[EL] ELB News and Commentary 8/18/20

[Rick Hasen]

“Postal Crisis Has States Looking for Alternatives to Mail-In Ballots”<https://electionlawblog.org/?p=114184>
Posted on August 17, 2020 8:26 pm<https://electionlawblog.org/?p=114184> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/08/17/us/politics/postal-service-voting.html>

Postal slowdowns and warnings of delayed mail-in ballots are causing election officials to rethink vote-by-mail strategies, with some states seeking to bypass the post office with ballot drop boxes, drive-through drop-offs or expanded in-person voting options, despite the coronavirus pandemic.

The 2020 election was supposed to be the largest-ever experiment in voting by mail, but the Trump administration’s late cost-cutting push at the Postal Service<https://www.nytimes.com/2020/08/15/us/post-office-vote-by-mail.html> has shaken the confidence of voters and Democratic officials alike. The images of sorting machines being removed from postal facilities, mailboxes uprooted or bolted shut on city streets, and packages piling up at mail facilities have sparked anger and deep worry.

Even if, as the Postal Service says, it has plenty of capacity to process mail-in ballots, the fear is that the psychological damage is already done. So as Democrats in Washington fight to restore Postal Service funding<https://www.nytimes.com/2020/08/16/us/politics/coronavirus-postal-service-stimulus-bill.html>, election officials around the country are looking for a Plan B.

“The office has been flooded with calls for the past few days,” said Katie Hobbs, the secretary of state of Arizona and a Democrat. “The concern I have is that, like any campaign of misinformation, it attempts to undermine voters’ confidence in our process.”

Planning in the states proceeded Monday, as House Democrats prepared for a Saturday vote on legislation that would reverse cost-cutting measures at the Postal Service and pump $25 billion in emergency funding into the ailing agency. Democrats were also pressuring the Postal Service board to reverse those policies.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s assessment of mail-in voting continues to be both muddled and dishonest; Most states are doing precisely what Trump claims to support.”<https://electionlawblog.org/?p=114182>
Posted on August 17, 2020 8:21 pm<https://electionlawblog.org/?p=114182> by Rick Hasen<https://electionlawblog.org/?author=3>

Philip Bump WaPo analysis<https://www.washingtonpost.com/politics/2020/08/17/trumps-assessment-mail-in-voting-continues-be-both-muddled-dishonest/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump warns of ‘rigged election’ as he uses conspiracy and fear to counter Biden’s convention week”<https://electionlawblog.org/?p=114180>
Posted on August 17, 2020 8:18 pm<https://electionlawblog.org/?p=114180> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/08/17/politics/donald-trump-campaign-swing/index.html>

President Donald Trump’s<http://www.cnn.com/specials/politics/president-donald-trump-45> darkly portentous campaign message came into stark focus Monday as he launched his most intensive campaign swing since the start of the coronavirus pandemic<http://www.cnn.com/2020/02/06/health/wuhan-coronavirus-timeline-fast-facts/index.html>, warning of “fascist” Democrats with a “Trojan horse” candidate during stops in the Upper Midwest.

The dire warnings — reliant on false information and racist tropes — foreshadowed a bitter fall campaign as Trump seeks to reverse a slide in the polls. And they presaged a drawn out post-election battle as Trump preempted a potential loss with warnings of fraud.

“The only way we’re going to lose this election is if this election is rigged,” he said during a stop in Oshkosh, Wisconsin, the second of several battleground events he is using this week to counterprogram the Democrats’ all-digital convention.

Over the past week, Trump’s attempts at shoring up his political standing have taken on a frantic and often conspiratorial energy, including attempts to limit mail-in voting by refusing new funding for the post office, racist and sexist attacks on former Vice President Joe Biden’s<https://www.cnn.com/election/2020/candidate/biden> new running mate and persistent unfounded warnings that November’s vote will be rigged.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Missouri judge finds GOP redistricting measure misleading”<https://electionlawblog.org/?p=114178>
Posted on August 17, 2020 8:07 pm<https://electionlawblog.org/?p=114178> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports<https://www.yahoo.com/news/missouri-judge-finds-gop-redistricting-180530554.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“US District Court judge strikes down Montana’s ‘truth in labeling’ law”<https://electionlawblog.org/?p=114176>
Posted on August 17, 2020 2:55 pm<https://electionlawblog.org/?p=114176> by Rick Hasen<https://electionlawblog.org/?author=3>

Great Falls Tribune<https://www.greatfallstribune.com/story/news/2020/08/17/montana-judge-strikes-down-law-political-action-committees-truth-labeling/3370770001/>:

A U.S. District Court judge has, in a lawsuit that pitted the political action committee Doctors for a Healthy Montana against Commissioner of Political Practices Jeff Mangan and Attorney General Tim Fox, struck down a state law that promoted truth in labeling of such groups.

Judge Dana L. Christensen wrote Aug. 11 that while “Doctors for a Healthy Choice” may be a misleading name, however, “at no point can it be said that the name was factually incorrect.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Can Trump Legally Limit Mail-In Balloting?”<https://electionlawblog.org/?p=114174>
Posted on August 17, 2020 12:17 pm<https://electionlawblog.org/?p=114174> by Rick Hasen<https://electionlawblog.org/?author=3>

Latest<https://soundcloud.com/freeandfair/can-trump-legally-limit-mail-in-voting> “Free and Fair” podcast with Franita and Foley.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Honestly, Just Vote In Person—It’s Safer Than You Think; The panic over the US Postal Service is legitimate, but here’s the good news: It’s not that risky to cast a ballot by hand.”<https://electionlawblog.org/?p=114172>
Posted on August 17, 2020 12:02 pm<https://electionlawblog.org/?p=114172> by Rick Hasen<https://electionlawblog.org/?author=3>

Gilad Edelman<https://www.wired.com/story/honestly-just-vote-in-person-its-safer-than-you-think/> for Wired.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Biden Supporters More Likely Than Trump’s to Vote by Mail, Poll Shows; New Wall Street Journal/NBC News survey finds Democrats are more confident than Republicans that November results would be tallied accurately”<https://electionlawblog.org/?p=114170>
Posted on August 17, 2020 10:37 am<https://electionlawblog.org/?p=114170> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/biden-supporters-more-likely-than-trumps-to-vote-by-mail-poll-shows-11597683600?mod=politics_lead_pos5>

Supporters of presumptive Democratic nominee Joe Biden are more likely than Trump supporters to say they will vote by mail and are more likely to trust the accuracy of November’s ballot count, a new Wall Street Journal/NBC News poll finds, underscoring partisan differences over how the election should be conducted<https://www.wsj.com/articles/lawsuits-over-voting-rules-coming-down-to-the-wire-11597432606>.

Some 47% of voters who back Mr. Biden, the former vice president, plan to vote by mail rather than in person, compared with 11% of Trump supporters.

By contrast, 66% of Trump voters say they plan to cast ballots in person on Election Day, the poll found, compared with 26% of Biden supporters.

The results suggest that the two parties, in large measure, will have different voting experiences, though voters’ plans could still change. The difference could also affect perceptions of which candidate is leading in the vote tally, since mailed ballots can take longer to count than in-person votes, and some election experts warn the winner might not be clear on Election Night<https://www.wsj.com/articles/will-we-know-who-is-elected-president-on-election-night-a-guide-to-possible-delays-11596629410>.

“If the absentee ballots are favoring a different candidate than the one that was favored in the in-person voting, then, yes, we could see the victor change” in the course of vote-counting, said Stanford University law professor Nathaniel Persily….

Some 55% percent of Democrats but 36% of Republicans said they were confident the November results would be tallied accurately. The gap was even wider when voters were asked about votes cast by mail. Some 65% of Democrats but only 23% of Republicans said mailed ballots would be properly counted.

Among all voters, 45% said they believed the November results would be tallied accurately, with 45% saying they lacked confidence. Trust has declined from 2016, when a Journal/NBC News survey found that 59% said they had confidence that the presidential election results would be counted accurately.

Asked in the new survey about mailed ballots, 45% of voters said they had confidence in an accurate count, and 51% said they lacked confidence.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Election Meltdown<https://electionlawblog.org/?cat=127>


Must-read: “An Oral History of the Bush-Gore; Florida Recount Problems in a single state resulted in the craziest presidential election in modern American history. A warning for 2020.”<https://electionlawblog.org/?p=114168>
Posted on August 17, 2020 9:19 am<https://electionlawblog.org/?p=114168> by Rick Hasen<https://electionlawblog.org/?author=3>

The Atlantic<https://www.theatlantic.com/politics/archive/2020/08/bush-gore-florida-recount-oral-history/614404/> talks to key players 20 years later.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>


“Suffrage at 100: To mark the anniversary of the 19th Amendment, we’re revisiting the stories of how women won the right to vote in the United States.”<https://electionlawblog.org/?p=114166>
Posted on August 17, 2020 8:18 am<https://electionlawblog.org/?p=114166> by Rick Hasen<https://electionlawblog.org/?author=3>

Important supplement<https://www.nytimes.com/spotlight/women-suffrage-100> in the New York Times.
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Posted in 19th Amendment<https://electionlawblog.org/?cat=128>


“How to make sure your ballot is counted this fall”<https://electionlawblog.org/?p=114164>
Posted on August 17, 2020 7:47 am<https://electionlawblog.org/?p=114164> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact guide.<https://www.politifact.com/article/2020/aug/17/how-make-sure-your-ballot-counted-fall/?fbclid=IwAR2dEsWs9-ElxKqfHkT7WoHEn2wuQ3qiTkhp78LfqF3omPJVnIfSonJYXKs>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Bob Bauer on the Two Reasons for Trump’s Attack on USPS and Vote by Mail<https://electionlawblog.org/?p=114162>
Posted on August 17, 2020 7:43 am<https://electionlawblog.org/?p=114162> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent:<https://www.washingtonpost.com/opinions/2020/08/17/trump-is-trying-corrupt-election-heres-how-biden-will-respond/>

Robert Bauer, the veteran election lawyer and senior adviser to the Biden campaign, told me the Biden team has come to believe Trump’s efforts have two goals. The obvious one: DeJoy’s changes could introduce chaos into the delivery of mail ballots, potentially disenfranchising untold numbers of voters, particularly in states<https://www.washingtonpost.com/opinions/2020/07/31/trump-just-told-us-how-mail-delays-could-help-him-corrupt-election/?itid=lk_inline_manual_12> where ballots that are postmarked before Election Day but arrive after won’t count.

“There is no possible justification for these operational changes, two months before the election,” Bauer told me.

House Democrats have called on<https://twitter.com/OversightDems/status/1295013993426358274> DeJoy to reverse these changes and testify to Congress. They’ve demanded documents<https://oversight.house.gov/sites/democrats.oversight.house.gov/files/20200814_Letter_JointPelosiSchumerLofgrenKlobucharCBMPeterstoPMGreElectionPrep.pdf> designed to probe their true nature and rationale. But the fear that they could impact the election is shared<https://twitter.com/ThePlumLineGS/status/1294977434379603968> by some Republican officials.

The second goal behind Trump’s efforts is more subtle, but the Biden camp thinks it’s critical: By constantly (and falsely<https://www.washingtonpost.com/politics/2020/06/24/fact-checking-gops-satirical-vote-by-mail-video/?itid=lk_inline_manual_17>) attacking vote-by-mail as riddled with fraud, Trump and his allies are trying to dissuade people from using it at all, by persuading them their own ballots won’t be counted and by casting a pall of confusion over the whole process.

“Trump believes that his unfounded claims about mail voting are enough to discourage voters — that he can use the presidential ‘bully pulpit’ to achieve vote suppression,” Bauer said.

In this assessment, the effort to get people to give up on mail voting is a second effort at voter suppression — since they might also be reluctant to vote in person amid pandemic conditions — layered on top of the more obvious effort to delay mail ballots.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Now Available: 2020 Teachers’ Update for Laycock & Hasen, Modern American Remedies (5th edition)<https://electionlawblog.org/?p=113096>
Posted on August 17, 2020 7:39 am<https://electionlawblog.org/?p=113096> by Rick Hasen<https://electionlawblog.org/?author=3>

[Bumping to the top:]

The 2020 Teachers’ Update to Laycock and Hasen, Modern American Remedies<https://www.wklegaledu.com/laycock-remedies5> (5th edition) covers Supreme Court developments through the end of the October 2019 term, including cases touching on the standards for emergency injunctions and rules for disgorgement.  It also discusses current controversies such as disputes over the publication of a book by former National Security Advisor John Bolton, presidential immunity, the continuing debate over universal or nationwide injunctions, and other interesting developments in the lower courts.

You can find and distribute the Teachers’ Update to the regular edition at this link<https://electionlawblog.org/wp-content/uploads/5th-ed-laycock-2020-supp-final.pdf>.

You can find and distribute the Teachers’ update to the concise edition<https://www.wklegaledu.com/laycock-remediesconcise5> at this link<https://electionlawblog.org/wp-content/uploads/5th-ed-laycock-2020-concise-supp-final.pdf>.
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Posted in Remedies<https://electionlawblog.org/?cat=57>


Taking Torts This Fall? The New 4th Edition of My Study Aid, Glannon Guide to Torts, Is Now Available<https://electionlawblog.org/?p=114158>
Posted on August 17, 2020 7:35 am<https://electionlawblog.org/?p=114158> by Rick Hasen<https://electionlawblog.org/?author=3>

Details<https://www.wklegaledu.com/hasen-gg-torts4>:

The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis, Fourth Editionis a powerful combination of well-written explanations, multiple-choice questions, analyses, and exam-taking tips. The text prepares you to take any type of exam that might be offered in a torts course. Honing your understanding of concepts and your ability to apply the rules, Richard L. Hasen presents a thoughtful review of course content—and, in the process, shows you how to effectively analyze and answer exam questions.

New to the Fourth Edition:
·         Full emphasis on completed sections of the Restatement (Third) of Torts, replacing earlier Second restatement analyses
·         Examination of rise of tort of purposeful infliction of bodily harm
·         Updated analysis of federal preemption questions

Professors and students will benefit from:
·         An extraordinarily user-friendly and interactive approach
·         Multiple-choice questions, pitched at an appropriate level, and integrated into a thorough review of torts topics
·         An introductory overview of torts law that prepares you to better understand subsequent chapters and questions
·         Clear analysis of both correct and incorrect answers that clarify nuances in the law
·         Valuable exam-taking pointers, applicable to every type of question, interspersed throughout the text
·         A challenging final question at the end of each chapter that illustrates a sophisticated problem in the area under discussion
·         Questions in the final chapter that review the concepts covered in the preceding chapters
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Taking an Election Law, Legislation, or Statutory Interpretation Course This Fall? Study Aid, the Second Edition of My “Examples and Explanations” Book, is Now Available<https://electionlawblog.org/?p=114156>
Posted on August 17, 2020 7:33 am<https://electionlawblog.org/?p=114156> by Rick Hasen<https://electionlawblog.org/?author=3>

Details<https://www.wklegaledu.com/Hasen-EE-Legislation2>:

Examples & Explanations for Legislation, Statutory Interpretation, and Election Law, Second Edition is an up-to-date, user-friendly, and clear student-oriented treatise tackling the complex subjects in this field, including statutory interpretation, lobbying, bribery, redistricting, campaign finance law, and voting rights. The Second Edition is suitable for use with courses in Legislation and Regulation, Statutory Interpretation, Election Law, Voting Rights, and Campaign Finance. Written by Richard L. Hasen, one of the leading voices in the field of election law and legislation, no other statutory supplement is as comprehensive, up to date, and full of examples (and answers) to test student knowledge as Examples & Explanations for Legislation, Statutory Interpretation, and Election Law, Second Edition.

New to the 2nd Edition:
·         Coverage through the Supreme Court’s June 2019 decisions, including partisan gerrymandering, court deference to agency interpretations, and the litigation over a citizenship question on the 2020 census
·         Updated discussion of textualist methods of statutory interpretation following the death of Justice Scalia and the arrival of Justices Gorsuch and Kavanaugh
·         Consideration of how increased political polarization shapes the legislative process and judicial review of legislation
·         Updated material on campaign finance and voting rights
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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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