[EL] 6th Circuit Upholds Michigan redistricting commission; more news

[Rick Hasen]

Breaking: 6th Circuit Panel Unanimously Upholds Constitutionality of Michigan Independent Redistricting Commission (Including Interesting Concurring Opinion by Judge Readler Attacking Anderson-Burdick Framework)<https://electionlawblog.org/?p=110758>
Posted on April 15, 2020 11:55 am<https://electionlawblog.org/?p=110758> by Rick Hasen<https://electionlawblog.org/?author=3>

Not at all surprised by this result<https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0117p-06.pdf> (which I’ve long been predicting, all the while puzzling over why Republicans did not raise a different argument <https://www.theatlantic.com/ideas/archive/2019/01/supreme-court-will-rule-gerrymandering-md-and-nc/579550/> against the commission as applied to congressional redistricting). But a fascinating majority opinion by Judge Moore and concurring opinion by Judge Readler. I wonder if J. Readler’s opinion is going to spur more attacks on the flexible balancing test of Anderson-Burdick.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“South Korea’s Coronavirus Test Run: How to Hold an Election; Its national election gives countries early guidance on how votes might be held once rates of new infections fall”<https://electionlawblog.org/?p=110754>
Posted on April 15, 2020 10:27 am<https://electionlawblog.org/?p=110754> by Rick Hasen<https://electionlawblog.org/?author=3>

The WSJ reports<https://www.wsj.com/articles/south-koreas-coronavirus-test-run-how-to-hold-an-election-11586948227>. Graphic from the article:
[cid:image002.png at 01D6131D.23E3F690]
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Posted in election administration<https://electionlawblog.org/?cat=18>


Supreme Court Sets May 13 Date for Telephonic Arguments in Faithless Elector Cases<https://electionlawblog.org/?p=110752>
Posted on April 15, 2020 10:19 am<https://electionlawblog.org/?p=110752> by Rick Hasen<https://electionlawblog.org/?author=3>

These electoral college cases look<https://twitter.com/adamliptak/status/1250472032510316546> to be the last set cases for argument of the term, as of now, on the delayed and revised Court docket.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Mexico high court halts automatic mail-in election in victory for GOP”<https://electionlawblog.org/?p=110750>
Posted on April 15, 2020 9:35 am<https://electionlawblog.org/?p=110750> by Rick Hasen<https://electionlawblog.org/?author=3>

Santa Fe New Mexican<https://www.santafenewmexican.com/news/coronavirus/new-mexico-high-court-halts-automatic-mail-in-election-in-victory-for-gop/article_a68f335c-7e66-11ea-b08c-5b8e087c4a21.html>:

The New Mexico Supreme Court on Tuesday rejected a petition to conduct the June 2 primary election solely by mail, quickly drawing praise from Republicans and condemnation from Democrats who say the ruling will put poll workers and voters at risk.

Chief Justice Judith Nakamura acknowledged the state is in the midst of a public health crisis and that voting by mail is the safest option. But justices nonetheless ruled unanimously that state law does not allow ballots to be sent automatically to voters eligible to participate in the primary.

Justices in effect acknowledged that allowing an election by mail would require lawmakers to change state law — something parties who petitioned the court to rule on the matter had argued is impossible during the ongoing coronavirus pandemic because it would put lawmakers at risk of contracting or spreading COVID-19 in a hypothetical special session.

Instead, justices have ordered the Secretary of State’s Office or county clerks to send an application for an absentee ballot to every registered primary voter in the state.

Via Howard Bashman<https://howappealing.abovethelaw.com/2020/04/15/#117764>, who also includes a link to the video of the ruling from the bench.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


How Many Absentee Ballots in WI Came In on Time Because of the Court Decision to Extend the Receipt Deadline?<https://electionlawblog.org/?p=110746>
Posted on April 15, 2020 8:26 am<https://electionlawblog.org/?p=110746> by Richard Pildes<https://electionlawblog.org/?author=7>

By my count, about 107,871 absentee ballots came in after April 7th and on or before April 13th. Put another way, this amounts to 6.96 percent of the total votes cast for the percent of absentee ballots that came in during this extended window created by the District Court decision. Not all those will be valid votes; of the total votes cast, these ballots amount to 6.96 percent of the total vote. To be valid, they would still have to be postmarked by April 7th (and ambiguities about that means have to be resolved). We also don’t know how many of those voters would have managed to return their ballots by April 7th, if the court had not moved the receipt deadline. Still, that provides a ballpark number for the rough effect of the extended receipt deadline.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Demand for absentee ballots delays delivery to Georgia voters”<https://electionlawblog.org/?p=110743>
Posted on April 15, 2020 7:54 am<https://electionlawblog.org/?p=110743> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/state--regional-govt--politics/demand-for-absentee-ballots-delays-delivery-georgia-voters/FWeU3rq4NF4v3bI97OGnNL/?utm_source=Iterable&utm_medium=email&utm_campaign=campaign_1145423>

Absentee ballots won’t start being delivered to Georgia voters until the week of April 20 because of a nationwide backlog, according to the secretary of state’s office.

Information on the secretary of state’s My Voter Page<https://www.mvp.sos.ga.gov/MVP/mvp.do> showing that absentee ballots have been issued for the June 9 primary is incorrect.

Georgia election officials mailed<https://www.ajc.com/news/state--regional-govt--politics/voters-mailed-absentee-ballot-request-forms-for-may-georgia-primary/hc0FkOo85uVCALbWvQUo9L/> absentee ballot request forms to the state’s 6.9 million active voters last week in an effort to encourage people to vote from home rather than at precincts during the coronavirus outbreak. Many voters have already returned those absentee ballot requests.

Normally, absentee voting is handled by county election offices, but this year Secretary of State Brad Raffensperger contracted with companies to mail large numbers of absentee ballots and request forms. County election workers will still be responsible for counting ballots.

The delay in mailing absentee ballots occurred because of high demand<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/04/09/the-cybersecurity-202-mail-in-voting-surge-is-already-facing-time-crunch-in-run-up-to-november-election/5e8e525188e0fa101a75e726/> for printing services from Arizona-based Runbeck Election Services<https://runbeck.net/>, said Gabriel Sterling, implementation manager for Georgia’s voting system.

Nate Persily<https://twitter.com/persily/status/1250196080072908800>:
[cid:image003.jpg at 01D6131D.23E3F690]<https://twitter.com/persily>
<https://twitter.com/persily>
nathaniel persily at persily<https://twitter.com/persily>

<https://twitter.com/persily/status/1250196080072908800>


Incredibly important & underappreciated point -- the supply chain & procurement issues we are confronting with masks & ventilators have analogs in the election space (materials/tech for mail balloting and safe polling places) States need to place orders immediately for November. https://twitter.com/cstewartiii/status/1250190633568022529 …<https://t.co/KAEs0RmUxN>
<https://twitter.com/cstewartiii/status/1250190633568022529>
Charles Stewart III at cstewartiii<https://twitter.com/cstewartiii/status/1250190633568022529>

It's likely that elect officials will have to rely on more out-sourcing of elect services to meet VBM demand. Here's a story about a resulting bottleneck. I'm learning about this area. Is the field restricted to just traditional election mailers? https://www.ajc.com/news/state--regional-govt--politics/demand-for-absentee-ballots-delays-delivery-georgia-voters/FWeU3rq4NF4v3bI97OGnNL/?utm_source=Iterable&utm_medium=email&utm_campaign=campaign_1145423 …<https://twitter.com/cstewartiii/status/1250190633568022529>

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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Only A Handful Of States Are Ready For The Mail-In Voting Election COVID-19 Will Bring”<https://electionlawblog.org/?p=110741>
Posted on April 15, 2020 7:52 am<https://electionlawblog.org/?p=110741> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM reports.<https://talkingpointsmemo.com/news/mail-in-elections-covid-19>
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Ohio “4-way split of voting rights measure overturned”<https://electionlawblog.org/?p=110739>
Posted on April 15, 2020 7:49 am<https://electionlawblog.org/?p=110739> by Rick Hasen<https://electionlawblog.org/?author=3>

Columbus Disptach<https://epaper.daytondailynews.com/popovers/dynamic_article_popover.aspx?guid=533e18a7-dc2c-4f17-8715-5da6ef2cbb99&pbid=66ab59ea-5cfc-438d-83e4-dc9e4a34f79d&utm_source=app.pagesuite&utm_medium=app-interaction&utm_campaign=pagesuite-epaper-html5_share-article>:

The Republican-controlled Ohio Supreme Court on Tuesday overturned the GOP-controlled state ballot board on a matter concerning rights for disabled and overseas military voters and others.

Supporters of the measure applauded the ruling, but they say it still faces unfair challenges in the face of the coronavirus pandemic.

The Ohio Ballot Board last month split 3-2 along party lines in deciding to carve up the proposed constitutional amendment into four. Splitting the measure was recommended by Secretary of State Frank LaRose, who also is a Republican

The separate opinions<http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-1459.pdf> of Justices on the Ohio Supreme Court delve into different interpretation’s of the state’s “separate vote requirement.”

On the separate vote requirement, and the relationship to the single-subject rule, see Daniel H. Lowenstein, Initiatives and the New Single Subject Rule, 1 Election Law Journal 35 (2002).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“We need to start preparing for the November election — now”<https://electionlawblog.org/?p=110737>
Posted on April 15, 2020 7:39 am<https://electionlawblog.org/?p=110737> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael McFaul WaPo column<https://www.washingtonpost.com/opinions/2020/04/15/we-need-start-preparing-november-election-now/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Despite the risks, letting Americans vote by mail in November is good for democracy”<https://electionlawblog.org/?p=110735>
Posted on April 15, 2020 7:37 am<https://electionlawblog.org/?p=110735> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan White WaPo oped<https://www.washingtonpost.com/outlook/2020/04/15/despite-risks-letting-americans-vote-by-mail-november-is-good-democracy/>:

But November’s presidential election actually isn’t the first to raise questions about how Americans might vote without coming to the polls. The debate today mirrors the heated partisan rhetoric of the 1860s. Never before had so many voters been away from their homes during elections, and the idea of permitting soldiers to use absentee ballots touched off a rancorous national debate. Then as now, it hinged on balancing concern about fraud with the right to vote. Ultimately, American democracy was greatly enriched by expanding access to the ballot and affirming that this right was at the core of U.S. citizenship.

At the beginning of the Civil War, only one state — Pennsylvania — permitted soldiers to vote in the field. In 1861, thousands of Pennsylvania soldiers voted for state and local offices from their military camps as far away as Virginia. Unfortunately, fraud permeated the elections. One regiment allegedly cast a 900-vote majority for a Republican candidate from Philadelphia even though the regiment had only 60 or 70 men from the city. “The frauds were very gross,” noted Philadelphia diarist Sidney George Fisher, and “all parties were guilty.”…
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The Voters You Hurt May Be Your Own—A Cautionary Tale from Wisconsin<https://electionlawblog.org/?p=110733>
Posted on April 15, 2020 7:34 am<https://electionlawblog.org/?p=110733> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/14/us/politics/trump-wisconsin-2020-election.html?smid=nytcore-ios-share>:

There is little history in the state of voting by mail, leaving Democrats to improvise as the virus transformed the election, while contending with onerous restrictions put in place by the Republicans in power. Early results suggest Democrats have been effective in having party volunteers help voters navigate a complicated process to request and return mail ballots, an online system that required uploading a copy of their photo identification. The sessions were often conducted through one-on-one video calls.

“The work we did wasn’t about taking unmotivated people and trying to prod them to cast a ballot,” said Ben Wikler, the chairman of the Democratic Party of Wisconsin. “It was about taking highly motivated people and helping them navigate a maze to help them safely and legally cast a vote.”…

Like Mr. Walker, Wisconsin Republicans attributed the defeat to the presidential primary raising Democratic turnout. But they also said battles over whether to conduct the election amid the pandemic wound up keeping away more of their own voters, who tend to be older and more concentrated in rural areas where polling places are farther away.

The very regulations that Mr. Walker and fellow Republicans put in place to restrict voting by mail — requirements that voters upload a copy of their photo identification to request a ballot and obtain a witness signature before returning their ballots — may have had the effect of keeping away Republicans used to voting in person who were unfamiliar with new processes.

“While Republicans encouraged early and absentee voting, many elderly either did not have the wherewithal to request absentee ballots or the inclination to vote in person on April 7,” said Doug Rogalla, the Republican Party chairman in Monroe County. “They were confused, afraid and decided to stay home.”
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>


Contrary to Much Media Commentary, Turnout in WI Was Remarkably High<https://electionlawblog.org/?p=110730>
Posted on April 15, 2020 7:09 am<https://electionlawblog.org/?p=110730> by Richard Pildes<https://electionlawblog.org/?author=7>

In advance of the WI primaries, most people expected turnout to be significantly lower than normal. In what is perhaps an example of anchoring bias, many journalists continue to write stories referencing the supposedly “low turnout,” as in a NYT story<https://www.nytimes.com/2020/04/15/opinion/coronavirus-trump-election.html?action=click&module=Opinion&pgtype=Homepage> today. Charles Stewart and I have published <https://www.washingtonpost.com/politics/2020/04/15/wisconsin-primary-had-extraordinarily-high-voter-turnout/> an extensive analysis, in today’s Washington Post Monkey Cage, of turnout this year — which was 1.55 million — compared to prior WI presidential primaries. That analysis is much more detailed than my previous posts on this issue.

Excerpting a statistical piece is difficult, but here are a couple bits:

First, we used statistical estimation to compare 19 Wisconsin primaries, held from 1948 to 2020. With so many, the model had to be simple. We considered the comparative competitiveness of the two parties’ presidential primaries — and whether the incumbent president was running again or at the end of his two terms. We also took into account how Wisconsin primaries’ turnout dropped dramatically beginning in 1984, when the rise of “Super Tuesday” made Wisconsin’s primary votes less influential.

Using this approach, we found that in a “normal” 2020 election, roughly 26 percent of the voting-age population would have cast ballots, for about 1.2 million voters. That is far fewer than the 1.55 million votes actually cast. …

The 2012 Wisconsin primary most directly resembles this year’s in key ways. With President Barack Obama up for reelection in 2012, the Democratic primary was uncontested, like the Republicans’ this year. In 2012, 1,088,000 Wisconsinites voted<https://elections.wi.gov/sites/elections.wi.gov/files/Percentage%20Results_Spring%20Election%20and%20Presidential%20Preference_4.3.12.pdf>: 788,000 in the Republican primary and 300,000 in the Democratic. In other words, 26 percent of the voting-age population cast ballots. [Turnout this year was 34 percent]

But that doesn’t quite capture the difference. We would expect a lower 2020 turnout than in 2012, because this year’s Democratic primary was fairly settled, while 2012’s Republican contest was still hotly contested: Mitt Romney won 44 percent of the vote, followed by Rick Santorum’s 37 percent and Ron Paul’s 11 percent.

As to why turnout was so surprisingly high, we speculate that:

The most likely answer is that Democrats are so mobilized in the Trump era — either for Democrats or against Trump — that they are showing up in unexpectedly high numbers, even under Wisconsin’s difficult pandemic circumstances. The 2018 midterm election in Wisconsin had the highest turnout<https://elections.wi.gov/sites/elections.wi.gov/files/2019-01/Voter%20Turnout%20Partisan-NonPartisan%20Through%20April%202018.xlsx> that state has seen since World War II. And the 2019 supreme court spring election had the second-highest turnout<https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results-Spring%20Election%20and%20Assm%2064%20Primary.pdf> among comparable elections over the past two decades, behind only 2011, when ideological control of the court was at stake.

In addition, allegations that the Republican legislature was trying to hold down turnout by not postponing the election might have further motivated Democrats to vote.

Do read the full piece for all the relevant qualifications.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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http://electionlawblog.org<http://electionlawblog.org/>


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