[EL] ELB News and Commentary 11/1/19

Fri Nov 1 10:08:57 PDT 2019

Federal Court Holds Mississippi Vote Counting Rule (Which Could Affect Upcoming Election) is Likely Unconstitutional; It Denies Preliminary Injunction But Leaves Open Relief If Vote Counting Rule Affects Upcoming Election<https://electionlawblog.org/?p=107866>
Posted on November 1, 2019 9:59 am<https://electionlawblog.org/?p=107866> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the court’s order at this link.<https://electionlawblog.org/wp-content/uploads/hoseman.pdf>

“In their Complaint, Plaintiffs contend that three provisions of the Mississippi Constitution impair that choice. The provisions provide that successful candidates for state-level, statewide office must receive both the majority of the popular vote (“the Popular-Vote Rule”) and a plurality of votes in a majority of Mississippi House districts (“the Electoral-Vote Rule”). Miss. Const. art. V, § 140. If no candidate satisfies both the Popular-Vote and the Electoral-Vote Rules, then the “House-Vote Rule” applies, and “the House of Representatives shall proceed to choose [the winner] from the two persons who shall have received the highest number of popular votes.” Id. § 141. By their terms, sections 140 and 141 control statewide elections for governor….

[The court held the constitutional provision likely violates the one person, one vote rule of Gray v. Sanders. But it declined a preliminary injunction.]

Absent some impact on the election results, the constitutional injury
caused by discarded votes is outweighed by the harm a preliminary injunction would cause when the Court attempts to craft a new method for electing statewide officers on the eve of the election. So too, the public interest would not favor such intervention at this preliminary stage.5

FN 5: It is hard to ignore the impact the upcoming election may have on these issues. If the vote produces a split result under section 140 and is destined for a House vote under section 141, then a far more tangible injury could become imminent: the candidate with the majority vote could lose the election because votes were discarded under the Electoral-Vote Rule. The Court will not prejudge those issues, but under those circumstances the case would likely proceed to an expedited trial on the merits at least as to the Electoral-Vote Rule.

As Josh Chafetz notes<https://twitter.com/joshchafetz/status/1190305002218123265>, this is a terrible way to handle this issue. I’ve long argued that courts should avoid deciding things when it has to decide an election winner—the heat will be much more intense in that case.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Halloween’s Over. The FEC? Still a Zombie”<https://electionlawblog.org/?p=107864>
Posted on November 1, 2019 9:47 am<https://electionlawblog.org/?p=107864> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI:<https://publicintegrity.org/federal-politics/fec-quorum-congress-trump-elections/>

These are dark times at the Federal Election Commission, which has now gone two months<https://publicintegrity.org/federal-politics/federal-election-commission-fec-to-effectively-shut-down/> without enough commissioners to enforce federal campaign finance laws.

That’s because U.S. senators and President Donald Trump have failed to strike an agreement to fill any of three vacancies on the six-member commission that needs a quorum of at least four warm bodies to conduct most any high-level business.

The agency therefore can’t pass new rules, pursue investigations, issue fines, even hold formal public meetings.

What does this mean for political candidates, the body politic and U.S. elections in general?

A lot, it turns out — little of it good.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

“The Technology 202: Here’s why Twitter may have trouble enforcing its own political ads ban”<https://electionlawblog.org/?p=107862>
Posted on November 1, 2019 9:45 am<https://electionlawblog.org/?p=107862> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-technology-202/2019/11/01/the-technology-202-here-s-why-twitter-may-have-trouble-enforcing-its-own-political-ads-ban/5dbb1270602ff10cf14f98e2/> reports.
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Posted in campaigns<https://electionlawblog.org/?cat=59>
“Pa. Gov. Tom Wolf signs historic election reform bill into law”<https://electionlawblog.org/?p=107860>
Posted on November 1, 2019 7:49 am<https://electionlawblog.org/?p=107860> by Rick Hasen<https://electionlawblog.org/?author=3>

Penn Live:<https://www.pennlive.com/news/2019/10/pa-gov-tom-wolf-signs-historic-election-reform-bill-into-law.html>

Gov. Tom Wolf put his signature on what has been described as the most significant change to Pennsylvania’s election laws in more than 80 years when they were written.

By signing the bill <https://www.legis.state.pa.us/cfdocs/billInfo/billInfo.cfm?sYear=2019&sInd=0&body=S&type=B&bn=0421> into law, registered voters will soon be able to cast their ballot from the convenience of their own home in every election – primary, general or special – without having to provide an excuse as to why they can’t make it to the polls on Election Day. Voters will be able to cast ballots by mail beginning with next year’s primary on April 28.

They also will be able register to vote as late as 15 days before an election, instead of the 30-day period that has been the rule for decades.
Further, they will be able to submit their mail-in or absentee ballot right up until 8 p.m. on the day of the election.

The law allows for a permanent mailing list for voters requesting to automatically receive an application for a mail-in or absentee ballot in another convenience.

Perhaps the most controversial change relates to eliminating “straight-party voting” – the option of pushing one button to vote for all the candidates in a single party in general elections. Voters will now have to check off their choice for every contest in the general election, as opposed to simply voting for all Democrats or all Republicans.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Florida’s ‘arbitrary’ election laws keep thousands from voting, experts argue”<https://electionlawblog.org/?p=107858>
Posted on November 1, 2019 7:45 am<https://electionlawblog.org/?p=107858> by Rick Hasen<https://electionlawblog.org/?author=3>

Orlando Sentinel:<https://www.orlandosentinel.com/politics/os-ne-florida-election-laws-20191031-q3z5llr4rjavjnpw5uqdyoyyrm-story.html>

Years ago, the deadline to register to vote in Florida was set at 29 days before the election.

The reason was simple. Four weeks gave elections offices enough time to put together the most comprehensive list of voters available – a giant, printed book.

Today, we live in an age of instantaneous communication, massive databases and several ways to verify identity. And the voter registration deadline in Florida is still 29 days before the election.

“Many laws don’t get changed as technology changes,” said Orange elections supervisor Bill Cowles.

The early registration deadline is just one example of how the state’s elections laws “are as arbitrary as they come,” said Florida ACLU executive director Micah Kubic.
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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
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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