[EL] VRA section 5 and changes to meet urgent needs

Sat Aug 15 15:21:45 PDT 2020

I’ll offer a quick anecdote.

As an election administrator in a covered county in 2012, we submitted a
request for preclearance. The change involved a temporary *increase* in the
hours during which our office would be open in the weeks preceding the
election. After not hearing back, my boss suggested that DOJ often acted
faster on a preclearance request if you nagged them (my word, not hers). So
I called the Voting Section to ask about the status.

The attorney with whom I spoke said DOJ received the request but couldn’t
give me a timeline for review. However, the attorney also said something to
the effect that this proposed change was a little different than most
changes, because it involved an increase in registration/voting
opportunity, rather than a decrease. We received our preclearance letter
shortly after my call.

This suggests to me that the Voting Section perhaps could triage their
workload better, but were certainly capable of acting quickly when the
analysis was easy. Most strategies we’ve seen suggested for dealing with
the pandemic, like mailing ballots to all voters or increasing the time
after Election Day for a ballot to be received, tend to be changes that
clearly only increase the opportunity to register and vote and simply could
not have any retrogressive effect. If my experience is representative, then
I suspect DOJ would be more than capable of preclearing many
pandemic-related changes on a timely basis.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T

On Sat, Aug 15, 2020 at 2:54 PM Levitt, Justin <justin.levitt at lls.edu>
wrote:

> I don’t think it’s the volume.   I did some work on preclearance rates
> after the last reauthorization -- and from July 2006 through *Shelby
> County*, though the rate of submissions (naturally) varied, the median
> month saw 384 submissions, up to a max of 1054.  That seems to encompass
> the rough order of magnitude of what would have been submissions for
> pandemic changes this year: the pandemic has thus far mostly hit elections
> administered by counties (rather than municipal/school board changes and
> the like), limiting the pool of entities that would have been submitting.
> And though the changes have come in a flurry, they haven’t literally all
> made changes at once.
>
>
>
> The more serious limitation would be speed.  Not for the changes being
> made now for elections this fall, but reviewing truly last-minute
> submissions from covered jurisdictions with mid-March and April primaries
> (Alaska, Mississippi, Arizona, and the 5 covered counties in Florida) would
> have been a challenge.  (Two towns in Michigan were also covered, but the
> preclearance submissions would likely have been quite straightforward
> there.)
>
>
>
> On the other hand – and to Mark’s last point -- I’m not sure the speed
> would have provided *more* of a challenge at DOJ than at any of the other
> institutions tasked with addressing urgent change in the election process.
>
>
>
> Justin
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Mark Scarberry
> *Sent:* Saturday, August 15, 2020 10:10 AM
> *To:* 'Election Law Listserv' <law-election at uci.edu>
> *Subject:* [EL] VRA section 5 and changes to meet urgent needs — Re:
> Postal Service Issues
>
>
>
> Suppose Shelby County had come out the other way. Could DOJ or the
> district courts handle the number of preclearances that would be required
> to deal effectively with the pandemic in the covered jurisdictions? I
> suppose this goes more broadly to the question of how we put in place
> procedures and authority to deal with crises.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine University
>
> Rick J. Caruso School of Law
> ------------------------------
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of larrylevine at earthlink.net <larrylevine at earthlink.net>
> *Sent:* Saturday, August 15, 2020 8:54:52 AM
> *To:* 'John Tanner' <john.k.tanner at gmail.com>; 'Levitt, Justin' <
> justin.levitt at lls.edu>
> *Cc:* 'Election Law Listserv' <law-election at uci.edu>
> *Subject:* Re: [EL] Postal Service Issues
>
>
>
> Lots of things can work if only we could clear away the partisan rubble
> that lives first to thwart the casting and counting of ballots by certain
> people. But when legislatures, governors and state and local elections
> officials are looking to frustrate the process and it can take months to
> resolve issues through the courts, there are those out there who will be
> tempted to try other means. As the messenger of this reality, I seem to
> have ignited a prairie fire. Not my intend. But as sure as a gang of thugs
> occupied the Broward County elections office and halted the vote count in
> 2000, we are going to see some pretty extreme things this year.
>
> Larry
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *John Tanner
> *Sent:* Saturday, 15 August 2020 5:47 AM
> *To:* Levitt, Justin <justin.levitt at lls.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] Postal Service Issues
>
>
>
> Justin,
>
> It’s a big country and nothing will work everywhere.   States that use
> paper ballots already have secure boxes that could be placed in county and
> municipal staffed offices on certain days prior to the election.  And
> usually you can drop off a ballot at the polls on Election Day  - do any
> states prohibit that?
>
> Best,
>
> John
>
>
>
> Sent from my iPhone
>
>
>
> On Aug 14, 2020, at 8:46 PM, Levitt, Justin <justin.levitt at lls.edu> wrote:
>
> 
>
> 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> *On
> Behalf Of *John Tanner
> *Sent:* Friday, August 14, 2020 5:24 PM
> *To:* Rick Hasen <rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <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> 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
> <https://www.google.com/maps/search/401+E.+Peltason+Dr.,+Suite+1000+%0D%0A+Irvine,+CA+92697?entry=gmail&source=g>
>
> Irvine, CA 92697
> <https://www.google.com/maps/search/401+E.+Peltason+Dr.,+Suite+1000+%0D%0A+Irvine,+CA+92697?entry=gmail&source=g>
> -8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200815/bc1cc44e/attachment.html>