[EL] Kleinfelds’ proposal

Thu Apr 9 11:27:00 PDT 2020

I have a Washington Post oped coming soon that addresses the merits of these issues. So I won’t weigh in on that here, at least not yet.

But I wanted to talk about terminology, and this supposed distinction between “mail in balloting” and absentee balloting. I don’t think Jim’s use of the terminology is consistent with usage I have seen.  There are 5 states that allow all voters to vote by mail. I’ve seen that referred to as all-mail balloting (though there still is some in person voting) or “universal” absentee balloting. Other states offer no-excuse absentee balloting (or no excuse vote-by-mail) or excuse-only absentee balloting (or excuse only vote by mail). Vote by mail is sometimes referred to as VBM.  And advocates for expanded vote-by-mail now are trying to rebrand it as “vote at home.”

In short, I don’t think people talk about mail-in balloting and absentee balloting as different things.

Rick

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of James Bopp Jr <jboppjr at aol.com>
Date: Thursday, April 9, 2020 at 11:06 AM
To: "sean at impactpolicymanagement.com" <sean at impactpolicymanagement.com>, "IShapiro at cato.org" <IShapiro at cato.org>, "davidadamsegal at gmail.com" <davidadamsegal at gmail.com>, "john.k.tanner at gmail.com" <john.k.tanner at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Kleinfelds’ proposal

I hate to spoil a kumbaya moment, but there are serious considerations here that just don't seem to be getting attention.
First, vote fraud protections, that are ubiquitous with absentee and in person voting procedures, are often stripped away in most mail in ballot schemes.  These fraud prevention measures are designed to protect the constitutional right to vote by preventing vote dilution: the dilution of the vote of eligible, registered voters by the votes of illegal voters.  Failure to have adequate fraud protection measures violates the right to vote.

Second, "mail in balloting," as I understand it and use it, differs most importantly from "absentee balloting" by not requiring a prior application to obtain the ballot.  In "mail in balloting," ballots are just mail wholesale to all registered voters.

Third, requiring a prior application to receive an absentee ballot is a very important, even critical, protection against vote fraud.  It ensure that the person is actually alive, what the person's current address is, and provides an audit trail.  A prior application also allows election official and others time to verify the voter's eligibility, existence, etc.

Fourth, as a result, absentee ballot return rate is very high.

Fifth, wholesale mailing of ballots to all registered voter also has 2 big problems of its own.:

(1) there are many registered voters who are current ineligible or not at the address indicated on the rolls.  Thus, we are flooding the state with ballots readily available for fraudulent use. This violates the rights of eligible registered voters by diluting their votes. and

(2) there are also eligible, registered voters who will not get a mailed ballot, because they have moved or are on an "inactive" list.  These eligible, registered voters won't have the option of in person voting and thus will have to fulfill burdensome requirement to timely get a ballot mailed to them that other eligible registered voters don't have to fulfill.  This is an unconstitutional burden on their right to vote.

Sixth, these scheme often eliminate in person voting.  In person voting procedures have substantial fraud prevention measures and also serve as a safety valve for those who find this is the only way they have available to vote.  Denying them that option also violates their right to vote.

And whether one wants to flood a state with mailed ballots in order to facilitate vote fraud, which Republicans fear, or because vote fraud is a fantasy, which Democrats believe, there is just more to this.  My view is that a prior application is a necessity, that other reasonable fraud protection measures are needed, but that absentee voting can be no cause.

So at least we agree on something.  Jim Bopp

James Bopp, Jr.
Attorney
The Bopp Law Firm, PC | www.bopplaw.com
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In a message dated 4/9/2020 1:15:10 PM US Eastern Standard Time, sean at impactpolicymanagement.com writes:

Also https://www.washingtontimes.com/news/2020/mar/24/conservatives-must-get-behind-vote-by-mail-options/

Sean

From: Ilya Shapiro <IShapiro at cato.org>
Sent: Thursday, April 9, 2020 12:31 PM
To: Sean Parnell <sean at impactpolicymanagement.com>; 'David Segal' <davidadamsegal at gmail.com>; 'John Tanner' <john.k.tanner at gmail.com>
Cc: 'Election Law Listserv' <law-election at uci.edu>
Subject: RE: [EL] Kleinfelds’ proposal

See further Henry Olsen’s latest column, https://www.washingtonpost.com/opinions/2020/04/08/theres-plenty-room-compromise-mail-in-voting-get-it-done/

Ilya Shapiro

Director

Robert A. Levy Center for Constitutional Studies

Cato Institute

1000 Massachusetts Ave. NW

Washington, DC  20001

tel. (202) 218-4600

cel. (202) 577-1134

ishapiro at cato.org<mailto:ishapiro at cato.org>

Bio/clips: https://www.cato.org/people/ilya-shapiro

Twitter: www.twitter.com/ishapiro<http://www.twitter.com/ishapiro>

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Cato Supreme Court Review:  http://www.cato.org/supreme-court-review

Watch our 18th Annual Constitution Day Conference, Sept. 17, 2019:

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From: Law-election On Behalf Of Sean Parnell
Sent: Thursday, April 09, 2020 12:00 PM
To: 'David Segal' <davidadamsegal at gmail.com<mailto:davidadamsegal at gmail.com>>; 'John Tanner' <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>
Cc: 'Election Law Listserv' <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Kleinfelds’ proposal

Well, you’ve already got a number of right-of-center groups who have in one way or another indicated some interest in expanded absentee/vote-by-mail options (per Jim Bopp’s earlier e-mail, these are not the same thing) – when I scroll to the bottom of this e-mail I note it’s someone from Cato commenting favorably on an article at National Review Online that is itself favorable to such policies. And I’ve spoken with a few right-of-center groups that are generally favorable to the idea, though of course there are some bright red lines for them. I suppose the corollary is: are there any groups we’d consider to be aligned with the left that would be willing to back such a compromise, or willing to accept that the federal government should support but not mandate expanded absentee/vote-by-mail options?

Sean

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of David Segal
Sent: Thursday, April 9, 2020 11:21 AM
To: John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Kleinfelds’ proposal

Are there any interest groups that we'd consider to be aligned with the right that are, or seem as though they might be willing, to back this or similar proposals?

On Thu, Apr 9, 2020 at 11:05 AM John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>> wrote:

To get a federal bill you need for both sides to be able to declare victory.  Adding a one-time ban on vote harvesting would be one way — and I have seen it first hand eith white candidates harvesting black votes against black candidates.

Sent from my iPhone

On Apr 9, 2020, at 10:52 AM, Steve Kolbert <steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>> wrote:

My question about the proposal: what impact (if any) will drive-through voting have on line/queue management?  A line of 50 voters on foot snaking around a building corner is much different than a line of 50 (or 200!) voters in their vehicles clogging up nearby public roads.

Communication with incoming voters may also be an issue.  It's one thing to put a "Vote Here" sign (or two, or three) in a parking lot. But when the line of cars snakes two (or ten) blocks, incoming voters may not initially understand that this backed-up traffic is all waiting to vote.  So these new voters may attempt to head straight to the polling place, then have to exit and re-route back to the end of the line of vehicles.  I can envision this creating a further traffic build-up.

I imagine that, with some test-runs and practice, drive-through voting might eventually become a well-oiled machine.  But we're talking about trying it on a large scale for the first time in the largest election held every four years.  Growing pains are inevitable, and the scale of the election has the potential to magnify them.  (Of course, there may not be any better options.)

Steve Kolbert

(202) 422-2588

steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>

@Pronounce_the_T

On Thu, Apr 9, 2020 at 9:48 AM Mark <markrush7983 at gmail.com<mailto:markrush7983 at gmail.com>> wrote:

Hi all--

The proposal is beyond reasonable and wise.  Yet, alas, it may fail due to the septic state of politics in the USA.

On Thu, Apr 9, 2020 at 9:43 AM Jeff Hauser <jeffhauser at gmail.com<mailto:jeffhauser at gmail.com>> wrote:

" We need another Bauer-Ginsberg commission or some such"

Haha yeah that was a resounding success!

On Thu, Apr 9, 2020 at 9:29 AM Ilya Shapiro <IShapiro at cato.org<mailto:IShapiro at cato.org>> wrote:

Holding small business loans hostage to election funding is not a way to enhance confidence in whatever crisis-related tweaks are necessary. Either this stuff passes on its own terms or it shouldn’t pass. The concern isn’t about “voting rights” as such—the pre-corona “suppression” meme/myth is not something Republicans will magically now sign onto—but having functioning elections and avoiding the Wisconsin game of chicken where nobody wins (even if the supreme courts were 100% correct in their legal rulings). We need another Bauer-Ginsberg commission or some such, un-sexy technocratic reforms to help election administration, not ideological ones that reinforce priors. The Kleinfeld proposal is consistent with that (and the Kleinfeld siblings are themselves on opposite partisan sides, albeit narrowly straddling the divide).

Ilya Shapiro

Director

Robert A. Levy Center for Constitutional Studies

Cato Institute

1000 Massachusetts Ave. NW

Washington, DC  20001

tel. (202) 218-4600

cel. (202) 577-1134

ishapiro at cato.org<mailto:ishapiro at cato.org>

Bio/clips: https://www.cato.org/people/ilya-shapiro

Twitter: www.twitter.com/ishapiro<http://www.twitter.com/ishapiro>

SSRN: http://ssrn.com/author=1382023

Cato Supreme Court Review:  http://www.cato.org/supreme-court-review

Watch our 18th Annual Constitution Day Conference, Sept. 17, 2019:

https://www.cato.org/events/18th-annual-constitution-day

From: Law-election On Behalf Of Jeff Hauser
Sent: Thursday, April 09, 2020 8:56 AM
To: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Kleinfelds’ proposal

" Federal funding would no doubt help make the decision to expand absentee voting easier, but lack of funding is not an absolute barrier."

The literature on "states rights" and the history of access to voting in this country strongly suggests federal action is necessary. House Democrats are necessary to keeping GOP leaning business owners/equity holders afloat, and it strikes me as both necessary and proper that funding such efforts be tied to de facto voting rights.

On Thu, Apr 9, 2020 at 8:47 AM Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:

It’s probably worth noting that states generally fund and run their own elections, so there’s no real need to go through McConnell and Trump to expand absentee voting and other options. Federal funding would no doubt help make the decision to expand absentee voting easier, but lack of funding is not an absolute barrier.

Sean Parnell

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of David Segal
Sent: Wednesday, April 8, 2020 10:29 PM
To: Eric J Segall <esegall at gsu.edu<mailto:esegall at gsu.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Kleinfelds’ proposal

It's good that they are pushing and I think a patchwork of purple, and even some red, states might implement procedures along these lines. (Hard to imagine that all would, which might implicate the POTUS race and would certainly have impacts on Congress and state and local races.)

But it's very hard for me to see a path under any circumstances through McConnell and Trump, even if Congressional Ds prioritize this more in negotiations.

Do other folks here think otherwise, re: the politics of the bulk of R-controlled states and Congress, and if so would you be able to speak to what it looks like in more detail?

On Wed, Apr 8, 2020 at 9:59 PM Eric J Segall <esegall at gsu.edu<mailto:esegall at gsu.edu>> wrote:

Yes. excellent piece, great ideas, and thanks Ilya for supporting it.

Best,

Eric

Sent from my iPhone

On Apr 8, 2020, at 8:28 PM, Ilya Shapiro <IShapiro at cato.org<mailto:IShapiro at cato.org>> wrote:

I thought this was solid and would get bipartisan support:

https://www.nationalreview.com/2020/04/coronavirus-response-holding-elections-during-pandemic/<https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nationalreview.com%2F2020%2F04%2Fcoronavirus-response-holding-elections-during-pandemic%2F&data=02%7C01%7Cesegall%40gsu.edu%7C119d6d922e124261fa9008d7dc1cf8fa%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C637219889314052158&sdata=4s3OdhFO8WLQxHc0JJqmIRohy3lAafOZxuD09D9fQSY%3D&reserved=0>

Ilya Shapiro

Director

Robert A. Levy Center for Constitutional Studies

Cato Institute

1000 Mass. Ave. NW

Washington, DC 20001

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Twitter: @ishapiro

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