[EL] ELB News and Commentary 8/15/20

[Rick Hasen]

“Exclusive: UPS, FedEx warn they cannot carry ballots like U.S. Postal Service”<https://electionlawblog.org/?p=114100>
Posted on August 14, 2020 6:31 pm<https://electionlawblog.org/?p=114100> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/us-usa-election-ups-fedex-exclusive-idUSKCN25B00I>

United Parcel Service and FedEx on Friday shot down social media calls that they step in to deliver mail-in ballots from the U.S. Postal Service, which is warning states of potentially “significant” delays.

“State ballots must be postmarked to be considered valid and only the USPS has lawful postmarking status. Therefore UPS, FedEx and other private parties cannot technically be involved in shipping ballots,” UPS told Reuters in a statement.

“FedEx does accept individual ballots, and we advise that customers planning to return their ballots via FedEx should closely review their state’s guidelines on absentee voting and deadlines for ballots or related election documents,” FedEx said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Postal Service warns 46 states their voters could be disenfranchised by delayed mail-in ballots”<https://electionlawblog.org/?p=114098>
Posted on August 14, 2020 3:09 pm<https://electionlawblog.org/?p=114098> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/local/md-politics/usps-states-delayed-mail-in-ballots/2020/08/14/64bf3c3c-dcc7-11ea-8051-d5f887d73381_story.html?wpmk=1&wpisrc=al_news__alert-politics--alert-national&utm_source=alert&utm_medium=email&utm_campaign=wp_news_alert_revere&location=alert&pwapi_token=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.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.RqOQrubSD9Wj8CrLrjsX4L3R_3KumrzXtmOwoMzSXQg>:

Anticipating an avalanche of absentee ballots, the U.S. Postal Service recently sent detailed letters to 46 states and D.C. warning that it cannot guarantee all ballots cast by mail for the November election will arrive in time to be counted — adding another layer of uncertainty ahead of the high-stakes presidential contest.

The letters sketch a grim possibility for the tens of millions of Americans eligible for a mail-in ballot this fall: Even if people follow all of their state’s election rules, the pace of Postal Service delivery may disqualify their votes.

The Postal Service’s warnings of potential disenfranchisement came as the agency undergoes a sweeping organizational and policy overhaul amid dire financial conditions. Cost-cutting moves have already delayed mail delivery by as much as a week in some places, and a new decision to decommission 10 percent of the Postal Service’s sorting machines sparked widespread concern the slowdowns will only worsen. Rank-and-file postal workers say the move is ill-timed and could sharply diminish the speedy processing of flat mail, including letters and ballots.

The ballot warnings, issued at the end of July from Thomas J. Marshall, general counsel and executive vice president of the Postal Service, and obtained through a records request by The Washington Post, were planned before the appointment of Louis DeJoy, a former logistics executive and ally of President Trump, as postmaster general in early summer. They go beyond the traditional coordination between the Postal Service and election officials, drafted as fears surrounding the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_8> pandemic triggered an unprecedented and sudden shift to mail-in voting.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


New Election Law Journal Resource on Voting in Time of Pandemic<https://electionlawblog.org/?p=114096>
Posted on August 14, 2020 1:29 pm<https://electionlawblog.org/?p=114096> by Rick Hasen<https://electionlawblog.org/?author=3>

ELJ<https://home.liebertpub.com/spcoll/virtual-special-issue-elections-during-the-covid-19-pandemic/1120/>:

Election Law Journal is committed to informing the electoral process at all stages and under all circumstances. In anticipation of the publication of our September 2020 Special Issue on Elections in the Time of COVID-19 and to help inform the conversation on the topic itself, we have opened up access to research from our archive that is relevant to the issue of casting ballots during a pandemic.

Click on the link to access those archived articles.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Lawsuits Over Voting Rules Coming Down to the Wire; With 80 days to go to Election Day, Democrats and Republicans each chalk up some victories”<https://electionlawblog.org/?p=114094>
Posted on August 14, 2020 12:53 pm<https://electionlawblog.org/?p=114094> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/lawsuits-over-voting-rules-coming-down-to-the-wire-11597432606>:

The general election is less than three months away, and Republicans and Democrats are engaged in down-to-the-wire contests to persuade voters—and courts.

The 2020 vote, coming amid the coronavirus pandemic and accusations from each side that the other is seeking to exploit voting rules for partisan advantage, has resulted in a flurry of litigation that is on track to set a record, according to observers who track election suits.

More than 190 lawsuits across 43 states and the District of Columbia—on issues like mail-in ballots, voter eligibility, voting deadlines and polling sites—have been filed about coronavirus issues<https://www.wsj.com/articles/coronavirus-intensifies-legal-tussle-over-voting-rights-11587315601> related to the election, according to data compiled by Loyola Law School professor Justin Levitt. With other lawsuits about issues unrelated to the pandemic, 2020 could surpass the previous record of 394 cases during the 2018 election year, documented by University of California, Irvine law professor Richard Hasen’s book “Election Meltdown,” which tracked cases in recent decades.

In some key states, lawsuits that could affect turnout and outcomes in races across the ballot are making their way through the court hierarchy and could land at the U.S. Supreme Court. Several have been there already through emergency appeals—fast-track cases without oral arguments that require the justices to effectively decide what rules will be in place for November. The court so far has shown a reluctance to interfere<https://www.wsj.com/articles/supreme-court-signals-federal-judiciary-wont-mediate-fights-over-voting-and-virus-11596276000> with state elections officials, who have considerable latitude in how they structure voting procedures.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


House GOP Leader Kevin McCarthy Urges Republicans to Vote by Mail<https://electionlawblog.org/?p=114089>
Posted on August 14, 2020 12:07 pm<https://electionlawblog.org/?p=114089> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/elections/2020/08/14/trump-biden-live-updates/#link-4KHXGUSYLZEHPPQIID54YPIBY4>

“The Postal Service will have the funding that it needs,” McCarthy said in an interview on CNBC. “We will make sure of that. We want to make sure we have an accurate election. I think any Republican that gets their ballot in the mail should vote and make sure their vote is counted.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“New Jersey Will Hold Mail-in Election in November, Over Trump’s Objections”<https://electionlawblog.org/?p=114087>
Posted on August 14, 2020 12:02 pm<https://electionlawblog.org/?p=114087> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/08/14/nyregion/nj-vote-by-mail-election.html?action=click&module=Top%20Stories&pgtype=Homepage>

New Jersey voters will for the first time cast their ballots for president predominantly by mail in November.

Gov. Philip D. Murphy, a Democrat, announced Friday that the upcoming general election would be conducted using mostly mail-in ballots to ensure voters’ and poll workers’ safety during the pandemic.

The governor, citing the success of the state’s predominantly vote-by-mail primary election last month, said all 6.3 million New Jersey voters would be sent ballots<https://newjerseyglobe.com/governor/new-jersey-general-election-to-be-conducted-mostly-through-mail-in-ballots/> to return either by mail or to deposit in secure drop boxes.

“It doesn’t matter what party you’re in — everybody gets a ballot,” Mr. Murphy said Friday morning on CNN<https://twitter.com/newday/status/1294251920387985414?s=21>.

He said the state would build on the lessons learned during the July 7 primary, the first broad test of voting by mail in New Jersey. The state, for example, will expand the number of secure locations for in-person delivery of ballots and add more polling places where voters can complete provisional ballots on Election Day.

“We’re going to have more presence of secure drop boxes,” he said. “Make sure there is that physical in-voting capacity.”

New Jersey joins a growing number of states<https://www.nytimes.com/interactive/2020/08/11/us/politics/vote-by-mail-us-states.html> that have shifted to mail-in ballots to minimize the risks posed by the coronavirus, even as President Trump<https://www.nytimes.com/2020/08/03/us/politics/trump-mail-in-voting.html> continues to sow doubt, claiming without evidence that the process is plagued by fraud. Voters in at least eight other states and Washington, D.C. — an estimated 38 million people — also are being mailed ballots to cast votes in November.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The new documentary “Dress Rehearsal” chronicles the Dems’ surprise victory in the swing state of Wisconsin—thanks to an unprecedented get-out-the-vote effort amid the pandemic”<https://electionlawblog.org/?p=114082>
Posted on August 14, 2020 10:26 am<https://electionlawblog.org/?p=114082> by Richard Pildes<https://electionlawblog.org/?author=7>

The Daily Beast has this story<https://www.thedailybeast.com/the-shocking-upset-that-shows-how-democrats-can-crush-trump> about a 17-minute documentary which was to have appeared at the Democratic Convention in WI, about the tremendous turnout Democrats had in WI’s April 7th primary. I quoted the subtitle to the story, because I think it tells readers more. This primary, to remind you, was held when the Republican legislature and the state courts refused to permit the Democratic Governor to postpone it.

If Joe Biden wins the election, WI’s decision to insist on holding this primary on April 7th will be, in my view, one of the major, unappreciated turning points that led to Biden’s victory. I hope to explain that view at some point. Here is an excerpt from the story:

Democrats’ efforts in Wisconsin produced a massive turnout for a down-ballot contest and a shocking upset this past April 7 in the State Supreme Court race in which the liberal challenger, Circuit Court Judge Jill Karofsky<https://www.thedailybeast.com/wisconsin-upshot-no-doubt-this-is-a-democratic-year>, beat the conservative favorite, Trump-endorsed incumbent Justice Daniel Kelly, in a crushing landslide.

In covering this primary at the time, held at the height of the first phase of the pandemic, the media focused overwhelmingly on pointing out the genuine problems that took place. But the media largely missed the story of how remarkably high participation was, despite these problems, particularly on the Democratic side — despite the efforts of Charles Stewart and I<https://www.washingtonpost.com/politics/2020/04/15/wisconsin-primary-had-extraordinarily-high-voter-turnout/> to document that fact and get that point across. Once this documentary airs, perhaps more people will come to recognize how high participation levels were, even for this primary whose existence was uncertain until the very last minute.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Postmaster Hasn’t Yet Met Election Officials About Mail-In Ballot Concerns”<https://electionlawblog.org/?p=114080>
Posted on August 14, 2020 9:49 am<https://electionlawblog.org/?p=114080> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2020/08/14/902545891/amid-fears-about-mail-in-ballots-election-officials-havent-met-with-new-postmast?live=1>

Election officials are seeking clarification from the Postal Service about how recent cutbacks will affect what’s expected to be an avalanche of mail-in voting in the upcoming election. Changes in postal operations have already led to mail delays around the country, raising alarms about what will happen in November.

NPR has learned that a bipartisan group of secretaries of state, who are responsible for running elections, requested to meet this week<https://apps.npr.org/documents/document.html?id=7036214-8-7-20-NASS-Postmaster-General-Elections-Call> with postmaster general, Louis DeJoy, who was appointed to the job in May. But that meeting has yet to be scheduled.

“Unfortunately, [we] still haven’t had a direct conversation with the U.S. postmaster,” New Mexico Secretary of State Maggie Toulouse Oliver told NPR Thursday. “Hopefully, we will soon.” Toulouse Oliver is president of the National Association of Secretaries of State and one of those who requested the meeting.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s campaign to discredit the election is deeply dishonest and dangerous”<https://electionlawblog.org/?p=114078>
Posted on August 14, 2020 8:58 am<https://electionlawblog.org/?p=114078> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo editorial:<https://www.washingtonpost.com/opinions/trumps-campaign-to-discredit-the-election-is-deeply-dishonest-and-dangerous/2020/08/13/e33d57fa-dd7c-11ea-b205-ff838e15a9a6_story.html>

As is often the case with Mr. Trump, his narrative is not only false but also self-contradictory and convoluted. Mail-in voting is not riddled with opportunities for fraud; it has been carried out honestly in several states for years. Mr. Trump is on record<https://www.washingtonpost.com/politics/republicans-race-to-promote-mail-voting-as-trumps-attacks-discourage-his-own-supporters-from-embracing-the-practice/2020/08/03/9dd1d988-d1d9-11ea-9038-af089b63ac21_story.html?itid=lk_inline_manual_3> favoring absentee voting, which is functionally the same as mail-in, in terms of the demands on the U.S. Postal Service. On Tuesday, he added the assertion that congressional Democrats are holding up an economic stimulus package over a demand for “$3.5 billion for universal mail-in”; actually<https://www.politifact.com/factchecks/2020/aug/07/facebook-posts/heroes-act-includes-more-election-funding-does-not/>, the $3.6 billion the House included in the Heroes Act was for general, much-needed election logistical support. It could not be conditioned on mail-in voting because that is up to the states.

Mr. Trump also faulted the Democrats for demanding a $25 billion bailout for the USPS, then said the fact that he’ll never agree to it means “they don’t have the money to do the universal mail-in votes” and fraud will result. This non sequitur is also a fib. In a USA Today op-ed<https://www.usatoday.com/story/opinion/todaysdebate/2020/08/12/postal-service-fully-committed-our-role-election-editorials-debates/3354766001/> published a few hours before Mr. Trump’s news conference, top postal officials said that, even without additional funds, they have “ample capacity to deliver America’s election mail,” which “will account for less than 2 percent of all mail volume from mid-September until Election Day.” That is not a “vast amount of ballots . . . being sent at random,” as Mr. Trump would have it. To be sure, the USPS’s new, and disruptive, effort to get overtime costs under control has fueled Democratic suspicions that it will not be able — or willing — to keep that promise. That’s what can happen when<https://about.usps.com/who/leadership/board-governors/> the Postal Board of Governors (four Republicans, two Democrats, all Trump appointees) picks<https://about.usps.com/newsroom/national-releases/2020/0506-bog-announces-selection-of-louis-dejoy-to-serve-as-nations-75th-postmaster-general.htm> a top Trump political donor<https://www.npr.org/2020/05/07/851976464/new-postmaster-general-is-top-gop-fundraiser> to run the agency.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Is Jared Kushner Illegally Soliciting Campaign Help From Kanye West?”<https://electionlawblog.org/?p=114074>
Posted on August 14, 2020 8:37 am<https://electionlawblog.org/?p=114074> by Rick Hasen<https://electionlawblog.org/?author=3>

Paul Ryan<https://www.justsecurity.org/72030/is-jared-kushner-illegally-soliciting-campaign-help-from-kanye-west/> analysis.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


Today’s Must-Read in the LA Times: “TV coverage of Bush v. Gore is a scary reminder of what can go wrong on election night”<https://electionlawblog.org/?p=114072>
Posted on August 14, 2020 8:09 am<https://electionlawblog.org/?p=114072> by Rick Hasen<https://electionlawblog.org/?author=3>

Stephen Battaglio for the LAT<https://www.latimes.com/entertainment-arts/story/2020-08-14/democratic-convention-republican-biden-trump-bush-gore-election-florida-recount>:

While it will be a challenge to turn the conventions into compelling television — broadcast networks ABC, CBS and NBC and cable news channels CNN, Fox News and MSNBC will carry live coverage in prime time — it pales before the monumental task of getting the vote count right on Nov. 3. The expected unprecedented amount of mail-in voting — a process Trump has already called rigged and corrupt without offering proof — guarantees a tabulation process that will be painstakingly slow<https://www.latimes.com/entertainment-arts/business/story/2020-07-31/tv-networks-election-coverage-social-distancing-pandemic> and could go on for days or weeks. If the election is close, legal challenges are likely to abound.

Network TV news executives know what is at stake because nearly 20 years ago they got it very wrong….
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, Election Meltdown<https://electionlawblog.org/?cat=127>


“Trump Opposes Boosting Postal Service Funding To Block Expansion Of Mail-In Voting”<https://electionlawblog.org/?p=114070>
Posted on August 14, 2020 8:02 am<https://electionlawblog.org/?p=114070> by Rick Hasen<https://electionlawblog.org/?author=3>

Pam Fessler for NPR<https://www.npr.org/2020/08/13/902277382/trump-opposes-boosting-postal-service-funding-to-block-expansion-of-mail-in-voti?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


--
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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