[EL] ELB News and Commentary 4/16/20

[Rick Hasen]

“Washington: Where Everyone Votes by Mail; We spoke to the secretary of state to get her take on voting by mail and whether she thinks the balloting option could be implemented across the country.”<https://electionlawblog.org/?p=110784>
Posted on April 15, 2020 8:18 pm<https://electionlawblog.org/?p=110784> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/04/15/us/politics/washington-where-everyone-votes-by-mail.html>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110784&title=%E2%80%9CWashington%3A%20Where%20Everyone%20Votes%20by%20Mail%3B%20We%20spoke%20to%20the%20secretary%20of%20state%20to%20get%20her%20take%20on%20voting%20by%20mail%20and%20whether%20she%20thinks%20the%20balloting%20option%20could%20be%20implemented%20across%20the%20country.%E2%80%9D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Democratic lawsuit challenging Arizona absentee ballot deadline cites Supreme Court ruling on Wisconsin primary”<https://electionlawblog.org/?p=110782>
Posted on April 15, 2020 8:15 pm<https://electionlawblog.org/?p=110782> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/democratic-lawsuit-challenging-arizona-absentee-ballot-deadline-cites-supreme-court-ruling-on-wisconsin-primary/2020/04/15/92694336-7f47-11ea-9040-68981f488eed_story.html>:

 Democratic lawsuit challenging Arizona’s absentee ballot deadline is citing the Supreme Court’s recent ruling about the Wisconsin primary to support its case, arguing that the decision to allow absentee ballots to count in Wisconsin if they were postmarked on or by Election Day should also apply in Arizona.

In a supplemental memo filed Tuesday in federal court, lawyers for a trio of plaintiffs argued that the high court’s ruling bolsters their complaint that requiring absentee ballots to be returned — rather than postmarked — on or by Election Day leads to the disenfranchisement of thousands of voters when their overdue ballots are rejected.

The Supreme Court ruled <https://www.washingtonpost.com/politics/courts_law/supreme-court-rules-for-republicans-over-wisconsin-vote-highlighting-partisan-divide-before-november-poll/2020/04/07/ed18b1e0-78d5-11ea-a130-df573469f094_story.html?tid=lk_inline_manual_3&itid=lk_inline_manual_3> on Monday of last week that absentee ballots in Wisconsin’s primary had to be postmarked by April 7, the date of election, but could be counted as long as they were received by April 13. Typically, absentee ballots in Wisconsin must be received on or by Election Day to count, making the decision a victory for Democrats as they seek to ease voting restrictions during the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?tid=lk_inline_manual_3&itid=lk_inline_manual_3> pandemic.AD

Marc Elias, a Democratic elections lawyer involved in both cases, said precedent may be helpful in the legal push against Arizona’s deadline, which has emerged as the first test of whether lower courts will follow the Supreme Court’s lead. The original suit was filed in November.

“What we’ve asked the court to do is to frankly agree with what the Supreme Court did in Wisconsin, which is to say that ballots that are postmarked by Election Day will count,” Elias said Wednesday. “That’s exactly the relief we seek in Arizona.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110782&title=%E2%80%9CDemocratic%20lawsuit%20challenging%20Arizona%20absentee%20ballot%20deadline%20cites%20Supreme%20Court%20ruling%20on%20Wisconsin%20primary%E2%80%9D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“The brewing state battles over how to hold elections in a pandemic”<https://electionlawblog.org/?p=110780>
Posted on April 15, 2020 8:10 pm<https://electionlawblog.org/?p=110780> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2020/04/15/brewing-state-battles-over-how-hold-elections-pandemic/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110780&title=%E2%80%9CThe%20brewing%20state%20battles%20over%20how%20to%20hold%20elections%20in%20a%20pandemic%E2%80%9D>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Will Arizonans be required to risk their lives to vote?”<https://electionlawblog.org/?p=110778>
Posted on April 15, 2020 8:06 pm<https://electionlawblog.org/?p=110778> by Rick Hasen<https://electionlawblog.org/?author=3>

EJ Montini oped <https://www.azcentral.com/story/opinion/op-ed/ej-montini/2020/04/15/arizona-required-risk-lives-vote-november-mail-in-ballot/5135856002/> in the Arizona Republic.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110778&title=%E2%80%9CWill%20Arizonans%20be%20required%20to%20risk%20their%20lives%20to%20vote%3F%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Details Hint at Risk of Russian Misinformation in Dossier”<https://electionlawblog.org/?p=110776>
Posted on April 15, 2020 8:03 pm<https://electionlawblog.org/?p=110776> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/15/us/politics/steele-dossier-declassified-footnotes-ig-report.html>:

The Trump administration has declassified several footnotes from a report about the F.B.I.’s Trump-Russia investigation<https://www.nytimes.com/interactive/2019/12/09/us/politics/fbi-ig-report-document.html>, providing details hinting anew at the possibility that Russia may have sown disinformation in a dossier used to investigate a former Trump campaign aide.

The newly disclosed information consists of previously blacked-out words in more than three dozen footnotes from a lengthy report on the investigation by the Justice Department’s independent inspector general, Michael E. Horowitz, that was made public in December. Several were disclosed Friday and the rest were sent to lawmakers on Tuesday….

The report’s newly disclosed footnotes add context to what prompted some of the worries and rounds of internal discussion among law enforcement officials.

In June 2017, for example — the month of the final wiretap renewal — an American intelligence agency received a report that indicated that two people affiliated with a Russian intelligence service were “aware of Steele’s election investigation in early July 2016.”

The footnotes also said an F.B.I. analyst told the inspector general he was aware of those reports but “had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.”

In addition, the newly revealed footnotes show that the F.B.I. team received three reports in 2017 raising the possibility that one of the sources for the Steele dossier was potentially influenced by a “Russian disinformation campaign to denigrate U.S. foreign relations.”

One source, whose identity remained redacted, offered two of those warnings, including casting doubt on material in the Steele dossier about Michael D. Cohen, Mr. Trump’s former lawyer. The report did not say what was wrong, but the dossier claimed that Mr. Cohen had met with Russian intelligence officials in Prague, which appears to be false.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110776&title=%E2%80%9CNew%20Details%20Hint%20at%20Risk%20of%20Russian%20Misinformation%20in%20Dossier%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>


“Biden Campaign Indicates Priorities USA Is Preferred Super PAC”<https://electionlawblog.org/?p=110774>
Posted on April 15, 2020 7:59 pm<https://electionlawblog.org/?p=110774> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/biden-campaign-indicates-priorities-usa-is-preferred-super-pac-11586986904>

Joe Biden’s presidential campaign signaled Wednesday that it favors a Democratic super PAC established during the Obama era over another group formed last year as the party prepares for a general-election battle against President Trump.

The signal that Priorities USA, which was founded in 2011, is the campaign’s preferred political-action committee sends a message to top donors about where they should give money and is a key step as Mr. Biden takes charge of the Democratic fundraising infrastructure.

The Biden campaign said in a statement to The Wall Street Journal that Priorities USA “is an organization of proven effectiveness and the work they are doing to elect Joe Biden and defeat Donald Trump is absolutely critical.”…

Campaigns are barred under federal campaign finance law from directly coordinating with outside groups, but candidates can appear at their events as long as they don’t directly solicit donations. Mr. Biden has no plans to appear before any outside groups, according to a person familiar with his plans.

Mr. Biden initially opposed any super PAC supporting him but reversed his position in October. The former vice president, now the presumptive Democratic nominee, faces a major disadvantage in fundraising compared with President Trump and will need the help of such groups to bridge the difference.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110774&title=%E2%80%9CBiden%20Campaign%20Indicates%20Priorities%20USA%20Is%20Preferred%20Super%20PAC%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Kentucky just made it harder to vote during a pandemic”<https://electionlawblog.org/?p=110772>
Posted on April 15, 2020 2:29 pm<https://electionlawblog.org/?p=110772> by Rick Hasen<https://electionlawblog.org/?author=3>

Vox reports.<https://www.vox.com/2020/4/15/21222084/kentucky-voter-id-coronavirus-pandemic>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110772&title=%E2%80%9CKentucky%20just%20made%20it%20harder%20to%20vote%20during%20a%20pandemic%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Texas judge will issue order that could greatly expand mail-in voting”<https://electionlawblog.org/?p=110770>
Posted on April 15, 2020 2:13 pm<https://electionlawblog.org/?p=110770> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune<https://www.texastribune.org/2020/04/15/texas-judge-will-issue-order-could-greatly-expand-mail-voting/>:

A state district judge on Wednesday said he will move forward with an order easing restrictions for voting by mail in Texas in light of the new coronavirus pandemic.

After conducting a video conference hearing in a lawsuit filed by state Democrats and civic organizations, Judge Tim Sulak told the attorneys he will issue a temporary injunction allowing all voters fearful of contracting coronavirus if they vote in person to ask for a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability. His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections.

Until now, voting by mail has been fairly limited in the state. Texans seeking an absentee ballot that they can fill out at home and mail in had to be 65 years or older, have a disability or illness, be out of the county during the election period or be confined in jail.

The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without risking “injuring the voter’s health.” Citing ambiguity in state law regarding what qualifies as a disability, Sulak agreed that qualification can currently apply to any voter in Texas. His official order has not yet been issued….

The Texas attorney general’s office, which intervened in the case, argued against the expansion, claiming the vote-by-mail disability qualifications apply to voters who already have a “sickness or physical condition” and not those who fear contracting a disease “whether it be COVID-19 or the seasonal flu.”

Just as the hearing was wrapping up, Texas attorney general Ken Paxton made public an “informal letter of advice”<https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/4.14.20%20Letter%20to%20Rep.%20Klick.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=> that further teed up what is expected to be a drawn out court battle over expanding voting by mail ahead of the runoffs and the November election.

Paxton stated that an individual’s sole fear of contracting the virus was not enough to meet the definition of disability to qualify for a mail ballot, and that those who advise voters to apply for a mail ballot based on that fear could be criminally prosecuted.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110770&title=%E2%80%9CTexas%20judge%20will%20issue%20order%20that%20could%20greatly%20expand%20mail-in%20voting%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


“Emergency Election Money is Available. But Some States Struggle to Claim It”<https://electionlawblog.org/?p=110768>
Posted on April 15, 2020 2:03 pm<https://electionlawblog.org/?p=110768> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI:<https://publicintegrity.org/politics/elections/emergency-election-money-is-available-but-some-states-struggle-to-claim-it/>

Some states aren’t sure if they can claim their share of emergency funds Congress approved to help states meet pandemic-related expenses for administering 2020 elections, citing conditions on the money.

The U.S. Election Assistance Commission, which is coordinating the flow of $400 million to the states, had received request letters from 37 states as of Tuesday.

For some of the remaining states, a major obstacle is a requirement that they match 20 percent of the federal money with their own dollars — at a time when the coronavirus outbreak is straining state budgets and draining surpluses.

The National Association of Secretaries of State has told lawmakers<https://www.nass.org/sites/default/files/NASS%20Letters/4.2.20%20NASS%20CARES%20Funding%20Letter%20to%20House%20Leadership.pdf> that the matching requirement will be “extremely difficult” for states to meet. Election officials from both parties have also raised concerns and said Congress should lift or reduce the match requirement.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110768&title=%E2%80%9CEmergency%20Election%20Money%20is%20Available.%20But%20Some%20States%20Struggle%20to%20Claim%20It%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


“To save the election, call in the National Guard: How to safeguard the November vote despite coronavirus”<https://electionlawblog.org/?p=110766>
Posted on April 15, 2020 2:00 pm<https://electionlawblog.org/?p=110766> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate Persily and Tom Westphal NYDN oped<https://www.nydailynews.com/opinion/ny-oped-to-save-the-election-call-in-the-national-guard-20200408-zuud3aiu4bfixnokwiseeugeu4-story.html>:

t despite such challenges, the vote must go on<https://www.nytimes.com/2020/03/26/opinion/coronavirus-2020-election.html>.

One possible solution: Call in the National Guard. The National Guard provides states with a ready, reliable workforce that can backfill poll worker shortages, sanitize polling sites<https://journaltimes.com/news/local/2-400-wisconsin-national-guard-members-expected-to-serve-as-poll-workers-today/article_5150ca35-302e-5e08-93c4-3018313045fa.html> and provide other emergency assistance to election officials. And involving National Guard personnel has several other advantages. The Guard can often supply significant logistical capacity to transport election materials and have access to some personal protective gear. National Guard units also have systems in place to track which soldiers speak multiple languages — a potentially critical capability for filling legal requirements<https://www.justice.gov/crt/file/927231/download> for bilingual poll workers in certain voting precincts. And there are existing mechanisms to provide federal funds for National Guard operations while keeping the Guard under state control<https://www.theatlantic.com/ideas/archive/2020/03/right-way-activate-national-guard/608524/>. This can alleviate pressure on state and local budgets — already straining under the coronavirus’ economic impact.

But integrating National Guard soldiers will require proper planning. Mobilizations should be developed alongside other planning efforts, not after the fact. National Guard personnel will require training, supplemental protective equipment, and oversight by experienced election officials. With election officials across the country in the midst of planning<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/03/27/the-cybersecurity-202-nationwide-voting-by-mail-will-be-a-massive-undertaking-say-those-who-ve-done-it/5e7ced39602ff10d49ad5a3b/> for the November elections, the time to begin planning for National Guard assistance is now.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110766&title=%E2%80%9CTo%20save%20the%20election%2C%20call%20in%20the%20National%20Guard%3A%20How%20to%20safeguard%20the%20November%20vote%20despite%20coronavirus%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


Lawsuit Filed Against Use of New Voting Machines in North Carolina<https://electionlawblog.org/?p=110763>
Posted on April 15, 2020 1:58 pm<https://electionlawblog.org/?p=110763> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://freespeechforpeople.org/insecure-unreliable-unverifiable-and-unsafe-voting-rights-advocates-challenge-legality-of-new-voting-system-in-north-carolina/>:

Today, voting rights advocates filed a lawsuit in Wake County Superior Court challenging the new electronic voting system that Mecklenburg County and several other North Carolina counties rushed to implement for the 2020 elections.  The suit alleges<https://freespeechforpeople.org/wp-content/uploads/2020/04/NC-voting-machine-complaint-FINAL.pdf> the new system is vulnerable to security threats and its results are unverifiable, in violation of the North Carolina Constitution’s guarantees of free and fair elections and equal protection of the law.  The North Carolina State Conference of the NAACP and several North Carolina voters are bringing the lawsuit.  They are represented by the Lawyers’ Committee for Civil Rights Under Law, Free Speech For People, and the law firm of Sheppard, Mullin, Richter & Hampton LLP.

The suit also alleges that using this new system, the ExpressVote, is particularly perilous during the COVID-19 pandemic.  The COVID-19 disease can be spread through contact with the touchscreen computer or other parts of the ExpressVote.  Election Systems & Software, the company which manufactures and markets the Express Vote machines, claims there are remedial steps which election officials can take to mitigate this threat.  However, remedial steps, such as cleaning the machines after each contact by a voter, are time-consuming, difficult, and costly, and they can lead to long lines at polling places.  Such cleaning can also damage the ExpressVote machines and is ineffective in eliminating the coronavirus if improperly done.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110763&title=Lawsuit%20Filed%20Against%20Use%20of%20%20New%20Voting%20Machines%20in%20North%20Carolina>
Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


“Instead of Challenging Joe Biden, Maybe the Green Party Could Help Change Out Democracy”<https://electionlawblog.org/?p=110761>
Posted on April 15, 2020 1:52 pm<https://electionlawblog.org/?p=110761> by Rick Hasen<https://electionlawblog.org/?author=3>

Bill McKibben advocates<https://www.newyorker.com/news/daily-comment/instead-of-challenging-joe-biden-maybe-the-green-party-could-help-change-our-democracy> ranked choice voting for President.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110761&title=%E2%80%9CInstead%20of%20Challenging%20Joe%20Biden%2C%20Maybe%20the%20Green%20Party%20Could%20Help%20Change%20Out%20Democracy%E2%80%9D>
Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


--
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/>


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200416/604f784b/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200416/604f784b/attachment-0001.png>