[EL] ELB News and Commentary 8/19/20

Wed Aug 19 07:38:38 PDT 2020

“Trump Likes Only Certain Kinds of Voters; His relentless attacks on mail-in ballots are part of a larger strategy. There is still time to keep the presidential election fair.”<https://electionlawblog.org/?p=114233>
Posted on August 19, 2020 7:36 am<https://electionlawblog.org/?p=114233> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this oped<https://www.nytimes.com/2020/08/19/opinion/trump-usps-mail-voting.html?smid=tw-nytopinion&smtyp=cur> for the New York Times. It begins:

The threat to the 2020 election’s legitimacy finally broke through into everyday conversation last week. People who pay little attention to politics started talking about whether President Trump was looking to mess with the United States Postal Service to slow down the receipt of mail-in ballots.

Mr. Trump was not shy about it. He told<https://www.washingtonpost.com/politics/2020/08/13/trump-blurts-out-his-true-motive-blocking-post-office-funding-mail-in-voting/?hpid=hp_hp-banner-main_fix-ballots-10am%3Ahomepage%2Fstory-ans> Maria Bartiromo on Fox Business Network last Thursday that he was pushing back against Democrats’ demand for further U.S.P.S. funding in the latest Covid-19 relief bill: “Now they need that money in order to have the post office work, so it can take all of these millions and millions of ballots …. But if they don’t get those two items, that means you can’t have universal mail-in voting, because they’re not equipped to have it.”

While targeting the U.S. Postal Service may be new, the threat to election integrity coming from Mr. Trump is not. But there are steps we can take right now to assure a fair election in November.

Mr. Trump has made at least 91 attacks<https://www.newyorker.com/news/letter-from-trumps-washington/trump-is-the-election-crisis-he-is-warning-about> on the integrity of voting so far this year (and more than 700 since 2012) and backed up his complaints about mail-in ballots with lawsuits in Pennsylvania<https://electionlawblog.org/wp-content/uploads/PA-Trump-20200727-amd-complaint.pdf>, Nevada<https://electionlawblog.org/wp-content/uploads/NV-Trump-20200804-complaint.pdf> and Iowa<https://www.detroitnews.com/story/news/politics/2020/08/13/trump-campaign-sues-key-iowa-counties-over-absentee-mailings/3367479001/>. He has repeatedly tweeted the unsupported claim that increased use of mail-in ballots in November, necessitated by the Covid-19 pandemic, will lead to voter fraud and a rigged election.

Back in May<https://twitter.com/realDonaldTrump/status/1265255835124539392> he wrote<https://twitter.com/realDonaldTrump/status/1265255845358645254> that “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mailboxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed….” He said that with Gov. Gavin Newsom of California sending ballots to all active registered voters, which he terms “universal mail-in” voting, “This will be a Rigged Election. No way!”

The end game here is a bit curious because Republicans traditionally have relied on mail-in balloting to get out the vote, and there are already signs<https://www.nydailynews.com/opinion/ny-oped-how-to-vote-during-a-pandemic-20200420-spwxu5vkgngwfdwcvyw547zoy4-story.html> that Republican turnout might be hurt by his rantings. How else to explain the president seeking to distinguish between good “absentee” voting and bad “mail-in” balloting and urging Floridians<https://www.reuters.com/article/us-usa-election-trump/trump-sows-confusion-with-tweet-urging-vote-by-mail-in-florida-idUSKCN2502KU> to vote by mail? And how else to explain the president not only repeatedly voting by mail but using <https://electionlawblog.org/?p=114219> a third person — what Mr. Trump refers to as “ballot harvesting” — to deliver his own ballot to election officials in the Florida primary on Tuesday?

The most benign explanation for Mr. Trump’s obsessive focus on mail-in balloting is that he is looking for an excuse for a possible loss to his Democratic opponent, Joe Biden, in November. The less benign explanation is that he is seeking to sow chaos to drive down turnout and undermine the legitimacy of the election, laying the groundwork for contesting a close election if he loses. I fear that the latter explanation is correct, and that makes it all the more urgent that election administrators, the media and others take steps to avoid a crisis of confidence in the 2020 election results.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“All Your Most Paranoid Questions About Kanye’s Presidential Run, Answered”<https://electionlawblog.org/?p=114231>
Posted on August 19, 2020 7:16 am<https://electionlawblog.org/?p=114231> by Rick Hasen<https://electionlawblog.org/?author=3>

From Ben Jacobs<https://gen.medium.com/all-your-most-paranoid-questions-about-kanyes-presidential-run-answered-608d6e209993>, who owns the Kanye beat.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

New Jersey: Trump Campaign: Letting People Vote Safely By Mail During a Pandemic is a “Brazen Power Grab”<https://electionlawblog.org/?p=114229>
Posted on August 19, 2020 7:10 am<https://electionlawblog.org/?p=114229> by Rick Hasen<https://electionlawblog.org/?author=3>

NJ.com:<https://www.nj.com/politics/2020/08/trump-campaign-sues-nj-to-stop-murphys-vote-by-mail-order-calling-it-brazen-power-grab.html>

Accusing Gov. Phil Murphy<https://topics.nj.com/tag/phil-murphy> of a “brazen power grab,” President Donald Trump’s re-election campaign has asked a federal judge to overturn the state’s plan to send ballots<https://www.nj.com/coronavirus/2020/08/what-you-need-to-know-about-njs-mostly-mail-in-ballot-elections-with-all-the-controversy.html> to all 6.2 million registered voters this fall.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Tyranny of Greed: Trump, Corruption, and the Revolution to Come”<https://electionlawblog.org/?p=114227>
Posted on August 19, 2020 6:40 am<https://electionlawblog.org/?p=114227> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Tim Kuhner’s new book<https://www.amazon.com/Tyranny-Greed-Trump-Corruption-Revolution/dp/1503608506> is out. Reviews and excerpts can be found here<https://www.sup.org/books/title/?id=30983>. The preface is available here<https://www.sup.org/books/extra/?id=30983&i=Preface.html>. And here’s<https://www.youtube.com/watch?reload=9&v=9fla0XoqX0M&feature=youtu.be> a trailer, too.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“In rule change, Postal Service forbids employees from signing absentee ballots as witnesses”<https://electionlawblog.org/?p=114224>
Posted on August 18, 2020 10:41 pm<https://electionlawblog.org/?p=114224> by Rick Hasen<https://electionlawblog.org/?author=3>

Anchorage Daily News<https://www.adn.com/politics/2020/08/18/in-rule-change-postal-service-forbids-employees-from-signing-absentee-ballots-as-witnesses/>:

In a nationwide rule change that went unnoticed this summer, the U.S. Postal Service has forbidden employees from signing absentee ballots as witnesses while on duty. The change could make it more difficult for Alaskans, particularly rural residents, to vote by mail.

In Alaska and several other states, absentee ballots must be signed by a witness who can verify that a ballot was legitimately filled out by a particular voter. Without a signature, the ballot will not be counted.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The 2020 Election Law Teacher Database<https://electionlawblog.org/?p=114222>
Posted on August 18, 2020 5:37 pm<https://electionlawblog.org/?p=114222> by Rick Hasen<https://electionlawblog.org/?author=3>

…is now available at this link<https://electionlawblog.org/wp-content/uploads/Election-Law-Database-2020.xlsx>.
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Posted in election law biz<https://electionlawblog.org/?cat=51>, pedagogy<https://electionlawblog.org/?cat=23>

President Trump Allows His Mail-in Ballot to Be Harvested<https://electionlawblog.org/?p=114219>
Posted on August 18, 2020 3:14 pm<https://electionlawblog.org/?p=114219> by Rick Hasen<https://electionlawblog.org/?author=3>

The Hill:<https://thehill.com/homenews/administration/512594-trumps-return-vote-by-mail-ballots-in-florida>

The Palm Beach County elections office received the completed ballots on Monday, a spokesperson for the office confirmed to The Hill.

The president and the first lady’s ballots were dropped off in person instead of being returned to the county by mail, elections chief Wendy Sartory Link told the Palm Beach Post.<https://www.usatoday.com/story/news/politics/elections/2020/08/18/vote-mail-president-donald-trumps-ballot-received-palm-beach/5602671002/> Link told the newspaper that the ballots would be counted on Tuesday.

Just remember this next time the President rants about mail-in voter fraud and ballot harvesting.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Wisconsin clerks worry about November election as mail-in ballot requests grow”<https://electionlawblog.org/?p=114213>
Posted on August 18, 2020 1:24 pm<https://electionlawblog.org/?p=114213> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/08/18/wisconsin-clerks-worry-november-mail-ballot-requests-grow/3375438001/>

With August’s primary election behind them, clerks in Wisconsin are now starting to look with apprehension toward the November presidential election, still in the midst of the coronavirus pandemic.

Though the number of voters in the August election didn’t add up to a delay in vote totals or in-person lines extending around buildings, it raised concerns over the delay a large number of absentee ballots could cause in November’s presidential election.

Diane Coenen, Oconomowoc’s city clerk, said Tuesday’s election was manageable for her staff, but only 3,492 people voted, and 2,368 of those were absentee ballots. She knows that number is only going to go up for November, and she’s worried about what’s going to happen when that landslide of absentee ballots have to be counted.

“Elections are designed for people to go to the polls, and that’s how we’ve always facilitated elections, and how they’re set up to run,” she said. “Our workers are trained to process voters at the polls. The absentee process taking place between voters — that’s where mistakes can happen.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Court struggles with felon vote in Fla., case could determine participation in November”<https://electionlawblog.org/?p=114211>
Posted on August 18, 2020 1:22 pm<https://electionlawblog.org/?p=114211> by Rick Hasen<https://electionlawblog.org/?author=3>

Pete Williams reports<https://www.nbcnews.com/politics/2020-election/appeals-court-struggles-felon-vote-florida-n1237124> on the 11th Circuit en banc oral argument today.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

Postmaster General Says Cutbacks Will Wait Until After the Election<https://electionlawblog.org/?p=114204>
Posted on August 18, 2020 10:51 am<https://electionlawblog.org/?p=114204> by Rick Hasen<https://electionlawblog.org/?author=3>

Via <https://twitter.com/myhlee/status/1295779964135124992> Michelle Ye Hee Lee:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“At least 20 states plan to sue the U.S. Postal Service over service delays, threat to election”<https://electionlawblog.org/?p=114202>
Posted on August 18, 2020 10:48 am<https://electionlawblog.org/?p=114202> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/at-least-20-states-plan-to-sue-the-us-postal-service-over-service-delays-threat-to-election/2020/08/18/c6ca2dc6-e166-11ea-b69b-64f7b0477ed4_story.html>:

At least 20 states plan to file lawsuits this week against the U.S. Postal Service and its new postmaster, Louis DeJoy, seeking to reverse service changes that have prompted widespread reports of delays and accusations of an intentional effort to thwart voters from mailing their ballots this fall.

The suits, expected to be filed in federal court imminently, will argue that the Postal Service broke the law by making operational changes without first seeking approval from the Postal Regulatory Commission. They will also argue that the changes will impede states’ ability to run free and fair elections, officials from several state attorney general’s offices told The Washington Post. The Constitution gives states and Congress, not the executive branch, the power to regulate elections.

“We’re trying to stop Trump’s attacks on the Postal Service, which we believe to be an attack on the integrity of the election. It’s a straight-up attack on democracy,” Maryland Attorney General Brian E. Frosh (D) said in an interview. “This conduct is illegal. It’s unconstitutional. It’s harmful to the country. It’s harmful to individuals.”

Update: Here is the complaint<https://electionlawblog.org/wp-content/uploads/nat-Washington-20200818-complaint.pdf>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“We’ve got to vote early, in person if we can.”<https://electionlawblog.org/?p=114200>
Posted on August 18, 2020 10:34 am<https://electionlawblog.org/?p=114200> by Richard Pildes<https://electionlawblog.org/?author=7>

Very significant that Michelle Obama’s speech last night (transcript here<https://www.cnn.com/2020/08/17/politics/michelle-obama-speech-transcript/index.html>) emphasized the importance of voting in person. That’s a signal that the discussion among Democrats is beginning to turn in this <https://www.washingtonpost.com/opinions/2020/06/23/absentee-ballots-will-be-critical-this-fall-in-person-voting-is-even-more-essential/> direction.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“No, Wisconsin mailbox picture isn’t proof of ‘massive voter suppression'”<https://electionlawblog.org/?p=114197>
Posted on August 18, 2020 9:40 am<https://electionlawblog.org/?p=114197> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact reports.<https://www.politifact.com/factchecks/2020/aug/17/facebook-posts/no-wisconsin-mailbox-picture-isnt-proof-massive-vo/>
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, Uncategorized<https://electionlawblog.org/?cat=1>

Roger Stone Sent Message to WikiLeaks to Release Podesta Emails Immediately in Response to Trump “Access Hollywood” Tape<https://electionlawblog.org/?p=114194>
Posted on August 18, 2020 7:46 am<https://electionlawblog.org/?p=114194> by Rick Hasen<https://electionlawblog.org/?author=3>

As many suspected<https://twitter.com/NatashaBertrand/status/1295723474045083648> (via the Senate Report<https://www.intelligence.senate.gov/sites/default/files/documents/report_volume5.pdf>):
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Posted in chicanery<https://electionlawblog.org/?cat=12>

NYT and WaPo Offer Explainers on Mail In/Absentee Voting<https://electionlawblog.org/?p=114192>
Posted on August 18, 2020 7:43 am<https://electionlawblog.org/?p=114192> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2020/08/18/whats-difference-between-absentee-mail-in-voting/>

NYT<https://www.nytimes.com/article/Vote-by-mail.html>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Bipartisan Senate report describes 2016 Trump campaign eager to accept help from foreign power”<https://electionlawblog.org/?p=114190>
Posted on August 18, 2020 7:29 am<https://electionlawblog.org/?p=114190> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/politics/national-security/bipartisan-senate-report-describes-2016-trump-campaign-eager-accept-help-n1237002?cid=ed_npd_bn_tw_bn>

In a thousand-page bipartisan report released Tuesday, the Senate Intelligence Committee said the Trump administration obstructed its investigation with “novel claims” of executive privilege. It painted a portrait of a Trump campaign eager to accept help from a foreign power in 2016.

The Senate report, the most detailed account to date of the Trump campaign’s embrace of Russian election interference<https://www.nbcnews.com/politics/national-security/bipartisan-senate-report-says-2017-intel-assessment-about-russian-interference-n1188696>, also asserted that the allegations that Ukraine interfered in the election — which President Donald Trump perpetuated — originated with Russian intelligence agencies.

The report <https://www.nbcnews.com/politics/donald-trump/last-act-chair-burr-asks-final-volume-senate-intel-report-n1208061> highlighted some never-before-seen evidence about Trump and Russia, including three allegations of potentially compromising material relating to Trump’s private trips to Russia that were unconnected to the dossier compiled by former British spy Christopher Steele.

“Separate from Steele’s memos, which the Committee did not use for support, the Committee became aware of three general sets of allegations” involving women, the report said, two of which described a tape. No such allegations were confirmed, but the finding lent new credence to at least one claim in the widely discredited Steele dossier.

The committee endorsed the view of special counsel Robert Mueller and the Roger Stone prosecution team that the Trump campaign eagerly embraced Russian help in 2016, and considered the hacked emails its “October surprise” even though campaign officials knew the material was stolen by Russian intelligence.

“While the GRU and WikiLeaks were releasing hacked documents, the Trump Campaign sought to maximize the impact of those materials to aid Trump’s electoral prospects,” the report said. “To do so, the Trump campaign took actions to obtain advance notice about WikiLeaks releases of Clinton emails; took steps to obtain inside information about the content of releases once WikiLeaks began to publish stolen information; created messaging strategies to promote and share the materials in anticipation of and following their release; and encouraged further theft of information and continued leaks.”

The committee said it also developed evidence that Trump campaign chairman Paul Manafort may have been connected to the Russian operation to steal and leak Democratic emails. If that had been proven in court, it would have constituted “collusion,” by any definition, but no such charge ever was brought. Manafort was convicted of fraud and tax charges unrelated to Russia…
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Election commission orders top voting machine vendor to correct misleading claims”<https://electionlawblog.org/?p=114188>
Posted on August 18, 2020 7:24 am<https://electionlawblog.org/?p=114188> by Rick Hasen<https://electionlawblog.org/?author=3>

Kim Zetter<https://www.politico.com/news/2020/08/13/election-voting-machine-misleading-claims-394891> for Politico:

The federal Election Assistance Commission has rebuked the nation’s top voting-machine maker over marketing materials that the panel says deceptively implied the company’s voting machines are EAC-certified.

The commission admonished Election Systems & Software over promotional literature and statements on its website that appear to assert, falsely, that voting machines the company sells with embedded modems have been sanctioned by the EAC under its testing and certification program. The statements put ES&S in violation of the EAC’s testing and certification rules, the commission wrote in apreviously unreportedMarch 20 letter to the company that POLITICO obtained<https://www.politico.com/f/?id=00000173-e9b5-d0bf-a17b-fdbfc0290000>, and directed ES&S to revise the literature and notify customers that the systems are not certified….

ES&S told POLITICO it sent a letter via email the first week of April to “all applicable modem customers (89 in total),” and posted a notice on its customer portal.

When asked, ES&S did not identify those 89 customers, saying it could not release specific information about customers without their permission. A spokesperson for the Wisconsin Election Commission, whose state is known to use DS200 machines with modems, told POLITICO it did receive the letter from ES&S in early April. Other jurisdictions known to have purchased DS200 systems with modems and contacted by POLITICO did not respond to inquiries.

Key background: This isn’t the first time ES&S has faced accusations of making fabricated or misleading assertions about its voting machines. In 2018, the company denied to The New York Times<https://www.nytimes.com/2018/02/21/magazine/the-myth-of-the-hacker-proof-voting-machine.html> that it had ever installed remote-access software on any of its election management systems. But after being pressed by Sen. Ron Wyden (D-Ore.) about the matter, the companyadmitted it had installed the software<https://www.vice.com/en_us/article/mb4ezy/top-voting-machine-vendor-admits-it-installed-remote-access-software-on-systems-sold-to-states> on systems in at least 300 election jurisdictions. (The company has refused to identify which jurisdictions had the software.)

Election-management systems are critical components that are used to tally official results and in some cases program voting machines before each election. Remote-access software, which ES&S was using to access those systems over the internet or via modem for troubleshooting, exposed those systems to potential hacking by intruders.

Similarly, the company has long insisted, along with its election customers, that none of its voting systems ever connect to the internet. But researchers found what they believed to be more than three dozen ES&S systems connected to the internet, in a story published last year<https://www.vice.com/en_us/article/3kxzk9/exclusive-critical-us-election-systems-have-been-left-exposed-online-despite-official-denials>. Company diagrams showing the configuration of modem-enabled DS200 systems clearly depict the modems transmitting election results over the internet to ES&S election-management systems that also are connected to the internet.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Assistance Commission<https://electionlawblog.org/?cat=34>, voting technology<https://electionlawblog.org/?cat=40>

“Legal Loopholes Leave the U.S. Vulnerable to Election Interference; Report finds Russia, China, and other countries have spent over $300 million to influence the democratic process in countries around the world.”<https://electionlawblog.org/?p=114186>
Posted on August 18, 2020 7:19 am<https://electionlawblog.org/?p=114186> by Rick Hasen<https://electionlawblog.org/?author=3>

Foreign Policy<https://foreignpolicy.com/2020/08/18/legal-loopholes-us-vulnerable-election-interference/>:

Authoritarian regimes including Russia and China have spent more than $300 million over the past decade to interfere in political processes of dozens of other countries around the world, according to a new report<https://securingdemocracy.gmfus.org/covert-foreign-money/> released Tuesday by the German Marshall Fund think tank.

In addition to cyberattacks and disinformation, these governments and their proxies have exploited legal loopholes to funnel money through straw donors, nonprofits, shell companies, and in-kind campaign contributions to buy influence in at least 33 countries, researchers found.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

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Rick Hasen
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UC Irvine School of Law
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