[EL] Kleinfelds’ proposal

Thu Apr 9 14:31:13 PDT 2020

Thanks very much, Paul.  That's very helpful.  I hope it's clear that what
I am proposing is that all voters *receive *a ballot at home that they can
"return" either in person or by mail.  Rick would require them first to say
"please do" to a state offer; and others would only send the ballot if and
when a voter affirmatively requests it, w/o an invitation.

On Thu, Apr 9, 2020 at 5:24 PM Paul Gronke <paul.gronke at gmail.com> wrote:

>
> Not speaking for every scholar by any means, but as an expert in this area
> (I’ve been studying “early voting” since 2004; I helped the EAC develop
> the questions for the EAVS survey and developed the questions used by the
> American National Election Study and Cooperative Congressional Election
> Study to identify early voters).
>
> I’ve gotten this question a LOT and understanding that I only speak for
> myself and not other political scientists
>
> *&TLDR version*
>
> *Details below, but the brief version "*Election Day Voting," "Early In
> Person Voting,” and  "Vote by Mail Absentee” are the most commonly used
> terms.
>
> But there is complexity within some of the categories, especially “vote by
> mail absentee”. See below for the long boring version.
>
> ===
>
> 1) EARLY VOTING is generally an umbrella term used to refer to methods of
> voting whereby the ballot is cast at a place and time other than at the
> polling place on election day.
>
> 1a) Sometimes, EARLY VOTING is used to describe “early in-person” voting.
>
> 2) ELECTION DAY or PRECINCT PLACE voting is used to describe voting on
> Election Day at a polling place / precinct place.
>
> 3) EARLY IN PERSON VOTING describes voting prior to Election Day at an
> early voting location, most often a county or local elections office, or
> a satellite location, or at a voting center.
>
> 4) VOTING BY MAIL usually refers to any of a variety of ballot delivery
> and return methods whereby a ballot and accompanying materials are sent
> from a local jurisdiction, most often using the US Postal Service. Voters
> complete the ballot at a time and place of their choosing, and the ballots
> are returned either through the postal service, or dropped off at a secure
> location (county office or drop boxes).
>
> 4A) VOTE AT HOME is a term that has become recently popularized because it
> provides a better description of how many voters actually complete the
> ballot, and recognizes that in a number of states, more than half of
> the “VOTE BY MAIL” ballots are not, in fact, returned by mail, but instead
> are dropped off (over 60% in Oregon, I believe the same numbers in
> Washington and Colorado).
>
> 4B) Sometimes, people will use the term “VOTE BY MAIL” or “VOTE AT HOME”
> to refer to those states that have “FULL VOTE BY MAIL” (this is the term I
> try to use). That includes Oregon, Washington, Colorado, Utah, Hawaii.
>
> 4C) Sometimes, people will use the term “UNIVERSAL BALLOT DELIVERY” to
> refer to the same set of states, but this term is not very common.
>
> 5) NO EXCUSE ABSENTEE: refers to states that do not require an excuse to
> request an absentee ballots.
>
> 6) EXCUSE REQUIRED ABSENTEE: Pretty self explanatory.
>
> OK. So that’s the word from the anal retentive specialist. As the
> discussion makes clear, there is imprecision in the terms used for the
> by-mail systems.  I think there are at least two reasons or this.
>
> First, there are important election administration differences between a
> full vote by mail / vote at home / universal ballot delivery system, and a
> no-excuse absentee system, and an excuse required system. For someone
> interested in election administration, these distinctions are key.
>
> Second, from the behavioral perspective (e.g. someone who studies
> individual voting behavior), the behavioral act of receiving and returning
> a ballot “at home” is different from voting “in-person”. So sometimes
> scholars will lump all of the “delivered by mail” systems together and
> distinguish from from the “voting in person” systems.
>
>
> ---
> Paul Gronke
> Professor, Reed College
> Director, Early Voting Information Center
> http://earlyvoting.net
>
> General Inquiries: Laura Swann swannla at reed.edu
>
> Media Inquiries: Kevin Myers myersk at reed.edu
>
> On Apr 9, 2020, at 11:27 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> 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
> The National Building | 1 South 6th Street | Terre Haute, IN 47807
> voice: (812) 232-2434 ext. 22 | fax: (812) 235-3685 | cell: (812) 243-0825
> | jboppjr at aol.com
>
> Sent from AOL Desktop
> <https://discover.aol.com/products-and-services/aol-desktop-for-windows>
> 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
>
> Bio/clips: https://www.cato.org/people/ilya-shapiro
>
> Twitter: 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 *Sean Parnell
> *Sent:* Thursday, April 09, 2020 12:00 PM
> *To:* '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
>
>
>
> 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> *On
> Behalf Of *David Segal
> *Sent:* Thursday, April 9, 2020 11:21 AM
> *To:* John Tanner <john.k.tanner at gmail.com>
> *Cc:* Election Law Listserv <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>
> 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>
> 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
>
> @Pronounce_the_T
>
>
>
> On Thu, Apr 9, 2020 at 9:48 AM Mark <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> 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> 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
>
> Bio/clips: https://www.cato.org/people/ilya-shapiro
>
> Twitter: 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>
> *Cc:* Election Law Listserv <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> 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> *On
> Behalf Of *David Segal
> *Sent:* Wednesday, April 8, 2020 10:29 PM
> *To:* Eric J Segall <esegall at gsu.edu>
> *Cc:* Election Law Listserv <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> 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> wrote:
>
> I thought this was solid and would get bipartisan support:
>
>
>
>
> https://www.nationalreview.com/2020/04/coronavirus-response-holding-elections-during-pandemic/
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>
> Ilya Shapiro
>
> Director
>
> Robert A. Levy Center for Constitutional Studies
>
> Cato Institute
>
> 1000 Mass. Ave. NW
>
> Washington, DC 20001
>
> (o) 202-218-4600
>
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