[EL] ELB News and Commentary 4/30/20
Rick Hasen
rhasen at law.uci.edu
Wed Apr 29 20:09:28 PDT 2020
“California Republican Party suing state’s governor over ‘ballot harvesting’ ahead of special elections”<https://electionlawblog.org/?p=111087>
Posted on April 29, 2020 8:00 pm<https://electionlawblog.org/?p=111087> by Rick Hasen<https://electionlawblog.org/?author=3>
CBS<https://www.cbsnews.com/news/california-republican-party-suing-governor-gavin-newsom-ballot-harvesting-special-elections/>:
The California Republican Party is suing Governor Gavin Newsom to prohibit the practice of ballot collecting or “ballot harvesting” during two upcoming special elections in the state, arguing it stands “in direct conflict” with social distancing guidelines<https://www.cbsnews.com/news/coronavirus-drones-slow-spread-covid-19/> and Newsom’s shelter-in-place mandate<https://www.cbsnews.com/news/coronavirus-california-governor-gavin-newsom-precautions/> to slow the spread of the coronavirus<https://www.cbsnews.com/live-updates/coronavirus-live-updates-2020-04-29/>.
Two weeks ago California Republican Party chairwoman Jessica Patterson<https://twitter.com/millanpatterson> sent Newsom a letter asking him to halt the practice and clarify that his order “prohibits collection of ballots,” but she said Newsom did not respond.
“The governor has dodged his responsibility,” Patterson told CBS News. “We’re hoping the courts will compel him to clarify,” she added.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Federal Court Slams Jill Stein’s Attempt to Decertify Certain Electronic Voting Machines for Use in Philadelphia in 2020 Elections<https://electionlawblog.org/?p=111084>
Posted on April 29, 2020 6:20 pm<https://electionlawblog.org/?p=111084> by Rick Hasen<https://electionlawblog.org/?author=3>
You can read the opinion here. <https://electionlawblog.org/wp-content/uploads/stein-ruling.pdf> It begins:
In moving to enforce the Agreement settling her 2016 lawsuit, failed presidential candidate Jill Stein asks me to bar the use of almost 4,000 voting machines, thus making it impossible for Philadelphia to participate in the 2020 presidential election. This is of a piece with the 2016 action itself: Stein’s eleventh-hour voting machine “hacking” allegations and request for a recount that would have disenfranchised some six million Pennsylvania voters. In both instances, Dr. Stein publicly announced that she seeks to promote election integrity. Yet, the Commonwealth suggest that she seeks to promote only herself. Pennsylvania’s computer expert testified credibly in 2016 that Stein’s allegations “are approximately as likely as the fact that androids from outer space are living amongst us and passing as humans.” (12/6/16 Hr’g Tr. 63:23-64:9.) Her allegations now— that the challenged voting machines are unreliable and thus violate the Settlement Agreement— are as baseless and irrational. I will deny her Motion.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“How to Build a Racially Inclusive Democracy During COVID-19 and Beyond”<https://electionlawblog.org/?p=111082>
Posted on April 29, 2020 5:14 pm<https://electionlawblog.org/?p=111082> by Rick Hasen<https://electionlawblog.org/?author=3>
New Demos report<https://www.demos.org/policy-briefs/how-build-racially-inclusive-democracy-during-covid-19-and-beyond?utm_source=Demos&utm_campaign=4585d71da1-DEMOS_EMAIL__2020_4_29_Covid_Roundup&utm_medium=email&utm_term=0_e07d7f6936-4585d71da1-66890525>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Indiana: “Lawsuit seeks no-excuse absentee voting for general election”<https://electionlawblog.org/?p=111080>
Posted on April 29, 2020 5:12 pm<https://electionlawblog.org/?p=111080> by Rick Hasen<https://electionlawblog.org/?author=3>
Tribune-Star<https://www.tribstar.com/news/lawsuit-seeks-no-excuse-absentee-voting-for-general-election/article_d74542f6-8a47-11ea-a6ac-476bc18e87d2.html>:
A dozen people including two members of the nonprofit Indiana Vote by Mail organization on Wednesday filed a federal class-action lawsuit<https://www.tribstar.com/class-action-complaint/pdf_0a1a6a94-8a48-11ea-9f88-4b96dadae3d9.html> against the Indiana Election Commission and Indiana Secretary of State.
The lawsuits seeks to expand no-excuse absentee voting to the November general election.
The lawsuit contends the state’s election law allowing some — but not all — registered voters to vote by mail violates the equal protection clause of the 14th Amendment of the U.S. Constitutions and the Equal Privileges and Immunities Clause of the Indiana Constitution.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Wisconsin: “Justice Daniel Kelly Will Lift Recusal In Voter Purge Case”<https://electionlawblog.org/?p=111078>
Posted on April 29, 2020 5:09 pm<https://electionlawblog.org/?p=111078> by Rick Hasen<https://electionlawblog.org/?author=3>
WPR reports.<https://www.wpr.org/justice-daniel-kelly-will-lift-recusal-voter-purge-case>
State Supreme Court Justice Daniel Kelly announced Wednesday he would lift his recusal in a case that could purge up to 200,000 names from Wisconsin’s voter list.
Kelly, who lost his bid for a 10-year term<https://www.wpr.org/jill-karofsky-wins-wisconsin-supreme-court-race-defeating-conservative-incumbent> on the court to Judge Jill Karofsky, had stayed out of the case while he was a candidate, saying it could have influenced his own election. With that race now behind him, he indicated in a brief order Wednesday<https://www.wpr.org/sites/default/files/2019ap2397_zignego_cto_4-29-20.pdf> that circumstances had changed.
“I, like every other justice on this court, have an affirmative duty to hear every case in which there is no ethical bar to my participation,” Kelly wrote. “I have concluded that, in light of the fact that this case cannot now affect any election in which I would be a candidate while the case is being decided, there is no ethical bar to my participation.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Is Ranked-Choice Voting Illegal?<https://electionlawblog.org/?p=111075>
Posted on April 29, 2020 2:28 pm<https://electionlawblog.org/?p=111075> by Richard Pildes<https://electionlawblog.org/?author=7>
For those looking for a break from virus-related election issues, Michael Parsons and I have posted on SSRN this article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3563257>, titled The Legality of Ranked-Choice Voting. The reason for the question we address is explained in this abstract for the piece:
With the rise of extreme polarization, intense political divisiveness, and gridlocked government, many Americans are turning to reforms of the democratic processes that creative incentives for candidates and officeholders to appeal to broader coalitions. A centerpiece of these efforts is ranked-choice voting (RCV). Voters in Maine recently endorsed RCV for federal and state elections, and RCV is on the ballot this fall for federal and statewide offices in such diverse states as Massachusetts and Alaska. Several large cities have adopted RCV in recent years, including Minneapolis, San Francisco, and Oakland. Some reformers have also proposed that states move to RCV in presidential elections.
Yet RCV now faces an existential legal threat. The Maine Supreme Judicial Court, the state’s highest tribunal, recently concluded that RCV violates the state constitution. If that interpretation is correct, it would imperil RCV nationwide. Nearly 40 state constitutions include provisions similar to that in Maine’s constitution. These provisions declare that candidates are to be elected to office if they receive “a plurality of the votes” or the “highest,” “largest,” or “greatest” number of votes. The Maine Supreme Judicial Court concluded that the multi-round tabulation process of RCV violates this type of provision. Even in states without such a constitutional provision, state statutes often include the same requirement, which—if the Maine decision is correct—would prevent local governments from adopting RCV.
This Article is the first to examine the history, context, and meaning of these widespread plurality-vote provisions. This history reveals that many states initially required winning candidates to receive a “majority of the votes” cast, and that plurality-vote provisions came into being to replace these majority-vote provisions. After comprehensively examining this history, as well as the purposes and context behind the adoption of plurality-vote provisions, this Article concludes that RCV is not inconsistent with these provisions. In addition, two state constitutions, some state statutes, and proposed reforms to the voting rules for presidential elections require candidates to receive a “majority of votes cast.” These majority-vote provisions pose different, more complex challenges for RCV. This Article offers solutions to ensure that RCV does not run afoul of these provisions. If Americans choose to adopt RCV for presidential, national, state, or local elections, state constitutions and statutes should not pose an obstacle to properly-drafted RCV legislation.
We plan to submit this article to the law reviews in the August submission cycle.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Another Lawsuit Argues Allowing Only Texas Voters at Least 65 Years Old to Vote without Excuse by Mail Violates 26th Amendment<https://electionlawblog.org/?p=111072>
Posted on April 29, 2020 10:20 am<https://electionlawblog.org/?p=111072> by Rick Hasen<https://electionlawblog.org/?author=3>
Complaint<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/04/01-Complaint-for-Injunctive-and-Declaratory-Relief.pdf>.
This is also raised in another <https://electionlawblog.org/?p=110936> Texas suit.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
May 6 U. Denver Event: Election Safety: A Panel Discussion<https://electionlawblog.org/?p=111070>
Posted on April 29, 2020 9:46 am<https://electionlawblog.org/?p=111070> by Rick Hasen<https://electionlawblog.org/?author=3>
Looking forward to this<http://dughost.imodules.com/controls/email_marketing/view_in_browser.aspx?sid=1150&gid=1002&sendId=1316760&ecatid=14&puid=f5403b59-444c-4c9f-a5ef-21b7cd679aff>:
What do elections look like during a pandemic, and what do states and the federal government need to do to ensure safe elections this fall? A panel of experts discuss the latest evidence and the best ways for elections to go forward in this challenging environment.
Moderated by Seth Masket, director of DU’s Center on American Politics. The panelists are:
–Rick Hasen, law professor, UC Irvine, with a specialty in election law
–Dana Singiser, counsel at Keefe Strategies in Washington, DC, and election reform advocate
–Dan Thompson, political scientist, Stanford University
Wednesday, May 6, 2020 Noon – 1:00 p.m.MDT via Zoom Webinar
RSVP<http://dughost.imodules.com/redirect.aspx?linkID=3512203&sendId=1316760&eid=309809&gid=1002>
If you have questions, please call Erin Dietrich at erin.dietrich at du.edu.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“Trump Can’t Postpone the Election; Congress could push it back a few weeks, but the Constitution sets the end of the term on Jan. 20.”<https://electionlawblog.org/?p=111068>
Posted on April 29, 2020 9:39 am<https://electionlawblog.org/?p=111068> by Rick Hasen<https://electionlawblog.org/?author=3>
Derek Muller<https://www.wsj.com/articles/trump-cant-postpone-the-election-11588175516?mod=searchresults&page=1&pos=1> for WSJ.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Eleventh Circuit Reverses on Standing Ground District Court Decision Which Struck Down Florida Ballot Law Giving Party That Won Last Governor’s Race First Line on Ballot<https://electionlawblog.org/?p=111066>
Posted on April 29, 2020 9:35 am<https://electionlawblog.org/?p=111066> by Rick Hasen<https://electionlawblog.org/?author=3>
Two judges<http://media.ca11.uscourts.gov/opinions/pub/files/201914552.pdf> reversed on standing grounds, and a third would have imposed an even stricter standing requirement.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Breaking: In Major Decision Rejecting Kris Kobach’s Claims of Massive Voter Fraud, Tenth Circuit Unanimously Holds Kansas’s Documentary Proof of Citizenship Requirement to Register to Vote Violates Constitution and Federal Law<https://electionlawblog.org/?p=111061>
Posted on April 29, 2020 9:06 am<https://electionlawblog.org/?p=111061> by Rick Hasen<https://electionlawblog.org/?author=3>
In a major ruling,<https://electionlawblog.org/wp-content/uploads/fish-10th-opinion.pdf> a 10th Circuit panel (consisting of 2 judges, as a third judge on the panel had passed away), a Tenth Circuit panel has held that a Kansas anti-voting law championed by former Secretary of State Kris Kobach violated both the Constitution’s equal protection clause and was preempted by the federal motor-voter law. The law at issue required those who wished to register to vote in Kansas to provide documentary proof of citizenship—such as a birth certificate or naturalization certificate—in order to register to vote. Until the ACLU secured a preliminary injunction against this law, about 30,000 people had their voter registrations suspended and were not allowed to vote in Kansas elections.
I wrote about the trial in this case (then called Fish v. Kobach and now Fish v. Schwab on appeal) in my book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>. I called the case the most important voting trial of the 21st century so far because it was the chance for those like Kobach who claim that voter fraud is a major problem in the United States to prove that in a court of law under the rules of evidence. As I detail in the book, Kobach’s proof was woefully inadequate and his expert witnesses embarassingly bad. Kobach was later sanctioned for how he ran the trial and for misleading the ACLU about the contents of a document he had given to President Trump.
Kobach had claimed that the amount of noncitizen voting was the tip of the iceberg, but the trial court, after an extensive trial where Kobach was given every chance to prove his case, as no more than “an icicle, largely created by confusion and administrative error.”
Today’s 10th circuit opinion agreed that preventing voter fraud is a compelling interest, but that Kansas could not prove its law was necessary to prevent such fraud:
To start, the district court found essentially no evidence that the integrity of Kansas’s electoral process had been threatened, that the registration of ineligible voters had caused voter rolls to be inaccurate, or that voter fraud had occurred. In particular, it found that, “at most, 67 noncitizens registered or attempted to register in Kansas over the last 19 years.” Aplt.’s App., Vol. 47, at 11519. Of these, “[a]t most, 39 noncitizens have found their way onto the Kansas voter rolls in the last 19 years.” Id. at 11520. The Secretary does not argue that these factual findings are clearly erroneous. Thus we are left with this incredibly slight evidence that Kansas’s interest in counting only the votes of eligible voters is under threat. Indeed, even as to those 39 noncitizens who appear on the Kansas voter rolls, the district court effectively found that “administrative anomalies” could account for the presence of many—or perhaps even most—of them there.Id.
Supporting this determination is the fact that Kansas’s voter-registration database included 100 individuals with purported birth dates in the 19th century and 400 individuals with purported birth dates after their date of voter registration. And so it is quite likely that much of this evidence of noncitizen registration is explained by administrative error.
The Secretary also presented the district court with out-of-state evidence about election fraud and noncitizen registration. But the district court concluded that, “looking beyond Kansas, [the Secretary’s] evidence of noncitizen registration at trial was weak.” Id. at 11519. It explained at length why it excluded large portions of the Secretary’s expert testimony and found much of the remaining testimony unpersuasive. Id. (explaining that one of the Secretary’s experts was “credibly dismantled” by the architect of the survey upon which the expert had relied and that the court “d[id] not fully credit” a second expert’s testimony “given its inclusion of misleading and false assertions”). We have no doubt that inaccurate voter registrations exist in our country, see, e.g., Husted v. A. Philip Randolph Inst., — U.S. —-, 138 S. Ct. 1833, 1838 (2018) (“It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate.”), but the Secretary fails to connect this generalized information to the DPOC requirement at issue here or to argue that the district court clearly erred in finding that “the trial evidence did not demonstrate the largescale problem urged by [the Secretary].” Aplt.’s App., Vol. 47, at 11520. In light of the significant burden on the right to vote, we thus do not rely on the Secretary’s out-of-state evidence of voter-fraud and nonvoter registration.
I do not know if Kansas will seek en banc review or cert. before the Supreme Court. This law was Kobach’s baby and he’s no longer in office. This would be a terrible record to take up to try to get a reversal because Kobach litigated this case so poorly.
Make no mistake–this is a huge victory. As the 10th circuit noted, unlike voter identification cases where it sometimes has been hard for plaintiffs to prove that the law burdens most voters, this law literally disenfranchised tens of thousands of people. “These factual findings create a fundamental distinction between this case and Crawford: based on an extensive record, the district court here concluded that the Kansas Secretary of State actually denied approximately thirty thousand would-be voters’ registration applications in his implementation of the DPOC requirement, while, in Crawford, the scant evidence before the Court left it with the unenviable task of attempting to estimate the magnitude of the burden on voting rights, largely from untested extra-record sources.”
This is a huge win for voters, and it clears away a law that disenfranchised thousands but prevented no appreciable amount of voter fraud.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, NVRA (motor voter)<https://electionlawblog.org/?cat=33>
“California Republicans prepared to match Democrats on ‘ballot harvesting.’ Then came coronavirus”<https://electionlawblog.org/?p=111058>
Posted on April 29, 2020 8:30 am<https://electionlawblog.org/?p=111058> by Rick Hasen<https://electionlawblog.org/?author=3>
Carla Marinucci<https://www.politico.com/states/california/story/2020/04/28/california-republicans-were-prepared-to-match-democrats-on-ballot-harvesting-then-coronavirus-happened-1280474?nname=california-playbook&nid=00000150-384f-da43-aff2-bf7fd35a0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=641189> for Politico:
Leaders of the embattled California Republican Party are reversing course during the Covid-19 pandemic to demand Gov. Gavin Newsom ban a voting practice they until recently endorsed.
The Republican leaders vowed to boost their “ballot harvesting” efforts — to allow people to pick up and deliver absentee ballots that others have cast — after a Democratic thumping in the 2018 midterms. But they’re now arguing that it’s “an intolerable risk to public health and safety.”
The abrupt turnaround comes weeks before a special election for a crucial House seat in Los Angeles County to fill the vacancy left by Democrat Katie Hill’s resignation. California Republican Party chair Jessica Millan Patterson and House Minority Leader Kevin McCarthy<https://cd.politicopro.com/member/51238> are among those asking Newsom to end “ballot harvesting’’ in the solidly-blue state.
The practice allows party volunteers to collect mail-in ballots and submit them in groups to polling places or election offices. Republicans blame the Democrats’ ballot collecting as one factor for their 2018 midterm woes, which saw them lose seven seats.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Congressional Stock Trading During Pandemic Diminishes Public Trust”<https://electionlawblog.org/?p=111056>
Posted on April 29, 2020 8:24 am<https://electionlawblog.org/?p=111056> by Rick Hasen<https://electionlawblog.org/?author=3>
New CLC report<https://campaignlegal.org/update/congressional-stock-trading-during-pandemic-diminishes-public-trust>.
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>
--
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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