[EL] ELB News and Commentary 8/11/20

[Rick Hasen]

“Ohio may purge 120K inactive voters from rolls post-election”<https://electionlawblog.org/?p=113947>
Posted on August 10, 2020 8:58 pm<https://electionlawblog.org/?p=113947> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.reviewonline.com/wire/?category=5366&ID=117733>

About 120,000 inactive Ohio voter registrations will be purged from state voter rolls after the November election, the state elections chief announced Friday, while saying that number could go down if people on the list simply vote in the election.

The removal, required under state and federal law, will take effect Dec. 7 and affects Ohioans who haven’t voted in six years. That could also include voters who died, moved out of state or are in the system twice, the Secretary of State’s Office said.

By providing four months’ notice, the hope is to increase voter turnout by encouraging people to check their voter registration and update it if needed, or just cast a ballot, Republican Secretary of State Frank LaRose said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Code and data for “The Race-Blind Future of Voting Rights”<https://electionlawblog.org/?p=113914>
Posted on August 10, 2020 5:45 pm<https://electionlawblog.org/?p=113914> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

A couple weeks ago, Jowei Chen and I posted our forthcoming article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3658671>, “The Race-Blind Future of Voting Rights.” The replication code and data files for this project are now also available<http://www-personal.umich.edu/~jowei/race/> online, along with the appendix. The appendix includes detailed information for all the states in our study, showing how their state house districts would perform if they were drawn without taking race into account but still complying with other traditional criteria. This data may be useful to those most interested in particular states (as opposed to the aggregate picture we describe in the article).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Puerto Rico’s Primary Election On Sunday Was Historic — In A Bad Way”<https://electionlawblog.org/?p=113938>
Posted on August 10, 2020 3:00 pm<https://electionlawblog.org/?p=113938> by Richard Pildes<https://electionlawblog.org/?author=7>

As if Puerto Rico does not have enough problems already, its voting process for primary elections this weekend collapsed when large quantities of ballots did not arrive at the polling stations. For one report, see here<https://www.npr.org/2020/08/10/900903297/puerto-ricos-primary-election-on-sunday-was-historic-in-a-bad-way>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Not Alone in Thinking Stronger Political Parties Will Improve Our Politics”<https://electionlawblog.org/?p=113934>
Posted on August 10, 2020 2:56 pm<https://electionlawblog.org/?p=113934> by Richard Pildes<https://electionlawblog.org/?author=7>

This piece<https://www.insidernj.com/not-alone-thinking-political-parties-will-improve/>, from the Executive Director of the New Jersey Election Law Enforcement Commission, makes good use of my recent work<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3655691> showing how outside spending groups increase internal party conflicts. Some excerpts:

“McCain/Feingold is what started the stampede toward the creation of independent, outside groups; a development that resulted in less transparency and less accountability in the area of campaign finance (2010).”

“In the years between McCain/Feingold and 2010, U.S. Supreme Court decision in Citizens United v FEC, independent spending grew over 1,000 percent . . . so in the wake of McCain/Feingold there has been a seismic shift in the electoral landscape. There has been tremendous growth in independent groups along with a rapid decline in transparency (2012).”

“But in truth the demise of the political party system represents the abdication of an important quasi-governmental institution that has proven to be a significant part of our civil society (2019)”

“Despite Americans holding a long and deep skepticism toward political parties, ironically it could be the parties that restore stability to our polarized political environment (2019).”

“The Bipartisan Campaign Reform Act (BCRA) often referred to as McCain/Feingold, was enacted in 2002. Though well meaning, McCain/Feingold sparked the rise in dark money spending and a spate of legal action (2020).”

“Despite the antipathy toward political parties that can be traced to the founding of the Republic, political parties, which help elected officials work together and find common ground, may be just the antidote for these highly partisan and combustible times (2020).”…

As argued in numerous columns, a stronger party system can indeed help to soften the divisions that exist in our politics today.  Disciplined political parties organize majorities in government that are crucial to governing.  As long-standing institutions, political parties provide a training ground for leadership by allowing individuals to learn about the relationship between elections and governance, and to gain experience necessary for bringing people together on behalf of the public good.

Political parties also encourage leaders to work together, creating an environment that promotes compromise and establishment of majorities.  Unlike independent groups, which often promote single-issue politics, parties organize the executive, legislative, and even judicial functions of government, thereby providing a means by which public policies can be enacted.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Georgia State Election Board Approves Absentee Ballot Process Improvements”<https://electionlawblog.org/?p=113932>
Posted on August 10, 2020 2:35 pm<https://electionlawblog.org/?p=113932> by Rick Hasen<https://electionlawblog.org/?author=3>

Stephen Fowler<https://www.gpb.org/news/2020/08/10/georgia-state-election-board-approves-absentee-ballot-process-improvements> for GPB:

The Georgia State Election Board made a number of rule changes Monday that will streamline the absentee voting process as officials prepare for a record vote-by-mail turnout in the November general election.

County election workers can now begin publicly processing – but not tabulating – absentee ballots two weeks and a day before Election Day, a decision that could minimize delays in reporting election results that have plagued other states coping with election administration during the coronavirus pandemic. Another emergency rule also authorizes the secretary of state’s office to create an online portal that will allow voters to request absentee ballots and provide local officials with a centralized database to send out ballots. …
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


Republican National Committee Goes to Supreme Court to Try to Overturn Consent Decree Making It Easier to Vote by Mail in Rhode Island During Pandemic<https://electionlawblog.org/?p=113930>
Posted on August 10, 2020 2:28 pm<https://electionlawblog.org/?p=113930> by Rick Hasen<https://electionlawblog.org/?author=3>

Expect quick action in this case given the upcoming deadlines<https://www.supremecourt.gov/DocketPDF/20/20A28/149813/20200810132714449_Emergency%20Application%20for%20Stay.pdf>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Pharma is showering Congress with cash, even as drug makers race to fight the coronavirus”<https://electionlawblog.org/?p=113928>
Posted on August 10, 2020 1:18 pm<https://electionlawblog.org/?p=113928> by Richard Pildes<https://electionlawblog.org/?author=7>

According to this story<https://www.statnews.com/feature/prescription-politics/prescription-politics/?utm_source=STAT+Newsletters&utm_campaign=59caa2594c-Daily_Recap&utm_medium=email&utm_term=0_8cab1d7961-59caa2594c-152653217> from Stat News, the money seems to go pretty evenly to both parties, with a slide edge as of now to Republicans (53%).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What if Everyone Had Voted by Mail in 2016?”<https://electionlawblog.org/?p=113925>
Posted on August 10, 2020 8:19 am<https://electionlawblog.org/?p=113925> by Rick Hasen<https://electionlawblog.org/?author=3>

Nathaniel Lash<https://www.nytimes.com/interactive/2020/08/10/opinion/us-coronavirus-vote-by-mail.html?action=click&module=Opinion&pgtype=Homepage> for NYT Opinion:

President Trump has made it clear he’s no fan of mail-in voting. While the president claims he’s concerned about rigged elections and stolen votes, Republicans are also worried that mail-in ballots could favor Democrats. A new analysis by Times Opinion suggests that even in an extreme scenario, those fears are unfounded.

If the 2016 election between President Trump and Democratic nominee Hillary Clinton had been run using universal vote-by-mail, Trump would have still won the presidency, according to the analysis.

The findings are based on research on Colorado voters<https://www.nytimes.com/2020/05/04/opinion/coronavirus-vote-by-mail.html>, which found that vote-by-mail increased voter turnout across all ages, but saw turnout increase more for younger voters. Applying Colorado’s increased turnout across all 50 states gives a rough sense of how a well-executed vote-by-mail campaign could influence election results.

Such a scenario may slightly boost Democratic fortunes in certain states that Trump won. But the analysis also showed Republicans making gains in right-leaning states — such that political tides would have remained unchanged in 2016.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voting by Mail Is Crucial for Democracy; Especially amid the pandemic, it’s the surest path to a more inclusive, more accurate and more secure election.”<https://electionlawblog.org/?p=113923>
Posted on August 10, 2020 8:17 am<https://electionlawblog.org/?p=113923> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT editorial.<https://www.nytimes.com/2020/08/01/opinion/sunday/mail-voting-covid-2020-election.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Today’s Must Read is David Graham in the Atlantic: “The ‘Blue Shift’ Will Decide the Election Something fundamental has changed about the ways Americans vote.”<https://electionlawblog.org/?p=113921>
Posted on August 10, 2020 7:56 am<https://electionlawblog.org/?p=113921> by Rick Hasen<https://electionlawblog.org/?author=3>

The Atlantic:<https://www.theatlantic.com/ideas/archive/2020/08/brace-blue-shift/615097/>

This sort of late-breaking Democratic vote is the new, though still underappreciated, normal in national elections. Americans have become accustomed to knowing who won our elections promptly, but there are many legitimate votes that are not counted immediately every election year. For reasons that are not totally understood by election observers, these votes tend to be heavily Democratic, leading results to tilt toward Democrats as more of them are counted, in what has become known as the “blue shift.” In most cases, the blue shift is relatively inconsequential, changing final vote counts but not results. But in others, as in 2018, it can materially change the outcome.

Although it is slowly dawning on the press and the electorate<https://www.nytimes.com/2020/08/02/business/media/election-coverage.html> that Election Day will be more like Election Week or Election Month this year, thanks to coronavirus-related complications, the blue shift remains obscure. But the effect could be much larger and far more consequential in 2020, as Democrats embrace voting by mail more enthusiastically than Republicans. If the public isn’t prepared to wait patiently for the final results, and if politicians cynically exploit the shifting tallies to cast doubt on the integrity of the vote, the results could be catastrophic.

Imagine that as November 3, 2020, ticks away, President Donald Trump holds a small lead in one or more key states such as Pennsylvania—perhaps 10,000 or 20,000 votes—and seems to have enough states in his column to eke out an Electoral College win. Trump declares victory, taunts Joe Biden, and prepares for a second term. But the reported results on Election Night omit tens of thousands of votes, including provisional ballots and uncounted mail-in votes. Over the coming days, as those votes are counted, Trump’s lead dwindles and eventually disappears. By the end of the week or early the next, Biden emerges as the clear victor in Pennsylvania—and with that win, captures the race for the presidency.

If that’s how things unfold, Trump is unlikely to take defeat snatched from the jaws of victory graciously. He has already spent months <https://www.theatlantic.com/ideas/archive/2020/06/election-confidence-fraud/612358/> attempting to delegitimize the election system<https://www.theatlantic.com/ideas/archive/2020/07/trump-postpone-election/614755/>. So imagine that he instead cries fraud and insists he’s the target of a criminal Democratic coup. What if he encourages his supporters to take to the streets, where there are violent clashes between partisans? He might even urge the Republican-led Pennsylvania General Assembly to submit a slate of Trump-backing electors<https://www.theatlantic.com/ideas/archive/2020/03/coronavirus-election/608989/>, citing the Election Day returns, even if the full tally clearly shows Keystone State voters chose Biden.

The hypothetical of a blue shift reversing the early projected winner is the “nightmare scenario,” according to the election-law expert Rick Hasen. Either Trump or Biden could win by a sufficient margin to make the result clear on Election Night; it’s also possible that multiple states might see a decisive post–November 3 blue shift, creating even more chaos.

“You don’t need to worry about Russia,” Edward Foley, a law professor at Ohio State, told me. “Simply anxiety over a blue shift and willingness to litigate about it and fight about it could cause a raging contestation over a presidential election.”

The blue shift is the product of two major developments in elections over the past 70 years.  First, Americans began to expect that they would have results on Election Night itself. In the first national elections, it was impossible to gather results from many different jurisdictions promptly, and even then, there was no way to instantaneously deliver the results to the public. Electronic communications began to change that. Abraham Lincoln learned he’d won in 1860<https://www.smithsonianmag.com/history/election-day-1860-84266675/> by staking out the telegraph office until the wee hours of the morning. But when the races were close, or the votes were slow to be tallied, even instantaneous communications couldn’t deliver a result that hadn’t yet been determined. Nearly a century after Lincoln, in 1948, CBS News’s Edward Murrow signed off without being able to give the result of the close election between Harry Truman and Thomas Dewey. (The Chicago Daily Tribune was not so<https://www.trumanlibraryinstitute.org/dewey-defeats-truman/> patient.)

The second change was the introduction of a technology that allowed television networks to project who would win the election, sometimes even before the last polling places had closed. In 1952, for the first time, CBS and NBC each experimented with using computers to analyze the early returns, and by 1960, they were a key part of the election coverage. Television became central to Americans’ Election Night rituals, and the networks’ projections came to stand in for actual results. Strictly speaking, there are no election results until boards of elections certify them. Practically, Americans usually assume that whatever the TV tells them is fact.

“From a legal perspective, there are no results on Election Night, and there never have been,” Foley told me. “The only thing that has ever existed on Election Night are projected results that the media has helpfully provided to its audiences.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>


“How Pro-Trump Forces Work the Refs in Silicon Valley”<https://electionlawblog.org/?p=113919>
Posted on August 10, 2020 7:50 am<https://electionlawblog.org/?p=113919> by Rick Hasen<https://electionlawblog.org/?author=3>

Ben Smith<https://www.nytimes.com/2020/08/09/business/media/trump-facebook-google-twitter-misinformation.html> NYT column:

But the referees who really matter nowadays are no longer the big media companies. The new referees are the Silicon Valley giants that control what we see when we search, browse or post online. But some in the news media learned lessons from back then, ones that Silicon Valley chief executives would be wise to reflect on this election season.

The biggest one is about false balance, and false symmetry. The American right and left have never been mirror images of each other. They’re different sorts of coalitions, with different histories and strategies.

And in the Trump era, a specific kind of misinformation on social media is a central tactic of the right. President Trump says false and misleading things at a remarkable rate — more than 20,000 so far in his presidency, according to a Washington Post tracker<https://www.washingtonpost.com/graphics/politics/trump-claims-database/?itid=lk_inline_manual_2&tid=lk_inline_manual_2&tid=lk_inline_manual_3&tid=lk_inline_manual_4&tid=lk_inline_manual_2&itid=lk_inline_manual_2> — and a whole constellation of blogs and websites, like The Gateway Pundit, support and amplify that strategy.

Facebook, Google and Twitter are making the same mistakes the news media made decades ago, looking for balance rather than confronting the plain reality of the moment.

That’s what Mr. Pichai did in response to Mr. Steube, who didn’t respond to an inquiry about what exactly had happened when, he said, he’d been unable to find Gateway Pundit several months ago. Mr. Steube might have typed the URL wrong, or he might have been referring to a moment<https://twitter.com/searchliaison/status/1285656945077125121> in July when Google said a range of sites had search problems. Just a day before the hearing, to Gateway Pundit’s fury<https://www.thegatewaypundit.com/2020/07/live-video-day-2-white-coat-summit-frontline-doctors-discuss-media-misinformation-treating-coronavirus/>, the company said it was taking down a video about hydroxychloroquine, a drug that hasn’t been proven<https://www.nytimes.com/interactive/2020/science/coronavirus-drugs-treatments.html> to be effective in treating the coronavirus.

But “the C.E.O. of Google can’t just come out and say, ‘The signals your site is sending and fact-checks on your content have created a problem for our company, and therefore we down-rank it,’” said Joan Donovan, the research director of Harvard’s Shorenstein Center on Media, Politics and Public Policy. “Admitting that humans are often at the helm of decisions to curate content implies they are a media company and not simply infrastructure.”
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“The 2020 Electoral End Game — Finding a Peaceful Transition of Power in a Political Question World”<https://electionlawblog.org/?p=113917>
Posted on August 10, 2020 7:42 am<https://electionlawblog.org/?p=113917> by Rick Hasen<https://electionlawblog.org/?author=3>

Ross Martin has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3668583> on SSRN. Here is the abstract:

The playing field for 2020 election disputes is not level because the incumbent-candidate is already in office. The incumbent-candidate is already asserting election irregularities that could leave the election undecided at Inauguration Day. One potential path is that the Supreme Court declares some outcome-determinative election law issue to be a Political Question. This Essay uses this scenario to examine the dynamics of election disputes remaining open and accompanying threats to the rule of law. This Essay develops a solution that yields a peaceful transfer of power under law, even without final, dispositive court rulings.

First, the House can provide a fair and legitimate path to resolution of an electoral Political Question. Intensive hearings in the House in the form of a trial-like proceeding could resolve interference and fraud disputes, as a political matter. This would be far different from the 1876 Electoral Commission. It would take advantage of (1) live broadcast of proceeding and (2) public opinion of, interest in, and attention to actual trials.

Second, it is true that the challenger and his allies would need to force such a trial, as a political matter. They can do this using the unilateral power of the House to determine disputed House elections. The by-member-majority in the House could decline to seat various State delegations. For the same States as the incumbent-candidate claims are in dispute for the Electoral College, the House would assert that all House elections are in dispute. In the likely alignment of the 177th Congress, this would prevent both candidates from being able to obtain a by-State majority in any House election of the President. This will have strong legal and political effects to reduce incumbent advantage.

This two-part solution also helps solve the threat to the rule-of-law arising from unelected government officials having to decide overtly who is President. A fair trial in the House is the only way to air the same facts to the public and those government officials.

With very limited time from Election Day to Electoral Count Day, the challenger would need to push forward immediately with a House trial-like proceeding. This would require far more even than the House put into impeachment, including pre-election preparation.

There are additional major benefits. A trial-type hearing would provide the opportunity to give the public a unified, understandable narrative of disputes that will otherwise appear as a morass of necessary-but-technical state-by-state litigation. Furthermore, it could help the Supreme Court with its legitimacy concerns arising from another Bush v. Gore decision. It would also help with the legitimacy of any 1876-type negotiated resolution.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>


--
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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