[EL] ELB News and Commentary 11/19/18

[Rick Hasen]

“Charges of Vote Stealing in Florida Portend More Distrust in System for 2020”<https://electionlawblog.org/?p=102394>
Posted on November 19, 2018 10:16 am<https://electionlawblog.org/?p=102394> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/18/us/politics/florida-recount-voter-fraud.html>

The acrimony in Florida followed a contentious, weekslong fight over voter suppression in Georgia, where the Republican secretary of state was overseeing a governor’s race in which he was also a participant. Those battles may foreshadow what 2020 will look like in other closely contested states, especially ones with increasingly diverse populations where conservative-dominated legislatures have tried to put more restrictions on voting while stoking paranoia over stolen elections.

“If what’s going on now is transposed to a presidential election, it would tax our system in a way that is much greater than what happened in 2000,” said Edward Foley, a professor of election law at Ohio State University and one of the country’s pre-eminent scholars on recounts. “As much as there was fighting in 2000, the rhetoric did not get as caustic as what we’ve seen in Florida this year — the allegations of stealing and rigging.”
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“The Trailer: The voting wars aren’t over. They’re just beginning.”<https://electionlawblog.org/?p=102392>
Posted on November 19, 2018 10:13 am<https://electionlawblog.org/?p=102392> by Rick Hasen<https://electionlawblog.org/?author=3>

Dave Weigel for WaPo<https://www.washingtonpost.com/politics/paloma/the-trailer/2018/11/18/the-trailer-the-trailer-the-voting-wars-aren-t-over-they-re-just-beginning/5bef2df21b326b39290548ba/?utm_term=.00af0e539b51>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Eight white-majority districts elected black members of Congress this year. That’s a breakthrough.”<https://electionlawblog.org/?p=102390>
Posted on November 19, 2018 10:12 am<https://electionlawblog.org/?p=102390> by Rick Hasen<https://electionlawblog.org/?author=3>

David Lublin<https://www.washingtonpost.com/news/monkey-cage/wp/2018/11/19/this-november-eight-mostly-white-districts-elected-black-members-of-congress-thats-a-breakthrough/?utm_term=.12d82ac24819> for The Monkey Cage.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“With 2020 looming, Trump and his allies keep hinting that Florida’s process is suspect”<https://electionlawblog.org/?p=102388>
Posted on November 19, 2018 10:11 am<https://electionlawblog.org/?p=102388> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2018/11/19/with-looming-trump-his-allies-keep-hinting-that-floridas-process-is-suspect/?utm_term=.7382312792f4>

But then, in an interview with Fox News after Scott was declared the winner, Trump still claimed that the race had been affected by fraudulent votes.

“Rick Scott won and he won by a lot,” Trump told “Fox News Sunday” host Chris Wallace. “I don’t know what happened to all those votes that disappeared at the very end. And if I didn’t put a spotlight on that election before it got down to the 12,500 votes he would of lost that election, okay? In my opinion he would have lost. They would have taken that election away from him. Rick Scott won Florida.”

The “votes that disappeared at the very end” appears to be a reference to several counties failing to recount all of the ballots because of various mistakes or technical problems. In several cases — including in Palm Beach County, which Scott had highlighted as problematic — those votes weren’t counted by the recount deadline and so weren’t included.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


More Time with Her Family: “Brenda Snipes submits resignation as Broward elections supervisor”<https://electionlawblog.org/?p=102386>
Posted on November 19, 2018 10:07 am<https://electionlawblog.org/?p=102386> by Rick Hasen<https://electionlawblog.org/?author=3>

Sun Sentinel:<https://www.sun-sentinel.com/news/politics/fl-ne-brenda-snipes-resigns-20181118-story.html>

Just hours after finishing a tumultuous election recount, Broward Supervisor of Elections Brenda Snipes submitted her resignation, ending a 15-year tenure full of botched elections, legal disputes and blistering criticism.

“It is true. She did send it,” said Burnadette Norris-Weeks, an attorney who works as counsel to the Supervisor of Elections Office.

Evelyn Perez-Verdia, a former office spokeswoman who left several years ago, said Sunday evening she was told by people in the office that the letter was sent “to Tallahassee” earlier in the day.

Norris-Weeks said she saw an early draft of the letter. In the version she saw, she said Snipes<http://www.sun-sentinel.com/news/politics/fl-ne-election-snipes-replacement-20181113-story.html>, 75, expressed a desire to spend more time with her family.
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Posted in election law biz<https://electionlawblog.org/?cat=51>


“Florida Dems hire investigator to look into altered mail ballot ‘cure’ forms”<https://electionlawblog.org/?p=102384>
Posted on November 19, 2018 10:03 am<https://electionlawblog.org/?p=102384> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times<http://www.tampabay.com/florida-politics/buzz/2018/11/19/florida-dems-hire-investigator-to-look-into-altered-mail-ballot-cure-forms/>:
The Florida Democratic Party has hired an investigator to dig into altered “cure affidavit” forms sent out to voters whose mail-in ballots had missing or non-matching signatures, according to a statement released by the party’s lawyer.
“Upon receiving notice of the allegations that the form was incorrect, FDP took immediate steps, including hiring an independent investigator to review the issues at hand,” read the statement by attorney Mark Herron.  “As soon as we know the results of the investigation we will advise you.”
The move comes after the Florida Department of State sent a letter to federal prosecutors on Nov. 9 asking them to look into the forms, which they had received from voters in four different counties. The forms, which the voters had apparently received from the Democratic party, had an incorrect deadline listed at the top for mail-in ballots to be fixed: Nov. 8, instead of the real deadline of Nov. 5.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


Gans: How Congress Can Use Its Constitutional Powers to Guarantee Voting Rights for All<https://electionlawblog.org/?p=102381>
Posted on November 19, 2018 9:58 am<https://electionlawblog.org/?p=102381> by Rick Hasen<https://electionlawblog.org/?author=3>

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

Post from David Gans:

The 2018 election was rife with voter suppression. States invented new roadblocks to voter registration<https://www.nytimes.com/2018/11/03/us/politics/georgia-governor-voting-irregularities.html>, aggressively purged citizens<https://www.npr.org/2018/10/22/659591998/6-takeaways-from-georgias-use-it-or-lose-it-voter-purge-investigation> from the voting rolls, closed hundreds of polling places<https://news.vice.com/en_us/article/kz58qx/how-the-gutting-of-the-voting-rights-act-led-to-closed-polls> in areas where voters of color reside, and imposed new, stricter voter identification laws that disenfranchised minority and other voters for no good reason<https://slate.com/news-and-politics/2018/10/brian-kemp-kris-kobach-voter-suppression.html>. Voters who surmounted these many obstacles often had to endure long waits and broken machines<https://www.washingtonpost.com/politics/broken-machines-rejected-ballots-and-long-lines-voting-problems-emerge-as-americans-go-to-the-polls/2018/11/06/ffd11e52-dfa8-11e8-b3f0-62607289efee_story.html?utm_term=.79836e8103cb> simply to exercise their constitutional right to vote. When the polls closed, election officials—who themselves were sometimes even on the ballot<https://www.nytimes.com/2018/11/14/us/florida-georgia-scott-kemp.html>—often engaged in blatant partisan efforts to manipulate the outcome<https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html>.

Fixing this long list of stains on our democracy should be one of the next Congress’s top priorities.  Already, Democrats have insisted that a comprehensive package of voting rights reforms will be the first bill<https://www.npr.org/2018/11/12/665635832/democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home> introduced when the 116th Congress meets in January.  Pushing these reforms now—even if they are stymied in the Republican-controlled Senate—is the first step to making our democracy more inclusive, just, and true.  And, importantly, the Constitution explicitly gives Congress sweeping powers to protect the right to vote.

When our Constitution’s Framers wrote our national charter more than two centuries ago, they recognized that “the true principle of a republic is, that the people should choose whom they please to govern them<https://founders.archives.gov/documents/Hamilton/01-05-02-0012-0011>.”  The Framers were deeply suspicious of partisan manipulation of the electoral process, and, in the Elections Clause, they gave Congress the power to “make or alter” state regulation of the time, place, and manner of federal elections.

This sweeping veto allows Congress to override state elections regulations, adopted “when faction and party spirit run high<http://press-pubs.uchicago.edu/founders/print_documents/a1_4_1s10.html>,” that “would render the rights of the people insecure and of little value.”  As Justice Antonin Scalia observed in his 7-2 majority opinion in Arizona v. Inter Tribal Council<https://scholar.google.com/scholar_case?case=14763185671625765035&hl=en&as_sdt=6&as_vis=1&oi=scholarr> of Arizona, “[t]he Clause’s substantive scope is broad. ‘Times, Places, and Manner,’ . . . are ‘comprehensive words,’ which ‘embrace authority to provide a complete code for congressional elections.’”  Congress can use its Elections Clause authority to regulate nearly every facet of the federal electoral process, from voter registration to the counting of ballots, which in turn has downstream effects on state and local election procedures.

The Constitution also gives Congress explicit powers to combat all manner of voting discrimination in federal and state elections, including racial discrimination in voting.  The Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments all protect against discriminatory denial or abridgment of the right to vote and explicitly give Congress the power to “enforce” constitutional limits by “appropriate legislation.”  As history shows, the remedy the Framers prescribed to stamp out voting discrimination “was expressly not left to the courts<https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=101/llcg101.db&recNum=528>.  The remedy was legislative, because . . . the amendment itself provided that it shall be enforced by legislation on the part of Congress.”  Congress has broad authority to legislate prophylactically to ensure that the right to vote is equally enjoyed by all citizens free from discrimination.

Congress’s explicit enumerated powers give it ample tools to attack voter suppression root and branch.  The Elections Clause may turn out to be the most important source of authority for three reasons.  First, so long as it is regulating the time, place, and manner of federal elections—as opposed to dictating voter qualifications—Congress has an absolute veto over state regulation.  As the Supreme Court has long recognized, Congress has a “general supervisory power over the whole subject<https://scholar.google.com/scholar_case?case=1547832757359985052&hl=en&as_sdt=20006&as_vis=1>.”  Congress does not have to make findings that states are engaged in discrimination or violating constitutional rights.  Second, while the Supreme Court is sharply divided along ideological lines over the scope of the congressional enforcement power, both liberals and conservative Justices have read the Elections Clause broadly.  Indeed, the leading Elections Clause decision—the 2013 decision in Inter Tribal Council—was written by Justice Scalia and joined in full by Chief Justice Roberts.  Third, as Nicholas Stephanopoulos notes<https://takecareblog.com/blog/the-validity-of-stopping-voter-suppression>, although Elections Clause legislation applies only to federal elections, in practice, states are likely to apply the same regime to their own elections.

Using its Elections Clause authority, Congress should reform federal elections from top to bottom to make voting safe, secure, and easy.  It could mandate automatic voter registration<https://www.brennancenter.org/publication/case-automatic-voter-registration>, providing that every U.S. citizen is registered to vote in federal elections unless he or she chooses to opt-out, a simple fix that has an impressive track record in the states<https://www.vox.com/2018/11/7/18071980/automatic-voter-registration-us-election>.  It could sharply limit state voter purges—which have been widely used to remove voters from the rolls<https://www.motherjones.com/politics/2018/07/more-voters-are-being-kicked-off-the-rolls-especially-in-states-with-a-history-of-discrimination/>, even for failing to vote—and overrule the Supreme Court’s 5-4 decision in A. Phillip Randolph Institute v. Husted, which dramatically expanded<https://www.nytimes.com/2018/06/12/opinion/the-ohio-purge-and-the-future-of-voting.html> the authority of states to purge voters, including for non-voting.  Congress could use its Elections Clause authority to set aside state voter ID laws, which disenfranchise large numbers of voters for no good reason<https://slate.com/news-and-politics/2018/10/brian-kemp-kris-kobach-voter-suppression.html>.  Congress could make Election Day a federal holiday<https://www.nytimes.com/roomfordebate/2016/11/07/overturning-election-day-tradition/make-eleciton-day-a-national-holiday?module=inline>, making it easier for Americans to make it to their polling place, or mandate early voting or voting by-mail<https://www.vox.com/policy-and-politics/2017/5/27/15701708/voting-by-mail> without excuse.  Finally, but not exhaustively, Congress could limit opportunities for partisan manipulation by insisting that state officials cannot simultaneously run an election and run for office<https://www.cnn.com/2018/11/05/opinions/partisan-elections-futility-josh-douglas-opinion/index.html>.

These measures all fit squarely within Congress’s broad power to regulate the time, place, and manner of federal elections.  None come anywhere close to trampling on state power over voter qualifications.

The next Congress should not stop there in its democracy reform.  It should write a new coverage formula for the Voting Rights Act’s preclearance requirement, revitalizing the Voting Rights Act and restoring the Act’s most effective weapon against racial discrimination in voting.  In 2018, as in past years, states with a long history of voting discrimination<https://www.nytimes.com/2018/06/23/us/politics/voting-rights-alabama.html>—led this time by Georgia<https://www.nytimes.com/2018/11/03/us/politics/georgia-governor-voting-irregularities.html>—pushed through a host of new laws<https://www.nytimes.com/2018/11/03/us/politics/voting-suppression-elections.html> to make it harder for racial minorities to exercise their right to vote.  But for the Supreme Court’s fundamentally flawed<https://www.usatoday.com/story/opinion/2013/06/25/supreme-court-justice-roberts-column/2456969/> decision in Shelby County v. Holder, these changes would have been blocked by the Voting Right Act’s preclearance requirement.  This election offered fresh evidence regarding why preclearance was so vital to protecting the right to vote.  Congress should act to write a new coverage formula that captures the jurisdictions that, year in and year out, flout our Constitution’s promise of equal political opportunity for all regardless of race.

No doubt, conservatives will loudly object, raising specious arguments about state sovereignty and the non-existent problem of voter fraud<https://www.cnn.com/2018/10/22/politics/donald-trump-voter-fraud/index.html>.  But the Constitution settles the matter: Congress has sweeping powers to safeguard our democracy and “restore to the people their equal and sacred rights of election<http://press-pubs.uchicago.edu/founders/print_documents/a1_4_1s10.html>.”  It is Congress’s constitutional duty to make voting easy, secure, and safe for all citizens.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Pildes: New Directions For Election-Law Reform<https://electionlawblog.org/?p=102379>
Posted on November 19, 2018 9:56 am<https://electionlawblog.org/?p=102379> by Rick Hasen<https://electionlawblog.org/?author=3>

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

Post from Rick Pildes:

House Democrats have signaled that their first proposed legislation once they assume power will be a “magnum opus of provisions”<https://www.mprnews.org/story/2018/11/12/npr-democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home> addressing the voting process and government ethics.  In discussing such legislation, the first question is whether the bill we are considering will be primarily about messaging or about actually legislating.

As Frances Lee has demonstrated in one of the best recent books on Congress, Insecure Majorities: Congress and the Perpetual Campaign<https://www.press.uchicago.edu/ucp/books/book/chicago/I/bo24732099.html>, when Congress is as closely divided as it has been in recent years, and when partisan control of the Senate and the Presidency are perceived as up for grabs in nearly every election as well, a far larger proportion of the actions of the House majority (under both Republican and Democratic control) has unfortunately shifted from legislating to messaging.

When focused on messaging, bills are not designed with the realistic aim of overcoming the various institutional and political hurdles facing bills designed to be enacted into law.  Instead, bills are passed to position the party in control of the House to be able to hold their House majority in yet the next election, and to position the party to capture control of the Senate and the Presidency in those upcoming elections.  Proposed bills are like a perpetual motion machine, one after another being churned out in the hopes that one day the party will control enough of the governance structure to then turn to proposals that might become law.

Not surprisingly, given a Republican-controlled Senate and White House, Democrats have already signaled that their voting-rights bill would indeed be about messaging.  As an important figure on campaign-finance issues in the House, Rep. John Sarbanes of Maryland, has said<https://www.mprnews.org/story/2018/11/12/npr-democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home>:  H.R.1 will be designed to signal, “Give us the gavel in the Senate in 2020 and we’ll pass it in the Senate.” Sarbanes added, “Give us a pen in the Oval Office and we’ll sign those kinds of reforms into law.”

That is messaging talk, not legislative talk.  The proposed legislation will thus be a Democratic Party wish-list of election reforms, written to please the audience Democrats are most trying to satisfy symbolically.  If Democrats were seeking legislation that might potentially get enacted in current circumstances, they could focus on the small-bore, but not unimportant, reforms recommended by the 2014 bipartisan report<http://web.mit.edu/supportthevoter/www/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf> of the Presidential Commission on Election Administration.  But precisely because these are more consensual  and narrowly targeted (which is not to say Senate Republicans would agree with all of them), such legislation will not satisfy Democrats’ primary objective of signaling the more dramatic changes they would make if they had full control.

Rather than contribute to a Democratic wish-list of voting reforms, many of which have been written about widely in the last several years in any event, I want to offer a couple of less familiar suggestions.  Perhaps putting these ideas into the mix now will prompt more discussion of them in the years before any national legislation is possible, and the first two  of these ideas could be implemented now in supportive states.

Expand Disclosure Laws and Raise the Threshold for Requiring Disclosure of Individual Contributions

First, in the campaign finance area, Democrats will undoubtedly pursue more comprehensive disclosure laws to cover currently-undisclosed large contributions to groups that engage in election spending.  I support that, but I would couple it with a significant increase in the dollar level at which the names of individual contributors to campaigns must be disclosed.

In the federal system, we haven’t updated these levels since contribution caps were first imposed in the 1970s.  In political terms, that’s not surprising, even if it makes no sense as a matter of policy:  politicians who vote to increase disclosure thresholds will surely be accused of supporting corruption.

But for federal elections, that disclosure level was initially set at $200, and that is where it remains today.  In twenty-first century presidential campaigns that frequently spend about $1 billion, there simply is no risk of political corruption from $200 contributions.  Yet now that anyone can immediately access the names of contributors to all federal races through the internet, the cost-benefit ratio of disclosure at such low levels has been altered, particularly in our hyper-polarized<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646989> political environment.  There’s too great a risk that people will lose jobs (as some already have), or not be hired (even when this is illegal), or be sanctioned in other ways, because of the candidates or causes they have financially supported.

Raising current disclosure thresholds supports democracy:  People should not be punished for their contributions to candidates or causes any more than they should be for how they vote.  Some people are also chilled and won’t contribute above $200 because they do not want their identities easily accessible to all.  At high contribution levels, of course, where the risk of corrupting influence is real, disclosure is still necessary and justified, despite the costs and risks involved.  But current requirements for federal elections are well below that level.  There’s also a pragmatic reason to raise these thresholds.  As more stories emerge about people being punished for relatively low-levels of political contributions, there is a risk, in my view, that more Justices on the Supreme Court will come to the view that disclosure laws are unconstitutional.  Raising those levels to where corruptions concerns are real reduces that risk.

In addition, we might consider a regime of semi-disclosure for lower contributions.  Such a regime would disclose only aggregate information for such contributions, such as which sectors of the economy these contributions come from or from what geographic areas, without identifying individual names.  There are informational benefits to voters knowing, for example, that a candidate gets X percent of her money from the real-estate industry or from out-of-state.  But that information does not require disclosure of individual identities.  State disclosure regimes could be similarly updated and modified.

Focus Public Financing on Supporting Political Parties, Not Solely Candidates

Second, Democrats will likely seek voluntary public financing of national elections in the form of matching funds provided for small contributions. We can see this in the “Government By the People Act” that Rep. Sarbanes has already introduced<https://sarbanes.house.gov/bythepeople>.

I’m inclined to think straight public financing, rather than these matching programs, is better policy, because I worry that small contributors fuel political polarization; individual donors, in general, are among the most polarizing sources of money in elections, and small donors do not appear to be an exception.  But it might well be more politically feasible to enact a matching program rather than a straight public financing system.

Either way, these systems should be designed, in ways they currently are not, to enable more of the public dollars to go to the political parties.  Right now, we have a candidate-centered system of public financing, including the matching programs that exist.  This encourages candidates and officeholders to be independent free agents.  I believe<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546042> that the democratic process works best, particularly in our separated powers system, when we have strong political parties and party leaders who have the tools to bring along recalcitrant party members to support legislative compromises.  We need to be careful about fragmenting our political system even more.  So for matching programs, perhaps something like 25% of the matching funds should go to the political party committee of the candidate’s party (this would turn matching fund programs into a version of the joint fundraising committees that now exist for the raising of private contributions).     Most campaign-finance changes are likely to take place at the state level for now, and states that adopt or have adopted forms of public financing could move in this direction.

A Separate, Uniform Ballot for National Elections

Third, as the latest debacle in ballot design from Broward County demonstrates yet again, one of the always-waiting-to-happen-disasters is a crisis resulting from our hyper-decentralized election system, even for national elections. This is a dysfunctional remnant from the history of how our voting system evolved. Even for national elections, we have individual counties designing the ballot for presidential, Senate, and House races.

We should have a separate ballot for national elections and Congress should mandate that it be uniform in each state. Is bipartisan agreement possible on this? Congress has the constitutional power to design a single national ballot for national elections. But that would also require nationalizing the rules for access to the ballot—including the rules that govern what independent or third-party candidates must do to get on the ballot.

Unless we are prepared to nationalize these rules, which I doubt, Congress can instead at least require a separate federal ballot for national elections that is uniform at the state level.  With the much higher visibility that would provide, the political parties and other groups are more likely to catch mistakes before they happen than when they must attempt to monitor thousands of individual counties.  Just as the Help America Vote Act moved the registration process up to the state level, we should move other aspects to the state level as well, particularly for national elections.

Conclusion

These suggestions are not meant to identify the most important issues national legislation might tackle.  I have written elsewhere<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=900161>, for example, about how I would more effectively protect the right to vote: namely, by shifting from the race-based, anti-discrimination model to a more general, universal form of legislation that eliminates all unjustified and unnecessary restrictions on the vote, regardless of which groups they burden.  But the suggestions here are designed to provoke thought along less familiar lines among voting reformers.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Odd Supreme Court Grant in the Census Citizenship Question Case”<https://electionlawblog.org/?p=102377>
Posted on November 19, 2018 9:53 am<https://electionlawblog.org/?p=102377> by Rick Hasen<https://electionlawblog.org/?author=3>

Marty Lederman:<https://balkin.blogspot.com/2018/11/the-odd-supreme-court-grant-in-census.html>

So what’s the point of the Supreme Court’s cert. grant?  Why didn’t the Court at least wait until Judge Furman issued his judgment?  If the district court has issued its judgment before December 17, when the government’s opening brief in the Supreme Court is due, does the Court expect the parties simply to treat the proceedings in the Court as a sort of direct appeal from the district court on the merits–transforming the petition into a de facto petition before judgment of sorts–thereby circumventing the court of appeals?  That seems unlikely.  (And that’s assuming the district court rules against the government.  If Judge Furman rules in favor of the government, what happens to the Supreme Court case?  Presumably the plaintiffs–unlike the government(?)–would be required to initially appeal to the court of appeals.  But if so, why is the government’s evidence-based petition ripe for SCOTUS review now?)

And if Judge Furman’s judgment comes after December 17, what are the parties supposed to do about it during their remaining briefing schedule in the Supreme Court?  Begin treating the SCOTUS case as if it were an appeal on the merits?  Simultaneously go up to the Second Circuit on the merits while the ancillary evidentiary question about what evidence the district court should have considered is pending in the Supreme Court?

I sense that I must be missing something here, but I’ve asked these questions of a bunch of people following the case, and no one’s had a clue about what the Court has in mind.  [One wild speculation:  Perhaps the Court fully expects to dismiss the petition as moot once Judge Furman issues his judgment, but is merely trying to spur him to rule expeditiously–something the Court presumably cannot simply order a trial judge to do–to make it more likely the appellate courts can opine on the merits before the end of June.  If that’s the reason, however, it seems unnecessary–as far as I know Judge Furman has been moving things along very briskly, with the summer deadline in mind.]

Meanwhile, just a few hours ago (yes, on a Sunday), the government defendants asked Judge Furman to revisit his prior decision<https://www.justsecurity.org/wp-content/uploads/2018/11/Census.doj_.motion.stay_.pdf> to proceed toward final judgment, and moved him to stay all proceedings until the Supreme Court issues its decision on the evidentiary questions sometime between next March and June.  I must confess that I don’t see the point in such a delay, especially in light of the court’s determination to specify, in his forthcoming judgment, whether and how the plaintiffs’ claims are affected by any materials outside the administrative record.  A four- to seven-month delay before the court enters its final judgment would effectively preclude the courts from being able to carefully consider the merits of the case before the new census forms are to be printed up in June.  Why would that be (in the government’s words) “the most prudent course”?  [UPDATE:  Judge Furman has instructed the plaintiffs to file their response to the government’s new motion by 4:00 p.m. on Tuesday, November 20.]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Ranked-choice voting worked in Maine. Now we should use it in presidential races”<https://electionlawblog.org/?p=102375>
Posted on November 19, 2018 9:50 am<https://electionlawblog.org/?p=102375> by Rick Hasen<https://electionlawblog.org/?author=3>

Larry Lessig<https://www.usatoday.com/story/opinion/2018/11/16/ranked-choice-voting-maine-protest-candidates-election-2018-column/2023574002/> for USA Today.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102375&title=%E2%80%9CRanked-choice%20voting%20worked%20in%20Maine.%20Now%20we%20should%20use%20it%20in%20presidential%20races%E2%80%9D>
Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


“Why Democrats Should Not Call the Georgia Governor’s Race ‘Stolen’; There are three important reasons to cool this rhetoric, despite Brian Kemp’s odious voter suppression efforts.”<https://electionlawblog.org/?p=102373>
Posted on November 18, 2018 4:01 pm<https://electionlawblog.org/?p=102373> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/11/georgia-stacey-abrams-brian-kemp-election-not-stolen.html?wpsrc=sh_all_dt_tw_ru> for Slate. It begins:

Many Democrats are understandably angry about efforts to suppress the vote in Georgia<https://slate.com/news-and-politics/2018/11/georgia-governor-election-stacey-abrams-lost-brian-kemp.html> and elsewhere in the 2018 midterm elections. In the Peach State, there is no question that Gov.-elect Brian Kemp, while secretary of state, made it harder for minority and other voters to register and vote, through a combination of deliberate efforts<https://www.motherjones.com/politics/2018/11/brian-kemps-win-in-georgia-tainted-by-voter-suppression-stacey-abrams/> and gross incompetence<https://assets.documentcloud.org/documents/4900825/Read-the-federal-judge-s-ruling-here.pdf>. He administered what I consider<https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html> to be the most egregious partisan action by an election official in the modern era when he falsely accused the Georgia Democratic Party of hacking into the state election system, and a few days before Election Day, posted that false accusation on the website that Georgia voters used to get polling information.

But for three reasons, Democrats should stop with the rhetoric that the race was “stolen,” as Sherrod Brown, Democratic senator from Ohio has said<https://www.realclearpolitics.com/video/2018/11/14/sen_sherrod_brown_if_stacey_abrams_doesnt_win_in_georgia_republicans_stole_it.html>, and they should not follow the lead of Kemp’s Democratic opponent Stacey Abrams, who repeatedly refused<https://www.cnn.com/videos/politics/2018/11/18/stacey-abrams-brian-kemp-legitimate-georgia-governor-bts-sotu-vpx.cnn> to acknowledge Kemp as the “legitimate” winner of the election when questioned Sunday by CNN’s Jake Tapper.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102373&title=%E2%80%9CWhy%20Democrats%20Should%20Not%20Call%20the%20Georgia%20Governor%E2%80%99s%20Race%20%E2%80%98Stolen%E2%80%99%3B%20There%20are%20three%20important%20reasons%20to%20cool%20this%20rhetoric%2C%20despite%20Brian%20Kemp%E2%80%99s%20odious%20voter%20suppression%20efforts.%E2%80%9D>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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