[EL] ELB News and Commentary 4/23/20

Thu Apr 23 08:53:28 PDT 2020

“How Will Chief Justice And Supreme Court Conservative Majority Affect 2020 Election?”<https://electionlawblog.org/?p=110948>
Posted on April 23, 2020 8:50 am<https://electionlawblog.org/?p=110948> by Rick Hasen<https://electionlawblog.org/?author=3>

Nina Totenberg<https://www.npr.org/2020/04/23/840954326/how-will-chief-justice-and-supreme-court-conservative-majority-affect-2020-elect> for NPR’s Morning Edition:

So, it was no surprise when the conservative majority refused to make even a modest accommodation to the pandemic. What was surprising was the tone of the opinion. Critics of the opinion, including some Roberts defenders, called the language “callous,” “cynical,” and “unfortunate.”

In fact, the word “pandemic” appears not once in the court’s unsigned opinion. Rather, the majority sought to portray the issue before the court as a “narrow, technical question.” The majority said the lower court had overstepped the Supreme Court’s established rule that courts should “ordinarilynot alter the election rules on the eve of an election.”

The dissenters replied that the court’s treatment of the current situation as ordinary “boggles the mind.” Writing for the dissenters, Justice Ruth Bader Ginsburg opined that “a voter cannot deliver…a ballot she has not yet received. Yet tens of thousands of voters who timely requested absentee ballots” are being asked to do just that.

“I do think there’s something to this idea that we need to stick with the rules even in the context of an emergency,” says law professor Rick Hasen, an election expert at the University of California, Irvine.

He and others see the legal question before the court as a close call, but say the decision was, at the very least, tone deaf in light of the reality of a pandemic.

Hasen says that the court could have recognized “the inhumanity of making people vote in this way,” but that instead the tone of the opinion was “really dismissive of the entire threat facing these voters.”
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

Reminder: Later Today Ned Foley and I Will Talk with Jeffrey Rosen About Our Recent Election Books for National Constitution Center (Registration Required)<https://electionlawblog.org/?p=110946>
Posted on April 23, 2020 8:47 am<https://electionlawblog.org/?p=110946> by Rick Hasen<https://electionlawblog.org/?author=3>

Details:<https://twitter.com/ConstitutionCtr/status/1252308355051188224>
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National Constitution Center<https://twitter.com/ConstitutionCtr>
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<https://twitter.com/ConstitutionCtr/status/1252308355051188224>

Are America’s presidential elections in need of reform?

On April 23, @rickhasen<https://twitter.com/rickhasen> and @Nedfoley<https://twitter.com/Nedfoley> join a virtual #AmericasTownHall<https://twitter.com/hashtag/AmericasTownHall?src=hash> to discuss their new books, the history of our election system, and #Election2020<https://twitter.com/hashtag/Election2020?src=hash>.
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Virtual Program: Register Today!<https://t.co/ez99jEBlXg>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

April 30 Event: “When Women Vote”<https://electionlawblog.org/?p=110944>
Posted on April 23, 2020 8:44 am<https://electionlawblog.org/?p=110944> by Rick Hasen<https://electionlawblog.org/?author=3>

Bipartisan Policy Center:<https://bipartisanpolicy.org/event/when-women-vote/>

American voters, particularly women, face challenges when trying to vote. In the 100 years since the ratification of the 19th Amendment, reforms prohibiting restrictions on voting based on sex have led to improvements, but there is still room for continued progress.

On April 30, the Bipartisan Policy Center’s Elections Project will host a discussion with the authors of When Women Vote, who make the case for further voting reform and for removing bias in the voting process by sharing stories and experiences of women voters and leaders throughout the United States. They will be joined by secretaries of state, who are the chief election officials at the state level.

________________________________

Featured Participants:

Opening remarks by:

Matthew Weil
Director of the Elections Project, BPC

Panel discussion with:

Jocelyn Benson
Michigan Secretary of State

Stephanie Donner
Co-Author, When Women Vote

Amber McReynolds
CEO, National Vote at Home Institute and Coalition; Co-Author, When Women Vote

Kim Wyman
Washington Secretary of State

Moderated by:

Aimee Allison
Founder, She the People
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“‘We can’t afford to wait’: coronavirus could shut out droves of new US voters; Covid-19 is severely curbing voter registration across the US – which could have huge consequences in November”<https://electionlawblog.org/?p=110942>
Posted on April 23, 2020 8:26 am<https://electionlawblog.org/?p=110942> by Rick Hasen<https://electionlawblog.org/?author=3>

Sam Levine<https://www.theguardian.com/us-news/2020/apr/23/coronavirus-fight-to-vote-us-voters> for The Guardian.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Want to Find a Misinformed Public? Facebook’s Already Done It; While vowing to police COVID-19 misinformation on its platform, Facebook let advertisers target users interested in ‘pseudoscience'”<https://electionlawblog.org/?p=110940>
Posted on April 23, 2020 8:19 am<https://electionlawblog.org/?p=110940> by Rick Hasen<https://electionlawblog.org/?author=3>

The Markup<https://themarkup.org/coronavirus/2020/04/23/want-to-find-a-misinformed-public-facebooks-already-done-it>:

Last week, Facebook CEO Mark Zuckerberg wrote a post pledging to combat misinformation<https://www.facebook.com/zuck/posts/10111806366438811> about COVID-19 circulating on Facebook.

“We’ve taken down hundreds of thousands of pieces of misinformation related to COVID-19, including theories like drinking bleach cures the virus or that physical distancing is ineffective at preventing the disease from spreading,” Zuckerberg wrote.

But at the very same time, The Markup found, Facebook was allowing advertisers to profit from ads targeting people that the company believes are interested in “pseudoscience.” According to Facebook’s ad portal, the pseudoscience interest category contained more than 78 million people.

This week, The Markup paid to advertise a post targeting people interested in pseudoscience, and the ad was approved by Facebook.

Using the same tool, The Markup boosted a post targeting people interested in pseudoscience on Instagram, the Facebook-owned platform that is incredibly popular<https://www.pewresearch.org/fact-tank/2019/04/10/share-of-u-s-adults-using-social-media-including-facebook-is-mostly-unchanged-since-2018/> with Americans under 30. The ad was approved in minutes.

We reached out to Facebook asking about the targeting category on Monday morning. After asking for multiple extensions to formulate a response, company spokesperson Devon Kearns emailed The Markup on Wednesday evening to say that Facebook had eliminated the pseudoscience interest category.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>

“Double-office seeker Dan Quart tries to get 22-year-old challenger thrown off Assembly ballot”<https://electionlawblog.org/?p=110938>
Posted on April 23, 2020 8:16 am<https://electionlawblog.org/?p=110938> by Rick Hasen<https://electionlawblog.org/?author=3>

NYDN<https://www.nydailynews.com/news/politics/ny-manhattan-da-race-dan-quart-cameron-koffman-20200422-34hg6o74yfcvdkr2sh5ghicdae-story.html>:

Already hedging his bets by running for two offices this year, Assemblyman Dan Quart is looking to boot one of his challengers from the Democratic primary ballot.

Quart — who’s seeking re-election to the Assembly at the same time he’s running for Manhattan DA<https://www.nydailynews.com/news/politics/ny-dan-quart-manhattan-district-attorney-race-20190910-qo7aty5ge5csdhg54khrnwhhwi-story.html> — says his Assembly challenger, 22-year-old Yale grad Cameron Koffman, hasn’t been a New York resident long enough to qualify for the job….

State law requires Assembly members to have lived in the state for at least five years. Quart claims Koffman doesn’t fit the bill because he registered to vote in Connecticut while he was studying at Yale.

Koffman has pushed back against Quart’s move in a Manhattan Federal Court lawsuit that insists that he remained a New York resident even while he was at Yale. “[T]o register to vote in Connecticut, Koffman was not required to swear or attest that Connecticut was his primary residence,” the suit says.

There is also a federal lawsuit about this case.
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Posted in campaigns<https://electionlawblog.org/?cat=59>

Texas Lawsuit Over Absentee Voting Raises 26th Amendment Claim<https://electionlawblog.org/?p=110936>
Posted on April 22, 2020 2:56 pm<https://electionlawblog.org/?p=110936> by Rick Hasen<https://electionlawblog.org/?author=3>

I had been wondering if any lawsuits that are challenging excuse-based absentee voting in the era of COVID have raised a 26th amendment age discrimination in voting claim. These excuse-based states generally allow anyone over 65 to get an absentee ballot without excuse.

I’ve now learned <https://twitter.com/jharrow216/status/1253078127439273984> that this Texas suit<https://y4lzd9vcrmqr.actbot.co/wp-content/uploads/2020/04/2020-04-07-TX-VBM-Complaint-FINAL.pdf> raises a 26th amendment claim in its 6th count, and more litigation may be coming raising this issue.

I ask because in our forthcoming piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501114> on the 19th Amendment, Leah Litman and I discuss a new round of litigation under the 26th amendment.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“LDF and ACLU File Federal Lawsuit Challenging South Carolina Requirements That Put Voters at Risk During COVID-19 Pandemic”<https://electionlawblog.org/?p=110934>
Posted on April 22, 2020 2:27 pm<https://electionlawblog.org/?p=110934> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.naacpldf.org/press-release/ldf-and-aclu-file-federal-lawsuit-challenging-south-carolina-requirements-that-put-voters-at-risk-during-covid-19-pandemic/>:

The American Civil Liberties Union, ACLU of South Carolina, and NAACP Legal Defense and Educational Fund filed a federal lawsuit<https://www.naacpldf.org/wp-content/uploads/SC-Complaint-4.22.2020.pdf> today over South Carolina’s failure to take action to ensure all eligible voters can vote by mail during the COVID-19 pandemic — even for its fast-approaching June 9 statewide primary elections.

The groups are challenging a state requirement that forces people who vote absentee to have a third-party witness signature on their ballot envelope, as well as an “excuse” requirement that fails to provide an accommodation to allow all eligible voters to vote absentee during the pandemic.

Even if voters are allowed to vote absentee “because of injury or illness” that keeps them at home, election officials have rejected the view that this currently “include[s] self-isolating due to a pandemic.”

Requiring voters to be physically present at their traditional polling places during the COVID-19 outbreak — where they will be congregating and waiting in line with others in order to vote — is contrary to the advice of public health experts. In addition, in the midst of a pandemic, the witness requirement also puts people’s health at risk.
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Posted in election administration<https://electionlawblog.org/?cat=18>

SCOTUSBlog Running Symposium on Faithless Electors Cases at Supreme Court<https://electionlawblog.org/?p=110932>
Posted on April 22, 2020 2:25 pm<https://electionlawblog.org/?p=110932> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find it here<https://www.scotusblog.com/category/special-features/symposia-before-oral-arguments-of-october-term-2019/symposium-before-oral-argument-in-chiafalo-v-washington-and-colorado-department-of-state-v-baca/> (Derek Muller and David Post have first two entries.)
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>

“Mail voting expected to ‘explode’ in Florida as coronavirus reshapes 2020 elections”<https://electionlawblog.org/?p=110930>
Posted on April 22, 2020 2:08 pm<https://electionlawblog.org/?p=110930> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/news/politics-government/article242180901.html>

In Florida, a state where the steady rise of mail voting has dramatically transformed<https://www.miamiherald.com/latest-news/article224873455.html> the campaign season over the last 20 years, the novel coronavirus could fast-forward the evolution of elections.

Elections offices in Miami-Dade, Broward and Palm Beach counties — home to more than a quarter of Florida’s 13.2 million voters — are preparing to send vote-by-mail registration forms to every voter in those counties amid worries that the virus will disrupt in-person voting this summer and fall.

Elections supervisors and political organizations around the state asked Republican Gov. Ron DeSantis weeks ago to provide flexibility under state law to help them administer the upcoming elections. They’re still waiting for an answer, and in the meantime are widely encouraging voting at home<https://www.miamiherald.com/news/politics-government/article241467166.html> — even as President Donald Trump, a Florida resident, has called for restrictions….

Pushed by political parties and candidates, mail ballots have slowly grown in popularity in Florida since state lawmakers made them universally available in 2002. In recent elections, about one-third of the vote has come from mail ballots and another third from in-person early voting sites, with the remaining third cast on Election Day. That’s turned what was once a single day of voting into a month-long marathon, forcing campaigns to alter strategies and spend money and resources on courting mail voters.

In the March 17 presidential preference primary — when voters arrived at polling places wearing masks and gloves to help ward off the spread of the virus — mail voting spiked<https://www.miamiherald.com/news/politics-government/article241276281.html>. Fullyhalf the votes cast in that election were by mail ballot.

With the virus not under control and predictions about when it will be suppressed still uncertain, election supervisors are now bracing for similar mail voting percentages in August, November and beyond.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Analysis: Supreme Court’s first opinion related to COVID-19 was anonymous. Here’s why that matters”<https://electionlawblog.org/?p=110928>
Posted on April 22, 2020 2:00 pm<https://electionlawblog.org/?p=110928> by Rick Hasen<https://electionlawblog.org/?author=3>

Marcia Coyle<https://www.pbs.org/newshour/nation/analysis-supreme-courts-first-opinion-related-to-covid-19-was-anonymous-heres-why-that-matters> for PBS.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“How the coronavirus could delay presidential election results by a week or more”<https://electionlawblog.org/?p=110926>
Posted on April 22, 2020 10:45 am<https://electionlawblog.org/?p=110926> by Rick Hasen<https://electionlawblog.org/?author=3>

Yahoo News reports.<https://news.yahoo.com/how-the-coronavirus-could-delay-presidential-election-results-by-a-week-or-more-183742810.html?soc_src=hl-viewer&soc_trk=tw>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Milwaukee Common Council votes to mail absentee ballot applications to city’s registered voters”<https://electionlawblog.org/?p=110924>
Posted on April 22, 2020 10:08 am<https://electionlawblog.org/?p=110924> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/04/21/milwaukee-council-votes-mail-absentee-ballot-applications/2995101001/>

The Milwaukee Common Council voted unanimously Tuesday to create a program under which all of the city’s approximately 300,000 registered voters would receive an application for an absentee ballot in the mail.

The “SafeVote” program<https://www.jsonline.com/story/news/politics/2020/04/15/milwaukee-could-mail-absentee-ballot-forms-all-registered-voters/5138190002/> also provides voters with a postage-paid return envelope so they can participate in the fall election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Two weeks after election, COVID-19 cases have not spiked in Wisconsin but experts urge caution about conclusions”<https://electionlawblog.org/?p=110922>
Posted on April 22, 2020 10:03 am<https://electionlawblog.org/?p=110922> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel reports.<https://www.jsonline.com/story/news/2020/04/22/covid-19-hasnt-spiked-after-wisconsin-election-experts-urge-caution/2997394001/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“What’s behind the fight over Wisconsin’s primary? The Supreme Court’s gerrymandering ruling.”<https://electionlawblog.org/?p=110920>
Posted on April 22, 2020 8:45 am<https://electionlawblog.org/?p=110920> by Rick Hasen<https://electionlawblog.org/?author=3>

Guy Charles and Luis Fuentes-Rohwer in The Monkey Cage:<https://www.washingtonpost.com/politics/2020/04/21/republicans-democrats-fought-over-holding-wisconsins-election-thats-because-supreme-court-wont-rule-against-partisan-gerrymandering/>

On April 7, thousands of Wisconsin citizens braved a global pandemic to show up at the polls to vote. Some commentators<https://www.washingtonpost.com/opinions/2020/04/11/dont-like-wisconsin-election-mess-dont-blame-courts/?tid=lk_inline_manual_2&itid=lk_inline_manual_2> blamed Republicans in the legislature for forcing voters to choose between their health and the health of their democracy. Others<https://www.theatlantic.com/ideas/archive/2020/04/supreme-courts-hypocrisy-going-get-americans-killed/609598/> blamed the Supreme Court for reinforcing this choice, because in Republican National Committee v. Democratic National Committee<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf>, the court’s conservative majority reversed an order<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/04/2020-04-02-Order-on-Motion-for-Preliminary-Injunction.pdf> by federal Judge William Conley that would have made it easier for Wisconsin voters to vote from home.

We agree that a Supreme Court decision led to this situation, but not the decision most are discussing. Our research suggests that the real culprit is the Supreme Court’s 2018 political gerrymandering decision in Rucho v. Common Cause<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf>. In that case, the court could have — yet failed to — curb the type of extreme partisanship that led to what happened in Wisconsin. Rucho specifically addressed partisan gerrymandering cases out of North Carolina and Maryland. But in a case decided the year before, the court overturned<https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf> on technical grounds a federal-district court’s decision<https://harvardlawreview.org/2017/05/whitford-v-gill/> that struck down Wisconsin’s state legislative redistricting plan, which had been enacted by the Republican-controlled state legislature.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“Colorado State Trial Court Puts Democratic Candidate on Primary Ballot Due to Health Crisis, Despite Incomplete Petition”<https://electionlawblog.org/?p=110918>
Posted on April 22, 2020 8:37 am<https://electionlawblog.org/?p=110918> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN:<http://ballot-access.org/2020/04/22/colorado-state-trial-court-puts-democratic-candidate-on-primary-ballot-due-to-health-crisis-despite-incomplete-petition/>

On April 21, a Colorado state trial court put Michelle Ferrigno Warren on the June 30 Democratic primary ballot for U.S. Senate, even though she needed 10,500 valid signatures and she only had 5,383 valid signatures….

Here is the 28-page decision<http://ballot-access.org/wp-content/uploads/2020/04/ORDER-REGARDING-PETITION-FOR-DECLARATORY-RELIEF.pdf> in Warren v Griswold, 20cv-31077.  It says, “The Court is mindful that it is reading and interpreting the Election Code and Colorado Supreme Court precedent in a nearly empty courthouse while a global pandemic is unfolding outside its windows…strict adherence to the signature requirement for primary petitions must yield to this unprecedented public health emergency.

Also, “signature collection is a ‘very personal activity’ …In the best of times, engaging strangers in public, holding their attention, and acquiring their signatures on a petition is challenging.”
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Posted in ballot access<https://electionlawblog.org/?cat=46>

“Vote-By-Mail, Critical In Pandemic, Poses Risks For Voters Of Color”<https://electionlawblog.org/?p=110916>
Posted on April 22, 2020 8:35 am<https://electionlawblog.org/?p=110916> by Rick Hasen<https://electionlawblog.org/?author=3>

Tierney Sneed<https://talkingpointsmemo.com/news/vote-by-mail-covid-19-minority-voters-obstacles> for TPM:

The pandemic stands to bring a major surge of mail-in and absentee voting, both in the remaining spring and summer elections, and in the general election this fall.

But the system — critical for keeping voters safe and slowing the spread of the coronavirus — is not without its shortcomings, and those shortcomings can disproportionately affect minority voters.

As election officials scramble to expand their absentee programs, voter advocates are pressing them to preserve adequate in-person voting options, pointing specifically to the obstacles faced by voters of color. They are also noting the ways that vote-by-mail systems — particularly, if implemented sloppily — tend to disenfranchise minority voters at a higher rate than white ones.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“The anti-quarantine protests seem spontaneous. But behind the scenes, a powerful network is helping.”<https://electionlawblog.org/?p=110914>
Posted on April 22, 2020 8:31 am<https://electionlawblog.org/?p=110914> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/inside-the-conservative-networks-backing-anti-quarantine-protests/2020/04/22/da75c81e-83fe-11ea-a3eb-e9fc93160703_story.html>:

The ads on Facebook sounded populist and passionate: “The people are rising up against these insane shutdowns,” they said. “We’re fighting back to demand that our elected officials reopen America.”

But the posts, funded by an initiative called “Convention of States,” were not the product of a grass-roots uprising alone. Instead, they represented one salvo in a wide-ranging and well-financed conservative campaign to undermine restrictions that medical experts say are necessary to contain the coronavirus<https://www.washingtonpost.com/world/2020/04/21/coronavirus-latest-news/?hpid=hp_hp-banner-main_virus-ticker-1240am%3Aprime-time%2Fpromo&itid=hp_hp-banner-main_virus-ticker-1240am%3Aprime-time%2Fpromo&tid=lk_inline_manual_2&itid=lk_inline_manual_2> — but that protesters call overkill and whose economic fallout could damage President Trump’s political prospects.

A network of right-leaning individuals and groups, aided by nimble online outfits, has helped incubate the fervor erupting in state capitals across the country. The activism is often organic and the frustration deeply felt, but it is also being amplified, and in some cases coordinated, by longtime conservative activists, whose robust operations were initially set up with help from Republican megadonors.

The Convention of States project launched in 2015 with a high-dollar donation from the family foundation of Robert Mercer, a billionaire hedge fund manager and Republican patron. It boasts past support from two members of the Trump administration — Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services, and Ben Carson, secretary of housing and urban development.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>

--
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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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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