it’s used late in a campaign. In the past, candidates have mischaracterized their competitors, but deepfakes can give ostensible authenticity and credence to such mischaracterizations.

 


 

Scenario No. 3

The general election has come down to Pete Buttigieg and Donald Trump. While Trump has enjoyed strong evangelical support, Buttigieg has had difficulty garnering support from evangelicals. He was raised as a Catholic, is now a practicing Episcopalian, and in his campaign has emphasized his Christian faith. In particular, he has repeatedly mentioned that his marriage (to a man) has made him a better Christian. Six weeks before the election, internal G.O.P. polls begin to show that a small but not insignificant number of evangelicals are moving towards Buttigieg. Ten days before the election, a deepfake video appears featuring several testimonials by men who say that they had sex with Mayor Pete while he has been married. A conservative PAC made the video and leaked it to a few evangelical groups via posts to their closed members-only Facebook groups using sockpuppet (i.e. fake) accounts. “Wow, look what I found — how can this guy say he’s Christian?” reads one of the posts. Several religious leaders from evangelical and other churches denounce Buttigieg to their congregations and followers.

As with the others, this scenario illustrates how a deepfake might be used to harm a candidate by misrepresenting the candidate. However, in this case, the responsible party is unknown, the strategy is to show the candidate to be a hypocrite, and instead of showing the candidate saying or doing something, the deepfake has others making statements as if they were real testimonials about behavior for which there would be no other witnesses. The distribution of the deepfake is limited to a small number of people (members of a closed group), illustrating that deepfakes can have a significant impact even when the initial scale of distribution is relatively limited. Indeed, with this mechanism of distribution, counteracting the effects is challenged by their lack of public observability.

 


 

Scenario No. 4

Two weeks before the 2020 election, African-American voters throughout Iowa, Michigan, and Wisconsin receive emails spoofed to seemingly come from their local Democratic Party. The email addresses each recipient by name and tells them the location of their voting place. It also includes a personalized embedded video in which Rev. Al Sharpton, addressing them by name, says that there have been attempts to undermine the election with false information about polling locations in their state. He encourages voters to use the information provided in the email when they go to vote. But the video has been synthesized and the location information is bogus. On election day, some voters are turned away because they’re at the incorrect location for their voter registration. The source of the deepfake is unknown until after the election, when it’s traced back to an alt-right group that would like to see Trump reelected.

This scenario is unlike most of the others in that the deepfake is not used to attack or support a particular candidate but to undermine the democratic process by interfering with individuals’ autonomy in exercising their right to vote. It shows how deepfakes could be used to subvert the integrity of elections. Like the other scenarios, use of the deepfake involves deception, but not deception about candidates — rather, deception about what an influential and recognized figure is claiming. The deepfake exploits the figure’s countenance to bolster trust in deceptive information and it raises complex questions about consent, property rights, and publicity rights around the use of an individual’s facsimile even if they are a public figure.

 


 

Scenario No. 5

Things are heating up and there’s a lot of competition from a wide group of contenders for the Democratic nomination. Bernie Sanders is campaigning heavily in Iowa and Nevada, two of the earliest primaries to be held and races he knows he needs to win. A competitor to Sanders resolves to leak synthesized audio of Sanders saying disparaging things about Iowans, calling them “hillbillies and rednecks” to a small group of Mexican-American voters he met with in Nevada at a campaign stop. The audio clip gets uploaded onto Tumblr by an anonymous blogger who claims that he wants the world to know about “the real Bernie Sanders” but is worried about retaliation against himself and his family. The clip is picked up and played on several podcasts with followings on the left and right. The Sanders campaign is able to produce a complete recording of the purported event in Nevada that proves he never said those things. Major media outlets air debunkings of the clip, but it continues to circulate online and on some smaller podcasts.

In this scenario, an audiofake is anonymously produced and distributed to hurt a candidate by suggesting that the candidate is not who he purports to be, in the sense that he has said demeaning things about groups that he publicly supports. The case might be thought of as a simple case of using an audiofake to misrepresent a candidate; however, the scenario involves anonymity and raises a question about when anonymity is legitimate and how anonymous information should be treated. The case might also be seen in a somewhat positive light, in that a real audio recording is used to counter the audiofake. However, it’s difficult to say that the impact of the audiofake can be effectively counteracted by the real recording. How will listeners know which is real?

 


 

Scenario No. 6

It’s a tight race. Turnout in some key swing districts could make all the difference. Two days before the election, a foreign power unleashes a campaign to suppress certain voter demographics in battleground states. They send spoofed text messages with fake synthesized images to targeted individuals. The message says that if they vote on Tuesday, the attached image depicting the individual participating in a sex orgy with minors will be released publicly online and sent to their friends and family. These images are synthesized using a database of incriminating background scenes with a face swapped using photos of the targeted person scraped from their Facebook page or Instagram account. They are convincing enough to intimidate and coerce some people into not voting. A few individuals contact the police or their cellphone provider, but the spoofed messages continue until election day. Since no one knows how many voters may have been affected, the incident undermines public perception of the legitimacy of the election.

In this scenario, we see a foreign actor interfering in an election campaign in a powerful way. The deepfake is not aimed at hurting or supporting a candidate; instead, it is superficially aimed at voter suppression — superficial because the number of voters impacted would probably be quite small. But once the public becomes aware of this activity, the broader effect would be to cast doubt on the legitimacy of the election by suggesting voter suppression while making it difficult to understand its extent. In addition to eroding trust in election outcomes, this scenario shows how manipulated visual images can threaten individuals and do so in private communication channels away from public observation. Like all the other scenarios, this one involves deception (because a synthesized video falsely represents behavior), but this one also illustrates how deepfakes can be used to coerce and intimidate.

 


 

Scenario No. 7

It’s the morning after the first presidential debate between Joe Biden and Donald Trump. Biden is basking in positive media attention after being judged the clear winner when CNN suddenly airs an audio clip which purports to be from an exchange the debate’s moderator had with a Biden campaign official before it began. The clip, engineered by the Trump campaign in order to discredit Biden’s performance, shows the moderator asking about whether “your candidate has any questions about the questions I sent yesterday?” Pundits interpret it as evidence of trying to fix the debate by sharing questions with Biden’s staff beforehand. The moderator, a respected journalist, firmly denies the account, but not before the #riggeddebates hashtag starts trending. Trump amplifies the idea that the debates are rigged to his Twitter following and refuses to participate in subsequent debates, which are then canceled.

This scenario illustrates how faked audio can be used simultaneously to hurt a competitor and undermine the integrity of (a component of) the election process, a public debate. In this case, the attack was initiated by campaign staff suggesting corruption in the organization of the debate and participation in that corruption on the part of an opposing candidate. Historically, for such accusations to be considered credible, accusers have had to produce some sort of evidence to support their claims. Deepfakes of the kind described in this scenario enable accusers to fabricate evidence that looks credible and can be widely distributed and amplified through social media. This expands the power of a false accusation, both by making it seemingly real and by offering quick and wide distribution.

 


Nicholas Diakopoulos is an assistant professor of communication studies at Northwestern University.

Deborah Johnson is professor emeritus of applied ethics at the University of Virginia.

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

In the early fall of 2018, North Carolina braced itself for the worst hurricane in the history of the state. As Hurricane Florence made landfall, the storm ravaged our most vulnerable communities, leaving residents struggling to pick up the remaining pieces of their lives.

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

Since the founding of the State of Israel in 1948, American Jews have organized our political activism around advocating for Israel’s survival. For these past seven plus decades, Jewish institutions such as the American Israel Public Affairs Committee, the American Jewish Committee, the Jewish Federations of North America and multiple other groups have sought to define the meaning of support for Israel, and, by extension, to create political backing for that position.

These groups have executed their strategy by organizing members of the Jewish community and the broader American electorate into putting Israel at the top of their agenda for lobbying in Washington, for assessing where to make political contributions, and for pressuring politicians on the question of what it means to be a friend of the Jews.

But a broad shift is underway in how American Jews — and Americans overall — are making their political decisions regarding Israel. And despite the decades-long Israel advocacy effort, the data is clear that, today, American voters place very little value on Israel when making their choices at the polls.

The diminishment of the Israel vote presents an existential challenge to Israel’s allies in this country, and alarm bells should be ringing in the Israel advocacy world. This is the nightmare scenario that American Jewish leaders have been working for more than seven decades to avoid.

A series of recent polls of Jewish voters, active Democrats, and a broad cross-section of American voters concerned about national security bears this out. These polls make it empirically clear that American voters have Israel political fatigue. Israel simply just doesn’t figure into these voters’ political calculations.

The first poll, published in May by the Jewish Electorate Institute, surveyed Jewish voters — Democratic, Republican, and Independent — about their political priorities. Israel ranked 16th out of 16 when these Jewish voters were deciding upon which candidate to support. Combatting anti-Semitism by white supremacists in the U.S. far outpaced Israel as a voting threshold issue, and another domestic issue — protecting Social Security and Medicare — came in first place.

Next, a J Street poll of base Democratic voters who will likely participate in the upcoming presidential primaries showed something similar: less than one in five of these voters said that they followed Israel closely. And when voters were asked about the core Israel advocacy issue of the day — countering the Boycott, Divestment, and Sanctions (BDS) movement against Israel — only 9 percent had read more than “a little” about BDS, and less than a quarter supported it. It’s just not an important issue for progressive voters.

Lastly, in a National Security Action poll of likely American voters asked about their views on national security, only 7 percent said that “dealing with Israel/Palestinians” was a priority. That ranked 10th out of 10 issues. And within that, 13 percent of Republicans said it was a priority while only 3 percent of the Democrats did.

What all this means for the upcoming 2020 elections is clear: Israel policy is not a threshold issue for Democratic primary voters; American Jews will not vote for a candidate because of Israel policy; and for Americans who vote based upon concerns about national security, Israel barely registers in importance.

These paltry numbers also represent a notable shift from recent decades. As a child of the 70’s, I grew up in the shadow of the Tree of Life Synagogue in Pittsburgh and remember the “Israel Day” parades that would march through the heart of my Squirrel Hill neighborhood. I remember the appeals made for families to donate money to organizations like the Pittsburgh Jewish Federation and the Jewish National Fund. And I remember the signs we put out in front of our synagogue to “Save Soviet Jewry” from the repressive Soviet Union.

These were the halcyon days of American Jewish political life, where rising up after the Holocaust to build vibrant institutions to aggressively advocate for Israel was the community’s mandate. It goes without saying that American politicians quickly learned that if they wanted American Jewish votes and political money, they would have to adopt the pro-Israel line that our community wanted. It was assumed that American Jews voted based upon Israel. It may or may not have been true back then, but it certainly isn’t true now.

In practice, this fatigue reflects a deep ambivalence and even political anger towards Israel that exists within the Jewish community, most publicly seen in my hometown in 2018 when Israeli rightist politician Naftali Bennett visited Pittsburgh after the Tree of Life massacre and was confronted by Jewish protesters. These protestors rejected his toxic views of Palestinians and overt support for President Trump, whom many identified as a source of inspiration for the white supremacist who shot up the synagogue in the name of both anti-Semitism and hatred of refugees.

This protest was a feature, not a bug, of American Jewish feelings right now towards Israel and it viscerally reflected the moment we are in.

That American voters are in this place represents a strategic failure by Israel advocates to keep Americans and American Jews politically motivated about Israel. And it also means that those most responsible for creating this strategy — American Jewish leaders — have not taken the right steps to fix this crisis. With the 2020 elections just around the corner, there couldn’t be a worse time for Israel advocates to have both American Jews and the broader American electorate tune out.

The gap between institutions promoting Israel and voters can be mended, but a strategic course correction that takes into account what these voters want from Israel is long overdue.

Which brings us back to Tree of Life, the scene of the worst terrorist hate crime against Jews in U.S. history. Just as Tree of Life 40 years ago advanced Jewish issues that mattered most to American Jews at the time — Israel, Soviet Jewry, and recovery from the Holocaust — it now symbolizes the issues that matter most to American Jews today: combatting rising anti-Semitism here at home; supporting diversity and inclusion; and promoting peace. That same Jewish Electoral Institute poll that found Israel ranked 16th out of 16 for American Jews also found that 73 percent of Jewish voters believed they were less secure here at home than they were two years ago, and nearly 60 percent believed the President bore at least some responsibility for the shootings at synagogues in Pittsburgh and Poway, California.

Israel advocacy needs to get its finger back onto the pulse of what both American Jews and the broader American public want from Israel today, including issues such as these. If it doesn’t, the gap between what these voters want and what they’re getting will continue to grow, with political support for Israel falling deeper into that ditch.

 


Joel Rubin is a former Deputy Assistant Secretary of State in the Obama Administration and the President of Washington Strategy Group, a national security and foreign policy advisory firm. He’s also a locally elected Town Council Member in Maryland and can be followed on Twitter @joelmartinrubin.

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

I wonder what Antonin Scalia would make of the Republican legislators in Maine who just voted to allow people to use religious exemptions to avoid vaccinations for their children. And how he would feel about Republican Senators who are now opposing a Trump judicial nominee because he advocated on behalf of a client against a farmer who didn’t want to host a same-sex wedding?

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A blue wave swept across Wisconsin on Tuesday night, ousting Gov. Scott Walker and sending U.S. Sen. Tammy Baldwin back to Washington by double digits. Democrats captured every statewide office, defeating a Republican attorney general, taking over the treasurer’s office and re-electing a progressive secretary of state.

Then the wave crashed against the GOP seawall: Gerrymandering.

More than 1.3 million Wisconsin voters backed a Democratic candidate for the state Assembly, compared to 1.1 million ballots for Republicans. The GOP, however, maintained its 63-36 supermajority in the Assembly and expanded its edge in the state Senate. Only eight Assembly races were competitive enough to finish within single digits. Republicans won seven. Had Democrats won them all, they’d still have a double-digit minority of seats. (Democrats also failed, for the fourth straight election on these maps, to flip a U.S. House seat in Wisconsin this year.)

Truth is, they never had a chance. Secret Republican draft maps and detailed statistical studies — which became public through a legal challenge to these Assembly maps that went all the way to the U.S. Supreme Court (the litigation is ongoing) — revealed how they drew these lines to serve as a barrier against exactly this kind of wave. Once again, they performed as expected.

Democrats had a really good election night, outside of the U.S. Senate, where the party faced its toughest map in a century. They’ll take control of the U.S. House after a gain of at least 32 seats. They flipped more than 325 state legislative seats nationwide, even turning red chambers to blue in Maine, Minnesota, Colorado, New York and New Hampshire. There will be Democratic governors in Michigan, Nevada, and even Kansas.

It would be easy to look at these gains and suggest that the impact of gerrymandering has been overstated. That would also be wrong.

The most extreme gerrymanders nationwide not only held up, they limited GOP losses, pushed back hard against Democratic majorities, and left Republicans in a powerful position ahead of the redistricting cycle that begins in 2021. Several victorious ballot measures will help level the playing field, and Democrats improved their standing by winning key governors’ races, gaining a degree of control over gerrymandering in those states. But Democrats nevertheless remain at a profound disadvantage. Blue wave, meet the red firewall.

This is especially apparent at the state legislative level. In Michigan, more voters cast ballots for Democratic state House and Senate candidates. Nevertheless, Republicans kept control of both chambers. Democrats have now won more total votes for the state House in four consecutive elections without claiming a majority. In the state Senate, Democrats earned 50.4 percent of the votes. Republicans will claim 58 percent of the seats.

Gerrymandered districts also blocked majority will in North Carolina’s state legislature. Republicans will maintain majorities in both chambers despite a minority of votes. Democrats earned 51 percent of the state House vote, but just 45 percent of the seats. On the Senate side, Democrats also won the most votes — but Republicans captured 58 percent of the seats. A majority of voters wanted Democratic control. On these maps, the best those majorities could do was break GOP veto-proof supermajorities.

In Ohio, the popular vote for Democratic congressional candidates increased to 48 percent, an uptick of 5.4 percentage points. Not only did that translate into zero new seats, but Republicans will still hold 12 of the state’s 16 seats — 75 percent of the power with 52 percent of the vote. This split is just as stark in North Carolina, where Democrats won more than 49 percent of the overall congressional vote, failed to flip a U.S. House seat for the fourth straight election of this redistricting cycle , and once again hold just three of the state’s 13 seats in Washington. North Carolina’s electorate shifted from red to blue. The seats didn’t budge.

Compare that to Pennsylvania, where the state Supreme Court ordered a new, non-partisan congressional map installed for 2018, after overturning district lines that had produced a 13-5 GOP delegation in 2012, 2014, and 2016 as an unconstitutional partisan gerrymander. The new districts created a fairer outcome: Democrats won 53 percent of the popular vote, and converted it into 50 percent of the seats. (In contrast, Democrats won just a tick under 50 percent of the statewide vote in 2016, but just 28 percent of the seats.)

How important are maps? While Pennsylvania’s congressional map was replaced this year, the state legislative maps drawn by Republicans remained in place. Pennsylvania voters re-elected a Democratic governor and U.S. senator with double-digit margins and flipped several U.S. House seats blue — but as in North Carolina, a blue wave didn’t come close to control, but merely ended a GOP supermajority in the Senate.

Republicans created these swing-state firewalls after the 2010 midterms, when they won unilateral power to remap North Carolina, Wisconsin, Ohio, Michigan, Pennsylvania, Florida and several other crucial states. Give the credit to a well-timed GOP wave and a savvy, $30 million strategy called REDMAP. Its focus was to flip swing-state legislative chambers red ahead of the decennial redistricting that follows the census, then to etch durable, decade-long advantages with the help of sophisticated new mapping software.

It was so effective that in 2012, Democrats won 1.4 million more votes for the U.S. House, but Republicans retained a 234-201 majority. That crumbled this week, thanks in part to court decisions against partisan and racial gerrymandering that mandated fairer congressional maps and new districts in Pennsylvania, Virginia and Florida.

Elsewhere, however, Democrats continue to struggle to translate a majority of votes into a majority of seats. Before, 2010, that was not the case in Ohio, Michigan, Pennsylvania or Wisconsin. When, under the previous decade’s maps, Democrats won more votes there in 2008, they captured legislative chambers. In 2010, a red wave pushed them to the GOP.

That’s when the lines were redrawn, a GOP move that immediately paid dividends: Democrats won more state House votes in each of those states in 2012, but failed to win a single chamber. Republicans have suggested that Democratic clustering in urban areas is responsible, but courts and academic studies have consistently dismissed the idea that a modest geographic advantage created such extreme results.

Court challenges have also unearthed smoking guns. In Wisconsin, a federal court declared the state Assembly map an unconstitutional partisan gerrymander, based in part on detailed statistical modeling that showed how the GOP maps were carefully crafted to withstand even a 54 percent Democratic wave. In North Carolina, where another federal court threw out the state’s congressional map, a legislator actually admitted that it was designed to create a 10-3 Republican edge, only because mapmakers couldn’t determine how to make it 11-2. Both of those cases could return to the U.S. Supreme Court over the next year.

Democrats snoozed on REDMAP in 2010, but the party’s fully awakened now. Trouble is, 2020 redistricting is one election cycle away, and the biggest blue wave in more than a decade only nominally improved the party’s standing.

More than two-thirds of the U.S. House seats flipped by Democrats were drawn by commissions or courts; the lines drawn by Republicans to protect Republicans largely survived.  A new Democratic governor in Wisconsin will give the party veto power over new maps — but Republicans have already moved to curtail his powers. Democrats need to retake either chamber in North Carolina or Florida to have a seat at the table there after 2020, which would require a still-larger wave than this one.

Democrats also lost key down-ballot Ohio elections, such as the state auditor and secretary of state, that will help determine the makeup of the bipartisan commission there in 2021. The chambers they did flip — Maine, New Hampshire and Connecticut, for example — carry little authority or impact over redistricting. New Democratic governors could veto GOP maps in Kansas and Virginia, but victories by Charlie Baker in Massachusetts and Larry Hogan in Maryland could give Republicans some influence over maps that are currently bright blue.

That’s not a bad thing: Studies show that fairer maps get drawn when both parties have a say, and more extreme maps when one side is locked out of the process. This shouldn’t be a partisan issue. Most voters don’t see it that way. On Election Day, four states — Michigan, Utah, Colorado and Missouri — went around the politicians and passed ballot initiatives that will require fair maps. Red states, blue states, purple states — they all detest gerrymandering.

Perhaps that will put pressure on politicians to pass meaningful reforms. But very few states remain where this can be fixed via referendum, and the U.S. Supreme Court showed little interest in getting involved even before Justice Anthony Kennedy retired and his replacement, Brett Kavanaugh, shifted power rightward.

Meanwhile, our democracy continues to be distorted by swing-state maps that remain extraordinarily challenging for Democratic inroads, even with sizable popular victories. Fixing it may require something as difficult as successive tsunami-style elections in closely divided states, during polarized times. Even that might not be enough.

Democrats may have flipped the U.S. House, but the next set of lines will be drawn by state legislatures that remain deeply gerrymandered. When voters can’t translate majorities into seats in the chambers that are supposed to be most responsive, nothing less than democracy itself is at risk.

 

David Daley is the author of “Ratf**ked: Why Your Vote Doesn’t Count” (Norton) and a senior fellow at FairVote.

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In a Supreme Court term already bursting with election cases, from two partisan gerrymandering disputes to a fight about the permissibility of Ohio’s voter purges to a lawsuit challenging bans on political clothing in Minnesota polling places, it’s easy to overlook yet another significant voting appeal the Court will hear later this month. In Abbott v. Perez, the Court will examine whether the state of Texas violated the Voting Rights Act and the United States Constitution when it drew congressional and state legislative district lines in ways that hurt Latino and African-American voters. The protracted and difficult litigation involves redistricting plans from way back in 2011 and shows how much was lost when the Supreme Court killed another key provision of the Voting Rights Act in its 2013 Shelby County v. Holder case.

Abbott v. Perez could well preview what’s likely to come in the next few years. All three branches of government have pulled back on protecting voting rights, and the effects of that move are becoming clear. We may soon fulfill the late Justice Antonin Scalia’s vision of an emasculated Voting Rights Act and much weaker protections for minority voters by the federal courts.

In the pre-Shelby days, the Voting Rights Act offered two main tools to protect minority Voting Rights. Under Section 5, states which had a history of racial discrimination in voting had to get “preclearance” (or pre-approval) from the U.S. Department of Justice or a federal court in Washington, D.C. before making any changes in voting rules and procedures. States had to show the DOJ or the court that any changes would not worsen the condition of minority voters. Under Section 2, the U.S. government or private plaintiffs could bring suit anywhere in the U.S. arguing that a redistricting plan (or other voting rule, like a state voter id law) deprived minority voters of the same opportunity as white voters to participate in the political process and to elect representatives of their choice. Section 2 litigation can be successful, but the burden is on the plaintiff to prove a violation, the standard is tough to meet, the cases are expensive to bring, and they usually take a long time to litigate.

The Roberts Court’s record on reading and enforcing the Voting Rights Act has been a disappointing one, which is no surprise given that Chief Justice John Roberts himself was an opponent of a strong Voting Rights Act when he worked in the Reagan Administration to weaken minority voter protections in Section 2. The worst thing the Roberts Court has done came in the 2013 Shelby County case, where the Court created a new constitutional theory that states are entitled to “equal sovereignty” and held that Congress violated it by subjecting only some states to Section 5 preclearance based upon old racial discrimination data.

Even before Roberts became chief justice, the Court already had a relatively weak record enforcing Section 2. It has held that the Act cannot be used to challenge the power of minority-preferred representatives within legislative bodies, cannot be used to challenge the number of members of a legislative body so as to assure some minority representation, and it does not give minority voters the right to require the state to draw “influence” districts when the group of minority voters is not large and compact enough to make up a majority in a district. And that’s all aside from non-Voting Rights Act cases cutting back on voting rights such as a 2008 case rejecting challenges to the constitutionality of discriminatory voter identification laws.

The Texas case that the Court will hear this term shows just how hard it is to protect minority voting rights. Texas’ 2011 redistricting plans originally could not be put in place because a federal court had not precleared it under Section 5. A separate lawsuit sought to block parts of the plans under Section 2, and the same federal court issued an interim remedy, which led to Texas passing a similar discriminatory plan in 2013 claiming the re-enactment solved Voting Rights Act problems. The Section 5 lawsuit went away when the Supreme Court decided Shelby County, but the Section 2 lawsuit has dragged on, and the three judges hearing that case issued hundreds of pages of detailed opinions trying to figure out exactly when and how Texas violated the Act.

It has been 7 years, and the cases are only now getting to the Supreme Court, with the potential for a final remedy to be in place for just a single election before the 2020 round of redistricting arrives, and, with it, could well start this all over again.

Since the case started, it is hard to find friends for the Voting Rights Act in any of the three branches of government. The Department of Justice, which came in on the side of minority voters in the Texas litigation, has switched sides now that the Trump Administration has taken over. That means U.S. Solicitor General Noel Francisco will be arguing in favor of Texas’s position in the case at the Supreme Court.

Congress, meanwhile, has not acted to fix the formula for deciding which states need to get Section 5 preclearance, even though the Court in Shelby County invited Congress to try.

And the Supreme Court is poised to make things worse. With rumors circulating that perennial swing Justice Anthony Kennedy could retire as soon as this term, the Court is likely to lurch to the right. As I argue in my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, the late conservative Justice Antonin Scalia took an even narrower view of Voting Rights than the Court as a whole, and now, after his death, Justice Scalia’s influence is only growing. If President Trump gets another appointment to the Supreme Court to replace Justice Kennedy, expect the next Justice (like new Justice Neil Gorsuch) to emulate Justice Scalia’s approach and weaken voting rights even further.

Justice Scalia openly expressed disdain for the Act, expressing the view at the Shelby County oral argument that Congress renewed the Act in 2006 by overwhelming majorities because of “a phenomenon that is called perpetuation of racial entitlement.” He believed that Section 2 could well be an unconstitutional racial preference, and argued that, regardless, Section 2 should be read not to apply to redistricting matters at all.

The bottom line is that the Court’s mixed record on enforcing the Voting Rights Act could soon get worse if Trump gets another Court appointment. Minority voters, already at a disadvantage in many parts of the country because of enduring racism and the unwillingness of white voters to support minority candidates for office, could soon have tougher political battles ahead. And the scariest part is that, thanks in part to Justice Scalia’s influence, the courts may soon no longer be there as a backstop.


Richard L. Hasen is a professor of law and political science at UC Irvine. He blogs at Election Law Blog. His newest book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, was published in 2018 by Yale University Press.

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