[EL] ELB News and Commentary 4/5/20

[Rick Hasen]

Wisconsin Democrats and Other Plaintiffs File Response in Supreme Court in Case Over Absentee Ballot Receipt Deadline<https://electionlawblog.org/?p=110420>
Posted on April 5, 2020 11:32 am<https://electionlawblog.org/?p=110420> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the filing here<https://www.supremecourt.gov/DocketPDF/19/19A1016/140891/20200405140205266_2020-04-04%20Wis.%20April%207%20SCOTUS%20Opp%20to%20Stay%20FINAL.pdf>.

I think that they have a strong argument about application of the Purcell Principle:

Applicants rely heavily on Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), in which this Court cautioned that “[c]ourt orders affecting elections, …can themselves result in voter confusion and consequent incentive to remain away from the polls,” a risk that increases “[a]s an election draws closer.” The underlying purpose of this so-called “Purcell principle” is to avoid “changing the electoral status quo just before the election,” which would cause “voter confusion and electoral chaos.” Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427, 428 (2016).

But in this case, the “electoral status quo” already has been upended―not by any judicial order, but by the COVID-19 pandemic and the “voter confusion and electoral chaos” it is causing. Until very recently, Wisconsin voters reasonably expected they would be able either to vote safely in person on election day or through a reliable, well-functioning absentee ballot system. Now they cannot―and not because of any court order, but because of the pandemic. See Op. at 39 (“election deadlines have already been disrupted, with the evidence showing that many voters who timely request an absentee ballot will be unable to receive, vote, and return their ballot before the receipt deadline”) (emphasis in original).

Likewise, this Court in Purcell was concerned that pre-election judicial orders might create a “consequent incentive to remain away from the polls.” 549 U.S. at 5. Here again, the “incentive to remain away from the polls” in these consolidated cases results not from federal judicial action, but from a deadly pandemic. Voter confusion and abstention from voting are “consequent” of COVID-19, not of anything the district court has done. That court’s limited relief will result in more voters being able to cast their ballots and ensure those ballots will be counted, rather than threatening to keep voters from casting their ballots. The court’s injunction, in other words, is an effort to mitigate the confusion and chaos caused by the pandemic that are interfering with voters’ reasonable expectations and threatening to keep them from voting. Indeed, it is telling that the WEC ― the body responsible for administering election ― is not challenging the district court’s order or arguing that extending the ballot receipt deadline to April 13 will cause disruption.

Applicants’’ reliance on Purcell is misplaced for yet another reason. It will be much less confusing and unfair if the district court’s order—which has received substantial publicity and is in the process of being implemented by the WEC and election clerks throughout Wisconsin4—simply remains in effect rather than being changed less than 48 hours before the election, which would lead to yet further confusion and uncertainty, as well as harm to voters who already have relied on the district court’s order in planning how and when to vote. Granting a stay, in other words, would simply create Purcell problems of its own, including by forcing voters who had planned to vote absentee but not yet received their ballots to either vote in person on election day and risk exposure to the coronavirus, or abstain from voting altogether.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Trump, GOP challenge efforts to make voting easier amid coronavirus pandemic”<https://electionlawblog.org/?p=110418>
Posted on April 4, 2020 7:20 pm<https://electionlawblog.org/?p=110418> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/politics/trump-gop-challenge-efforts-to-make-voting-easier-amid-coronavirus-pandemic/2020/04/04/61f889fe-75bb-11ea-87da-77a8136c1a6d_story.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Editorial: Governor Evers is right. With coronavirus raging in Wisconsin, it is no time to have an in-person election.”<https://electionlawblog.org/?p=110416>
Posted on April 4, 2020 7:18 pm<https://electionlawblog.org/?p=110416> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel editorial<https://www.jsonline.com/story/news/solutions/2020/04/03/editorial-wisconsin-election-should-not-happen-person/2945865001/>:

Voting by mail — and not in person — is the only responsible way to conduct an election as the coronavirus tears across Wisconsin. Evers insists  his emergency powers do not give him the ability to make such changes himself.

Evers should test those powers if the Legislature continues to do nothing on Monday.

Fitzgerald and Vos have said they think going to the polls next week will be safe even though a massive shortage of poll workers will force clerks to sharply limit the number of polling places.

Vos and Fitzgerald make this claim even though we’ve all been urged by medical experts to stay home, keep our distance and avoid contact with more than a handful of others until this deadly virus dies down. They claim this even though more than 2 million state citizens voted at often-crowded polling stations in the last presidential primary when there were far more poll workers and places to vote.

Let’s be clear: It is not safe for voters to go to the polls next week.

Aside from the obvious risk to public health, there is a risk to electoral credibility.

If the election is held, turnout is likely to be abysmal, which may disenfranchise large blocs of voters and call the results into question. A federal judge has invited those who brought lawsuits challenging the election to return to court afterward if they believe large numbers of people were denied their right to vote.


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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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