[EL] TDP lawsuit re mail in balloting

[James Bopp Jr]

There seems to be a lot of these lawsuits regarding mail in balloting going around.  Is anyone keeping track of them?  Jim Bopp

In a message dated 4/7/2020 11:11:32 PM US Eastern Standard Time, rhasen at law.uci.edu writes:

“An election day unlike any other: Wisconsinites vote in the middle of a coronavirus pandemic”

Posted on April 7, 2020 8:01 pm by Rick Hasen

Journal Sentinel:

It was an election day for the history books, unprecedented and unimaginable.

After Gov. Tony Evers tried to delay it, and the state Supreme Court declared the vote must go on, Wisconsinites went to the polls in Tuesday’s spring election and cast ballots carefully, deliberately and defiantly in the midst of the coronavirus pandemic.

“People died for my right to vote, so if I have to take a risk to vote that’s what I have to do,” said Michael Claus, 66, who was among several hundred people waiting in an early morning line to vote at Milwaukee’s Riverside University High School.

Across the state, in schools, churches and town halls, poll workers risked their health to make sure democracy worked. Members of the National Guard also pitched in.

In Milwaukee, where only five polling sites were open, the workers donned face masks and rubber gloves, handed out black pens to voters, wiped surfaces clean and kept the lines moving as best they could even as the state remained under a safer-at-home order.



Posted in Uncategorized

  

 

“Federal judge expands voting decision to apply to all ex-felons in Florida”

Posted on April 7, 2020 7:48 pm by Rick Hasen

WaPo reports.



Posted in Uncategorized

  

 

“Florida election officials sound the alarm ahead of November”

Posted on April 7, 2020 4:55 pm by Rick Hasen

Politico:

Election supervisors in Florida warned Gov. Ron DeSantis on Tuesday that he needs to change the law to give them more flexibility to avoid a presidential election meltdown in the nation’s biggest swing state.

The county officials — who issued the red alert on the same day Wisconsin held a disastrous primary amid widespread fears and irregularities due to the coronavirus — said the changes are needed to accommodate more absentee ballot voters, who could be scared away from the polls if the coronavirus outbreak persists into the August primary or the November general election.

“Florida is not in a position, at this time, to conduct an all-mail ballot election this year,” Tammy Jones, supervisor for Levy County and the president of the Florida Supervisors of Elections, wrote DeSantis in a letter sent Tuesday on behalf of the 67 officials who run elections in the state.



Posted in absentee ballots, election administration

  

 

Donald Trump, Who Votes by Absentee: “I Think Mail in Voting is a Terrible Thing”

Posted on April 7, 2020 3:47 pm by Rick Hasen

Here’s President Trump just making things up again about voter fraud, and says he can vote because he’s “allowed to.” Watch:



 

Justin Baragona

✔@justinbaragona

  

 

  

Good question here that makes Trump sound really silly on mail-in ballots.

"You were highly critical of mail-in voting... but you voted by mail in Florida's election last month? How do you reconcile that?"

Trump: "Because I’m allowed to."

 



 

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3:40 PM - Apr 7, 2020

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Posted in fraudulent fraud squad

  

 

“The Roberts Court Will Not Ensure the Constitution’s Most Fundamental Right”

Posted on April 7, 2020 3:30 pm by Rick Hasen

David Gans for Slate.



Posted in Uncategorized

  

 

“Texas Democrats again sue to ease vote-by-mail rules during coronavirus pandemic”

Posted on April 7, 2020 3:24 pm by Rick Hasen

Texas Tribune:

With primary election runoffs scheduled for July and the November general election on the horizon, the Texas Democratic Party has expanded its ongoing fight for more widespread mail-in balloting to federal court, fearful that a Monday U.S. Supreme Court decision on the Wisconsin presidential primary signals a need to get federal litigation in the pipeline quickly.

In a federal lawsuit filed Tuesday in San Antonio, the Texas Democrats argue that holding traditional elections within state and federal safety guidelines attempting to limit spread of the new coronavirus pandemic would impose unconstitutional and illegal burdens on voters unless state law is clarified to expand voting by mail.

Voting by mail is fairly limited in the state. Texans seeking an absentee ballot that they can fill out at home and mail to their county elections officemust offer an excuse to qualify. To be eligible under typical circumstances, a voter has to be 65 years or older, have a disability or illness, be out of the county during the election period, or be confined in jail.

The Texas election code says voters have a disability if they have a “sickness or physical condition” that prevents them from voting in person without the likelihood of “injuring the voter’s health.”

In a recent advisory, the Texas secretary of state’s office signaled that the state’s voting-by-mail qualifications could extend to voters affected by the pandemic but provided no explanation of how eligibility could be expanded so more Texans can qualify for absentee ballots.

In their lawsuit, the Democrats argue the advisory “unhelpfully” gave local election administrators “no material guidance” on who can qualify to vote by mail under the circumstances brought on by the pandemic.



Posted in absentee ballots

  

 

Adam Liptak NYT Analysis: “Rulings on Wisconsin Election Raise Questions About Judicial Partisanship”

Posted on April 7, 2020 3:09 pm by Rick Hasen

NYT:

 In a pair of extraordinary rulings on Monday, the highest courts in Wisconsin and the nation split along ideological lines to reject Democratic efforts to defer voting in Tuesday’s elections in the state given the coronavirus pandemic. Election law experts said the stark divisions in the rulings did not bode well for faith in the rule of law and American democracy.

“Election cases, more than any other kind, need courts to be seen by the public as nonpartisan referees of the competing candidates and political parties,” said Edward B. Foley, a law professor at Ohio State University. “It is therefore extremely regrettable that on the very same day, on separate issues involving the same Wisconsin election, both the state and federal supreme courts were unable to escape split votes that seem just as politically divided as the litigants appearing before them.”

Richard L. Hasen, a law professor at the University of California, Irvine, and the author of a recently published and prescient book, “Election Meltdown,” said the pandemic had made a bad situation much worse.

“Monday’s performance by the courts augurs a nasty partisan divide in the judicial branch,” Professor Hasen said. “It threatens the legitimacy of both the election and the courts.”

“Already before the coronavirus crisis, 2020 was shaping up to be a record-setting year for election litigation,” he said. “Covid-19 means there will be even more lawsuits than before over issues like absentee ballot protocols and the safety of in-person voting.”…

Some scholars said the public should not assume that the justices were driven by partisanship rather than their judicial philosophies.

“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”

“Republican-appointed judges tend to want to apply the law as written, while Democrat-appointed ones want to see ‘justice’ done, even if it means bending the rules,” he said. “In the Wisconsin context, Republican-affiliated judges would leave any decision to delay the election or change its operation to the Legislature, while Democrat-affiliated ones want to fix the problem themselves.”

“I agree with the former approach,” Mr. Shapiro said, “because, even in a pandemic, we shouldn’t cast aside the rule of law or the separation of powers.”..

Richard H. Pildes, a law professor at New York University, said judicial philosophy helped explain Monday’s ruling from the U.S. Supreme Court. “I’d say ‘liberal’ judges are more comfortable with federal courts crafting what they see as pragmatic, ad hoc responses to extraordinary election circumstances,” he said, “while ‘conservative’ judges believe that federal courts should retain as much of the pre-existing rule structure — such as that absentee ballots must be postmarked on or before Election Day — as possible.”



Posted in Supreme Court

  

 

“Top Wisconsin Republican Gives Misinformation on Ballots”

Posted on April 7, 2020 3:02 pm by Rick Hasen

Political Wire:

Wisconsin State Assembly Speaker Robin Vos (R), who was a driving force behind keeping in-person balloting for today’s primary, falsely claimed that people who didn’t receive ballots they requested can still request e-mailed ballots from their clerk.

Vos, who was wearing personal protective equipment, also said: “You are incredibly safe to go out.”

Check out the pic:



 

Parker Molloy

✔@ParkerMolloy

  

 

  

Here's Wisconsin Speaker @SpeakerVos saying that people who didn't receive ballots they requested can still request e-mailed ballots from their clerk? I... don't think that's true? Maybe I'm wrong, though?

 



 

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11:57 AM - Apr 7, 2020

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Posted in Uncategorized

  

 

Joan Biskupic: “John Roberts’ unwavering, limited view of voting access seen in Supreme Court’s Wisconsin ruling”

Posted on April 7, 2020 2:58 pm by Rick Hasen

Joan puts Wisconsin in context.



Posted in Supreme Court

  

 

“The Supreme Court’s Wisconsin Decision Is a Terrible Sign for November”

Posted on April 7, 2020 2:56 pm by Rick Hasen

Leah Litman for The Atlantic:

The Court did little to explain its decision. It first maintained that the residents never requested the extension (though the dissent referenced a portion of the case transcript in which they did). The Court then cited a prior decision, Purcell v. Gonzalez, that reasoned that courts should be reticent to disturb election procedures close to the date of an election. But that principle is based on the idea that elections should not be riddled with last-minute chaos. It is hardly applicable to the circumstances that the country is facing now—namely, an election that is already riddled with the sweeping, last-minute chaos resulting from the coronavirus.



Posted in Uncategorized

  

 

“Supreme Court rules for Republicans over Wisconsin vote, highlighting partisan divide before November poll”

Posted on April 7, 2020 2:48 pm by Rick Hasen

Bob Barnes for WaPo:

Just the caption of the case — Republican National Committee v. Democratic National Committee — was foreboding for a Supreme Court that likes to cast itself as above partisan politics.

Little wonder then that just hours after the court’s hastily written, 5 to 4 decision for Republicans in Tuesday’s election in Wisconsin, it was being denounced on social media as the latest version of Bush v. Gore.

The scant, 10-page opinion issued Monday night highlighted the court’s ideological and partisan divide. The justices’ inability to speak with one voice on matters as serious as the coronavirus pandemic and voting rights raised concerns about the legal battles bound to proliferate before the fall elections.

“It is a very bad sign for November that the court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes,” Richard Hasen, an election law expert at the University of California at Irvine, wrote on his Election Law Blog.



Posted in Uncategorized

  

 

Tweet of the Day, from The Onion

Posted on April 7, 2020 12:06 pm by Rick Hasen

The Onion:



 

The Onion

✔@TheOnion

  

 

  

Wisconsin Primary Voters Receive ‘I Voted’ Gravestones  https://bit.ly/39Xgcu4 



 

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10:44 AM - Apr 7, 2020

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Posted in Uncategorized

  

 

“Already Under Strain, Election Offices Falter As Pandemic Worsens”

Posted on April 7, 2020 11:44 am by Rick Hasen

Pam Fessler reports for NPR.



Posted in election administration

  

 

“SEC rules could thwart political spending disclosure efforts”

Posted on April 7, 2020 9:12 am by Rick Hasen

Roll Call reports.



Posted in campaign finance

  

 

“More Voting by Mail Would Make the 2020 Election Safer for our Health. But It Comes with Risks of Its Own”

Posted on April 7, 2020 9:08 am by Rick Hasen

Barry Burden, Rob Stein, and Charles Stewart:

As the novel coronavirus pandemic besieges the United States, more and more observers are suggesting that November’s votes should be cast by mail — allowing the least possible in-person contact, reducing health risks to both voters and poll workers.

But shifting millions of voters to mail balloting would bring other risks. First, voting by mail includes many steps between someone’s request for an absentee ballot and delivering that ballot to be counted — gaps that ballots can fall through. Second, voters can make mistakes marking the ballot that they may not be able to correct.

If states do significantly expand their voting by mail, will they be able to reduce these risks?



Posted in Uncategorized

  

 

“Wisconsin is scheduled to vote today. How will the pandemic affect turnout?”

Posted on April 7, 2020 9:05 am by Rick Hasen

The Monkey Cage.



Posted in Uncategorized

  

 

The Supreme Court’s Wisconsin Decision and the Universal Policy that Absentee Ballots Must be Cast (Postmarked) On or Before Election Day

Posted on April 7, 2020 8:48 am by Richard Pildes

Marty Lederman has presented a criticism of the Supreme Court’s decision in the Wisconsin election litigation, but, with admirable humility (he puts “I think” in the title of his post), he concedes that he may be overlooking something in arriving at his position. I do think that he does, in fact, overlook something fairly fundamental, and I want to correct that misunderstanding:  the universal rule throughout the United States is that absentee ballots must be cast (postmarked) on or before Election Day, though they remain valid in many states even if received much later than that.   Once this misunderstanding is clarified, it permits a more direct focus on the stronger and more plausible arguments critics will have for challenging the Court’s decision. 

Whether or not Wisconsin should be holding an election at all today can certainly be disputed.  But that’s not the issue that was before the Supreme Court, as everyone recognizes.  Instead, the federal district court, recognizing that it could not change the date of the election, ordered two principal measures:  (1) that the state treat as valid all absentee ballots received by April 13th; (2) that absentee ballot postmarked after  Election Day — and thus cast after Election Day — be treated as valid votes as long as they too were received by April 13th.  The Supreme Court held that the district court lacked the power to order this second measure.  That is, the Court held that the district court was wrong to conclude the Constitution required Wisconsin to accept as valid absentee votes that were cast after Election Day. 

In other words, the Court concluded that absentee ballots still had to be cast (postmarked) on or before Election Day, but permitted them to be treated as valid votes if they were received nearly a week after.   The Court held that “state law would necessarily require” that absentee ballots be postmarked on or before Election Day.  Marty’s critique is that in so holding, the Supreme Court “added such a restriction to the franchise that Wisconsin’s own state law does not impose.”  Indeed, Marty thinks it follows that, once the Court accepted that Wisconsin could be ordered to accept ballots received up until April 13th, it should also have accepted that ballots postmarked up until April 13th would be treated as validly cast.  Because WI law does not expressly state that absentee ballots must be postmarked on or before Election Day, Marty continues, the district court did not “change” WI law by ordering that absentee ballots must be treated as valid if cast all the way up to April 13th.

Here is the problem with Marty’s argument:  the policy of every State in the country is that absentee ballots must be postmarked – ie, cast – on or before Election Day.  There are many states that allow absentee ballots to be received after Election Day and still be treated as valid.  But even those States still require that these ballots be postmarked on or before Election Day.   Illinois, for example, treats absentee ballots as valid if received up to 14 days after Election Day, the longest period in the country; Alaska, Maryland, and Ohio are the next longest at around 10 days.  But every one of these states nonetheless requires these ballots to be postmarked (cast) no later than when polls close on Election Day.  The same is true in every state.  No state treats absentee ballots as valid if they are postmarked after Election Day.

The reason this is such a basic principle of election laws is straightforward:  you cannot vote after the polls have legally closed on Election Day.  An absentee ballot postmarked after Election Day is cast after the election is over.  And no state treats that as a valid vote.  It is true that Wisconsin law does not explicitly say that absentee ballots must be postmarked on or before Election Day, but Wisconsin law had no need to state that:  the law in Wisconsin had been that these ballots must be received by 8 pm on Election Day – and thus, by definition, they had to be postmarked on or before that day. 

The Supreme Court was thus not pulling a principle out of thin air, as Marty implies, when it concluded that even if Wisconsin law was to be changed to permit receipt up until April 13th, state law would still require those ballots to be postmarked on or before today.  As noted, that is both the policy throughout the United States and it reflects the fundamental, universal principle that ballots cast after Election Day are not valid votes.  The only reasonable inference is that Wisconsin, like all states, would require postmark by Election Day even if receipt were valid up to 6 days later.  Indeed, while the district court started out by recognizing it had no power to change the date of today’s election, it essentially turned around and did that by permitting absentee votes to be cast until April 13th.  Once the district court did that, there was a certain logic to its further order that election officials could not release the vote count until April 13th, since that had effectively become the date the election was over.

But to say that Marty’s particular criticism of the Court is mistaken on this point is not to say that the Court’s decision was correct.  As I noted at the start, there are other, more direct and more plausible grounds for taking issue with the Court’s decision. 

The most direct argument is the straightforward one that, in the emergency situation we face, the federal courts have the power to protect the constitutional right to vote by fundamentally altering aspects of the way elections are conducted, including through measures such as treating as valid votes absentee ballots postmarked almost a week after Election Day.  That is, under the unique circumstances we face – when many absentee ballot requests might not be fulfilled in time for voters to cast those ballots before polls close – the constitutional right to vote should give courts the power to extend the time for voting for up to 6 days after Election Day.

That’s what’s actually at stake in the Court’s decision and the fundamental issue that divides the majority and dissent.  In other words, even if it’s correct that Wisconsin would certainly require absentee ballots to be postmarked before polls close today (even if still valid if received later), the Constitution should be understood to override that rule in the current circumstances.  This post has gone on too long to engage with that issue, but once we clear up the confusion about how election laws normally work, we can then focus on the real issue — whether and to what extent the Constitution should be understood to require that these normal rules be suspended, given our current circumstances.    



Posted in Uncategorized

  

 

“The Cybersecurity 202: Virtual campaigning could give hackers new ways to attack the 2020 election”

Posted on April 7, 2020 8:46 am by Rick Hasen

WaPo reports.



Posted in Uncategorized

  

 

Must-read Ned Foley: “We’ll Need Vote-by-Mail in November. And It Could Be a Legal Nightmare.”

Posted on April 7, 2020 8:45 am by Rick Hasen

Ned Foley in Politico on what needs to happen to insure that vote by mail goes smoothly in November.



Posted in absentee ballots

  

 

“China’s Been Flooding Facebook With Shady Ads Blaming Trump for the Coronavirus Crisis”

Posted on April 7, 2020 8:42 am by Rick Hasen

Vice:

Chinese state media has been flooding Facebook and Instagram with shady political ads praising Beijing and bashing “racist” President Trump as part of a wider campaign to rewrite its part in the global coronavirus pandemic.

The undisclosed political ads, from Global Times, Xinhua News Agency, Global China Television Network (GCTN), and China Central Television (CCTV), all ran on the two platforms in recent months, targeting users around the world in English, Chinese, and Arabic, but they’ve only now been flagged by Facebook as being political.

The ads ran without a political disclaimer, meaning they weren’t subject to the same oversights and didn’t show who they were targeting and who was paying for them. VICE News counted more than 55 ads from all four broadcasters in Facebook’s ad library archive.

The company said many of the ads were not labeled as political and would simply have disappeared once they expired, making it virtually impossible to assess the full scale of China’s propaganda effort.



Posted in social media and social protests

  

 

“Governor Sununu: Don’t Make New Hampshire Choose Between Health and Voting”

Posted on April 7, 2020 8:36 am by Rick Hasen

Civics Center:

New Hampshire is the only state in the United States that requires its citizens to register to vote and update existing registrations in person. Most states offer online voter registration and others allow their residents to download and print a voter registration application, complete it, and mail it to their county registrar or Secretary of State. Texas will even send you a pre-stamped envelope if you request it. 

New Hampshire’s draconian voter registration system is even more indefensible in light of COVID-19.  Now, venturing out to register to vote not only violates Governor Sununu’s Stay at Home Order but could threaten your life and the lives of others. Plus many town and city clerks that otherwise process voter registration applications are closed because of the pandemic. 



Posted in election administration

  

  

-- 

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

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org

 




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