[EL] ELB News and Commentary 11/15/18

[Rick Hasen]

“Georgia 7th: More court action as Bourdeaux pushes additional absentees”<https://electionlawblog.org/?p=102293>
Posted on November 15, 2018 9:45 am<https://electionlawblog.org/?p=102293> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC: <https://www.ajc.com/blog/politics/georgia-7th-more-court-action-bourdeaux-pushes-additional-absentees/RKFHkcwPjJVcVzgphO3pXI/>

Democrat Carolyn Bourdeaux headed back to federal court on Thursday morning, filing an emergency motion<https://static1.squarespace.com/static/5a525cabbe42d6a0e16047d4/t/5bed961bcd8366ed4875f182/1542297115117/2018-11-15+Martin+v.+Kemp+Brief+in+Support+of+Motion+for+Reconsideration.pdf> aimed at forcing Gwinnett County to count a trove of previously rejected absentee ballots in the razor-thin 7th Congressional District race.

The Democrat wants U.S. District Judge Leigh Martin May to reconsider her Tuesday ruling<https://cmgwsbradiojamiedupree.files.wordpress.com/2018/11/bourdeaux-ga1.pdf> that compelled the county to count absentee ballots that had missing or incorrect voter birthdates but rejected Bourdeaux’s call<https://politics.myajc.com/blog/politics/democrat-sues-gwinnett-7th-district-race-remains-unresolved/Dz9vE4Y7pyGgGZidcaAB7M/> to tally ballots with address and signature issues.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Bill Nelson sues to block fax, email votes in Bay County from being counted”<https://electionlawblog.org/?p=102291>
Posted on November 15, 2018 9:42 am<https://electionlawblog.org/?p=102291> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/news/politics-government/election/article221703710.html>

Less than 24 hours since his last suit was filed, Bill Nelson is suing Bay County again.

The incumbent candidate for U.S. Senate, who has filed three other lawsuits in the past week, is suing Bay County Supervisor of Elections Mark Andersen to stop any ballots received via email or fax from being counted.

The second round of unofficial returns is due from the counties at 3 p.m. Thursday

The supervisor told the Herald/Times Monday that 11 ballots were accepted by email and 147 ballots were domestically faxed in<https://www.miamiherald.com/news/politics-government/election/article221536055.html>, though state statute does not allow emailed ballots, and faxing in ballots is only permitted for military and voters overseas.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Florida recount: Palm Beach County says it will probably miss deadline as judge gives voters time to fix ballots with signature issues”<https://electionlawblog.org/?p=102289>
Posted on November 15, 2018 9:39 am<https://electionlawblog.org/?p=102289> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/florida-recount-signatures-judge-ballot-machine-count-deadline/2018/11/15/21275a22-e87c-11e8-bbdb-72fdbf9d4fed_story.html?utm_term=.e87d8a038574>:

“We were very close to the end, and our machines went down,” she said. Bucher estimated the county now only had a “slim chance” of completing its count for the Senate race on time and would not have recounted ballots in other races.

It was not clear how the missed deadline or the judge’s decision would affect the timing of recount, which was expected to move to a manual canvass Friday in the too-close-to-call Senate race, in which Gov. Rick Scott (R) leads Sen. Bill Nelson (D) by fewer than 13,000 votes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Democrats are now going there on ‘stolen’ elections”<https://electionlawblog.org/?p=102287>
Posted on November 15, 2018 9:37 am<https://electionlawblog.org/?p=102287> by Rick Hasen<https://electionlawblog.org/?author=3>

Aaron Blake<https://www.washingtonpost.com/politics/2018/11/15/democrats-are-now-going-there-stolen-elections/?utm_term=.c9eb38d0bb6e> for The Fix:

For more than two years, President Trump has baselessly alleged rampant electoral fraud. He pre-blamed voter fraud for his expected 2016 loss, and then he cited it again even after he shockingly won<https://www.washingtonpost.com/news/the-fix/wp/2016/11/28/donald-trump-is-making-a-strong-case-for-a-recount-of-his-own-2016-election-win/?utm_term=.e645ffcd64c1>. (Something needed to explain his popular-vote shortfall.) He’s now at it again in 2018; he has accused Democrats of foul play in their efforts to win the still-unresolved Florida Senate and governor’s races, and on Wednesday he alleged that people vote, go back to their cars to change clothes, and then vote again<https://www.washingtonpost.com/politics/2018/11/14/trump-claims-an-id-is-needed-buy-cereal-that-fraudulent-voters-simply-switch-hats/>.

But Trump isn’t the only one going down this road right now. Republicans have increasingly warned that Democrats will “steal” Florida<https://www.washingtonpost.com/election-results/florida/?tid=a_inl_auto>. Sen. Marco Rubio (R-Fla.) has tweeted that “democrat lawyers plan to steal [the] #Florida election<https://twitter.com/marcorubio/status/1062522615666016256>.” Florida Republican Gov. Rick Scott’s adviser has said Scott won’t lose to Sen. Bill Nelson (D-Fla.) “unless they steal it from him in court<https://twitter.com/atrupar/status/1062365981845188609>.”

And now even some big-name Democrats are using similar language, alleging that the Georgia<https://www.washingtonpost.com/election-results/georgia/?tid=a_inl_auto> governor’s race will be “stolen” from them, too. Sen. Cory Booker (D-N.J.) has said the “election is being stolen from<https://www.yahoo.com/news/cory-booker-says-georgia-election-stolen-stacey-abrams-012932105.html>” Democrat Stacey Abrams. Hillary Clinton has said Abrams would have won “if she’d had a fair election<https://www.statesman.com/news/20181113/in-austin-hillary-clinton-honored-for-public-service>.” And on Wednesday, Sen. Sherrod Brown (D-Ohio) went so far as to say, “If Stacey Abrams doesn’t win in Georgia, they stole it<https://www.statesman.com/news/20181113/in-austin-hillary-clinton-honored-for-public-service>.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Election Law Pic of the Day<https://electionlawblog.org/?p=102285>
Posted on November 15, 2018 9:30 am<https://electionlawblog.org/?p=102285> by Rick Hasen<https://electionlawblog.org/?author=3>
View image on Twitter<https://twitter.com/AshaRangappa_/status/1062903571778277376/photo/1>
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This chyron.

Please tell me we have hit rock bottom. Please.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republicans Walters and Kim adopt Trump tactic of charging vote fraud with no evidence of wrongdoing”<https://electionlawblog.org/?p=102283>
Posted on November 15, 2018 9:28 am<https://electionlawblog.org/?p=102283> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<http://www.latimes.com/politics/la-me-pol-walters-kim-fraud-claims-20181115-story.html>

Two Orange County Republicans facing the prospect of defeat in the Nov. 6 congressional election as final ballots are counted have adopted President Trump’s tactic of making baseless allegations of vote fraud.

Neither GOP Rep. Mimi Walters nor Republican candidate Young Kim has produced evidence to back up their charges that Democrats are trying to steal the election. County registrars of voters supervising the ballot counts said they knew of no one doing anything that would compromise the election’s integrity.

Both Republicans leveled the accusations after they steadily lost ground in the continuing tabulation of tens of thousands of ballots. Walters finished ahead on election night, but has fallen 3,797 votes behind Democrat Katie Porter. Kim is clinging to a 122-vote lead over Democrat Gil Cisneros.

Walters and Kim have joined a growing number of Republicans in Florida and elsewhere who, like Trump, challenge the legitimacy of vote counts when Democrats gain in late tallies. Nonpartisan election watchdogs are appalled….

On Sunday, when she was still slightly ahead, Walters told supporters in an email that she needed donations to stop Democrats “from overturning the will of the voters.”

“I’m currently up by 1 point, but the Democrats are already preparing for a recount to try and steal this Republican seat after the fact,” Walters wrote.

In another fundraising email, Walters said she needed “to make sure vote tallies aren’t tampered with.”

Neal Kelley, Orange County’s registrar of voters, responded “emphatically no” when asked whether anyone had tried to tamper with any of the ballots.

“We take this responsibility very seriously,” he said. “I certainly do. I have seen no evidence of it.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Crum: The House Should Pass an Effects-Test Bail-in Provision<https://electionlawblog.org/?p=102281>
Posted on November 15, 2018 9:26 am<https://electionlawblog.org/?p=102281> by Rick Hasen<https://electionlawblog.org/?author=3>

In collaboration with Take Care<http://takecareblog.com/>, Take Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from Travis Crum:

Things have changed in the South since Shelby County. And not for the better. After the Supreme Court struck down<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> the Voting Rights Act’s coverage formula in June 2013, several previously covered jurisdictions passed discriminatory election laws<https://www.naacpldf.org/wp-content/uploads/Statess-responses-post-Shelby-08.14.18-3.pdf>. Perhaps most prominently, North Carolina enacted a voter-suppression law that the Fourth Circuit invalidated<https://www.justice.gov/sites/default/files/crt/legacy/2014/10/09/ncnaacpmccroryopinion.pdf> on intentional discrimination grounds. More recently, the 2018 midterm elections were marred by voter-suppression tactics in Georgia<https://slate.com/news-and-politics/2018/10/brian-kemp-voter-mismatch-georgia-stolen-election.html>, Texas<https://www.nytimes.com/2018/11/03/us/politics/voting-suppression-elections.html>, and elsewhere<https://www.vox.com/policy-and-politics/2018/11/7/18071438/midterm-election-results-voting-rights-georgia-florida>.

In response to these problems, Democratic leaders have pledged to pass a revised VRA<https://www.npr.org/2018/11/12/665635832/democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home>when the next House of Representatives convenes in January. As I have argued<https://www.yalelawjournal.org/pdf/895_hxmt6m44.pdf> before<https://electionlawblog.org/?p=52659>, Congress should revise Section 3(c)’s bail-in provision<https://www.law.cornell.edu/uscode/text/52/10302> to authorize courts to impose preclearance based on a violation of Section 2<https://www.law.cornell.edu/uscode/text/52/10301> of the VRA and any other federal law that prohibits discrimination in voting based on race, color, or language minority status. Currently, Section 3(c) authorizes bail-in only for violations of the Fourteenth or Fifteenth Amendments. It is well established that the Fourteenth Amendment prohibits intentional racial discrimination in voting. The Fifteenth Amendment standard is less settled, though a plurality<https://www.law.cornell.edu/supremecourt/text/446/55> of the Court concluded in 1980 that the Amendment requires a showing of discriminatory intent. If Congress amends Section 3(c) to authorize bail-in based on a statutory violation, courts could impose preclearance based on a finding of discriminatory effect—not just intent.

Why should Congress make this change? With an effects-test Section 3(c), it would be far easier, cheaper, and quicker to bail-in jurisdictions. Indeed, the small number of bail-ins is partly attributable to Section 3(c)’s constitutional trigger. Following Shelby County, civil rights groups and the Obama Administration’s Department of Justice requested Section 3(c) relief in several cases across the country. As I have written previously<https://electionlawblog.org/?p=101137>, the results of these suits have been mixed, though there is still the possibility of bailing-in Texas<https://electionlawblog.org/?p=101135> for its intentionally discriminatory post-2010 redistricting plans. A common thread running through these decisions is the difficulty of proving intentional discrimination and the time- and fact-intensive discovery necessary to make that showing. By contrast, it is often far easier for plaintiffs—and less intrusive on States and political subdivisions—to show that a law has a discriminatory effect. An effects-test Section 3(c) would therefore expedite litigation and increase plaintiffs’ leverage in Section 2 cases.

An effects-test bail-in mechanism also sidesteps the constitutional issues inherent in any new coverage formula, which will have to satisfy Shelby County’s equal-sovereignty standard. By its own terms, Shelby County applies only when Congress differentiates between the States—an intrinsic part of any coverage formula. Section 3(c), by contrast, establishes a nationwide rule that applies to all States equally. Thus, unlike a revised coverage formula, Section 3(c) can be defended under the far more deferential standard articulated in South Carolina v. Katzenbach<https://www.law.cornell.edu/supremecourt/text/383/301> for Congress’s Fifteenth Amendment enforcement authority.

To be sure, an effects-test Section 3(c) raises more constitutional questions than the current version. In decoupling bail-in from a constitutional violation, Congress would have to rely on its Reconstruction Amendment enforcement authority not only for the remedy but also for the underlying violation that triggers coverage. But that is true for all the proposed coverage formulas. Indeed, some proposals rely on persistently low minority voter turnout—a proxy for unconstitutional conduct that is not even a statutory violation. In addition, under Section 3(c), courts make the initial liability finding and subsequent bail-in determination and then fashion relief to the particular case. These distinctions are likely more persuasive to the Roberts Court than a reverse-engineered coverage formula passed by Congress.

All of the post-Shelby County bills<https://electionlawblog.org/?p=58021> to amend the VRA have incorporated an effects-test bail-in provision. But Congress should do more. Congress should also provide guidance on what type of voting rights violations require bail-in, the appropriate time period for bail-in, and the types of changes that ought to be precleared.

In providing this guidance, Congress should identify the most problematic voting rights violations and require the imposition of preclearance in certain circumstances. In my view, if a jurisdiction adopts a racially discriminatory redistricting plan, it should be automatically bailed-in for the next redistricting cycle. Redistricting is a problem that calls out for congressional action given its importance and many States’ histories as serial gerrymanderers.

Congress should further specify time limits for Section 3(c) relief. It is often assumed<https://electionlawblog.org/?p=91555> that a jurisdiction can be bailed-in for a maximum of ten years. Although this is a reasonable and constitutionally prudent time period, that outer limit is not found in the statute’s plain text, and some bail-ins have lasted longer than ten years or had no definitive end point. Setting an outer limit of ten to twelve years—i.e., long enough to capture the next redistricting cycle and its immediate aftermath—would make both practical and strategic sense.

In a similar vein, Congress should make explicit that courts are permitted to impose “targeted” preclearance, that is, require jurisdictions to preclear only certain types of voting changes rather than all voting changes. Courts have often relied on their equitable authority or consent decrees to fashion preclearance regimes that target the same type of changes that prompted the bail-in. This revision—as well as my time-limit suggestion—would further bolster Section 3(c)’s constitutionality.

There is a general consensus that an effects-test Section 3(c) will be included in a revised VRA; the coverage formula’s future is less certain.Voting rights advocates and members of Congress should be wary of investing precious time, resources, and political capital into resurrecting the coverage formula. Notwithstanding numerous warning signs in the 1990s and early 2000s that the coverage formula was constitutionally suspect, there was no agreed-upon alternative in 2006 and Congress simply re-enacted the same coverage formula that had been in place since 1975. Even five years after Shelby County, there is still not agreement.

This lack of consensus is apparent from pending bills in the current Congress: the House<https://www.congress.gov/115/bills/hr3239/BILLS-115hr3239ih.pdf>and Senate<https://www.congress.gov/115/bills/s1419/BILLS-115s1419is.pdf> versions of the coverage formula contain disparate time horizons and different numbers of “voting rights violations” for triggering preclearance. For example, the House bill would cover a State that had five voting rights violations in the past fifteen years and one of those violations was committed by the State itself; the Senate bill would not. Moreover, the types of violations that count toward coverage differ. The House bill expressly excludes cases striking down voter ID laws on statutory grounds from the coverage formula. The Senate bill lacks this exemption. Furthermore, the House bill does not count consent decrees and settlements in the coverage formula; the Senate bill does.

Of course, these differences are the result of political deals in the lame-duck Congress. The incoming Democratic House’s coverage formula will probably look somewhat different. But the general point still stands that any revised coverage formula will be the product of compromise.

And here, in setting priorities, it is important to ask what these proposed coverage formulas will accomplish that cannot be done with an effects-test Section 3(c). Many of the proposed coverage formulas use specified “voting rights violations” as triggers for coverage: constitutional violations, statutory violations, denials of preclearance, and (in the Senate) consent decrees. Some proposals incorporate factors like persistently low minority voter turnout, but, as noted above, these proxies raise their own constitutional concerns. The proposed coverage formulas are also “rolling” in that they keep track of “voting rights violations” over time and trigger coverage if the number of violations reaches a certain point in a specified time period.

As I see things, a revised bail-in mechanism can accomplish most of this work—and without raising equal-sovereignty concerns. Section 3(c) already covers constitutional violations, and an effects-test Section 3(c) will encompass statutory violations. The vast majority of bail-ins have been accomplished via consent decrees, so that category is not mutually exclusive of bail-in. And although an effects-test Section 3(c) does not capture recent Section 2 cases or pre-Shelby County denials of preclearance, the rolling nature of the proposed coverage formulas means that the relevance of these violations will fade in the rearview mirror. Because it is unlikely that any revised coverage formula passed by the Democratic House would survive the Republican Senate and be signed into law by President Trump, the clock for a new coverage formula starts in 2021 at the earliest.

And looking ahead to a world where a revised coverage formula is actually enacted, there is the inevitable constitutional challenge. Although Chief Justice Roberts’ opinion in Shelby County left the door open for a new coverage formula, this dicta should be taken with a grain—nay, a tablespoon—of salt. Voting rights advocates and members of Congress must recognize that they are negotiating in the shadow of a hostile judiciary and should not trade away too much to pass a coverage formula that may not survive the Supreme Court.

In short, an effects-test Section 3(c) is a straightforward and pragmatic option for strengthening the VRA. It is also on firmer constitutional ground than any proposed coverage formula. And if it is robustly enforced, it can do much of the work of a resurrected coverage formula.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“See Saw: Close Arizona SoS Race Swings, Election Night “Loser” Winning … For Now”<https://electionlawblog.org/?p=102279>
Posted on November 15, 2018 9:22 am<https://electionlawblog.org/?p=102279> by Rick Hasen<https://electionlawblog.org/?author=3>

Doug Chapin blogs.<https://editions.lib.umn.edu/electionacademy/2018/11/15/see-saw-close-arizona-sos-race-swings-election-night-loser-winning-for-now/>
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Posted in election administration<https://electionlawblog.org/?cat=18>


“U.S. District Court Rejects Attempt to Stop Counting Maine Ranked-Choice Second Round of Ballots”<https://electionlawblog.org/?p=102277>
Posted on November 15, 2018 9:19 am<https://electionlawblog.org/?p=102277> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN<http://ballot-access.org/2018/11/15/u-s-district-court-rejects-attempt-to-stop-counting-maine-ranked-choice-second-round-of-ballots/> with a link to the order<http://ballot-access.org/wp-content/uploads/2018/11/document54.pdf>.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


Federal Court, Using Football Metaphor (Hello Sen. Rubio), Allows 4,000 Florida Voters to Attempt to Cure Ballots Rejected for Signature Mismatch<https://electionlawblog.org/?p=102274>
Posted on November 15, 2018 9:15 am<https://electionlawblog.org/?p=102274> by Rick Hasen<https://electionlawblog.org/?author=3>

You can read the opinion and order here<https://www.scribd.com/document/393278382/FL-Sig-Match-Decision>.

It has a very unsatisfying discussion of the laches issue.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“It’s Time to Fix American Elections — Again”<https://electionlawblog.org/?p=102272>
Posted on November 15, 2018 9:13 am<https://electionlawblog.org/?p=102272> by Rick Hasen<https://electionlawblog.org/?author=3>

Eliza Newlin Carney<http://prospect.org/article/it%E2%80%99s-time-fix-american-elections-again> for TAP.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>
“The Inexplicable Absence of the Voters in the Campaign Finance Debate”<https://electionlawblog.org/?p=102270>
Posted on November 15, 2018 9:00 am<https://electionlawblog.org/?p=102270> by Rick Hasen<https://electionlawblog.org/?author=3>

Elizabeth Reese has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3277475> on SSRN (forthcoming, Houston Law Review). Here is the abstract:

The rich are getting richer, and money talks. Since Citizens United, there has been widespread outrage about the role of money in politics. Advocates for campaign finance reform claim that our democracy is broken—that our election system is unequal, corrupt, and that representatives no longer represent the peoples’ interests. The campaign finance debate provokes important questions about the role of class, speech, power, and discourse in our democracy. However, many critics of money in politics inexplicably ignore that ultimately money doesn’t decide elections—voters do. Actual voter behavior is inexplicably ignored or discretely dismissed. In election after election, year after year, voters go to the polls and exercise their power of self-governance to choose representatives that—according to these scholars and advocates—don’t represent them. How do the critics of big money in politics explain what the voters are doing? Are purported populists implicitly dismissing the legitimacy of voters’ choices? Unless we are prepared to dismiss voter autonomy, it is very difficult to criticize our current system without criticizing democracy itself.

This Article discusses the need to refocus on the people in the campaign finance debate and argues that reformers risk becoming surreptitiously elitist without sufficient confrontation with certain paternalistic assumptions about voter preferences and behavior. It further suggests that unless the campaign finance debate reckons with the more complex realities of voter behavior, we will at best limit the creativity and effectiveness of our potential policy solutions and at worst inadvertently enshrine anti-populist values into policy reforms or constitutional doctrine.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“In Florida Recount, Sloppy Signatures May Disqualify Thousands of Votes”<https://electionlawblog.org/?p=102268>
Posted on November 15, 2018 8:56 am<https://electionlawblog.org/?p=102268> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/14/us/voting-signatures-matching-elections.html>

The issue of faulty signatures, especially on mail-in ballots, has emerged as a central point of contention in the county-by-county recounts taking place in Florida, with lawsuits spinning off the 2018 election like tornadoes off a hurricane.

On Thursday, Judge Mark Walker of the Federal District Court in Tallahassee ruled that voters whose ballots were invalidated by mismatches would have until 5 p.m. Saturday to resolve the problem. The new deadline would apply to just over 4,000 rejected ballots that could now be counted.

“This should give sufficient time, within the state’s and counties’ current administrative constraints, for Florida’s voters to ensure their votes will be counted,” he wrote.

Ruling the state law unconstitutional, he wrote that the county election officials could reject the ballots “with no standards, an illusory process to cure, and no process to challenge the rejection.”

Many of the ballots given a second chance probably belong to traditionally Democratic voters, especially young people. Still, they would not be enough for Senator Bill Nelson, a Democrat seeking re-election, to overcome a 12,562-vote lead by Gov. Rick Scott, his Republican challenger, without further gains.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“What Happens When Politicians Who Oversee Elections Are Also the Candidates?”<https://electionlawblog.org/?p=102266>
Posted on November 14, 2018 5:33 pm<https://electionlawblog.org/?p=102266> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/14/us/florida-georgia-scott-kemp.html>

It was only a week ago that Rick Scott, the Republican governor of Florida and candidate for the United States Senate, claimed on television that “rampant fraud” was perhaps imperiling his election<https://www.nytimes.com/2018/11/08/us/florida-recount-nelson-scott-desantis-gillum.html?module=inline> to Congress, and that he was asking the state Department of Law Enforcement to investigate.

Earlier in the day, at the Georgia State Capitol, Secretary of State Brian Kemp defended his decision to oversee an acrimonious election in which he was a candidate for governor and, by his own preliminary assessment, a victorious one.

The elections in the Southeast’s two most populous states remained undecided Wednesday, more than a week after the balloting, embroiled in lawsuits and accusations. Much of the turmoil is attributable to the high-profile political prizes at stake. But some can be traced to decisions by Mr. Scott and Mr. Kemp to mix, by design or duty, their public roles with their political lives.

That two powerful Republicans helped to oversee elections in which they had overwhelming personal interests prompted bipartisan misgivings, fueled some of the sparring that has spilled into the courts<https://www.nytimes.com/2018/11/14/us/florida-recount-palm-beach.html?module=inline> and intensified the most stinging criticisms of their campaigns. Their approaches to navigating the thicket of runoffs and recounts, litigation and delayed certifications, show that there is no set playbook for candidates whose political fates are up for grabs.
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>, election administration<https://electionlawblog.org/?cat=18>


“Discrediting The Recount Process Takes Advantage Of Voters’ Lack Of Understanding”<https://electionlawblog.org/?p=102264>
Posted on November 14, 2018 4:49 pm<https://electionlawblog.org/?p=102264> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen to NPR:<https://www.npr.org/2018/11/14/667936281/discrediting-the-recount-process-takes-advantage-of-voters-lack-of-understanding?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social>

The Florida recounts have demonstrated that many voters are unaware of election governing rules, which makes them more vulnerable to political rhetoric casting doubt on the legitimacy of the results.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


“In Florida Recount Fight, Democratic Lawyer Draws Plaudits and Fire”<https://electionlawblog.org/?p=102262>
Posted on November 14, 2018 4:48 pm<https://electionlawblog.org/?p=102262> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT profile<https://www.nytimes.com/2018/11/14/us/politics/florida-governor-recount.html> of Marc Elias:

Mr. Elias is perhaps best known for his role in helping to deliver a handful of previous recounts to Democrats, including in the bitterly fought two-month battle over a Minnesota Senate election in 2008<https://www.nytimes.com/2009/01/06/us/politics/06minnesota.html?module=inline> that brought victory to Al Franken. But he has also worked mostly behind the scenes for the past decade shaping the laws and regulations governing American politics, from voting access to redistricting to campaign fund-raising and spending.

The work has yielded tens of millions of dollars in legal fees for his firm, Perkins Coie, from corporations, campaigns and political committees. In the process, Mr. Elias has earned a reputation as one of the most formidable election lawyers in the country, and arguably one of the most influential of unelected Democrats in Washington.

He has been a trusted adviser to the party’s most senior leaders in Congress, and is admired by its campaign operatives for his knowledge of the way campaigns work and his willingness to use aggressive, pioneering tactics<https://www.politico.com/story/2016/07/dnc-leak-clinton-team-deflected-state-cash-concerns-226191> to help them win elections.

hat approach, however, has earned him the ire of activists who support increased transparency and decreased money in politics. They say he has been among the biggest impediments to both causes, and has often put the short-term interests of the Democratic Party ahead of the interests of the party’s base, and even of American democracy more broadly.

“He’s doing really important work for voting rights that benefits all voters, but he’s also pushed for a deregulation of money in politics that serves the interests of the wealthy,” said Paul S. Ryan, the vice president of policy and litigation for the nonpartisan government watchdog group Common Cause.
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Posted in election law biz<https://electionlawblog.org/?cat=51>


“Nelson will likely come up short in recount battle against Scott”<https://electionlawblog.org/?p=102259>
Posted on November 14, 2018 1:39 pm<https://electionlawblog.org/?p=102259> by Rick Hasen<https://electionlawblog.org/?author=3>

Marc Caputo for Politico. <https://www.politico.com/states/florida/story/2018/11/14/nelson-needs-royal-flush-in-court-cases-but-will-likely-come-up-short-696249>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump’s Caricature of How Voter Fraud Supposedly Happens<https://electionlawblog.org/?p=102257>
Posted on November 14, 2018 1:37 pm<https://electionlawblog.org/?p=102257> by Rick Hasen<https://electionlawblog.org/?author=3>

“When people get in line that have absolutely no right to vote and they go around in circles. Sometimes they go to their car, put on a different hat, put on a different shirt, come in and vote again. Nobody takes anything. It’s really a disgrace what’s going on.”

President Trump to the Daily Caller. <https://politicalwire.com/2018/11/14/trump-explains-how-voter-fraud-happens/>

What, no fake mustache?
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Breaking: Santa Monica Poised to Lose California Voting Rights Act Case, Requiring the Creation of City Council Districts and Creating Potential for Appeal That Could Lead to CVRA Being Declared Unconstitutional<https://electionlawblog.org/?p=102254>
Posted on November 14, 2018 10:05 am<https://electionlawblog.org/?p=102254> by Rick Hasen<https://electionlawblog.org/?author=3>

This is a very big deal<http://www.smdp.com/city-loses-voting-rights-trial-in-tentative-judgment/170815>. More after we have a final ruling.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Federal prosecutors reviewing altered election documents tied to Florida Democrats”<https://electionlawblog.org/?p=102251>
Posted on November 14, 2018 7:27 am<https://electionlawblog.org/?p=102251> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/states/florida/story/2018/11/13/federal-prosecutors-reviewing-altered-election-documents-tied-to-florida-democrats-695299>

 The Florida Department of State last week asked federal prosecutors to investigate dates that were changed on official state election documents, the first voting “irregularities” it has flagged in the wake of the 2018 elections.

The concerns, which the department says can be tied to the Florida Democratic Party, center around date changes on forms used to fix vote-by-mail ballots sent with incorrect or missing information. Known as “cure affidavits,” those documents used to fix mail ballots were due no later than 5 p.m. on Nov. 5 — the day before the election. But affidavits released on Tuesday by the DOS show that documents from four different counties said the ballots could be returned by 5 p.m. on Thursday, which is not accurate.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Amanda Frost Comments on My Forthcoming “Polarization and the Judiciary” Paper<https://electionlawblog.org/?p=102248>
Posted on November 14, 2018 7:22 am<https://electionlawblog.org/?p=102248> by Rick Hasen<https://electionlawblog.org/?author=3>

Amanda Frost<http://www.scotusblog.com/2018/11/academic-highlight-hasen-on-political-polarization-and-the-supreme-court/> at SCOTUSBlog:

Common sense tells us that increased political polarization affects the U.S. Supreme Court as well as the political branches, and now legal scholars have the data to prove it. In a forthcoming paper, “Polarization and the Judiciary<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3132088>,” Richard Hasen surveys the academic literature on the subject, and then draws some conclusions of his own. As Hasen explains, the research shows that polarization influences the appointment and confirmation process, along with the cases the court accepts and how it decides them, as well as the public’s perception of the court and its decisions. Although polarization has many negative consequences for the courts, it also empowers them: When the political branches are gridlocked, the courts, and ultimately the Supreme Court, have the last word on contentious policy questions such as immigration, limits on executive power and access to abortion.
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Posted in political polarization<https://electionlawblog.org/?cat=68>, Supreme Court<https://electionlawblog.org/?cat=29>


“Why we’re still waiting for election results from Florida and Georgia — and why newly counted ballots favor Democrats”<https://electionlawblog.org/?p=102246>
Posted on November 14, 2018 7:18 am<https://electionlawblog.org/?p=102246> by Rick Hasen<https://electionlawblog.org/?author=3>

Charles Stewart<https://www.washingtonpost.com/news/monkey-cage/wp/2018/11/14/this-is-why-were-still-waiting-for-election-results-from-florida-and-georgia-its-a-feature-not-a-flaw/?noredirect=on&utm_term=.c5dd9b1033f8> for the Monkey Cage.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Florida tried to fix its elections after 2000. Why are today’s recounts so messy?”<https://electionlawblog.org/?p=102244>
Posted on November 14, 2018 7:14 am<https://electionlawblog.org/?p=102244> by Rick Hasen<https://electionlawblog.org/?author=3>

The Orlando Sentinel reports.<https://www.orlandosentinel.com/news/politics/os-ne-florida-recount-2000-vs-2018-story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Stephanopoulos: The Validity of Stopping Voter Suppression<https://electionlawblog.org/?p=102241>
Posted on November 14, 2018 7:13 am<https://electionlawblog.org/?p=102241> by Rick Hasen<https://electionlawblog.org/?author=3>

In collaboration with Take Care<http://takecareblog.com/>, Take Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from Nick Stephanopoulos:

Unusually for a Western democracy, the United States allows subfederal bodies—the fifty states—to regulate most aspects of elections. Over the last decade, many states have used (in fact, abused) this authority to make it more difficult for eligible citizens to vote. States have imposed photo ID requirements for voting. They have slashed the periods in which people may vote early. They have hindered (in some cases, virtually prohibited) efforts to register people. They have erroneously purged people from the voter rolls. And so on.

It’s no mystery why all this voter suppression has taken place. To be blunt, Republican politicians have realized that certain facially neutral restrictions disproportionately prevent Democrats from voting. They have therefore enacted these restrictions for the sake of partisan advantage—to make the electorate more Republican than the eligible citizenry. Why do some neutral policies have a disparate partisan impact? Because they make voting more burdensome, and it’s Democratic-leaning constituencies like racial minorities and the poor who have more trouble jumping through the extra hoops. And how do we know the motivation for the voter suppression is partisan? The giveaway is who has passed the restrictions. Almost all of them have been ratified by states under unified Republican control. States run by Democrats have tended to make voting easierin recent years.

To date, most of the resistance to voter suppression has taken the form of litigation. Plaintiffs have argued that restrictive policies unjustifiably abridge the right to vote, or violate the Voting Rights Act because of their disparate racial effects, or breach various state law provisions. But now that Democrats have taken the House, it’s time to start thinking about stopping voter suppression through legislation—via laws instead of lawsuits. Of course, such bills will be neither passed by the Republican Senate nor signed by President Trump. Still, they can send a powerful message that a majority of the House now wants to expand, not contract, political participation. Failed bills may also soon become enacted legislation, in the event that Democrats win unified control of the federal government in 2020.

What sorts of measures, then, should the House consider? Here are a few options, which could be passed separately or combined into an omnibus package. The House could require states automatically to register citizens when they turn eighteen—and then to keep them on the voter rolls as long as they remain eligible to vote and haven’t moved to another state. The House could prohibit the disenfranchisement of ex-felons who have completed their prison sentences. The House could mandate that states offer alternatives to in-person voting on Election Day, like early voting and mail-in voting. For those who prefer to vote on Election Day, the House could make it a federal holiday or move it to a weekend. The House could ban photo ID requirements for voting, or permit them only if they’re paired with exemptions for people lacking IDs. And because none of these steps would eliminate the incentive to engage in voter suppression, the House could authorize a federal agency to promulgate further regulations. These additional rules could block creative new means that states devise for limiting the franchise.

Most of these suggestions go beyond anything Congress has previously done. (The closest analogues are the Voting Rights Act and the National Voter Registration Act. But the VRA dealt only with racial discrimination in voting, while the NVRA merely made it easier for people to register to vote.) An obvious question about the ideas is thus whether they’re constitutional. Does Congress actually have the power to preempt and override state electoral regulations to this extent?

The answer would seem to be yes to the extent the measures apply to federal elections. Under the Elections Clause, Congress may “make or alter” regulations that relate to “the Times, Places and Manner of holding Elections for Senators and Representatives.” This power, Justice Scalia explained in the 2013 case, Arizona v. Inter Tribal Council, is near-plenary. Its “substantive scope is broad.” It “embrace[s] authority to provide a complete code for congressional elections.” And it is “paramount, and may be exercised at any time” to “supersede those [policies] of the States which are inconsistent therewith.”

There may be a catch, though. The Constitution appears to distinguish between the time, place, and manner of elections, as to which Congress may legislate as it pleases, and the conditions for voting, which are up to the states. According to Article I, Section 2, the “Electors” in U.S. House races “shall have the Qualifications requisite for Electors” in state house races. The Seventeenth Amendment uses identical language with respect to voters in U.S. Senate elections. Thus, if any of the suggested policies pertain to voter qualifications, they may exceed Congress’s authority under the Elections Clause. That provision arguably extends to how elections are conducted but not to who may vote in them.

This exception, fortunately, is unlikely to swallow the rule. Of the various proposals I mentioned, only the one seeking to enfranchise ex-felons involves voter qualifications. And even on that front, very few state constitutions actually declare that not having committed a felony, or having completed one’s prison sentence, is an official qualification for voting. (Felon disenfranchisement is more often accomplished by statute and without reference to whether a clean record is a voter qualification.) Accordingly, in most circumstances, a federal law enfranchising ex-felons wouldn’t conflict with any judgments that states have made about who should be an elector in their elections. Only a handful of states have bit the bullet and formally held that ex-felons are not members of their political communities.

All of this analysis only addresses federal elections. Could Congress also make it easier to vote in state elections? To do so, interestingly, Congress may not have to regulate them directly. Say an omnibus package along the lines sketched above was enacted, but only with respect to federal elections. States would then have to decide whether to maintain two electoral regimes, one for federal races and another for state races, or a unitary electoral system. If history is any guide, most of them would pick a single system. The NVRA, notably, applies only to federal elections. Yet within a few years of its 1993 passage, every state had chosen to abide by its terms in state as well as in federal races. The same result—driven by the same state disincentive to operate two distinct electoral regimes—is quite conceivable here.

If Congress nevertheless extended its new measures to state elections, two constitutional provisions would likely empower it to do so. The first is the Commerce Clause. State elections themselves substantially affect interstate commerce because they cost large amounts of money, much of which is raised from out-of-state donors or disbursed to out-of-state consultants, advertisers, and the like. The results of state elections have an even bigger impact on interstate commerce. These outcomes determine who holds state elected offices—and thus who has control over about two trillion dollars of annual state revenue and spending.

The Fourteenth Amendment is the other relevant constitutional provision. According to cases like Anderson v. Celebrezze and Burdick v. Takushi, it prohibits electoral policies that unjustifiably burden the right to vote, with the intensity of judicial scrutiny varying in tandem with the severity of the burden. Importantly, under this doctrine, discriminatory intent does not have to be shown to establish liability. The key issue is therefore whether the proposals outlined earlier are a congruent and proportional response to underlying constitutional violations whose crux is a needless abridgement of the franchise—not purposeful discrimination. Framed this way, I think the answer is yes. All of the pieces of the omnibus package try to stop forms of voter suppression that either have been found unconstitutional (by certain courts) or at least have been subjected to serious legal challenges. All of the pieces, that is, prevent or remedy unconstitutional activity, and so are appropriate legislation enforcing the Fourteenth Amendment.

To be sure, as we saw in the Obamacare litigation a few years ago, an argument that initially seems implausible can quickly become more compelling as it’s repeated by litigants, commentators, and ideologically receptive judges. Consequently, I wouldn’t wager much that the reforms I described would ultimately be upheld by a conservative Supreme Court. Nevertheless, at least based on current precedent, Congress does have the power to enact sweeping changes to federal and state elections. Like all legal judgments, this is a contingent conclusion, but for the present, it still holds.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Joint Symposium with Take Care Blog: Reforming Elections Through Legislation<https://electionlawblog.org/?p=102238>
Posted on November 14, 2018 7:06 am<https://electionlawblog.org/?p=102238> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Matz<https://takecareblog.com/blog/reforming-elections-through-legislation>:

It’s no great secret that we could do a better job of running elections in the United States. Debates over voter suppression, cybersecurity, conflicts of interest, partisan gerrymanders, ballot design, and many other issues remain standard fare during election season. Often, those disputes are resolved through emergency litigation or ad hoc political negotiation. The result is a frantic, stressful, and litigation-heavy approach to elections—one that largely fails to produce systemic reform or to address well-known structural flaws.

This would be an unwelcome state of affairs at any historical moment. But it is especially unnerving today. Since Bush v. Gore, conflicts between the political parties have expanded to encompass the very democratic process through which “We the People” choose our representatives. Coupled with trends favoring polarization and hyper-partisanship, this development risks weakening the integrity and legitimacy of our electoral system, as well as public confidence in its integrity and legitimacy.

In recent weeks, senior Democrats have indicated that they intend to<https://www.npr.org/2018/11/12/665635832/democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home> pass election reform legislation. In light of that possibility, Take Care and Election Law Blog have invited several leading election law scholars to offer thoughts on what smart election reform legislation should look like, whether proposed by Democrats, Republicans, or anyone else. Over the coming weeks, we will publish their analyses. It is our hope that these articles helpfully inform public debate.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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