[EL] ELB News and Commentary 10/12/20
Rick Hasen
rhasen at law.uci.edu
Sun Apr 12 13:07:10 PDT 2020
Today’s Must-Read on True the Vote: “Conservative Operatives Float Plan to Place Retired Military, Police Officers as GOP Poll Watchers on Election Day<https://electionlawblog.org/?p=110676>
Posted on April 12, 2020 1:02 pm<https://electionlawblog.org/?p=110676> by Rick Hasen<https://electionlawblog.org/?author=3>
Just wow<https://theintercept.com/2020/04/11/republican-poll-watchers-vote-by-mail-voter-fraud/> from The Intercept:
ON ELECTION DAY in November, some polling places could be patrolled by off-duty police officers and veterans, according to a plan hatched by Republican operatives.The idea is a reprisal of once-illegal Election Day “ballot security” intimidation tactics, intended to challenge voter registration and remove voters from the rolls. At a strategy session in February attended by conservative donors and activists, several people expressed a specific need for Republican poll watchers in “inner city” and predominantly Native American precincts, according to audio recordings of the event obtained by The Intercept and Documented.
“You get some [Navy] Seals in those polls and they’re going to say, ‘No, no, this is what it says. This is how we’re going to play this show,’” said Catherine Engelbrecht, founder of True the Vote, a group that lobbies for voting restrictions<https://www.propublica.org/article/a-reading-guide-to-true-the-vote-the-controversial-voter-fraud-watchdog> and organizes volunteers<http://www.tucsonsentinel.com/nationworld/report/082012_voting_observers/voters-feel-intimidated-by-election-observers/> to go into precincts and aggressively challenge<https://www.demos.org/sites/default/files/publications/BulliesAtTheBallotBox-Final.pdf> voters who they believe are improperly registered. “That’s what we need. We need people who are unafraid to call it like they see it.”
The election strategy discussions occurred during a three-day conference at the Ritz-Carlton in Orange County, California, and was sponsored by the Council for National Policy, a secretive foundation on the religious right. The Intercept has previously reported<https://theintercept.com/2018/10/07/brett-kavanaugh-evangelicals-council-for-national-policy/> from CNP gatherings….
“This is an absolute front-line fight. Around every corner, you find a new way to cheat this process,” said Engelbrecht. Democrats, she warned, would use “mob rule” to siege elections with fraudulent votes. “The swarming tactics of a radicalized socialist mindset is a dangerous thing to behold.”
“Of interest here, we have a new initiative called ‘Continue to Serve,’ which is about recruiting veterans and first responders to work inside the polls,” she said, before suggesting that former Navy Seals should be tapped to watch the polls. “You want to talk about people who understand and respect law and order and chain of command.”“Do you want to go into an inner city precinct or a tribal precinct and be the Republican there to oversee things? I mean, that is not a comfortable place to be and that is where the fraud happens.”
The idea to bring veterans and police into the fold as poll watchers piqued the interest of a number of attendees at the event. One unidentified participant during the meeting claimed that Democrats had long relied on voter fraud among Native American communities to win elections.
Trent England, executive director of the Oklahoma Council for Public Affairs, a local conservative think tank, agreed, recalling his own experience as a Republican volunteer and noting that Engelbrecht’s solution for “first responder” poll watchers could correct the problem among “inner city” and Native communities.
“Do you want to go into an inner city precinct or a tribal precinct and be the Republican there to oversee things? I mean, that is not a comfortable place to be and that is where the fraud happens,” said England. “We have to find people.”
Brad Smith, a former Federal Election Commission member under President George Bush, echoed Engelbrecht’s warnings and called for participants to seek training from the Republican National Lawyers Association. “We need poll workers and we need good ones,” Smith added.
Later during the discussion, Morton Blackwell, a member of the RNC, praised Engelbrecht’s proposal and said he would push for the RNC to “devote significant resources” into “ballot integrity.” Blackwell observed that since the court-ordered ban had long prevented the party from aggressive poll watching had recently been lifted, the RNC now has “unrestricted authority to weigh in on ballot security operations.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>
“Voting by Mail Could Be What States Need. But Can They Pull It Off?”<https://electionlawblog.org/?p=110674>
Posted on April 12, 2020 12:55 pm<https://electionlawblog.org/?p=110674> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports.<https://www.nytimes.com/2020/04/11/us/coronavirus-voting-by-mail-elections.html>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
“The Most Important 2020 States Already Have Vote by Mail But the battle over expanding access is only getting started.”<https://electionlawblog.org/?p=110672>
Posted on April 12, 2020 12:35 pm<https://electionlawblog.org/?p=110672> by Rick Hasen<https://electionlawblog.org/?author=3>
Ron Brownstein<https://www.theatlantic.com/politics/archive/2020/04/voting-mail-2020-race-between-biden-and-trump/609799/> in The Atlantic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
John Lott Argues Against Extended Mail-in Voting By Citing Old Jimmy Carter Report and Some Anecdotes, Without Weighing Costs of Holding Only In-Person Voting During a Pandemic<https://electionlawblog.org/?p=110670>
Posted on April 12, 2020 12:29 pm<https://electionlawblog.org/?p=110670> by Rick Hasen<https://electionlawblog.org/?author=3>
John Lott’s WSJ piece<https://www.wsj.com/articles/heed-jimmy-carter-on-the-danger-of-mail-in-voting-11586557667> is exactly what you’d expect from him: long on fear mongering and failure to grapple seriously with evidence.
I wrote about the complexity of the question, the rarity of absentee ballot fraud, and the compelling need to extend mail-in votes during a pandemic in this Washington Post oped.<https://www.washingtonpost.com/opinions/2020/04/09/trump-is-wrong-about-dangers-absentee-ballots/>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Trump Reveals the Truth About Voter Suppression”<https://electionlawblog.org/?p=110668>
Posted on April 12, 2020 12:23 pm<https://electionlawblog.org/?p=110668> by Rick Hasen<https://electionlawblog.org/?author=3>
David Blight NYT oped<https://www.nytimes.com/2020/04/11/opinion/sunday/republicans-voter-suppression.html?smid=em-share>:
America has a long history of attempts to restrict the right to vote to people with property, with sufficient formal education and, too often, those privileged by gender or race. Political minorities — today’s Republican Party, antebellum slaveholders, Gilded Age oligarchs or rural states empowered disproportionately by the Electoral College — have always feared and suppressed the expansion of both the right and the access to the right to vote. There is no Republican majority in America, except on Election Days.
Mr. Trump’s rhetorical stumble into truth joins a litany of similar expressions in American history. The creation of black male suffrage was the most contested of all the problems of the early new state governments formed during Reconstruction. Most white Southerners were hellbent on trying to restore white supremacy, especially in voting. Appointed by President Andrew Johnson as South Carolina’s governor in 1865, Benjamin F. Perry believed that black suffrage would give political power over to “ignorant, stupid, demi-savage paupers.” In North Carolina, the politician William A. Graham believed enfranchising blacks would “roll back the tide of civilization two centuries at least.”
In Southern history, when the law wasn’t on the side of voter suppression, intimidation, fraud and murderous violence served as ready alternatives. As the historian Carol Anderson writes in her brilliant book “One Person, No Vote,” the techniques of voter suppression in the 19th century were conducted with “warped brilliance” and were “simultaneously mundane and pernicious,” whether by requiring voters to interpret bizarrely complex written passages to prove literacy, in fail-safe grandfather clauses or through allegedly race-neutral poll taxes. Today’s vote suppressors are no less pernicious, sporting earnest outrage at the fraud they cannot find.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
North Carolina Senate Democrats: “Republicans Send Wrong Message on Protecting Elections”<https://electionlawblog.org/?p=110665>
Posted on April 12, 2020 12:21 pm<https://electionlawblog.org/?p=110665> by Rick Hasen<https://electionlawblog.org/?author=3>
At Medium<https://medium.com/@leslieedwardsrudd/berger-sends-the-wrong-message-on-election-protection-e5bbeb9c9009>:
As we approach the 2020 Elections, we must also focus on protecting the underpinnings of our democracy by keeping our polling places open and safe and expanding mail-in voting options for all who request it. That should be the goal for November. And, it should be a bipartisan goal.
Unfortunately, Republican Pro Tem Phil Berger has set a discouraging tone for the upcoming General Assembly session. Senator Berger makes two arguments about why we should not expand mail-in voting. First, he contends that expanding mail-in voting will result in voter fraud similar to absentee ballot fraud during the recent Congressional election.
Second, he acknowledges distrust towards Governor Roy Cooper and those he appointed on the State Board of Elections. As he told the Charlotte Observer editorial board, “There is zero trust that this process would be fair and transparent.”
First, we believe we must modernize our absentee ballot process. Just as the pandemic has forced us to rethink our how we eat, play, and pray, it has also forced us to rethink how we vote. North Carolina is in the small minority of states that requires an absentee ballot to be signed by two witnesses or a notary public. At a time when close contact with others could be unsafe, this requirement presents an unfair barrier to voting by mail. Our best guidance comes from red and blue states that have revised such witness requirements in light of social distancing requirements. Rhode Island recently eliminated their witness requirement. The Executive Director of South Carolina’s Election Commission recently urged state leaders to eliminate the witness requirements also.
Absentee ballot security can be safely and more effectively addressed by requiring a secure signature verification process. A well-designed signature verification system compares the signature on an incoming ballot envelope with the signature on file with the voter’s registration, other signatures in the state’s database such as the Division of Motor Vehicles, and prior returned mailed ballots. The more reference signatures available for a voter, the better the system works. States like Colorado and Utah use this modern method and North Carolina should too. In addition, some states’ ballot envelopes are equipped with intelligent mail bar codes linked to the postal service that allow voters and election official to track the envelope.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, The Voting Wars<https://electionlawblog.org/?cat=60>
David Lat and George Conway’s Oped on Wisconsin Election Court Decision Minimizes Disenfranchisement of At Least 12,000 Wisconsin Voters<https://electionlawblog.org/?p=110663>
Posted on April 12, 2020 12:18 pm<https://electionlawblog.org/?p=110663> by Rick Hasen<https://electionlawblog.org/?author=3>
From this WaPo opinion piece<https://www.washingtonpost.com/opinions/2020/04/11/dont-like-wisconsin-election-mess-dont-blame-courts/>:
Here, there was nothing “severe” about imposing an Election Day deadline for receiving absentee ballots. That’s what states ordinarily do<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx#accept>, and there’s nothing unreasonable or discriminatory about it — the deadline applies to everyone. In fact, by the morning after the election, Wisconsin election officials reported<https://elections.wi.gov/node/6833> that they had already received back<https://www.wpr.org/more-1m-wisconsin-vote-mail-full-election-turnout-still-unclear>one million of the nearly 1.3 million absentee ballots they had sent out. Clerks sent ballots to all but 12,710<https://www.wpr.org/more-1m-wisconsin-vote-mail-full-election-turnout-still-unclear> of those who requested them.
My response in begins in this thread<https://twitter.com/rickhasen/status/1249119189736005637>:
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>
<https://twitter.com/rickhasen/status/1249119189736005637>
So glad that @DavidLat<https://twitter.com/DavidLat> is well enough now that I can disagree with him and @gtconway3d<https://twitter.com/gtconway3d> about Wisconsin. They say https://www.washingtonpost.com/opinions/2020/04/11/dont-like-wisconsin-election-mess-dont-blame-courts/ …<https://t.co/oYTiNmL22Y> "Clerks sent ballots to all but 12,710 of those who requested them." But many of those people were effectively disenfranchised /1
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Opinion | Don’t like the Wisconsin election mess? Don’t blame the courts.<https://t.co/oYTiNmL22Y>
Blame the legislature.<https://t.co/oYTiNmL22Y>
washingtonpost.com<https://t.co/oYTiNmL22Y>
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4:36 PM - Apr 11, 2020<https://twitter.com/rickhasen/status/1249119189736005637>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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29 people are talking about this<https://twitter.com/rickhasen/status/1249119189736005637>
And Ned Foley’s thread begins<https://twitter.com/Nedfoley/status/1249355976186236929>:
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<https://twitter.com/Nedfoley>
Ned Foley at Nedfoley<https://twitter.com/Nedfoley>
<https://twitter.com/Nedfoley/status/1249355976186236929>
@rickhasen<https://twitter.com/rickhasen> is correct: disenfranchisement of 12,710 voters, who didn't receive ballots despite their own timely request (when other voters in same election did), shouldn't be called not "severe" & non-discriminatory under Anderson-Burdick. I'll say more later about ... (1/3) https://twitter.com/rickhasen/status/1249119189736005637 …<https://t.co/R9UBdsla1k>
<https://twitter.com/rickhasen/status/1249119189736005637>
Rick Hasen<https://twitter.com/rickhasen/status/1249119189736005637>
✔@rickhasen<https://twitter.com/rickhasen/status/1249119189736005637>
So glad that @DavidLat is well enough now that I can disagree with him and @gtconway3d about Wisconsin. They say https://www.washingtonpost.com/opinions/2020/04/11/dont-like-wisconsin-election-mess-dont-blame-courts/ … "Clerks sent ballots to all but 12,710 of those who requested them." But many of those people were effectively disenfranchised /1<https://twitter.com/rickhasen/status/1249119189736005637>
<https://twitter.com/intent/like?tweet_id=1249355976186236929>
22<https://twitter.com/intent/like?tweet_id=1249355976186236929>
8:17 AM - Apr 12, 2020<https://twitter.com/Nedfoley/status/1249355976186236929>
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See Ned Foley's other Tweets<https://twitter.com/Nedfoley>
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Posted in election administration<https://electionlawblog.org/?cat=18>
“Trump’s Latest Voter Fraud Misinformation”<https://electionlawblog.org/?p=110660>
Posted on April 10, 2020 5:14 pm<https://electionlawblog.org/?p=110660> by Rick Hasen<https://electionlawblog.org/?author=3>
FactCheck.Org:<https://www.factcheck.org/2020/04/trumps-latest-voter-fraud-misinformation/>
President Donald Trump continues to add false and exaggerated statements to his already lengthy list of bogus voter fraud claims.
There is no evidence to back up Trump’s blanket claim that “mailed ballots are corrupt.” Voting experts say the president is exaggerating when he says mail ballots are “fraudulent in many cases.” While the instances of voter fraud via mail-in or absentee ballots are more common than in-person voting fraud, the number of known cases is relatively rare.
Trump also falsely claimed that California reached a settlement with Judicial Watch in which the state “agree[d] that a million people should not have voted.” California and Los Angeles County agreed to remove inactive voters from their voter rolls per federal law. But there’s no evidence any of them voted, fraudulently or otherwise.
And as he has in the past, Trump claimed there’s “a lot of fraudulent voting going on in this country.” Experts say voter fraud is rare….
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
Congratulations to Nate Persily and Rick Valleley<https://electionlawblog.org/?p=110656>
Posted on April 10, 2020 3:43 pm<https://electionlawblog.org/?p=110656> by Richard Pildes<https://electionlawblog.org/?author=7>
I’m very pleased to recognize here that Nate Persily and Rick Valleley have won Guggenheim Fellowships — Nate for his project called Securing a Democratic Digital Future and Rick for Uncle Sam’s Closet: Lesbian and Gay Enfranchisement and the American State.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Supreme Court Wrongly Predicted Leaked Vote Totals in Wisconsin Voting Case<https://electionlawblog.org/?p=110651>
Posted on April 10, 2020 1:33 pm<https://electionlawblog.org/?p=110651> by Rick Hasen<https://electionlawblog.org/?author=3>
A sharp reader emails:
Note the following passage from the Supreme Court’s per curiam opinion in RNC v. DNC:
The unusual nature of the District Court’s order allowing ballots to be mailed and postmarked after election day is perhaps best demonstrated by the fact that the District Court had to issue a subsequent order enjoining the public release of any election results for six days after election day. In doing so, the District Court in essence enjoined nonparties to this lawsuit. It is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work. (emphasis added)
In point of fact, it has worked just fine as we don’t know the results because the district court’s order enjoining public release was not vacated and has been fully complied with (and it seems like the author’s musings that this would “in essence enjoin[ ] nonparties to this lawsuit” was just wrong as the State parties were enjoined from releasing results, not newspapers, etc.). Just another datapoint to show how erroneous the Supreme Court was here. The one prediction it made turned out to be just plain wrong.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
Cyber Security Voting Expert Says Remote Voting by Legislatures Can Be Done Securely (But Not Online Voting by Voters)<https://electionlawblog.org/?p=110649>
Posted on April 10, 2020 1:30 pm<https://electionlawblog.org/?p=110649> by Rick Hasen<https://electionlawblog.org/?author=3>
Andrew Appel blogs.<https://freedom-to-tinker.com/2020/04/10/can-legislatures-safely-vote-by-internet/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
The Biggest Problem with the Supreme Court’s Opinion in the Wisconsin Voting Case Was Not the Result (Which Was Still Wrong), But the Court’s Sloppiness and Nonchalance About Voting Rights and What That Means for November<https://electionlawblog.org/?p=110647>
Posted on April 10, 2020 12:39 pm<https://electionlawblog.org/?p=110647> by Rick Hasen<https://electionlawblog.org/?author=3>
There has been a ton of commentary on the Supreme Court’s split decision<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> in the Wisconsin voting case, which reversed a district court order allowing absentee ballots received by April 13 whether or not they were postmarked by the April 7 election date to count toward the election, and I hesitate to add to it. But I think there’s something really important to be said not about what the Court decided but about how it decided it.
The district court issued its order because, thanks to the coronavirus pandemic, well over 1 million Wisconsin voters had requested absentee ballots (more than 4 times the usual number of requests). This led to a backlog of requests and problems with postal service handling of ballots, meaning many voters (we are still trying to figure out how many, but in the thousands) did not received their ballots by April 7 in order to vote them and get them postmarked in time.
It is very easy to criticize the Court’s 5-4 decision (with all the Republican-appointed Justices siding with Republicans to not allow the late-arriving ballots to count, and all the Democratic-appointed Justices dissenting and siding with Democrats) as the product of simple partisan infighting. At best, the decision could charitably be explained, as Rick Pildes told NYT’s Adam Liptak<https://www.nytimes.com/2020/04/09/opinion/wisconsin-primary-supreme-court.html>, as reflecting the Justices’ ideological rather than partisan commitments: ““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.”
I think the Court reached the wrong decision, but the matter is closer than some people say. While the district court didn’t frame it this way, it essentially extended the absentee voting period for a few additional days, allowing anyone who received a ballot to vote after the April 7 election day so long as the ballot was received before April 13.
There is much to be said for courts sticking to the rules as written before the election, because later decisions by courts can help (and be seen as helping) one side or another; and clear election rules should be followed barring extraordinary circumstances. The main Court error in its decision, in my view, was that the Court failed to recognize<https://www.nytimes.com/2020/04/09/opinion/wisconsin-primary-supreme-court.html> the truly extraordinary circumstances of the pandemic’s effect on the public health, and the failure of political actors in Wisconsin (primarily the Republican legislature, but also the Democratic governor who inexplicably dragged his feet until at the very last minute seeking to postpone the election) to act. This put many voters who did not receive absentee ballots in the horrible position of having to choose serious health risks or become disenfranchised. (Already Wisconsin health investigators are looking at <https://www.jsonline.com/story/news/politics/elections/2020/04/09/coronavirus-wisconsin-state-tracking-whether-cases-tied-voting/5126212002/> whether people may have contracted the virus while voting.) Application of the Purcell Principle should<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676> be suspended when an emergency not of the parties’ own making causes a court to issue a last minute election order.
But the Court’s decision is far from the worst of what the Court did; much of the disenfranchisement in Wisconsin is at the foot of Wisconsin political actors (and the Wisconsin Supreme Court, which also along party lines split over the Governor’s last minute attempt to try to delay the election). Far worse than its decision was its opinion.
To begin with, the opinion (which Court insiders believe was drafted by Justice Kavanaugh, who got the original petition as the Circuit Justice for the 7th Circuit) was exceedingly sloppy. The Court spends all this time noting that the plaintiffs never requested the relief of the absentee ballot return extension in their original filing. But as Justice Ginsburg pointed out in her dissent, the plaintiffs orally made the request at the preliminary injunction hearing, which certainly seems in order given the rapidly changing and deteriorating conditions. Linda Greenhouse notes<https://www.nytimes.com/2020/04/09/opinion/wisconsin-primary-supreme-court.html> the oddity of the Court hung up on a procedural point that turned out to be completely wrong.
The Court was also sloppy in how it wrote its relief, requiring that ballots be postmarked by April 7. Now we know of at least 682 ballots in Madison alone that arrived by April 8 (meaning they were no doubt mailed by April 7) but without a postmark. Lots of mail does not get a postmark. These voters are being disenfranchised<https://electionlawblog.org/?p=110638> for no good reason. The Court as the very least should have accepted any ballots arriving by mail on April 8.
Beyond the sloppiness, and most troubling, is the cavalier nature of the Supreme Court’s opinion. It is one that ignores the pandemic and treats this as ordinary litigation in an ordinary time. The message it sends is that the Court cares little about the voting rights of people in the state, especially African-American voters in Milwaukee<https://slate.com/news-and-politics/2020/04/never-forget-wisconsin.html> who have been facing a horrible risk related to the virus. In this extraordinary time of a pandemic, when a Wisconsin Republican legislative leader–in full protective gear–lied<https://electionlawblog.org/?p=110500> about the safety of casting a ballot and the ability to cast an absentee ballot at the last minute), the Supreme Court chose to vote remotely<https://www.theatlantic.com/ideas/archive/2020/04/supreme-courts-hypocrisy-going-get-americans-killed/609598/> for safety reasons while denying some Wisconsin voters a chance to to the same.
Not only does the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It shows that the Court majority did not look for a way to build a bridge for a unanimous compromise opinion. The signal it sends is that we are going to have partisan warfare at the Court for the upcoming election, which is already shaping up to be one conducted under conditions of deep polarization and a pandemic. And the Court majority is not going to side with voters.
Although I usually criticize the Court for not giving reasons for most of its its “shadow docket” emergency election decisions, in this case the Court should have just issued its order with no explanation.
Because what the Court provided by way of reasoning has made things much, much worse.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>
Paul Gronke: Agreeing On Election Terminology Can Help Focus Debates Over How To Respond To COVID-19<https://electionlawblog.org/?p=110645>
Posted on April 10, 2020 11:55 am<https://electionlawblog.org/?p=110645> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a guest post from Paul Gronke<https://blogs.reed.edu/paul-gronke/>, Director of the Early Voting Information Center at Reed College”
There’s been a lot of discussion of how to conduct a safe and secure election in 2020. It seems long ago that we were mainly concerned with cybersecurity, paper trails, and risk limiting audits<https://www.govtech.com/security/Cybersecurity-and-Democracy-Collide-Locking-Down-Elections.html>. Now the conversation has shifted to not only how to protect our elections infrastructure, but how to protect our election workers and our voters from the threat of COVID-19<https://www.eac.gov/election-officials/coronavirus-covid-19-resources>.
One way these conversations can get derailed is when we lack agreement on basic terminology. It’s especially challenging in United States elections because different states use different terms to describe similar administrative practices and procedures, and when our President tweets that “Mail ballot, they cheat<https://www.nytimes.com/article/mail-in-voting-explained.html>” when he himself casts an by mail, absentee ballot.
Not speaking for every scholar or practitioner by any means, but as an expert in the field <https://blogs.reed.edu/earlyvoting/> , a few basic distinctions may help focus the debate.
1. There Are Three Main “Modes” of Balloting: Election Day Voting, Early In-Person Voting, and Absentee / Voting by Mail
a. ELECTION DAY or PRECINCT PLACE voting is used to describe voting on Election Day at a polling place / precinct place.
b. 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.
c. ABSENTEE / 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)
2. Different Kinds of Voting By Mail
a. There are three main vote by mail regimes, and the distinction between these are important. In all cases, ballot materials (ballots, ballot envelopes, and security sleeves) are sent to the mailing address listed in registration file using the US Postal Service. Ballots may or may not be returned using the USPS — many voters choose to drop ballots by hand at a county office, at a secure drop box (if this is provided), or, where allowed, at a polling place on Election Day.
b. Excuse-Required Absentee Voting (or just “absentee voting”) means that an excuse is required to cast an absentee ballot. Seventeen states still require some sort of excuse<https://www.vote.org/absentee-voting-rules/>, and the list of excuses varies quite a bit.
c. No-Excuse Absentee Voting is allowed in 33 states and the District of Columbia.
d. Full Vote By Mail are systems that don’t have precinct polling places at all — all individuals with an active voter registration record are sent a ballot (hence, this is sometimes called a “universal ballot delivery” system).
e. “Vote at Home” <https://www.voteathome.org/> is a more recent term that some prefer because it’s a better description of how ballots are actually completed (and “vote by mail” is a bit misleading) because less than half of the voters in Colorado, Oregon, and Washington actually return their ballots “by mail”, choosing instead to drop them off at secure location.
f. In Colorado and California’s Voter Choice<https://www.sos.ca.gov/elections/voters-choice-act/> Counties, Voter Service Centers are established where voters can cast an in-person ballot (if they surrender their vote at home ballot). In the other Vote at Home states, voter services are provided, generally at the county office.
3. Common Sources of Confusion
a. “Early Voting” is often used as an umbrella term covering any system where voters cast a ballot at a time and place other than on Election Day and at a precinct polling place, therefore inclusive of “early in person” and “absentee by mail”.
b. “Voting by Mail” and “Vote at Home” are often used to only describe the universal ballot delivery systems and states.
c. Some states retain categories or descriptions that have fallen out of sync with their current practices. Most notably, states that provide for “in-person” absentee voting, such as North Carolina, may still use the description “absentee” even though they are actually operating an early in-person system (North Carolina uses the label “ONE-STOP ABSENTEE” in its voter files).
4. Other Useful Glossaries and Guides
a. The Election Assistance Commission Glossary<https://www.eac.gov/election-officials/glossaries-of-election-terminology>
b. The National Institute of Standards and Technology Glossary<https://pages.nist.gov/ElectionGlossary/>
c. The National Conference of State Legislatures Election Administration Page<https://www.ncsl.org/research/elections-and-campaigns/election-administration-at-state-and-local-levels.aspx>
d. Election Cybersecurity Glossary <https://www.electionsecurityglossary.com/home>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump pushes false claims about mail-in vote fraud. Here are the facts.”<https://electionlawblog.org/?p=110643>
Posted on April 10, 2020 11:44 am<https://electionlawblog.org/?p=110643> by Rick Hasen<https://electionlawblog.org/?author=3>
NBC News reports.<https://www.nbcnews.com/politics/donald-trump/trump-pushes-false-claims-about-mail-vote-fraud-here-are-n1180566>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Wisconsin: “Many absentee ballots were not postmarked, putting votes at risk of not being counted”–This Means That Thanks to SCOTUS, Ballots Arriving Wed. and Certainly Mailed on Time Won’t Count and Voters Will Be Disenfranchised<https://electionlawblog.org/?p=110638>
Posted on April 10, 2020 11:17 am<https://electionlawblog.org/?p=110638> by Rick Hasen<https://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/2020/04/10/wisconsin-election-votes-may-not-count-ballots-without-postmark/5123238002/>:
Hundreds of absentee ballots mailed back to the City of Madison for Tuesday’s election may not be counted, thanks to a missing postmark.
The problem is one that is emerging in communities across Wisconsin as election officials prepare to tally the results of an election conducted during the coronavirus pandemic. Results for the state Supreme Court and other races are to be released Monday.
The issue has surfaced because of a surge in mail voting and a U.S. Supreme Court ruling on the eve of the election that requires absentee ballots to be postmarked by election day, April 7, if they arrive after that.
Madison City Clerk Maribeth Witzel-Behl said that so far her office has received more than 8,000 absentee ballots in her office. Of those, 682 have no postmark, meaning that it’s likely that they won’t be counted.
She said that seeing the ballots come in without the postmark has been frustrating, especially since the ballots that came in on Wednesday were likely mailed before Tuesday.
“It’s heartbreaking to see that many of them have no postmark,” she said. “That’s not the fault of the voter. The voter has no control over that.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
CREW Gets Default Judgment Against Quorum-Less FEC, Paving the Way for Private Litigation Against Campaign Finance Violators<https://electionlawblog.org/?p=110636>
Posted on April 10, 2020 11:11 am<https://electionlawblog.org/?p=110636> by Rick Hasen<https://electionlawblog.org/?author=3>
This development<https://www.citizensforethics.org/press-release/crew-statement-on-fec-victory/> is one to watch.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>
“Coronavirus May Reshape Who Votes And How In The 2020 Election”<https://electionlawblog.org/?p=110634>
Posted on April 10, 2020 11:09 am<https://electionlawblog.org/?p=110634> by Rick Hasen<https://electionlawblog.org/?author=3>
Pam Fessler<https://www.npr.org/2020/04/10/831059882/coronavirus-may-reshape-who-votes-and-how-in-the-2020-election?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social> for NPR.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“As Trump rails against mail voting, some allies embrace it”<https://electionlawblog.org/?p=110632>
Posted on April 10, 2020 11:08 am<https://electionlawblog.org/?p=110632> by Rick Hasen<https://electionlawblog.org/?author=3>
AP reports.<https://www.detroitnews.com/story/news/politics/2020/04/10/trump-rails-mail-voting-allies-embrace/111532712/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Here’s True the Vote drawing a purported distinction between supposed dangerousness of mail balloting and the “voter fraud protections provided in in-person and absentee voting.”<https://electionlawblog.org/?p=110629>
Posted on April 10, 2020 11:04 am<https://electionlawblog.org/?p=110629> by Rick Hasen<https://electionlawblog.org/?author=3>
And don’t miss Jim Bopp referring to “Democrat Politicians.”
The distinction they are drawing reminds me of this from Petri Dishes<https://www.washingtonpost.com/opinions/2020/04/09/difference-between-absentee-ballots-voting-by-mail/>: “An absentee ballot is cast by a Republican, whereas a mail-in vote is sent by a Democrat.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“The Uncertain Future of Felon Disenfranchisement”<https://electionlawblog.org/?p=110627>
Posted on April 10, 2020 10:49 am<https://electionlawblog.org/?p=110627> by Rick Hasen<https://electionlawblog.org/?author=3>
Bruce Cain and Brett Parker have posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3549649&dgcid=ejournal_htmlemail_law:society:legislation:ejournal_abstractlink> on SSRN (forthcoming, Missouri Law Review). Here is the abstract:
Felons represent a large majority of disenfranchised adult Americans, with a significant proportion remaining unable to vote even after completing the entirety of their sentences. As voter eligibility requirements become an increasingly contested partisan battlefield, the fate of these disenfranchised individuals has become increasingly unclear. With this backdrop in mind, we consider recent developments in felon disenfranchisement, the prospects for future legislative action, and the legal arguments that litigants might employ to challenge the practice. In so doing, we exploit newly collected polling data to determine (1) whether Americans are ready to end felon disenfranchisement, and (2) under what circumstances they believe felon disenfranchisement constitutes excessive punishment. Examining these results, we conclude that the prospects for an immediate end to felon disenfranchisement are limited and that a categorical challenge to disenfranchisement under the Eighth Amendment would be doomed to fail. However, our results do suggest that a limited set of “gross disproportionality” challenges could plausibly succeed in states with lifetime disenfranchisement laws. We finish by discussing the disparate impact of disenfranchisement laws on African-Americans and consider the prospects for challenging these laws under the Voting Rights Act.
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Posted in felon voting<https://electionlawblog.org/?cat=66>
Must-Read Sherrilyn Ifill: “Never Forget Wisconsin”<https://electionlawblog.org/?p=110625>
Posted on April 10, 2020 10:47 am<https://electionlawblog.org/?p=110625> by Rick Hasen<https://electionlawblog.org/?author=3>
Important piece<https://slate.com/news-and-politics/2020/04/never-forget-wisconsin.html>:
In that April 2 order, federal district court Judge William Conley starkly summarized<https://www.courtlistener.com/recap/gov.uscourts.wiwd.45522/gov.uscourts.wiwd.45522.170.0.pdf> the “dilemma” that would face thousands of Wisconsin voters unless the return date for absentee ballots was extended. “Voters who did not or could not vote absentee will be forced on election day to choose between exercising their franchise and venturing into public spaces, contrary to the public message to ‘stay home’ delivered by countless public officials during the course of this pandemic,” he wrote.
For black voters, this “dilemma” was particularly acute. COVID-19 is taking a harsh toll on black communities across the country<https://slate.com/technology/2020/04/coronavirus-covid19-black-americans-impact.html>, including in Wisconsin. Although black Americans constitute only 6 percent of the state’s population, they comprise nearly half of the state’s deaths from COVID-19. And, in Milwaukee County, where black Americans are 27 percent of the population, they represent 70 percent<https://www.washingtonpost.com/politics/covid-19-is-ravaging-black-communities-a-milwaukee-neighborhood-is-figuring-out-how-to-fight-back/2020/04/06/1ae56730-7714-11ea-ab25-4042e0259c6d_story.html> of those who have died from COVID-19.
Poll closures and the absentee ballot processing backlog also fell harshly on black voters. In Milwaukee, the city with the largest black population in Wisconsin, 180 city polling places were consolidated to only five<https://www.vox.com/policy-and-politics/2020/4/7/21211879/wisconsin-voters-lines-election-primary> polling places that would be open on Election Day, guaranteeing long lines and mass gatherings. And state measures taken to provide safer alternatives for returning absentee ballots were less accessible for black voters in Wisconsin. For example, the state expanded drive-by drop-off for absentee ballots in several cities, but 26 percent of Wisconsin’s black population does not own a vehicle<https://nationalequityatlas.org/indicators/Car_access/By_race~ethnicity%3A49791/United_States/Wisconsin>.
The choice facing black voters was especially agonizing because of the unique history of their struggle for full enfranchisement. Death has far too often been the consequence for black Americans who insisted on exercising their full rights as American citizens by voting. Indeed, for the forebears of many black voters standing in those lines in Wisconsin, attempting to vote mere decades ago in countless instances meant a confrontation with death<https://time.com/3423102/people-died-so-i-could-vote/> in counties and cities across the South.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
How Elections Today in South Korea Are Going: Our New Future?<https://electionlawblog.org/?p=110622>
Posted on April 10, 2020 9:05 am<https://electionlawblog.org/?p=110622> by Richard Pildes<https://electionlawblog.org/?author=7>
From the NYT live feed this morning:
As South Korea pressed ahead with its first election<https://www.nytimes.com/2020/04/10/world/asia/coronavirus-south-korea-election.html> since the coronavirus pandemic began, masked voters showed up on Friday at the country’s 3,500 balloting stations.
They were required to stand at three-foot intervals, rub their hands with liquid sanitizer and put on disposable plastic gloves that officials were distributing outside voting booths.
The pandemic is disrupting political calendars around the world, causing delays in primaries<https://www.nytimes.com/article/2020-campaign-primary-calendar-coronavirus.html> in the United States and inciting electoral chaos and voter ire in places like Wisconsin<https://www.nytimes.com/2020/04/09/us/politics/wisconsin-election-absentee-coronavirus.html?searchResultPosition=3>, where many absentee ballots failed to arrive and voters were afraid to put their health at risk by going to polling places.
But South Korea has assured its 44 million eligible voters that it’s safe to leave their homes and vote, even as it has urged them to avoid large gatherings and maintain social distancing.
Early signs showed that the vote was proceeding rather seamlessly.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“NC’s top Republican doesn’t trust the governor to run a fair 2020 mail-in election. Really.”<https://electionlawblog.org/?p=110620>
Posted on April 10, 2020 8:26 am<https://electionlawblog.org/?p=110620> by Rick Hasen<https://electionlawblog.org/?author=3>
Charlotte Observer editorial<https://www.charlotteobserver.com/opinion/editorials/article241887126.html>:
In a statement to the Editorial Board on Thursday about expanding mail-in voting here, Senate leader Phil Berger said he was concerned not only about voter fraud, but that he didn’t trust Gov. Roy Cooper and his state Board of Elections wouldn’t rig the election.
“There is zero trust that this process would be fair and transparent,” he said….
That looming tension prompted our initial questions Thursday of Berger. What, we wondered, did he think about funding the infrastructure to accommodate a mail-in surge or, as some states are doing, getting ballots out proactively to N.C. voters?
His 436-word answer<https://www.charlotteobserver.com/opinion/op-ed/article241902031.html> acknowledged that state leaders “need to look at consensus actions that will prepare our state for the possibility of voting during a pandemic.” It also cautioned against rolling back mail-in ballot rules lawmakers passed in the wake of the 2018 NC-09 U.S. House election, which was tainted by widespread absentee ballot fraud in Bladen and Robeson counties<https://www.charlotteobserver.com/news/politics-government/article226864674.html>. Then it turned its attention to the governor, whom Berger said has fought fiercely to achieve full partisan control over the state Board of Elections.
“All of this raises natural and legitimate suspicions about the motives of the Governor and the Board he controls,” Berger wrote. “Those same suspicions raise alarm bells at the prospect of a partisan Board of Elections controlling a process in which they ostensibly send ballots to every voter. There is zero trust that this process would be fair and transparent.”
Was Berger preemptively accusing the governor of rigging the election? No, said Berger spokesman Pat Ryan. The senator doesn’t expect Cooper to rig the election, Ryan said, but Berger doesn’t trust that the governor and his board of elections would conduct it fairly. That’s a distinction, maybe, but not much of one.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
--
Rick Hasen
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UC Irvine School of Law
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