[EL] ELB News and Commentary 4/14/20

[Rick Hasen]

“Liberal Jill Karofsky wins Wisconsin Supreme Court election, defeating conservative justice Daniel Kelly”<https://electionlawblog.org/?p=110722>
Posted on April 14, 2020 8:41 am<https://electionlawblog.org/?p=110722> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/elections/2020/04/13/wisconsin-supreme-court-election-results-daniel-kelly-vs-jill-karofsky-conservative-liberal/2983933001/>:

Dane County Circuit Judge Jill Karofsky won the race for Wisconsin Supreme Court, narrowing the conservative majority after a tumultuous election conducted in the midst of a global pandemic, according to unofficial results released Monday.

Karofsky’s victory marked the first time in a dozen years that a Supreme Court challenger beat an incumbent — and just the second time in more than half a century. Her win over Justice Daniel Kelly will shift conservative control of the court from 5-2 to 4-3….

The pandemic triggered a record surge of absentee balloting as voters looked for a way to stay at home to prevent themselves and others from getting ill. Many voters have complained they never received their absentee ballots, forcing them to choose between giving up the ability to vote and braving the polls on election day…..

Kelly was appointed to the high court in 2016 by then-Gov. Scott Walker to finish the term of Justice David Prosser, who stepped down early.

Republicans were so worried about Kelly’s chances that they considered moving the election so it didn’t fall on the same day as Wisconsin’s presidential primary, when Democratic turnout was expected to be high. They abandoned the plan to move the election amid public opposition.

By the time election day rolled around, the Democratic presidential primary had largely fizzled and the world was in the grip of the pandemic. The Supreme Court candidates abandoned their in-person campaigning and both sides urged people to vote by mail instead of going to the polls.

Those who showed up on election day were greeted by poll workers in face masks and had to stand 6 feet away from other voters. Voting was efficient in some communities, but voters in Milwaukee and Green Bay had to wait hours to cast ballots.

Karofsky rode the unexpected turns in the campaign to victory.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Re-Election Efforts Raise $212 Million for First Quarter of 2020”<https://electionlawblog.org/?p=110720>
Posted on April 14, 2020 8:37 am<https://electionlawblog.org/?p=110720> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/13/us/politics/trump-fundraising-2020.html>:

President Trump’s re-election campaign and the Republican National Committee said Monday they had raised $212 million in the first three months of 2020, a signal that despite a global pandemic that has put a halt on high-dollar fund-raising events, Mr. Trump’s operation has continued to raise money at a brisk clip.

The campaign and committee said they had raised more than $63 million in March, a month that saw much of the country retreat into quarantine as part of a nationwide effort to mitigate the spread of the coronavirus, and had a combined $240 million in cash on hand. The two groups also said they had raised more than $677 million in total over the re-election cycle, noting that was $270 million more than President Barack Obama’s re-election campaign had raised at the same point in the 2012 campaign cycle.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“Independent Rep. Justin Amash says he’s looking ‘closely’ at White House run”<https://electionlawblog.org/?p=110718>
Posted on April 14, 2020 8:34 am<https://electionlawblog.org/?p=110718> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/independent-rep-justin-amash-says-hes-looking-closely-at-white-house-run/2020/04/13/0f22648c-7df1-11ea-9040-68981f488eed_story.html>:

The Libertarian Party is planning to nominate a candidate for president on May 25 at its convention in Austin, but no well-known figures have entered the race. Former Rhode Island governor Lincoln Chafee, who joined the party last year, abandoned a bid for the nomination this month. Former Massachusetts governor Bill Weld, the party’s 2016 nominee for vice president, returned to the Republican Party this year to run a protest campaign against Trump. Weld ended his campaign last month.

Amash, a vocal critic of Trump, voted for the president’s impeachment last year and has repeatedly declined to rule out<https://www.washingtonpost.com/politics/amash-doesnt-rule-out-2020-bid-potentially-complicating-trumps-path-to-reelection/2019/07/07/c8be1314-a0c0-11e9-b732-41a79c2551bf_story.html?tid=lk_inline_manual_11&itid=lk_inline_manual_11> a White House run.

“Is there any better time to have a president who might be not from either party?” he asked reporter Declan Garvey in January.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, third parties<https://electionlawblog.org/?cat=47>


“How absentee ballots and voter fraud stopped Texans from voting by mail”<https://electionlawblog.org/?p=110716>
Posted on April 14, 2020 8:30 am<https://electionlawblog.org/?p=110716> by Rick Hasen<https://electionlawblog.org/?author=3>

Important article<https://www.dallasnews.com/news/from-the-archives/2020/04/14/how-absentee-ballots-and-voter-fraud-stopped-texans-from-voting-by-mail/> in the Dallas Morning News.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


“Coronavirus: How to Hold an Election During a Pandemic”<https://electionlawblog.org/?p=110714>
Posted on April 14, 2020 8:27 am<https://electionlawblog.org/?p=110714> by Rick Hasen<https://electionlawblog.org/?author=3>

Spectrum News.<https://spectrumlocalnews.com/nc/triad/news/2020/04/14/coronavirus--how-to-hold-an-election-during-a-pandemic>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Media Can Play A Crucial Role In Preserving Democracy Amid COVID. Here’s How.”<https://electionlawblog.org/?p=110712>
Posted on April 14, 2020 8:21 am<https://electionlawblog.org/?p=110712> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Eichen and Josh Douglas for TPM Cafe<https://talkingpointsmemo.com/cafe/media-play-crucial-role-preserving-democracy-covid-heres-how>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“RNC v. DNC: Absentee Voters and the Partisan Pandemic”<https://electionlawblog.org/?p=110710>
Posted on April 14, 2020 8:13 am<https://electionlawblog.org/?p=110710> by Rick Hasen<https://electionlawblog.org/?author=3>

Steve Pershing analysis<https://www.gwlr.org/absentee-voters-and-the-partisan-pandemic/> for the George Washington Law Review (Online).
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“The Myth of National Popular Vote Presidential Elections and the Reality of Elector Unit Rule Voting”<https://electionlawblog.org/?p=110708>
Posted on April 14, 2020 8:11 am<https://electionlawblog.org/?p=110708> by Rick Hasen<https://electionlawblog.org/?author=3>

William Josephson has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3574799> on SSRN. Here is the abstract:

The Myth of National Popular Vote Presidential Elections and the Reality of Elector Unit Rule Voting discusses in unprecedented depth if the proposed National Popular Vote Interstate Compact can provide for popular election of a President of the United States whether or not the winner of the popular vote also wins the Electoral College. It concludes that NPV cannot accomplish its purported purpose.

The article also discusses a recent article proposing each state’s electors to vote in accordance with the popular vote proportions in their respective states instead of, as the case now, unanimously, by the unit rule. It concludes that this change would be impractical and unwise.

The revision also contains a new critical section on a recent article asserting that the Electoral College is more than an echo of slavery and a new conclusory section.

This article is current as of February 13, 2020. It reflects the 10th Circuit’s decision in Baca v. Colorado Secretary of State and the Supreme Court’s grant of review in that case and the conflicting Washington State Supreme Court case, Matter of Guerra.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


Turnout in WI Was Surprisingly High<https://electionlawblog.org/?p=110706>
Posted on April 14, 2020 8:07 am<https://electionlawblog.org/?p=110706> by Richard Pildes<https://electionlawblog.org/?author=7>

Here is some brief perspective on turnout in the Wisconsin election —

Of the voting-age population, 34% cast a ballot in this year’s primary. This is higher than the 31% average for all presidential primaries in WI from 1984 to 2016.

The most comparable recent primary is perhaps the 2012 Wisconsin primary. With President Obama up for re-election in 2012, the Democratic primary was uncompetitive, as was the Republican one this year.  Turnout this year was up 43% from the 2012 primary. In 2016, Wisconsin had extremely competitive presidential primaries in both parties, unlike this year. Turnout this year is down 26% from 2016

What’s most interesting is that turnout in the WI Democratic presidential primary was down only 7.6% from 2016.  That’s extraordinary, because the Democratic primary this year was much less hotly contested than in 2016.  In the Sanders/Clinton contest, Sanders prevailed with 57% of the vote to Clinton’s 43%.  This year, Biden nearly doubled Sanders’ vote total, winning 63% of the vote to Sanders’ 32%.  Turnout would normally fall some with a less competitive election.  The fact that it was down only 7.6% this year, given the circumstances, is thus remarkable.

The decline in turnout from 2016 is nearly all accounted for by the drop in turnout on the Republican side, as it turns out.  That decline isn’t all that surprising, because the 2016 Republican primary was extremely competitive (Cruz 48%; Trump 35%; Kasich 14%), while the incumbent President was essentially unopposed this year.  Turnout would normally drop a lot in those circumstances and it was down 43% this year on the Republican side (for comparison, Democratic turnout in the 2012 primaries, with Obama as an incumbent, fell more than 70% from the Obama/Clinton 2008 contest).

None of this is to take away from any of the real problems that still occurred, with absentee ballots, or with voters facing health risks at the polls. But as an overall picture on turnout levels, these results will be surprising to many.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How a Supreme Court Decision Curtailed the Right to Vote in Wisconsin”<https://electionlawblog.org/?p=110704>
Posted on April 13, 2020 4:40 pm<https://electionlawblog.org/?p=110704> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/13/us/wisconsin-election-voting-rights.html?smid=nytcore-ios-share>:

When the state released its final vote tallies on Monday, it was clear that the decision — arrived at remotely, so the justices would not have to brave the Covid-19 conditions — had resulted in the disenfranchisement of thousands of voters, forced several thousand more to endanger their lives at polls and burdened already strained state health officials with a grim new task: tracking the extent to which in-person voting contributed to the virus’s spread in the state, a federal disaster area.

While exact numbers were still unclear, Ben Wikler, the chairman of the Democratic Party of Wisconsin, said “every legal option is on the table” to contend what he called “a near certainty that thousands of people were disenfranchised.”

Before Judge Conley’s decision, state officials had estimated that at least 27,500 absentee ballots would come in too late to be counted — nearly five times the vote margin that decided the statewide judicial elections last year. As of Monday morning, more than 11,000 voters who requested ballots were never even sent one, according to data from the Wisconsin Elections Commission<https://elections.wi.gov/node/6847>, though figures were continuing to update.

The number of disenfranchised voters was potentially higher. As of Monday, 185,000 absentee ballots remained outstanding, and election officials were trying to determine what percentage of those might have been returned had Judge Conley’s deadline of April 13 held. In Milwaukee, official tallies showed that the percentage of unreturned ballots was double its usual rate.

There was also the indeterminate number of voters who were too afraid to appear at polling stations on Election Day, by which point it would have been too late to request absentee ballots.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Democrats fear for November after Wisconsin voting spectacle”<https://electionlawblog.org/?p=110702>
Posted on April 13, 2020 1:16 pm<https://electionlawblog.org/?p=110702> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/04/13/democrats-fear-november-wisconsin-voting-spectacle-179585?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>:

Democrats looked on in horror last week as thousands of voters in Wisconsin trekked to polling places and waited in lines<https://www.politico.com/news/2020/04/07/wisconsin-voters-brave-long-lines-coronavirus-172322> for hours to cast ballots in the midst of a pandemic.

Now national Democratic Party leaders are scrambling to head off a similar spectacle in November, in what promises to be the most consequential partisan struggle <https://www.politico.com/news/2020/04/03/trump-2020-election-legal-battle-coronavirus-162152> between now and Election Day. They are seeking billions of federal dollars to prepare for an election in which voters can’t safely go to the polls in person. The party is combing through voting rules, state by state, with an eye toward expanding early voting and vote-by-mail. The Democratic National Committee has deployed “voter protection directors” in 17 states to defend against what they view as moves to block access to the polls.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>


April 15 Webinar: “A Discussion on the Electoral College with Ned Foley and Jesse Wegman”<https://electionlawblog.org/?p=110700>
Posted on April 13, 2020 1:12 pm<https://electionlawblog.org/?p=110700> by Rick Hasen<https://electionlawblog.org/?author=3>

This should be good<https://moritzlaw.osu.edu/election-law/event/webinar-on-electoral-college-foley-and-wegman/>:

Join us for a lively and timely discussion about the Electoral College –its contentious history, shortcomings, and potential reform –with Ned Foley, Director of Election Law at OSU’s Moritz College of Law, and Jesse Wegman, New York Times editorial board member. In recently published books, Foley and Wegman each delve deeply into the fascinating history of the Electoral College and examine its function in the outcomes of recent elections, but ultimately arrive at different prescriptions for how (or whether) to “fix” it.

Anyone interested in a thoughtful exchange about the process of how we select our presidents will consider this 75 minutes well spent.

REGISTER FOR THE WEBINAR HERE<https://osu.zoom.us/webinar/register/WN_MqQM2_E8QMS6ylSGRJGUwg>
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Posted in electoral college<https://electionlawblog.org/?cat=44>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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