[EL] Postal Service Issues

Fri Aug 14 19:26:21 PDT 2020

I’ve been involved in campaigns, including “at the highest levels,” with plenty of paid staff and volunteers who deserve far better than a broad and unsubstantiated smear.  I think this involves the same standards I’d ask of anyone else widely and casually alleging the prevalence of illegal activity: if you’ve got proof of a specific impropriety, by friends or foes, by all means call it out, and forward it to the proper authorities.  Otherwise, please don’t either assume or allege that lots of generic people you’ve never met share a particularly casual postulated approach to legal requirements.

From: larrylevine at earthlink.net <larrylevine at earthlink.net>
Sent: Friday, August 14, 2020 7:17 PM
To: 'Rick Hasen' <rhasen at law.uci.edu>; Levitt, Justin <justin.levitt at lls.edu>; 'John Tanner' <john.k.tanner at gmail.com>
Cc: 'Election Law Listserv' <law-election at uci.edu>
Subject: RE: [EL] Postal Service Issues

I don’t think I was advocating anything. Just postulating what is likely to happen in the rough and tumble world of partisan politics at the highest levels. I suggest also that drop boxes will be stuffed to overload in places where there will be limited numbers of boxes. If a voter arrives at a drop box and finds if full so he or she cannot deposit a ballot, is that any more legal. And it will happen.
Larry

From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Sent: Friday, 14 August 2020 6:20 PM
To: larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>; 'Levitt, Justin' <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>; 'John Tanner' <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>
Cc: 'Election Law Listserv' <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Postal Service Issues

Larry this seems profoundly irresponsible, suggesting something that could be illegal under state law, and would further undermine voter confidence in the fairness of the election as stories of partisan operatives breaking state law to stuff drop boxes would spread. Just imagine the outrage and manufactured outrage. We need solutions that will bolster confidence and assure fairness, not those which would do the opposite and potentially lead to lawsuits that could call election results into question.
Terrible.

From: "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Organization: Levine and Associates
Reply-To: "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Date: Friday, August 14, 2020 at 6:16 PM
To: "'Levitt, Justin'" <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>, 'John Tanner' <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] Postal Service Issues

You are correct about the improbability of elections officials setting up additional drop boxes. In at least one state the state has said there can be only one per county. Elections officials have been known to have partisan axes to grind, so that’s not a solution. The entity of greatest interest is the campaign and/or the aggrieved political party. It is up to them to figure out how to evade the restrictions and gather ballots to be cast and counted. One obvious way would be to drive them to the drop box and deposit them, where they could not be distinguished from all the other ballots in the box. Someone gets arrested for gathering ballots? Deal with that later. In the meantime, the ballots are in the system. I would never advise someone to break the law. But in these matters the law is broken regularly and the first priority is getting ballots cast and counted. Have the courts not generally ruled in favor of counting votes that have been cast in good faith by voters?
Larry

From: Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>
Sent: Friday, 14 August 2020 6:02 PM
To: larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>; 'John Tanner' <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>; 'Rick Hasen' <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: 'Election Law Listserv' <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] Postal Service Issues

I thought John was suggesting that either campaigns or election officials have (secure) drop boxes, precisely because the post office was reporting mail delays.  “Taking them to the post office” doesn’t solve the problem if the problem is the post office.

To the extent he was suggesting that campaigns have boxes to collect ballots they can drop off to election officials, I noted that that’s unlawful in some states (and I don’t think John was suggesting that individuals break the law).  To the extent he was suggesting that election officials set up secure boxes of their own, I think it’s a great idea, but not as easy as having the idea.  Beyond the litigation, the drop boxes don’t just create themselves: they have to be ordered, manufactured, and paid for.  There are a lot of great ideas out there that officials would love to implement, and which become less viable every incremental day there’s no funding commensurate with the scale of the need.

Justin

From: larrylevine at earthlink.net<mailto:larrylevine at earthlink.net> <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Sent: Friday, August 14, 2020 5:53 PM
To: Levitt, Justin <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>; 'John Tanner' <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>; 'Rick Hasen' <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: 'Election Law Listserv' <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] Postal Service Issues

No, it doesn’t require implementation by local officials. This is an open invitation to ballot harvesting in ways that evade the restrictions. Drop them in drop boxes. Take them to the post office. There may be consequences for the harvester. But the ballots would be mingled with other ballots and they would be counted.
Larry

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Levitt, Justin
Sent: Friday, 14 August 2020 5:46 PM
To: John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>; Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Postal Service Issues

It’s a good idea.  But this isn’t just a matter of having the idea, and I’m not sure it’s fair to attribute any lapse to a lack of creativity.

There are laws in some states against campaigns collecting absentee ballots (including some laws currently subject to litigation).

There’s litigation<https://electionlawblog.org/wp-content/uploads/PA-Trump-20200727-amd-complaint.pdf> in at least one state attempting to prevent election offices from setting up drop boxes like you suggest.

And every additional idea at this point requires implementation by local officials with money they do not have, and have been begging for for months.  The fact that the Senate left for recess without any additional money to actually run the elections we’re going to have in 81 days should be one of the top headlines, in a news environment already overcrowded with top headlines.  We get the elections we pay for.

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of John Tanner
Sent: Friday, August 14, 2020 5:24 PM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Postal Service Issues

I would have thought that it would occur to at least some election offices or campaigns to have absentee ballot drop sites a la the sites the postal service has on April 15 each year.

Sent from my iPhone

On Aug 13, 2020, at 11:51 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
“President Trump requests mail-in ballot for upcoming Florida primary, despite rhetoric”<https://electionlawblog.org/?p=114067>
Posted on August 13, 2020 8:31 pm<https://electionlawblog.org/?p=114067> by Rick Hasen<https://electionlawblog.org/?author=3>

Palm Beach Post reports.<https://www.usatoday.com/story/news/politics/elections/2020/08/13/trump-requests-mail-ballot-florida-primary-despite-rhetoric/3371605001/>
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114067&title=%E2%80%9CPresident%20Trump%20requests%20mail-in%20ballot%20for%20upcoming%20Florida%20primary%2C%20despite%20rhetoric%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump falsely suggests Kamala Harris, who was born in California, does not meet citizenship requirements.”<https://electionlawblog.org/?p=114065>
Posted on August 13, 2020 8:25 pm<https://electionlawblog.org/?p=114065> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/live/2020/08/13/us/biden-vs-trump/trump-falsely-suggests-kamala-harris-who-was-born-in-california-does-not-meet-citizenship-requirements>
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114065&title=%E2%80%9CTrump%20falsely%20suggests%20Kamala%20Harris%2C%20who%20was%20born%20in%20California%2C%20does%20not%20meet%20citizenship%20requirements.%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“USPS says Pennsylvania mail ballots may not be delivered on time, and state warns of ‘overwhelming’ risk to voters”<https://electionlawblog.org/?p=114063>
Posted on August 13, 2020 8:23 pm<https://electionlawblog.org/?p=114063> by Rick Hasen<https://electionlawblog.org/?author=3>

Philadelphia Inquirer:<https://www.inquirer.com/politics/election/pennsylvania-mail-voting-deadlines-post-office-lawsuit-20200813.html>

The U.S. Postal Service has warned Pennsylvania that some mail ballots might not be delivered on time because the state’s deadlines are too tight<https://www.inquirer.com/politics/election/pa-mail-ballots-deadline-2020-primary-election-20200610.html> for its “delivery standards,” prompting election officials to ask the state Supreme Court to extend the deadlines to avoid disenfranchising voters.

The warning came in a July 29 letter from Thomas J. Marshall, general counsel and executive vice president of the Postal Service, to Pennsylvania Secretary of State Kathy Boockvar, whose department oversees elections. That letter was made public late Thursday in a filing her Department of State submitted to the Supreme Court, asking it to order that mail ballots be counted as long as they are received up to three days after the Nov. 3 election date.

If the court agrees, that could increase the likelihood that the results of the presidential race between President Donald Trump and presumptive Democratic nominee Joe Biden won’t be known for days after the election<https://www.inquirer.com/politics/election/pennsylvania-2020-presidential-election-results-absentee-ballots-20200117.html>.

The Postal Service’s letter came amid false<https://www.politifact.com/factchecks/2020/apr/09/donald-trump/donald-trumps-dubious-claim-thousands-are-conspiri/> attacks<https://www.nytimes.com/article/mail-in-voting-explained.html> on mail voting by Trump, and as concerns mount nationally about how the coronavirus pandemic<https://www.inquirer.com/health/coronavirus/> could disrupt the 2020 election. For Pennsylvania, a battleground state that was decided by less than 1% of the vote in 2016, the letter warned that “certain deadlines for requesting and casting mail-in ballots are incongruous with the Postal Service’s delivery standards.”
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114063&title=%E2%80%9CUSPS%20says%20Pennsylvania%20mail%20ballots%20may%20not%20be%20delivered%20on%20time%2C%20and%20state%20warns%20of%20%E2%80%98overwhelming%E2%80%99%20risk%20to%20voters%E2%80%9D>

Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Election Meltdown<https://electionlawblog.org/?cat=127>

“Postal Service: Michigan deadlines for mail-in voting might disqualify some ballots”<https://electionlawblog.org/?p=114061>
Posted on August 13, 2020 8:19 pm<https://electionlawblog.org/?p=114061> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News<https://www.detroitnews.com/story/news/local/michigan/2020/08/13/postal-service-warns-michigan-state-deadlines-mail-in-voting/3358162001/>:

The U.S. Postal Service has warned Michigan Secretary of State Jocelyn Benson that mail delivery timelines pose “significant risk” to ballots sent too close to Election Day and that could lead to their disqualification.

USPS General Counsel Thomas J. Marshall wrote to Benson that Michigan election laws and certain deadlines for requesting and casting mail-in ballots are “incongruous” and “incompatible” with the Postal Service’s delivery standards.

“This mismatch creates a risk that ballots requested near the deadline under state law will not be returned by mail in time to be counted under your laws as we understand them,” Marshall wrote in a letter a week before a primary election that saw record absentee participation in Michigan.
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114061&title=%E2%80%9CPostal%20Service%3A%20Michigan%20deadlines%20for%20mail-in%20voting%20might%20disqualify%20some%20ballots%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump campaign sues key Iowa counties over absentee mailings”<https://electionlawblog.org/?p=114059>
Posted on August 13, 2020 8:13 pm<https://electionlawblog.org/?p=114059> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.detroitnews.com/story/news/politics/2020/08/13/trump-campaign-sues-key-iowa-counties-over-absentee-mailings/3367479001/>

The Trump campaign, the Republican National Committee and other GOP groups filed the lawsuits Wednesday against elections officials in Linn and Johnson counties.

At issue are absentee ballot request forms that the counties are sending to registered voters with personal information already filled in, including their names, dates of birth and voting pin numbers. Voters just have to review, sign and return the forms to get ballots in October that they can mail back or drop off, avoiding crowded polling places.

Iowa Secretary of State Paul Pate, a Republican, last month told auditors in an emergency election directive that request forms mailed to voters must be blank in order “to ensure uniformity.”

Pate’s office has not taken any legal action to block the two counties’ mailings but said Thursday it is investigating their actions. Pate said that sending forms pre-filled with personal identifying information will give critics of absentee voting “an opportunity to question the validity of election results in those counties.”
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114059&title=%E2%80%9CTrump%20campaign%20sues%20key%20Iowa%20counties%20over%20absentee%20mailings%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Judge orders Trump campaign to produce evidence of voter fraud in Pennsylvania”<https://electionlawblog.org/?p=114057>
Posted on August 13, 2020 5:40 pm<https://electionlawblog.org/?p=114057> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/08/13/politics/trump-campaign-voter-fraud-lawsuit-pennsylvania/index.html>:

A federal judge in Pennsylvania told the Trump campaign and the Republican Party that they must produce evidence they have of vote-by-mail fraud in the state by Friday.

The judge’s order, in a high-profile case about vote-by-mail in the battleground state, essentially forces the Trump campaign<https://www.cnn.com/2020/08/01/politics/donald-trump-election-voting/index.html> to try to back up President Donald Trump’s false claims about massive voter fraud in postal voting.

“The Court finds that instances of voter fraud are relevant to the claims and defenses in this case,” District Judge J. Nicholas Ranjan wrote on Thursday, telling Republicans that they need to provide evidence of fraud to the Democratic Party and the Sierra Club, which are part of the lawsuit.

The Democrats had asked for information and documents that would show steps the Republicans took to study the possibility of fraud, especially related to the use of dropboxes, ballot collection and mailed-in ballots in the primary elections.
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114057&title=%E2%80%9CJudge%20orders%20Trump%20campaign%20to%20produce%20evidence%20of%20voter%20fraud%20in%20Pennsylvania%E2%80%9D>

Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

NYT: Biden Campaign Avoided Duckworth V.P. Nomination over Concern of “One Partisan Judge in One Swing State” on Natural Born Citizenship Issue<https://electionlawblog.org/?p=114055>
Posted on August 13, 2020 5:38 pm<https://electionlawblog.org/?p=114055> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/08/13/us/politics/biden-harris.html>

Ms. Duckworth was regarded by Biden advisers as among the candidates likeliest to help him achieve a smashing electoral victory in November. But legal advisers to the campaign expressed urgent concern that Ms. Duckworth could face challenges to her nomination in court: She was born overseas, to an American father and a Thai mother. While Mr. Biden’s team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot.

Derek Muller comments<https://excessofdemocracy.com/blog/2020/8/details-of-the-biden-campaigns-concerns-about-tammy-duckworths-eligibility-as-a-natural-born-citizen>.
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114055&title=NYT%3A%20Biden%20Campaign%20Avoided%20Duckworth%20V.P.%20Nomination%20over%20Concern%20of%20%E2%80%9COne%20Partisan%20Judge%20in%20One%20Swing%20State%E2%80%9D%20on%20Natural%20Born%20Citizenship%20Issue>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“There’s Still Time to Protect American Democracy Against Threats to the 2020 Elections”<https://electionlawblog.org/?p=114048>
Posted on August 13, 2020 10:41 am<https://electionlawblog.org/?p=114048> by Rick Hasen<https://electionlawblog.org/?author=3>

Carrie Cordero and Claire Finkelstein<https://www.cnas.org/publications/commentary/theres-still-time-to-protect-american-democracy-against-threats-to-the-2020-elections>.
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114048&title=%E2%80%9CThere%E2%80%99s%20Still%20Time%20to%20Protect%20American%20Democracy%20Against%20Threats%20to%20the%202020%20Elections%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Kudlow: Money for voting rights is a ‘really liberal left’ wish list item”<https://electionlawblog.org/?p=114046>
Posted on August 13, 2020 10:06 am<https://electionlawblog.org/?p=114046> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/08/13/kudlow-money-voting-rights-liberal-left-wish-list-394715?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>:

White House economic adviser Larry Kudlow on Thursday labeled voting rights funding a “really liberal left” wish list item, slamming congressional Democrats for their coronavirus relief package demands.

The comments from a top administration official came hours after President Donald Trump explicitly tied blocking funding for the U.S. Postal Service to stopping universal mail-in voting during November’s election.

During an appearance on CNBC, Kudlow championed Trump’s recent executive orders aimed at easing the economic burden of the pandemic and criticized Democrats for failing to reach a deal on a legislative package.

“They are asking too much money, $3.5 trillion, we have already spent over $3 trillion,” Kudlow said. “So much of the Democratic asks are really liberal left wish lists — voting rights and aid to aliens and so forth.”
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114046&title=%E2%80%9CKudlow%3A%20Money%20for%20voting%20rights%20is%20a%20%E2%80%98really%20liberal%20left%E2%80%99%20wish%20list%20item%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Lessons Learned from the Primaries: Recommendations for Avoiding a Crisis in November”<https://electionlawblog.org/?p=114044>
Posted on August 13, 2020 10:04 am<https://electionlawblog.org/?p=114044> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<https://static1.squarespace.com/static/5e70e52c7c72720ed714313f/t/5f35546fc1308822596f1f54/1597330545787/PostPrimaryReport.pdf> from the National Task Force on Election Crises.
<image001.png><https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114044&title=%E2%80%9CLessons%20Learned%20from%20the%20Primaries%3A%20Recommendations%20for%20Avoiding%20a%20Crisis%20in%20November%E2%80%9D>

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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