[EL] ELB News and Commentary 4/3/20

[Rick Hasen]

“‘This is a mess’: Wisconsin election officials say absentee ballot deadline extension could throw off results”<https://electionlawblog.org/?p=110389>
Posted on April 3, 2020 8:58 am<https://electionlawblog.org/?p=110389> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/2020/04/03/wisconsin-election-officials-absentee-ballot-deadline-change-results/5119030002/>:

The leader of the Wisconsin Elections Commission said a judge had created a headache Thursday by making last-minute changes to how absentee ballots will be counted.

“This is a mess,” said Dean Knudson, the chairman of the commission.

At issue is a decision by U.S. District Judge William Conley that kept Tuesday’s election on track for those who vote in person<https://www.jsonline.com/story/news/politics/elections/2020/04/02/wisconsin-election-judge-extends-absentee-voting-but-keeps-vote-date/5112276002/> but will allow absentee voters to return their ballots until April 13.

State law requires clerks to report unofficial returns on election night, and commissioners don’t want that to start happening on Tuesday when only a portion of ballots will have been counted.

“The Commission wishes to avoid changing results being publicized each night during the tabulation period,” Daniel Lenz, an attorney for the commission, wrote in a Thursday-night letter to the judge.

The commission asked that the judge clarify his order to ensure that results won’t be published until April 13, after all ballots have been returned….

Conley allowed absentee ballots to be returned after Tuesday because tens of thousands of voters likely won’t receive them until after election day. He determined that if they requested their ballots on time, they should be able to cast them.

Shortly after he issued his order, the state and national arms of the Republican Party filed an appeal seeking to block the bulk of Conley’s ruling.

“The court’s last-minute injunction substantially interferes with the integrity of Wisconsin’s election, grants relief that no plaintiff requested, changes the rules for completing absentee ballots in the middle of an election, creates voter confusion, and plainly conflicts with binding precedent,” wrote attorney Patrick Strawbridge.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘I’m Scared’: Wisconsin Election Puts Poll Workers at Risk of Virus”<https://electionlawblog.org/?p=110387>
Posted on April 3, 2020 8:55 am<https://electionlawblog.org/?p=110387> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/02/us/politics/wisconsin-election-coronavirus.html> reports.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Why voting by mail will be so hard for states to set up on the fly”<https://electionlawblog.org/?p=110385>
Posted on April 3, 2020 8:46 am<https://electionlawblog.org/?p=110385> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2020/04/03/vote-by-mail-difficulties/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“Trump campaign declares war on Dems over voting rules for November”<https://electionlawblog.org/?p=110383>
Posted on April 3, 2020 8:45 am<https://electionlawblog.org/?p=110383> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/04/03/trump-2020-election-legal-battle-coronavirus-162152>

President Donald Trump’s political operation is launching a multimillion-dollar legal campaign aimed at blocking Democrats from drastically changing voting rules in response to the coronavirus outbreak.

In the past several weeks, the reelection campaign and the Republican National Committee have helped to oversee maneuvering in a handful of battleground states with an eye toward stopping some Democratic efforts to alter voting laws, and to bolster Trump. The mobilization is being closely coordinated with Republicans at the state and local levels.

The Trump campaign and RNC are actively engaged in litigation in Wisconsin, where the parties are at loggerheads over an array of issues including voter identification, and in New Mexico, where the battle involves vote-by-mail. The skirmishing has also spread across key states like Pennsylvania and Georgia, where the well-organized Trump apparatus has fought over changes that could sway the outcome of the election.

The enterprise — which includes more than two dozen GOP officials, including lawyers dedicated entirely to litigation — shows how completely the pandemic has upended the 2020 election<https://www.politico.com/news/2020/03/13/coronavirus-consumes-trumps-reelection-bid-127852>. While litigation over voting issues is not uncommon, the coronavirus — and the likely obstacles it will create for voting in November — has brought the issue to the forefront of the campaign.

The public health crisis is already injecting a huge X-factor into the election, with impossible-to-predict effects on voter turnout, and officials in both parties acknowledge the fights over voting laws could affect the outcome of the election.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Your Most Paranoid Pandemic Election Questions, Answered”<https://electionlawblog.org/?p=110381>
Posted on April 3, 2020 8:38 am<https://electionlawblog.org/?p=110381> by Rick Hasen<https://electionlawblog.org/?author=3>

Ben Jacobs<https://gen.medium.com/your-most-paranoid-pandemic-election-questions-answered-3923d6105fad> for Gen.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“The Trailer: The fear and politics around expanding voting by mail”<https://electionlawblog.org/?p=110378>
Posted on April 3, 2020 8:30 am<https://electionlawblog.org/?p=110378> by Rick Hasen<https://electionlawblog.org/?author=3>

Dave Weigel for WaPo<https://www.washingtonpost.com/politics/paloma/the-trailer/2020/04/02/the-trailer-the-fear-and-politics-around-expanding-voting-by-mail/5e84980e602ff10d49ada414/?itid=sf_thetrailer>:

That same conversation, with the same fear and suspicion, is happening in nearly every state. Just five states — Colorado, Hawaii, Oregon, Utah and Washington — were planning before the start of the coronavirus pandemic to conduct November’s elections with all-mail ballots. Voting rights groups and many Democrats have pointed to vote-by-mail as the most workable solution if in-person voting is a health risk.

But the very fact that Democrats support these changes has raised Republicans’ skepticism and heightened their opposition. Taking cues from the president, who warned this week that “you’d never have a Republican elected in this country again” if Democrats’ reforms were adopted, some conservatives argue that expanding vote-by-mail is a liberal scheme. Anything that made it into H.R. 1, the House Democrats’ package of voting reforms that has been ignored by the Republican-run Senate, is immediately suspect.

“These rules were all intended to basically make it easier to manipulate elections, and frankly, make it easier to cheat,” Hans von Spakovsky, director of the conservative Heritage Foundation’s election law project, said <https://www.breitbart.com/radio/2020/03/25/hans-von-spakovsky-pelosis-coronavirus-plan-would-make-election-fraud-easier/> in an interview with Breitbart News. “They have absolutely nothing to do whatsoever with helping the country deal with the coronavirus.”

Von Spakovsky, who has been criticized for <https://www.washingtonpost.com/news/post-nation/wp/2017/06/30/trumps-pick-to-investigate-voter-fraud-is-freaking-out-voting-rights-activists/> overhyping the risks of voter fraud, spoke for many Republicans. If nothing changes before November, the election and the primaries still being held between now and then will be held in wildly divergent conditions from state to state. None of the states that conduct all-mail voting are seen as competitive in this year’s presidential election, and the debate about one party fighting for partisan advantage has not squared with their own experience. In fact, for years, rules expanding the use of absentee ballots were seen as favoring Republicans.

“Being a very red state, we haven’t seen anything that helps one party over another at all,” said Justin Lee, who has been Utah’s director of elections for three years as vote-by-mail was implemented. “We’ve heard less concern about voter fraud than about whether every ballot that should get counted does get counted.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Tennessee Removes Anti-Voter Registration Provisions Following Federal Legal Challenge”<https://electionlawblog.org/?p=110376>
Posted on April 3, 2020 8:23 am<https://electionlawblog.org/?p=110376> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://campaignlegal.org/press-releases/tennessee-removes-anti-voter-registration-provisions-following-federal-legal>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>


“Chester Arthur’s Ghost: A Cautionary Tale of Campaign Finance Reform”<https://electionlawblog.org/?p=110374>
Posted on April 3, 2020 8:22 am<https://electionlawblog.org/?p=110374> by Rick Hasen<https://electionlawblog.org/?author=3>

Tony Gaughan has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3557669> on SSRN (Mercer Law Review). Here is the abstract:

Chester Arthur may not be the first name that comes to mind when one thinks of major figures in the rise of campaign finance law. But despite his obscurity, he deserves to be ranked among the leading reformers in American history. As president, he signed into law a reform that cleared the way for the modern system of campaign finance to take root.

This article puts the current debate over money in politics in historical context by examining the first major campaign finance reform in American history. The 1883 Pendleton Act is remembered today for establishing a professional, non-partisan civil service. But equally important, it banned the use of political assessments (i.e. mandatory dues imposed on federal and state officeholders by the political parties) to fund federal election campaigns.

President Arthur played an important role in the Pendleton Act’s success. After signing the bill into law, he supported efforts to enforce the new rules and reform the major parties’ campaign finance practices. In the long run, Arthur and the reformers achieved their goal of ending the parties’ use of political assessments to fund campaigns. At the same time, however, the Pendleton Act shifted election financing from the political parties to corporate America and wealthy donors. Thus, instead of reducing the influence of money in politics, the Pendleton Act ushered in a new and even more controversial era in campaign finance law, one that continues to haunt our politics today.

The story of the Pendleton Act is thus of much more than just historical interest. It demonstrates how deeply rooted the problem of money in politics is in American history. Long before the Supreme Court heard cases like Buckley v. Valeo and Citizens United v. Federal Election Commission, money played a highly controversial role in American elections. As the story of the Pendleton Act demonstrates, campaign finance reforms have had unintended—and sometimes quite unwelcome—consequences from the very beginning.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Federal judge extends absentee balloting but does not put off in-person voting in Wisconsin”<https://electionlawblog.org/?p=110370>
Posted on April 2, 2020 2:01 pm<https://electionlawblog.org/?p=110370> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/elections/2020/04/02/wisconsin-election-judge-extends-absentee-voting-but-keeps-vote-date/5112276002/>:

A federal judge Thursday kept next week’s presidential primary on track but allowed more time to count absentee ballots after excoriating Wisconsin officials for not doing more to protect voters during the coronavirus pandemic.

The ruling by U.S. District Judge William Conley will allow absentee ballots to be counted if they arrive by April 13 — six days after election day. He also gave people until Friday to request absentee ballots and loosened another voting rule as people turn to absentee voting in record numbers.

But Conley did not go as far as Democrats and voter mobilization groups wanted and declined to postpone Tuesday’s election. On the ballot is the presidential primary and elections for state Supreme Court and local offices around the state.

From the court’s opinion<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/04/2020-04-02-Order-on-Motion-for-Preliminary-Injunction.pdf>:

In these three, consolidated cases, all filed in the last two weeks under the cloud of the emerging COVID-19 health crisis, plaintiffs challenge a number of election-related statutory requirements for the rapidly approaching April 7, 2020, election. Contrary to the view of at least a dozen other states, as well as the consensus of medical experts across the country as to the gathering of large groups of people, the State of Wisconsin appears determined to proceed with an in-person election on April 7, 2020. In the weeks leading up to the election, the extent of the risk of holding that election has become increasingly clear, and Wisconsin voters have begun to flock to the absentee ballot option in record numbers. As a result, state election officials are confronting a huge backlog in requests for absentee ballots made online, by mail or in person, including an unprecedented number of questions regarding how to satisfy certain registration requirements, properly request an absentee ballot, and return a properly completed absentee ballot in time to be considered for the April 7 election. On top of the burdens this influx has created for the Wisconsin Election Commission, its Administrator, staff and local municipalities in the days leading up to the election, that same group has been improvising in real time a method to proceed safely and effectively with in-person voting in the face of increasing COVID-19 risks, loss of poll workers due to age, fears or sickness, the resulting consolidation of polling locations, and inadequate resources.

Despite these truly heroic efforts, the three most likely consequences of proceeding with the election on this basis are (1) a dramatic shortfall in the number of voters on election day as compared to recent primaries, even after accounting for the impressive increase in absentee voters, (2) a dramatic increase in the risk of cross-contamination of the coronavirus among in-person voters, poll workers and, ultimately, the general
population in the State, or (3) a failure to achieve sufficient in-person voting to have a meaningful election and an increase in the spread of COVID-19. Nevertheless, the Wisconsin State Legislature and Governor apparently are hoping for a fourth possibility: that the efforts of the WEC Administrator, her staff, the municipalities and poll workers, as well as voters willing to ignore the obvious risk to themselves and others of proceeding with in-person voting, will thread the needle to produce a reasonable voter turnout and no increase in the dissemination of COVID-19.

However unlikely this outcome may be, or ill-advised in terms of the public health risks and the likelihood of a successful election, the only role of a federal district court is to take steps that help avoid the impingement on citizens’ rights to exercise their voting franchise as protected by the United States Constitution and federal statutes. That is what the court attempts to do in this opinion and the order below, understanding that a consequence of these measures may be to further the public health crisis in this State. Unfortunately, that is beyond the power of this court to control.

And the opinion includes this provocative footnote, cryptically suggesting the possibility of post-election relief for the plaintiffs:

3 The court will reserve on the question as to whether the actual voter turnout, ability to vote on election day or overall conduct of the election and counting votes timely has undermined citizens’ right to vote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How experts worry the coronavirus outbreak could cloud the 2020 general election”<https://electionlawblog.org/?p=110368>
Posted on April 2, 2020 10:56 am<https://electionlawblog.org/?p=110368> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News<https://abcnews.go.com/Politics/experts-worry-coronavirus-outbreak-cloud-2020-general-election/story?id=69908301&cid=clicksource_4380645_2_takeover_2_headlines_hed>:

The coronavirus outbreak<https://abcnews.go.com/Politics/coronavirus-government-response-updates-fema-asks-pentagon-100k/story?id=69937824> in the United States has wreaked havoc on the presidential primary calendar, upending election<https://abcnews.go.com/alerts/elections>s at least fifteen states, plans for summer nominating conventions and how millions of Americans will cast ballots.

While concerns from some Democrats that President Trump<https://abcnews.go.com/alerts/donald-trump> could try to postpone the general election are largely unfounded, given the difficulty of changing the law setting out the date of the election, some experts worry that expanding voting by mail could increase the likelihood of potential voter fraud.

Some states, especially those that have struggled to manage past elections, could drown under an unprecedented number of mail-in ballots, potentially delaying election results well past Nov. 3. Potential health edicts could add another layer of confusion to election administration in some regions.

“What if people are not allowed to go outside during some portion of this? What if that order came down in a state like North Carolina or Pennsylvania? If people in Detroit have to stay home, that could sway the state of Michigan one way or another,” said Rick Hasen, a University of California-Irvine law professor and election law expert.

It all could set the stage for a messy process – even if it all takes place on schedule.
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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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