[EL] ELB News and Commentary 4/21/20

[Rick Hasen]

“At least 7 new coronavirus cases appear to be related to Wisconsin’s election, Milwaukee health commissioner says”<https://electionlawblog.org/?p=110888>
Posted on April 21, 2020 8:22 am<https://electionlawblog.org/?p=110888> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/local/milwaukee/2020/04/20/coronavirus-milwaukee-7-new-cases-may-tied-april-7-election/5168669002/>

Officials have identified seven people who appear to have contracted COVID-19 through activities related to the April 7 election, Milwaukee Health Commissioner Jeanette Kowalik said Monday.

Six of the cases are in voters and one is a poll worker, Kowalik said.

By the end of this week, officials hope to have additional information on the cases that were reported between April 7 and Monday, she said.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Joe Biden Starts General Election Nearly $187 Million Behind Trump”<https://electionlawblog.org/?p=110886>
Posted on April 21, 2020 8:18 am<https://electionlawblog.org/?p=110886> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/21/us/politics/biden-2020-fundraising.html>:

Joseph R. Biden Jr.<https://www.nytimes.com/interactive/2020/us/elections/joe-biden.html> and the Democratic Party could raise almost $1 million every single day between now and November, and he would still barely catch up to what President Trump and the Republican Party had in the bank at the start of April — let alone what Mr. Trump will have by Election Day.

New fund-raising figures released late Monday show the depth of the financial hole in which Mr. Biden finds himself at the start of the general election campaign: The presumptive Democratic nominee and his party are nearly $187 million behind the Republican National Committee and Mr. Trump, who has spent the last three years stockpiling his huge war chest.

The sheer size of Mr. Trump’s early advantage creates a unique set of financial and political pressures for Mr. Biden. He must find ways to both expand his appeal to small online contributors and attract huge seven- and eight-figure checks to the outside super PACs supporting him — all while sheltered in his Delaware home because of the coronavirus.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


NYT Analysis: Mail Vote Favored Liberal Supreme Court Candidate in Wisconsin Election (No, This Doesn’t “Upend” Conventional Thinking About Partisanship and Mail-in Voting)<https://electionlawblog.org/?p=110884>
Posted on April 21, 2020 8:16 am<https://electionlawblog.org/?p=110884> by Rick Hasen<https://electionlawblog.org/?author=3>

The NY Times has posted this analysis<https://www.nytimes.com/2020/04/21/us/politics/wisconsin-mail-voting.html> of mail-in voting in the recent Wisconsin primary, showing that the liberal candidate for the state supreme court (favored by Democrats) did better than the conservative candidate (favored by Republicans). This is no surprise. As I wrote recently <https://www.nydailynews.com/opinion/ny-oped-how-to-vote-during-a-pandemic-20200420-spwxu5vkgngwfdwcvyw547zoy4-story.html> in the NY Daily News, the Republican legislature’s failure to move the primary date or ease vote by mail restrictions backfired on Republicans, by both firing up Democrats to vote and by deterring voting by reliable Republican voters. I would not draw a general conclusion, as this article does, that this single election under these conditions “upends” the conventional thinking that vote by mail does not favor one party over another.

From the NYT article:

Barry Burden, a professor of political science at the University of Wisconsin-Madison who is among the academics who have produced studies that found no partisan advantage to mail voting, said the Times analysis of the Wisconsin data did not align with any previous studies from states such as Colorado and Utah, which transitioned to fully vote-by-mail systems in recent years.

“I’m surprised by the results,” Mr. Burden said when told of the gap between in-person and mail results. “It is convincing and surprising that Karofsky appears to have done better among mail voters than in-person voters. That’s a change from past trends. It’s unclear if that’s going to be a permanent change or something very specific to this particular election.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“How hard will it be to vote during the coronavirus? It depends on where you live.”<https://electionlawblog.org/?p=110882>
Posted on April 21, 2020 8:06 am<https://electionlawblog.org/?p=110882> by Rick Hasen<https://electionlawblog.org/?author=3>

Philadelphia Inquirer<https://www.inquirer.com/news/voting-by-mail-pennsylvania-new-jersey-coronavirus-20200421.html> reports.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Two-thirds of voters back vote-by-mail in November 2020; In a new NBC News/Wall Street Journal poll, 58 percent want election rules changed permanently.”<https://electionlawblog.org/?p=110880>
Posted on April 21, 2020 8:02 am<https://electionlawblog.org/?p=110880> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/politics/meet-the-press/two-thirds-voters-back-vote-mail-november-2020-n1187976>

A majority of voters — 58 percent — favor nationwide reform of election rules that would allow all eligible voters to cast their ballots by mail, a new NBC News/Wall Street Journal poll <https://www.documentcloud.org/documents/6843613-200203-NBCWSJ-April-Poll-Publish.html> finds. And nearly 10 percent more say that, while the rules should not be permanently changed, all voters should be able to mail in their ballots this November because of concerns that the coronavirus may still be a major public health threat this fall….

But many Republicans, including President Donald Trump, say mail balloting could dramatically increase the likelihood of fraud. Trump said in a news conference this month that he opposes allowing nationwide voting by mail in November, saying he believes “a lot of people cheat<https://www.nbcnews.com/politics/donald-trump/trump-pushes-false-claims-about-mail-vote-fraud-here-are-n1180566>” with mail ballots.

The partisan differences were reflected in the poll’s results.

The 58 percent who support changing election laws to allow anyone to vote by mail in all elections going forward includes 82 percent of Democrats, 61 percent of independents and just 31 percent of Republicans.

And the combined 67 percent who support either permanent changes to the nation’s laws or a one-time exception for November includes 88 percent of Democrats, 69 percent of independents and just 44 percent of Republicans.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“The Simplest Way to Avoid a Wisconsin-Style Fiasco on Election Day; If voters don’t get absentee ballots on time, states can offer an easy-access write-in ballot—an option that already exists for Americans overseas.”<https://electionlawblog.org/?p=110878>
Posted on April 21, 2020 7:57 am<https://electionlawblog.org/?p=110878> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley and Steve Huefner for Politico:<https://www.politico.com/news/agenda/2020/04/21/simplest-way-avoid-wisconsin-fiasco-election-day-196625>

While states are required by federal law to accept FWABs from military and overseas voters, a version of the FWAB does not yet exist for domestic voters—essentially because the need for it previously has not been apparent. A bill recently proposed<https://www.klobuchar.senate.gov/public/_cache/files/0/0/00bfcd4c-8bff-4e40-8082-9c509e6bf168/C874798F600EED86B58DED75D3FE5875.naturaldisasterandeba.pdf> by Senators Amy Klobuchar and Ron Wyden includes a provision to extend the FWAB’s potential use to domestic voters, but the bill faces many hurdles to passage. Even if it goes nowhere, state legislatures or Congress could adopt a stand-alone measure calling for local election jurisdictions to accept either the existing FWAB or something similar.

For this idea to be acceptable on both sides of the aisle, it must be carefully circumscribed. First, it should be available only to those voters who do not receive regular ballots that were requested on time, not to any voter who belatedly wants to cast an absentee ballot. Second, to attract broader support, the measure could be limited to just the November 2020 election, even if in principle it might be applicable to future emergencies. Third, states could have flexibility in the exact design of their own emergency ballot—perhaps even giving voters the option to print out a duplicate of the regular ballot that they did not receive, or tailoring the FWAB to require whatever additional information the state deemed necessary to ensure the integrity of the voting process.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


Spencer Overton: “State Power to Regulate Social Media Companies to Prevent Voter Suppression”<https://electionlawblog.org/?p=110874>
Posted on April 20, 2020 8:27 pm<https://electionlawblog.org/?p=110874> by Rick Hasen<https://electionlawblog.org/?author=3>

Spencer Overton has written this article<https://lawreview.law.ucdavis.edu/issues/53/4/53-4_Overton.pdf> for the UC Davis Law Review. Here is the abstract:

Fake social media accounts and ads did not merely polarize the American electorate in 2016 — these tactics also targeted and suppressed Black votes. While African Americans made up just 12.7% of the United States population, Black audiences accounted for over 38% of U.S.-focused ads purchased by the Russian Internet Research Agency and almost half of the user clicks. The social media accounts generally built a following by posing as being African American-operated and by paying for ads that social media companies distributed largely to Black users. Near Election Day, the accounts urged African Americans to “boycott the election.” Federal policymakers have failed to respond immediately to enact strong and clear laws to prevent similar deceptive practices and voter-suppression schemes in the future, and thus States should take the initiative. State lawmakers should not be deterred by arguments that Section 230 of the federal Communications Act of 1934 “immunizes” social media companies from State liability. This Essay explains that Section 230 does not limit the power of States to hold social media companies legally responsible for using data collection and algorithms to target protected classes of voters with suppressive ads. By using such techniques, social media companies contribute materially to discrimination and are thus ineligible for Section 230 immunity.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>



“Bloomberg’s final bill: $1B for a 104-day campaign”<https://electionlawblog.org/?p=110872>
Posted on April 20, 2020 8:21 pm<https://electionlawblog.org/?p=110872> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/states/new-york/city-hall/story/2020/04/20/bloombergs-final-bill-1b-for-a-104-day-campaign-1278186>:

Mike Bloomberg ended his ill-fated presidential bid on March 4, but his campaign still shelled out nine figures last month anyway, taking his total spending over $1 billion in a losing run for the Democratic nomination.

The billionaire’s campaign spent $176 million in March, according to the campaign finance report<https://docquery.fec.gov/cgi-bin/forms/C00728154/1402692/> Bloomberg filed with the FEC on Monday. That pushed his spending north of $1 billion for a campaign that lasted a bit over four months.

It isn’t unusual for campaigns to spend some money after they end — but the staggering size of Bloomberg’s post-dropout spending illustrates the unusual scale of his campaign, which ultimately saw the media mogul win only one contest: American Samoa. He did net delegates on Super Tuesday as well, but he spent more than $17 million for each delegate acquired.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


New Federal Lawsuit Seeks 3-Week Delay in Georgia Primaries, and Other Measures to Protect Voters During Pandemic<https://electionlawblog.org/?p=110870>
Posted on April 20, 2020 6:01 pm<https://electionlawblog.org/?p=110870> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

Today, voting rights and election security advocates filed suit in U.S. District Court in Atlanta to seek essential changes in Georgia’s election processes during 2020 to protect voters’ constitutional rights to cast their votes safely during the ongoing pandemic. The suit alleges that Georgia’s upcoming 2020 elections are at risk because officials have neither adequately prepared nor put basic safety protections in place to conduct fair and orderly elections while communities are suffering from COVID-19.

Despite options for voting by mail, thousands of Georgia citizens will still need to cast their votes in person. Stating that the health and safety of voters and election workers must be the inarguable top priority, Coalition for Good Governance and five Georgia voter plaintiffs seek to postpone the June 9 statewide primary to June 30. This three-week delay is intended to permit county election officials time to replace thousands of poll workers who can no longer serve, and to allow the election to be conducted when infections are anticipated to be under more control and in a state of containment. The postponement attempts to give county election officials time to make changes to prioritize safety for polling place and election offices, supported by State resources, now unavailable to counties. The lawsuit does not seek to change the date of the August 11 primary runoff, as plaintiffs state that voters, including military and overseas voters, can receive and return their ballots in a timely fashion without delaying the runoff.

The lawsuit was filed within hours of Governor Kemp’s announcement that business restrictions are being relaxed, permitting crowds to gather in theaters, restaurants and other locations. The complaint notes that there were 44 COVID-19 related deaths in the 24 hours prior to the filing of the complaint and warns that “Since the State is relaxing these life-saving measures so early, it is even more important to postpone the upcoming election because it is much more likely that the pandemic will remain in full force longer than anticipated.”

The changes proposed by the plaintiffs include the use of hand marked paper ballots voted with disposable pens so that voters and poll workers can avoid the touch-intensive voting machines with touchscreens, shared smartcards and other equipment. The CDC has warned of the danger of spreading the virus through voters’ shared use of such equipment. The suit alleges that Georgia’s Secretary of State and State Election Board have not taken measures to reduce such unacceptable risks that result in voter disenfranchisement. An extensive list of safety-oriented requirements is requested as relief, including the use of drive-up or curbside voting as an option offered in every county.

You can find the complaint here<https://www.scribd.com/document/457438420/Ga-Covid-Complaint>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“COVID-19 Should Be a Legitimate ‘Excuse’ to Vote by Mail; In the 16 states that require an excuse to vote by mail, fear of the coronavirus should become an acceptable reason for receiving a mail ballot for the November election.”<https://electionlawblog.org/?p=110867>
Posted on April 20, 2020 4:52 pm<https://electionlawblog.org/?p=110867> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center<https://www.brennancenter.org/our-work/research-reports/covid-19-should-be-legitimate-excuse-vote-mail>:

The remaining 16 states allow voters to cast a mail ballot only if they meet certain criteria — typically, that the voters will be away from their home county on Election Day, that they are serving abroad in the military, or that they are ill, disabled, or hospitalized. In each of these states, however, Covid-19 should qualify as an excuse applicable to all voters. In every state, a voter’s illness or disability constitutes a valid reason for an absentee ballot. Whether or not voters have actually fallen ill from the coronavirus, the fact that most voters are likely either asymptomatic carriers, at risk for contracting the virus, or at risk for complications from the virus should be sufficient to meet the existing statutory requirements.

Indeed, some state statutes expressly allow for absentee ballots where there is a risk that voters will become ill. In Mississippi, for example, a voter may cast an absentee ballot if the voter’s “attendance at the voting place could reasonably cause danger to himself or others.” In Texas, a voter may obtain a mail ballot if the voter “has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . . . injuring the voter’s health.” In short, Covid-19 should serve as a valid “excuse” that entitles every voter to an absentee ballot under existing law, and authorities in every “excuse” state should make that clear now.

In a growing number of states, election officials and governors have already interpreted their absentee voting laws broadly to permit all voters to cast a ballot by mail in the primaries. These same interpretations should apply in November, assuming Covid-19 will still be around, as experts predict. Those states are…
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Important New Report as Mail-In Voting Ramps Up for November: “Signature Verification and Mail Ballots: Guaranteeing Access While Preserving Integrity”<https://electionlawblog.org/?p=110865>
Posted on April 20, 2020 1:49 pm<https://electionlawblog.org/?p=110865> by Rick Hasen<https://electionlawblog.org/?author=3>

Great report<https://www-cdn.law.stanford.edu/wp-content/uploads/2020/04/FINAL-Signature-Verification-Report-4-15-20.pdf> out of the Stanford Law School Law and Policy Lab, which looks in depth at how California counties handle signature verification on absentee ballot envelopes and how they notify voters about rejected ballots.

This kind of detail really matters to minimize potential disenfranchisement for voters voting by mail.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


National Constitution Center Virtual Event April 23 with Ned Foley, Jeff Rosen and Me: “How to Fix Presidential Elections in 2020 and Beyond”<https://electionlawblog.org/?p=110863>
Posted on April 20, 2020 11:03 am<https://electionlawblog.org/?p=110863> by Rick Hasen<https://electionlawblog.org/?author=3>

The in-person version of this event in Philadelphia got cancelled, but looking forward to doing this program<https://constitutioncenter.org/calendar/how-to-fix-presidential-elections-in-2020-and-beyond> virtually on April 23, at 7 PM ET (CLE credit available):

As the 2020 presidential campaign begins, join two of America’s leading election law experts, Richard Hasen<https://www.law.uci.edu/faculty/full-time/hasen/> and Edward Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/>, for a discussion on how to fix presidential elections, in 2020 and beyond. Building on Foley’s Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College<https://global.oup.com/academic/product/presidential-elections-and-majority-rule-9780190060152?cc=us&lang=en&> and Hasen’s Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://yalebooks.yale.edu/book/9780300248197/election-meltdown>, the two authors explore the history of the presidential election system, current challenges, and proposed remedies. Jeffrey Rosen<https://constitutioncenter.org/about/president-and-ceo>, president and CEO of the National Constitution Center, moderates the discussion.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Drive-thrus and free pencils: Texas plans for July elections with in-person voting”<https://electionlawblog.org/?p=110861>
Posted on April 20, 2020 10:53 am<https://electionlawblog.org/?p=110861> by Rick Hasen<https://electionlawblog.org/?author=3>

Alexa Ura<https://www.texastribune.org/2020/04/20/despite-coronavirus-texas-plans-july-elections-person-voting/> for the Texas Tribune.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“New Voting Rights Battles Erupting In Key Swing States”<https://electionlawblog.org/?p=110859>
Posted on April 20, 2020 10:51 am<https://electionlawblog.org/?p=110859> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld<https://www.nationalmemo.com/new-voting-rights-battles-erupting-in-key-swing-states> for National Memo.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Wisconsin’s Decision to Have an Election This Month Was Unjust, But Was it Also Unconstitutional? Why the Plaintiffs (Rightly) Lost in the Supreme Court”<https://electionlawblog.org/?p=110857>
Posted on April 20, 2020 10:47 am<https://electionlawblog.org/?p=110857> by Richard Pildes<https://electionlawblog.org/?author=7>

At Verdict, Dean Vik Amar and Professor Jason Mazzone have a piece<https://verdict.justia.com/2020/04/20/wisconsins-decision-to-have-an-election-this-month-was-unjust-but-was-it-also-unconstitutional> which focuses not on what the right federal-court remedy in the Wisconsin litigation was, but whether there was any substantive federal constitutional violation in the first place. This issue has implications for a lot of the expected federal-court litigation that will take place surrounding this year’s election. Here is an excerpt:

[We want ] to examine a much more fundamental question: was there, to use the language we do above, “a strong and imminent likelihood of a federal violation (constitutional or statutory)” for the district judge in Wisconsin to provide any remedy concerning absentee voters? If the answer to that question is “no,” then the Supreme Court’s ruling was correct. . . .

It is remarkable how little attention the district court devoted to the merits of the claim concerning the asserted difficulties of the absentee voters. The court spent only a little more (or less, depending on how you count) than one page of its opinion explaining why the plaintiffs were likely to succeed in their constitutional challenge in this respect. The district court’s legal discussion consisted basically of its citation to two Supreme Court cases laying out a general test of burden-on-voter vs. justification-by-state, and then one district court case (which is obviously not binding) from another state affording relief in arguably similar circumstances. However, the two cases from the Supreme Court involved not election administration but ballot access by candidates, and so are not particularly relevant to evaluating the challenge brought against the Wisconsin election rules. Indeed, more generally, the cases in which the Court has over the decades rigorously demanded substantial state justifications and careful tailoring in the voting arena involve primarily (perhaps almost exclusively) rules that: (1) concern requirements for voter or candidate eligibility; (2) weigh ballots that are cast unequally; (3) reflect intentional or practical discrimination on account of race; or (4) implicate congressional statutes prescribing particular requirements for elections of federal officials.

The Wisconsin dispute involved none of these issues but instead centered on the mechanics of how a state administers its elections on the ground. . . .

The U.S. Supreme Court case in recent times that focuses most squarely on the logistics and administration of state elections is Crawford v. Marion County Election Board<https://supreme.justia.com/cases/federal/us/553/181/>. That case involved an unsuccessful challenge in 2008 to Indiana’s requirement that voters demonstrate their identity to vote. In rejecting the challengers’ claims, six justices (including Justice Stevens) agreed that, at the very least, “even-handed restrictions” promoting the “integrity and reliability of the electoral process itself” satisfy constitutional standards.

Wisconsin’s own requirement that ballots be received (and its corollary implicit requirement that they be cast) by Election Day is certainly “even-handed.” And no one could easily deny that the goals of securing election results as soon as possible and avoiding unnecessary risk that some people might vote after knowing provisional election results go to the “integrity and reliability of the electoral process itself.”

The district court spent no time analyzing Marion County, or indeed even trying to figure out which category of voting cases from within the Supreme Court’s voting rights jurisprudence was the most appropriate from which to draw guidance. Instead the court simply laid out an unguided balancing test from cases involving voter qualifications and ballot access and determined that Wisconsin could ignore its state-law requirements without losing too much. To repeat the court’s language: “The state’s general interest in the absentee receipt deadline is not so compelling as to overcome the burden faced by voters who, through no fault of their own, will be disenfranchised by the enforcement of the law.”

The district court also failed to analyze carefully what its reasoning would mean for state election law generally. For example, what if a state simply chose not to provide for absentee ballots? As far as we know, the Supreme Court has never suggested that voters must have the option of casting their ballots by mail. If the Constitution imposed such a requirement then wouldn’t the procedures of “caucus” states, where people must attend and participate in person to have their input counted, be problematic? And putting aside the caucus device, if a state decided not to permit absentee (or any other mail-in) ballots (except perhaps as required by federal statute) and instead required in-person voting for all, wouldn’t enforcement of its law also “disenfranchise” many people who for whatever reason can’t vote in person?
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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