[EL] ELB News and Commentary 4/27/20

[Rick Hasen]

Important Virtual Conference at Ohio State: “What If the 2020 Presidential Election is Disputed?: An Expert Roundtable Discussion May 4, 2020 | 11:00 am – 4:30 pm”<https://electionlawblog.org/?p=111013>
Posted on April 27, 2020 8:01 am<https://electionlawblog.org/?p=111013> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://moritzlaw.osu.edu/election-law/event/expert-roundtable-2020-disputed-election/> is a very important conversation coming next week:

REGISTER NOW<https://osu.zoom.us/webinar/register/WN_7zIi69ciQvidFxvVuRE8Rg>

Pull up a (virtual) seat as a panel of nationally recognized legal scholars, political scientists, and experts in election administration, Electoral College procedures, and presidential succession grapples with the legal issues that could arise in a series of hypothetical scenarios involving the 2020 presidential election.

The conversations will be divided into three distinct time frames from Election Day to Inauguration Day when complex legal issues could test our electoral process in new and serious ways.

This event is not merely an academic exercise, but an effort to identify the potential legal risks looming over the election and spark a national discussion about how we can put our country in a better position to handle similar scenarios should they arise.

(This is one webinar which you will be able to join and re-join throughout the day.)

Session One
11:00 AM – 12:30 PM (EDT)
From Election Day (Nov 3) to Meeting of Electors (Dec 14)
Click to review each hypothetical scenario that will serve as the basis for the discussion:
1.1 Philadelphians experienced delays receiving absentee ballots<https://spark.adobe.com/page/d3gUQHBysRwHP/>
1.2 Michigan’s election night results flip after “late counted” ballots<https://spark.adobe.com/page/bykGHbOQCmXDu/>
1.3 Florida hurricane prevented voting on Election Day<https://spark.adobe.com/page/I0XN1MEQd0cYr/>

Session Two
1:00 PM – 2:30 PM (EDT)
From Meeting of Electors (Dec 14) to Joint Session of Congress (Jan 6)
Click to review each hypothetical scenario that happens in the aftermath of those in Session One:
2.1 Pennsylvania sends two conflicting sets of electoral votes to Congress<https://spark.adobe.com/page/9ljIZ8v7fHtiU/>
2.2 Michigan also sends two conflicting sets, but raising different issues<https://spark.adobe.com/page/pzaxVDxzRxNWy/>
2.3 Florida legislature appoints its electors after no election is held<https://spark.adobe.com/page/bJohaera7mG8Z/>

Session Three
3:00 PM – 4:30 PM (EDT)
From Joint Session of Congress (Jan 6) to Inauguration Day (Jan 20)
Click to review the hypothetical scenarios for Session Three:
3.1 House and Senate are divided on which sets of electoral votes to accept from Pennsylvania and Michigan<https://spark.adobe.com/page/9ppkEuuNq8fua/>
3.2 Congress decides to invalidate Florida’s electoral votes; what happens to the Electoral College math?<https://spark.adobe.com/page/jPauwPlfE71bD/>
3.3 Can Mike Pence preside over the Joint Session of Congress in an Electoral College dispute?<https://spark.adobe.com/page/n280TPD0rWYRQ/>
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Posted in electoral college<https://electionlawblog.org/?cat=44>


You Can Listen in Live to the Trial Over Constitutional Challenge to Florida Legislature’s Attempt to Make It Harder for Ex-Felons to Regain Their Voting Rights Despite Voter-Approved Amendment 4<https://electionlawblog.org/?p=111011>
Posted on April 27, 2020 7:56 am<https://electionlawblog.org/?p=111011> by Rick Hasen<https://electionlawblog.org/?author=3>

Details<https://twitter.com/JulesTwitted/status/1254547167475359754>.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


Without Noted Dissent, Supreme Court Denies Cert. in 5th Circuit One-Person, One Vote Case Involving Special Purpose Districts<https://electionlawblog.org/?p=111009>
Posted on April 27, 2020 7:54 am<https://electionlawblog.org/?p=111009> by Rick Hasen<https://electionlawblog.org/?author=3>

Cert denied<https://www.supremecourt.gov/orders/courtorders/042720zor_6k47.pdf> in LULAC v. Edwards Aquifer Authority. Here <https://electionlawblog.org/?p=107118> is my earlier coverage.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Coronavirus-Spurred Changes to Ohio’s Primary Raise Concerns About November”<https://electionlawblog.org/?p=111007>
Posted on April 27, 2020 7:39 am<https://electionlawblog.org/?p=111007> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters<https://www.nytimes.com/reuters/2020/04/27/us/politics/27reuters-health-coronavirus-ohio-election-insight.html>:

Ohio will hold its primary election on Tuesday, a virtually all-mail contest that could serve as a test case for voting in the coronavirus era.

Citing public health concerns, the state’s legislature moved back the date of the primary, originally slated for March 17, to April 28 and sharply curtailed in-person voting.

It’s a glimpse of what the presidential contest might look like in November if COVID-19 remains a threat. But some voters, election officials and voting-rights watchdogs are already alarmed: Ohio’s system has been overwhelmed by the crush of requests for absentee ballots, a situation that could disenfranchise potentially tens of thousands of voters.

“I’ve been here 20 years and I’ve never seen anything like this,” said Brent Lawler, a manager at the board of elections in Cuyahoga County, home to Cleveland and more registered voters than any other Ohio county.

More than 1.9 million Ohio voters requested to vote absentee in Tuesday’s primary, a 421% increase from absentee turnout in the 2016 primary, according to state election data.

The state’s election offices were required by law to mail ballots to any voters whose applications they received by noon on Saturday, April 25. At least 25,000 absentee ballots were mailed out on Saturday, county election data show.

But many of those ballots likely won’t arrive in voters’ mailboxes in time, the U.S. Postal Service warned in an April 20 email sent to election officials in Ohio’s 88 counties that was reviewed by Reuters. Voters must return their absentee ballots with a postmark no later than today for them to be counted, according to election rules laid down by the legislature.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“AP-NORC poll: Rising support for mail voting amid pandemic”<https://electionlawblog.org/?p=111005>
Posted on April 27, 2020 7:32 am<https://electionlawblog.org/?p=111005> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/f47f4e984f7b3688869285abb80c1eae>:

Americans’ support for mail-in voting has jumped amid concerns about the safety of polling places during the coronavirus pandemic, but a wide partisan divide suggests President Donald Trump’s public campaign against vote by mail<https://apnews.com/e45b0fd875cd2bf8be2b92330f37300f> may be resonating with his Republican backers.

A new poll from The Associated Press-NORC Center for Public Affairs Research finds Democrats are now much more likely than Republicans to support their state conducting elections exclusively by mail, 47% to 29%….

The survey also found a partisan divide on support for no-excuse absentee voting, the system in place in most states, including almost all the top presidential battlegrounds, even as a majority of Americans say they favor that practice.

The piece has a great graphic with the survey responses.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“I’m the Judge Who Won in Wisconsin. This Principle Is More Important Than Winning.”<https://electionlawblog.org/?p=111003>
Posted on April 27, 2020 7:28 am<https://electionlawblog.org/?p=111003> by Rick Hasen<https://electionlawblog.org/?author=3>

Jill Karofsky NYT oped<https://www.nytimes.com/2020/04/27/opinion/wisconsin-election.html?action=click&module=Opinion&pgtype=Homepage>:

Now, over two weeks later, we have an uptick in Covid-19 cases, especially in dense urban centers like Milwaukee and Waukesha, where few polling places were open and citizens were forced to stand in long lines to cast a ballot. It will take time to compile and analyze the data, but the number of people who voted in person and have tested positive is growing<https://urbanmilwaukee.com/2020/04/24/at-least-40-covid-19-cases-tied-to-election-in-milwaukee/>.

It’s important to note three significant facts. First, both court decisions — from the U.S. and Wisconsin Supreme Courts — are seen as being along partisan lines, with allies of Republicans refusing to delay the election. Second, because of the pandemic, the justices of neither of those courts actually met in person when discussing and voting these cases — but they forced many people who wanted to vote, to vote in person. And third, every member of the Wisconsin Supreme Court had already voted early<https://www.jsonline.com/story/news/investigations/daniel-bice/2020/04/13/wisconsin-election-supreme-court-justices-all-voted-absentee/5134487002/>. They weren’t putting themselves at risk.

It’s my view that these decisions were wrong on the law, and they were wrong on process. We shouldn’t legislate from the bench. There was no time for full briefs or oral arguments and no time to fully examine the issues. The U.S. Supreme Court especially erred by writing into law a postmark requirement that they didn’t have the time to think through and that caused tremendous confusion in my state.

Most observers assume these last-minute decisions not only contributed to chaos, but also weren’t respectful of the law or a deliberate process. Even if one believed that the governor’s moves to postpone the election were wrong, it was incumbent on these courts to take the time to review the situation completely — instead of granting the governor only minutes to file a response to a lawsuit the day before an election.

I find it unconscionable that Wisconsin voters were forced to choose between their safety and having their voices heard in our democracy. The right to vote is fundamental to the American creed. Courts making partisan decisions, sending people out to vote in the middle of a global pandemic, is exactly what’s wrong with a judiciary that has become too political, and I think a deliberate attempt to suppress the vote in Wisconsin.
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Posted in judicial elections<https://electionlawblog.org/?cat=19>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Wisconsin Primary Shows Why States Must Prepare Their Elections for the Coronavirus”<https://electionlawblog.org/?p=111001>
Posted on April 27, 2020 7:22 am<https://electionlawblog.org/?p=111001> by Rick Hasen<https://electionlawblog.org/?author=3>

Danielle Root analysis for CAP<https://www.americanprogress.org/issues/democracy/news/2020/04/27/484013/wisconsin-primary-shows-states-must-prepare-elections-coronavirus/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Failing to Respect the Passive Virtues: A Critique of RNC v. DNC”<https://electionlawblog.org/?p=110999>
Posted on April 27, 2020 6:59 am<https://electionlawblog.org/?p=110999> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

The following is a guest post from Bill Whitford<https://law.wisc.edu/profiles/wcwhitfo>, professor emeritus at the University of Wisconsin Law School.

The United States Supreme Court did not need to reach a definitive decision in the recent lawsuit concerning the rules governing absentee ballots in Wisconsin’s April election. In acting precipitously the Court gave itself inadequate time to study a complicated record and to consider the views of many others on a novel question of election law. It reached a decision that creates a precedent questionable on its merits, with an opinion widely criticized as an inadequate justification. The Court as a practical matter will not likely be able to review and revise the precedent at a later time, and as a result courts will not have available a relatively modest tool for protecting citizens’ voting rights when jeopardized by unexpected circumstances such as the current pandemic.

In Republican National Committee v. Democratic National Committee the District Court, after two weeks of pleadings and hearings, entered its definitive order on Thursday, April 2nd. There was an immediate appeal and on Friday, April 3rd, the 7th Circuit, without oral argument, issued an unsigned opinion overturning important parts of the District Court’s order but sustaining its order postponing the deadline for the casting and receipt of absentee ballots until April 13th at 4 pm, which was six days after the day for in person voting (April 7th).1<https://electionlawblog.org/#_ftn1> The Republican National Committee applied the very next day (April 4th, a Saturday) to Justice Kavanaugh, the supervising Justice for the 7th Circuit, for a stay of that part of the District Court order, left untouched by the 7th Circuit, that allowed absentee ballots to be postmarked or delivered by hand after April 7th. The respondents filed a responsive pleading on Sunday, April 5th, which among things contested many factual statements made in the application for a stay respecting the District Court’s order and the record. Applicants filed a reply the same day and the Supreme Court’s order and decision came down on Monday afternoon, April 6th, the day before the election.

In these rushed circumstances the Court did not have much time for deliberation, let alone the benefit of oral argument. Though the Justices have many law clerks, they did not have time to resolve all of respondents’ claims about applicants’ misrepresentations of the District Court order and the record. One key mistaken factual assumption is detailed in a footnote.2<https://electionlawblog.org/#_ftn2> The Court also did not have the benefits of the views of the many organizations who commonly file amici briefs in important election law cases. Because the issue presented was a novel one, there had not been opportunity for other courts to grapple with the issue, and obviously the 7th Circuit had given it only cursory consideration.

The applicants had already had one bite at appellate review, in the Seventh Circuit, and they were even partially successful. A simple denial of the stay without opinion would have been consistent with what happens to most applications for a stay to the Supreme Court. And it is what I think should have happened here.

If, however, the Supreme Court believed it was important to preserve its ability to decide the issue if it proved consequential to the election result, it could have directed that the election clerks separate the ballots postmarked (or delivered by hand) after election day, perhaps even delaying counting them until it could be determined whether they could impact the election outcome. In the unlikely event that these ballots proved consequential to the result, the decision whether to count those ballots would then have been determined at a later time, when greater deliberation would have been possible. And in the more likely (and actual3<https://electionlawblog.org/#_ftn3>) event that the votes on the ballots cast post-election could not impact the result, then we would not have any Supreme Court precedent or opinion on this issue, let alone the unfortunate one that we must now live with.

My deepest concern about the opinion that was issued is that it has very likely foreclosed modest adjustments in election adjustments when future courts are faced with elections where circumstances like the pandemic are impacting the ability to vote. The petitioners sought a delay in the election, a remedy the District Court found too extreme, but it adopted a couple of much more modest adjustments in Wisconsin election procedures designed to make it easier for voters to cast absentee ballots (and hence avoid the health risks of voting in person). One, not discussed here, was thrown out by the 7th Circuit, unfortunately in my opinion, and the other was partly thrown out by the Supreme Court.

The Court was careful to state that it “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” But it is hard to imagine what other than deferral of an election the Court has in mind. It stated that votes cast after election day would “gravely impact the integrity of the election process”. It offered no explanation about what the “grave” injury would be, nor citation of any support.4<https://electionlawblog.org/#_ftn4> But going forward I think the Court’s opinion will be understood as foreclosing the route the Wisconsin District Court took, when unexpected events jeopardize the right to cast ballots in an election. In similar circumstances it simply will not be practical for a party to bring a case all the way to the Supreme Court to challenge the apparent holding in this case.5<https://electionlawblog.org/#_ftn5> I will close with a reflective observation. I am a retired law professor. My academic specialties did not include constitutional or election law, though I have always been interested. I attended law school in the early 1960s where my constitutional law professor was Alexander Bickel, then in the process of publishing his best known book, The Least Dangerous Branch. In the book Bickel prescribed, for the U.S. Supreme Court particularly, what he called the passive virtues. There were several, but by far the most important was the Court’s almost unique power to decide not to decide. To Bickel it was also very important that the Court act to preserve its reputation for making its decisions on the basis of principle. It does not enhance that reputation when the only five Justices appointed by Republican presidents take hasty, unnecessary, and not well defended, action at the behest of the Republican National Committee. I have no evidence, and do not mean to suggest, that the Justices were so motivated, but excuse me for noting that others have reached contrary conclusions, as was fully predictable.6<https://electionlawblog.org/#_ftn6> And it did not have to be that way.

________________________________

1<https://electionlawblog.org/#_ftnref1> The 7th Circuit’s decision can be found at https://www.wpr.org/sites/default/files/7th_circuit_20200403_order.pdf. Though the brief opinion does not expressly address that part of the District Court’s order postponing the deadline for the casting as well as the receipt of absentee ballots until April 13th, it is clear the 7th Circuit approved of that part of the order. The District Court order had set aside the state requirement of a witness to the signature on an absentee ballot when the voter lived alone and could not easily arrange for a signature during the “shelter in place” order. Part of the 7th Circuit’s rationale for overturning this part of the District Court’s order was that the extension in time for casting an absentee ballot would make it easier for voters living alone to somehow find the witness needed to qualify an absentee ballot.

2<https://electionlawblog.org/#_ftnref2> In its opinion the Court emphasized that by extending the time for receipt of absentee ballots until April 13th, an extension the Supreme Court did not alter, voters could postmark their absentee ballots as late as April 7th and still have them count. It then said “[t]hat extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.”  The statement entirely ignores voluminous evidence in the record, emphasized in the responsive filings by the petitioners in the Supreme Court, that many voters would not even receive their absentee ballots before April 7th, because election clerks had become overwhelmed by the many absentee ballot requests received, as well as other problems brought on by the pandemic, and because of Post Office slowdowns. We now know that those expectations were realized. Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows Milwaukee Journal Sentinal, April 21, 2020 (available at https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueled-multiple-failures/5156825002/).

There are other parts of the Supreme Court’s majority opinion that illustrate inadequate study and understanding of the pleadings and record, including its strange emphasis on Petitioners’ failure to specify a delay in the casting of absentee ballots in its original pleading. The specific request was later made, deemed appropriate because it fit under a request for other appropriate relief in a petition in which the primary request was for deferral of the entire election, and was explicitly addressed in the District Court opinion.

3<https://electionlawblog.org/#_ftnref3>As we now know, in the only statewide election, which was the only election that sparked the interest of the Republican or Democratic National Committees, there was a landslide decided by a margin of over 150,000 votes. By the time the Supreme Court acted, the deadline for applying for absentee ballots had already passed. The total number of unreturned absentee ballots in the election exceeded 200,000, but only a small portion of those would have been returned and counted if the District Court’s order had stood. And those that were would not all have been cast for the losing condidate. For data on absentee ballots in Wisconsin’s election, see https://elections.wi.gov/blog.

4<https://electionlawblog.org/#_ftnref4>The quoted statement was made after the Court cast doubt on the workability of the District Court’s order that election day results not be counted or reported until after the extended date it set (April 13th) for return of absentee ballots. This doubt reflected concerns expressed in the applicants motion for a stay, but they turned out to be totally misplaced. The morning of the 13th, before election clerks began counting and reporting results, what was known was that Milwaukee turnout was down, largely because of the limited number (5 in total) of in person voting locations, and Democrats were preparing possible lawsuits challenging the results of an election it turned out they won in a landslide.

5<https://electionlawblog.org/#_ftnref5> If an election is postponed in the future, it will raise very difficult questions about what to do with absentee ballots cast before postponement, since the rescheduled election would be several weeks later and earlier voters would not be able to weigh later occurring events in deciding for whom to vote.

6<https://electionlawblog.org/#_ftnref6> Interestingly, the unanimous 7th Circuit panel decision in this case was issued without identifying the judges who were assigned (presumably randomly) to the panel. Perhaps the reason was precisely to make it more difficult to assign political motives to the decision they reached. Presumably that would not have been an option for the 7th Circuit if their decision had not been unanimous.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The ‘voter fraud’ fraud”<https://electionlawblog.org/?p=110996>
Posted on April 26, 2020 7:55 pm<https://electionlawblog.org/?p=110996> by Rick Hasen<https://electionlawblog.org/?author=3>

Steve Mulroy oped:<https://thehill.com/opinion/civil-rights/494649-the-voter-fraud-fraud>

Probably not, according to the Heritage Foundation’s data. The think tank compiles a database<https://www.heritage.org/voterfraud> of reported instances of voter fraud or election fraud. It lists 1,277 “proven instances of voter fraud” in the 50 states over decades, dating back to 1979. The database caveats that it does not purport to be an “exhaustive or comprehensive list.” But given its repeatedly expressed concerns about voter fraud in general and mail ballot fraud in particular, it seems unlikely it would leave out many reported instances of that kind of fraud.

The database includes many categories of the types of voter fraud involved:  Registration fraud, voter impersonation fraud, illegal “assistance” at the polls, etc. But only some are relevant to the specific concerns about mailed ballots: “Fraudulent use of absentee ballots” and “vote buying.”

If widespread use of mail ballots truly did engender fraud, one would expect that the instance of such kinds of fraud would be lower in the 16 states that strictly regulated absentee balloting as opposed to the 28 states, which allowed anyone to vote absentee (“no excuse” absentee voting states) or the five states that automatically mailed ballots to all voters for them to mail back or drop off (“vote-by-mail” states).

Instead, the opposite is true. An examination of the Heritage Foundation database for the period 2000-2020 shows that reported instances of such fraud per capita are actually higher in “strict” states than either “no excuse” states or complete “vote by mail” states.

For these types of fraud, within the 29 “no-excuse” absentee states, there was one reported fraud case for every 2.4 million persons. This compared favorably to one such case for every 1.6 million persons in “vote by mail” states, and even more favorably than the strict states, with one fraud case for every 740,000 persons. Although mail ballot fraud was by no means frequent in any of the states, it was actually more common in the states that took the stricter, more Trump-favored approach.

It is true that pure vote-by-mail states had a slightly higher rate than no-excuse states, potentially aiding the argument that more mail ballots leads to more fraud. But the vote-by-mail rate was only 1.5 times that of the no-excuse rate, while the strict states’ rate was twice that of vote-by-mail, and over three times that of no-excuse states. This doesn’t seem consistent with the notion that liberalizing mail voting increases fraud.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump’s Enablers Add to His Lies About Vote-By-Mail”<https://electionlawblog.org/?p=110994>
Posted on April 26, 2020 7:51 pm<https://electionlawblog.org/?p=110994> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Monthly<https://washingtonmonthly.com/2020/04/24/trumps-enablers-add-to-his-lies-about-vote-by-mail/> reports.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“An election during a pandemic? There’s never been one like Tuesday’s Baltimore-area congressional contest”<https://electionlawblog.org/?p=110992>
Posted on April 26, 2020 7:49 pm<https://electionlawblog.org/?p=110992> by Rick Hasen<https://electionlawblog.org/?author=3>

Baltimore Sun<https://www.baltimoresun.com/politics/elections/bs-md-congressional-election-coronavirus-7th-district-20200426-kypbryrafngx3iwyfgntmteuwm-story.html>:

Maryland’s first election since the coronavirus pandemic will not only fill a vacant Baltimore-area congressional seat but test how well voters — and the state — navigate a balloting-by-mail system that had to be hurriedly devised because of the health crisis.

There has never been a Maryland election like Tuesday’s, in which voters will decide who will complete the remainder of the 7th Congressional District term of Democrat Elijah Cummings, who died in October.

The health crisis has shelved campaign rallies and handshaking, limited in-person voting to three sites, and left election officials to dramatically expand a vote-by-mail operation previously used only for people who requested absentee ballots.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Supreme Court Delivers a Blow to Secret Campaign Spending”<https://electionlawblog.org/?p=110990>
Posted on April 26, 2020 7:39 pm<https://electionlawblog.org/?p=110990> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs<https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-delivers-blow-secret-campaign-spending>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Census delay could put off new voting districts, primaries”<https://electionlawblog.org/?p=110988>
Posted on April 26, 2020 4:51 pm<https://electionlawblog.org/?p=110988> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.detroitnews.com/story/news/nation/2020/04/26/census-delay-could-put-off-new-voting-districts-primaries/3029581001/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Five states vote only by mail; should Ohio? Secretary of State says he will give Legislature contingency options”<https://electionlawblog.org/?p=110986>
Posted on April 26, 2020 4:49 pm<https://electionlawblog.org/?p=110986> by Rick Hasen<https://electionlawblog.org/?author=3>

Dayton Daily News reports<https://epaper.daytondailynews.com/popovers/dynamic_article_popover.aspx?guid=36126f90-b4bf-43f1-99cb-663b8adcabf8&pbid=66ab59ea-5cfc-438d-83e4-dc9e4a34f79d&utm_source=app.pagesuite&utm_medium=app-interaction&utm_campaign=pagesuite-epaper-html5_share-article>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“‘More time would have been helpful’: Ohio election officials face ballot issues due to postal service delays”<https://electionlawblog.org/?p=110984>
Posted on April 24, 2020 5:01 pm<https://electionlawblog.org/?p=110984> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News reports.<https://abcnews.go.com/Politics/time-helpful-ohio-election-officials-face-ballot-issues/story?id=70333752>
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Biden says Trump will try to delay the election. Experts say he can’t.”<https://electionlawblog.org/?p=110982>
Posted on April 24, 2020 4:53 pm<https://electionlawblog.org/?p=110982> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2020/04/24/can-president-trump-delay-election/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Attacks on the Post Office Threaten Democracy”<https://electionlawblog.org/?p=110980>
Posted on April 24, 2020 3:37 pm<https://electionlawblog.org/?p=110980> by Rick Hasen<https://electionlawblog.org/?author=3>

David Gans and Rebecca Damante<https://www.theusconstitution.org/blog/trumps-attacks-on-the-post-office-threaten-democracy/> at CAC.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Biden Steps Up Warnings of Possible Trump Disruption of Election”<https://electionlawblog.org/?p=110978>
Posted on April 24, 2020 2:55 pm<https://electionlawblog.org/?p=110978> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/04/24/us/politics/joseph-biden-trump-election.html>

For months, Joseph R. Biden Jr. has argued that under pressure and political duress, President Trump may pursue increasingly extreme measures to stay in power.

In November, Mr. Biden said he feared that “as the walls close in on him he becomes more erratic. And I’m genuinely concerned about what he may do in order to try to hold on to the office.”

In January, Mr. Biden fretted: “He still has another nine or 10 months. God knows what can happen.”

And on Thursday, he added some urgency to his warnings, suggesting that Mr. Trump might try to delay or otherwise disrupt the election.

“Mark my words, I think he is going to try to kick back the election somehow, come up with some rationale why it can’t be held,” Mr. Biden said at a fund-raiser, according to a news media pool report. Mr. Trump, he suggested, is “trying to let the word out that he’s going to do all he can to make it very hard for people to vote. That’s the only way he thinks he can possibly win.”

It was an extraordinary claim for the presumptive Democratic nominee to make about an opponent, especially for Mr. Biden, a former vice president and Washington veteran who prides himself on civility and respect for American institutions, including and especially the presidency.

But as early polls<https://www.nytimes.com/2020/04/24/us/politics/biden-trump-swing-state-polls.html> show that Mr. Trump is vulnerable in several key battleground states, and as the president dispenses conflicting and often misleading information at his daily briefings on the coronavirus, Mr. Biden’s remarks amounted to a warning shot that attempts to frame for the public — to his advantage — what may be the ugliest election in recent American history.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“State Courts, the Right to Vote, and the Democracy Canon”<https://electionlawblog.org/?p=110976>
Posted on April 24, 2020 2:48 pm<https://electionlawblog.org/?p=110976> by Rick Hasen<https://electionlawblog.org/?author=3>

Rebecca Guthrie has posted this student note<http://fordhamlawreview.org/wp-content/uploads/2020/04/Guthrie_April_N_15.pdf> for the Fordham Law Review. I’m obviously interested<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476> in this topic, and its new database of cases alone will make this article very useful—but I expect if offers far more. I can’t wait to dive in. Here is the abstract:

Entire elections can be determined by the way a state judge chooses to interpret an election statute. And yet, there has been little scholarly attention on how judges construe statutes regulating elections at the state level. This Note begins to redress that lack of attention by undertaking an in-depth analysis of one interpretive tool historically invoked by state courts. The “Democracy Canon” is a substantive canon urging courts to liberally construe election statutes in favor of voter enfranchisement. By conducting a review of both historical and modern references to the Democracy Canon by state courts, this Note argues that courts have become less willing to rely on the Democracy Canon in recent decades. At the same time, codification of the Democracy Canon, and perhaps other substantive canons, by state legislatures may alleviate most concerns of courts about using substantive canons and may be the solution to revitalize the Democracy Canon.
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Posted in statutory interpretation<https://electionlawblog.org/?cat=21>


Settlement in North Dakota Native American Voting Case<https://electionlawblog.org/?p=110974>
Posted on April 24, 2020 2:23 pm<https://electionlawblog.org/?p=110974> by Rick Hasen<https://electionlawblog.org/?author=3>

CLC<https://campaignlegal.org/update/victory-native-american-voting-rights-north-dakota>:

After a yearslong battle in court, Native Americans in North Dakota will finally face fewer obstacles to accessing the ballot. The Spirit Lake Nation and Standing Rock Sioux Tribe recently filed a binding agreement, which once approved by the court, will be enforceable by court order and provide essential voting rights safeguards.

In 2013, North Dakota’s governor signed a law requiring voters to have a valid ID with their name, birth date, and current residential address. If a “valid” residential address is not listed on the ID, ballots cast were considered ineligible unless the voter provided in-person proof of their residential address within a specified period.

Since Native Americans on rural reservations disproportionately lack residential street addresses – and because the state of North Dakota failed to help members of the tribes acquire voter IDs that complied with the new law – the Native American Rights Fund (NARF) filed Spirit Lake Tribe et al v. Jaeger<https://campaignlegal.org/cases-actions/spirit-lake-tribe-et-al-v-jaeger> to have the law struck down.

North Dakota, in an effort to avoid having this case go to trial in the spring of 2020, reached an agreement with the two tribes that will allow Native American voters who do not have or do not know their residential address to locate their residence on a map or at the polls when applying for absentee ballots, have county officials provide their addresses, and allow their ballots to be counted.

The agreement will ensure that tribal IDs and tribally designated street addresses are accepted as valid. It will also cement commitments that state officials made in February to seek reimbursement of the tribes’ expenses in producing voter IDs and coordinate with the Department of Transportation to visit reservations before each election to provide state-issued IDs at no cost.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Is there room for third parties? Justin Amash and why he matters”<https://electionlawblog.org/?p=110972>
Posted on April 24, 2020 2:19 pm<https://electionlawblog.org/?p=110972> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest podcast<https://www.stitcher.com/podcast/free-and-fair-with-franita-and-foley> from Franita and Foley.
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Posted in electoral college<https://electionlawblog.org/?cat=44>, third parties<https://electionlawblog.org/?cat=47>


“Much ado about mail voting”<https://electionlawblog.org/?p=110969>
Posted on April 24, 2020 9:01 am<https://electionlawblog.org/?p=110969> by Rick Hasen<https://electionlawblog.org/?author=3>

Gavin Thompson Weise blogs <https://www.usvotefoundation.org/much-ado-about-mail-voting> at US Vote Foundation.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


No, Trump Cannot Delay the Election. But There’s Other Mischief That He Could Do to Affect Election Results<https://electionlawblog.org/?p=110967>
Posted on April 24, 2020 8:24 am<https://electionlawblog.org/?p=110967> by Rick Hasen<https://electionlawblog.org/?author=3>

Joe Biden at a fundraiser last night said<https://www.cnn.com/2020/04/24/politics/joe-biden-trump-delay-presidential-election/index.html> the following:

“Mark my words I think he is gonna try to kick back the election somehow, come up with some rationale why it can’t be held. Imagine threatening not to fund the post office. Now what in God’s name is that about? Other than trying to let the word out that he’s going to do all he can to make it very hard for people to vote. That’s the only way he thinks he can possibly win.”

The Constitution gives Congress the power to set the date for the election, and Congress did so in an 1845 statute. So there’s no way to legally move the election without congressional action. In any case, the 20th Amendment says that if there’s been no choice of a president by Congress, the president has to vacate office on Jan 20.

There are things the President can do to mess with the election, however. Here’s what I wrote in an LA Times oped<https://www.latimes.com/opinion/story/2020-04-04/coronavirus-voting-republicans-safety-polls>:

First, Trump or state governors could seek to use public health concerns as a pretext to close polling places in Democratic cities in swing states. Voting would still take place, but turnout could be skewed to help Republicans.

More ominously, as Mark Joseph Stern has pointed out<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fslate.com%2Fnews-and-politics%2F2020%2F03%2Ftrump-cancel-election-day-constitution-state-electors-coronavirus.html&data=02%7C01%7Cterry.tang%40latimes.com%7Cb257abb9fe364fade57a08d7d753d174%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637214627299758687&sdata=NgVs3etS2kcNiVUOdIYrNB8ElAtPLY21tMtHpOt9TdQ%3D&reserved=0>, state legislatures have the power under the Constitution to choose presidential electors. In its infamous 2000 decision in Bush vs. Gore<https://supreme.justia.com/cases/federal/us/531/98/>, the U.S. Supreme Court remarked that although every state legislature had given voters the power to vote directly for the president and to allocate the state’s electoral college votes, state legislators could take back that power at any time.

What’s to stop Trump from appealing to Republican-controlled legislatures in the swing states of Arizona, Michigan, North Carolina, Pennsylvania and Wisconsin to take back this power from voters under the pretext that the risk of COVID-19 makes voting too difficult? Although all these states, except Arizona, have Democratic governors, some believe that the legislatures could take back this power even without the agreement of the governor.

Such a move would cause great social unrest, as voters see their power to choose the president taken away from them.
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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
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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