[EL] Trump threatens to send law enforcement to the polls

Fri Aug 21 06:32:37 PDT 2020

A couple of details —-
Federal law forbids the presence of federal troops at the polls, troops meaning anyone armed and or in uniform.   
I some areas — NYC and Boston come to mind — uniformed police are in the polls as a matter of routine. 

Sent from my iPhone

> On Aug 21, 2020, at 12:18 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
> 
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> Echoing Reasons for Issuance of 1981 Consent Decree Against the RNC, Trump Threatens to Send Law Enforcement to Watch Polls. What Happens Next?
> Posted on August 20, 2020 9:07 pm by Rick Hasen
> Back in 1981, the RNC agreed to a consent decree, which remained in place in various forms until 2017. It prevented the RNC from engaging in certain activities which intimidated minority voters. As I explained in this January 2019 Slate piece:
> In connection with the 1981 New Jersey Gubernatorial election, the RNC and the New Jersey Republican State Committee attempted to intimidate the minority voters, in violation of the Voting Rights Act. Specifically, the RNC sent sample ballots to areas where a large portion of the voters were ethnic minorities, then asked that the name of each voter whose sample ballot was returned as undeliverable be removed from New Jersey’s voter rolls. In addition, in an alleged effort of intimidation, the RNC hired off-duty law enforcement officers to patrol polling places in minority precincts. The officers wore armbands that read: “National Ballot Security Task Force,” and some carried two-way radios and firearms.
> 
> I warned in that 2019 piece that
> 
> We can only guess what Trump and the RNC, now freed from this consent decree, will have planned for 2020. Trump has irresponsibly used allegations of voter fraud and stolen elections to delegitimize his opposition and rile up his base. During the 2018 election, he made unfounded allegations that Democrats were trying to steal the U.S. Senate seat in Florida from Rick Scott during state-required recounts of ballots in the close election.
> Had Trump not taken over the RNC, I would not be so concerned about the demise of the decree. Thirty-five years is a long time, and many of the Republican lawyers I know would bristle at some of the tactics that the RNC had used in the past. But Trump likely has different plans in mind, and it would not surprise me to see Democrats and voting rights activists running back to court in 2020, trying to stop the renewal of odious tactics that should have by now been consigned to the history books
> 
> Well tonight, speaking to Sean Hannity on FOX News, Trump said the following in response to a Hannity question about poll watching: “We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, US attorneys, and we’re going to have everybody and attorney generals…”
> What does this mean? I see three possibilities.
> 
> (1) Trump will try to send law enforcement to the polls. Trump has no authority over local law enforcement such as sheriffs, so as commander in chief he cannot be ordering local law enforcement officials to be poll watchers. And while federal officials from the Department of Justice have been sent as observers to prevent voter intimidation, they’ve never been sent in a supposed effort to root out voter fraud. I suppose a governor might invite Trump to send troops to help in polling places, but that would be quite a provocative move.
> (2) The Trump campaign/RNC use off-duty law enforcement to intimidate voters at the polls. If law enforcement is not in an official capacity, perhaps Trump is planning to send off-duty police officers as” poll watchers.” The consent decree is expired, so that possibility is not off the table. But I expect what’s going to happen now is that there is going to be NEW litigation, against the Trump campaign and the RNC, seeking to stop activities that may intimidate voters and that serve no antifraud purpose. Having party observers at the polls is generally a good thing to keep things fair and transparent; but uniformed police are not good for this purpse.
> (3) It’s a voter suppressive head fake. Perhaps Trump is going to do nothing, and that the real end game is to deter people from voting out of fear the polling places are going to be a mess. This seems to be akin to Trump’s strategy of warning about mail in voting to deter turnout. After all, Trump (and Roger Stone via “Stop the Steal”) promised a bunch of “poll watchers” who never materialized. it’s not clear if they never materialized because this was just an effort to collect email addresses and fundraise or they couldn’t get their act together. But just talking about voter suppression can serve a political purpose for Trump.
> Stay tuned. We’ll be hearing a lot more about this one.
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> Posted in Election Meltdown, fraudulent fraud squad, The Voting Wars
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> Now Available: Final Version of My Election Law Journal Article: “Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them”
> Posted on August 20, 2020 8:49 pm by Rick Hasen
> You can download the final version of the article here (and here’s the pdf). This article is part of a symposium out next month on COVID and the election.
> Thanks to ELJ’s publisher for making all the COVID-related election articles with free access.
> 
> Here is the article’s abstract:
> 
> The COVID-19 global pandemic, which already has claimed over 150,000 lives in the United States by the end of July 2020, has revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of the American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States.
> 
> The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decision making. Third, constitutional protections for voting rights remain weak.
> 
> Despite these three pathologies and the Supreme Court’s recent decision in RNC v. DNC concerning Wisconsin ballot receipt deadlines, which sided against expanded voting rights, there is room for some hope that at least some courts will provide a measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation “the Democracy Canon,” an old canon counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights. But the picture is mixed, and a number of courts are not adequately accommodating voting rights during the pandemic.
> More significantly, court intervention can only go so far, and long-term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections. Movement toward constitutional amendment is a generational project aimed at entrenching strong voting rights protections against political backlash.
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> Posted in election administration, Voting Rights Act
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> “Frank LaRose: Turn ‘Every Mailbox’ in Ohio into Ballot Drop Box”
> Posted on August 20, 2020 5:16 pm by Rick Hasen
> CityBeat reports.
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> Posted in absentee ballots
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> Federal District Court (Same Judge Who UPHELD Indiana’s Strict Voter ID Law in Crawford) Holds Indiana Cannot Reject Mail-in Ballots for a Purported Signature Mismatch Without Giving Voter Notice and a Chance to Cure
> Posted on August 20, 2020 4:20 pm by Rick Hasen
> A very important and correct ruling on both due process and equal protection grounds.
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> Posted in absentee ballots, court decisions
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> “Disinformation campaign stokes fears about mail voting, using LeBron James image and boosted by Trump-aligned group”
> Posted on August 20, 2020 4:05 pm by Rick Hasen
> WaPo:
> A prominent Washington-based conservative advocacy organization is promoting a deceptive digital ad campaign that is stoking fears about mail-in voting and targeting battleground states with high concentrations of minority voters.
> 
> FreedomWorks, the tax-exempt nonprofit that helped launchtea-partyprotests a decade ago and is now aligned with causes central to President Trump’s reelection, has extensively promoted the website behind the operation, and is the sole organization to do so, according to data from CrowdTangle, a social media analysis tool.
> 
> The website, called Protect My Vote, warns baselessly that mail balloting results in “lost votes and lost rights.” An associated page on Facebook has purchased more than 150 ads, which have been viewed hundreds of thousands of times this month. They appear designed to tap existing anxiety about the integrity of the voting system to convince voters in swing states where minority turnout could be decisive that mail balloting is not reliable amid an uncontained pandemic leading many Americans to consider alternative ways to be heard on Election Day.
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> Some of the paid posts feature an image of LeBron James and misconstrue a quote from the basketball star, falsely suggesting that when he condemned polling closures as “systemic racism and oppression,” he was linking those closures to the expansion of opportunities to vote by mail. He was not….
> 
> The online tactics used by “Protect My Vote,” and boosted by FreedomWorks, fly in the face of Facebook’s pledge to crack down on election-related misinformation. The influence campaign shows how domestic actors, using shell corporations and pared-down websites, can easily manipulate the platform to spread disinformation, with the technology giant reaping the rewards in the form of ad revenue.AD
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> Four years ago, Russian influence operations on Facebook sought not simply to denigrate Democrats but also to dissuade voters likely to support the party, especially Black voters, from participating in the electoral process, according to Senate investigators. The playbook remains similar in 2020, this operation demonstrates.
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> Posted in campaigns, cheap speech, chicanery
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> “New York Will Allow Voters to Cast Mail-In Ballots”
> Posted on August 20, 2020 2:32 pm by Rick Hasen
> NYT:
> New York State will allow most voters to cast their ballots by mail in the November general election, joining a growing list of states that have expanded mail-in voting to address the potential spread of the coronavirus at polling places.
> Gov. Andrew M. Cuomo, a third-term Democrat, signed a bill on Thursday allowing voters to request an absentee ballot if they cannot show up at a polling location because of the risk of contracting or spreading an illness, effectively permitting the state’s more than 12 million registered voters to vote by mail.
> But with only 10 weeks until Election Day, the challenges of administering an election predominantly by mail will be especially pronounced in New York, following the state’s uneven handling of its primary just two months ago.
> Nearly 40 percent of voters cast mail-in ballots in the state’s June 23 primary — when an executive order authorized wider use of voting by mail — compared with as few as 4 percent in previous elections. The surge overwhelmed election officials and resulted in a weekslong delay for results in many races.
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> Posted in absentee ballots
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> Uh-oh. “Canvassers demand answers after 72% of Detroit’s absentee ballot counts were off”
> Posted on August 20, 2020 2:12 pm by Rick Hasen
> Detroit News:
> The board charged with certifying election results in Michigan’s largest county is asking Secretary of State Jocelyn Benson’s office to investigate after problems with tracking ballots in Detroit’s primary, which one official described as a “perfect storm.”
> 
> Counts for ballots in about 72% of Detroit’s absentee voting precincts for the Aug. 4 primary election were out of balance without an explanation, according to information presented Tuesday to the Wayne County Board of Canvassers. The number of ballots tracked in precinct poll books did not match the number of ballots counted.   
> The election results weren’t incorrect, said Jonathan Kinloch, a Democrat and one of the canvassing board’s four members. But, he said, something had gone wrong in the process of tracking ballots precinct by precinct.
> 
> I flagged the extensive problems in 2016 in Detroit in Election Meltdown. This is bad but unsurprising. The state needs to do more about Detroit.
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> Posted in Uncategorized
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> “What the Elections Performance Index Tells Us About 2020”
> Posted on August 20, 2020 1:57 pm by Rick Hasen
> EPI:
> The Elections Performance Index (EPI) website has just been relaunched, with a new look and updated data from 2018.  The EPI was developed a decade ago with the long view in mind.  But with the 2020 election right upon us, what can performance data from past elections tell us about what to expect this November?
> 
> Although the EPI is constructed using 17 indicators, circumstances surrounding the 2020 election suggest we focus on four topics the index can help to illuminate:  turnout, mail balloting, wait times, and the use of the Internet to communicate with voters. The four primary points are these:
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> ·         The historically high turnout rate in 2018 is likely to continue to 2020.
> ·         Wait times threaten to balloon in 2020, on account of historic turnout and challenges in maintaining in-person voting sites.
> ·         Low absentee ballot rejection rates in the past mask the degree to which they are likely to spike in 2020.
> ·         Election officials are increasingly relying on the Internet to communicate with voters, which will be even more critical in 2020.
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> Posted in Uncategorized
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> “The Voting Rights Act Should be Amended to Apply to the Federal Government”
> Posted on August 20, 2020 1:55 pm by Rick Hasen
> Travis Crum at Take Care.
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> Posted in Voting Rights Act
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> North Carolina Partisan Gerrymandering King David Lewis Resigns, Pleads Guilty to Federal Charges in Case Touching on Separate NCGOP Bribery Scandal
> Posted on August 20, 2020 1:18 pm by Rick Hasen
> I expect we will hear much more about this.
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> Posted in chicanery
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> Trump Campaign Reportedly Provides Little Evidence of Mail-In Ballot Fraud to Support Its Lawsuit Against Pennsylvania Drop Boxes
> Posted on August 20, 2020 11:44 am by Rick Hasen
> The Intercept:
> In a motion last week, Citizens for Pennsylvania’s Future and the Sierra Club called on the Trump campaign to provide evidence of the existence of voter fraud, arguing that the campaign’s lawsuit was “replete with salacious allegations and dire warnings” about Pennsylvania’s elections and that they “must either be compelled to provide discovery concerning their fraud-based allegations or be precluded from pursuing these claims going forward.” Judge J. Nicholas Ranjan granted the motion, ordering the campaign to “produce such evidence in their possession, and if they have none, state as much.”
> The response provided by the Trump campaign to the opposing counsel, which was shared with The Intercept and Type Investigations, contains a few scant examples of election fraud — but none of the instances in the 524-page discovery document involved mail-in ballots.
> 
> “Not only did the campaign fail to provide evidence that voter fraud was a widespread problem in Pennsylvania, they failed to provide any evidence that any misconduct occurred in the primary election or that so-called voter fraud is any sort of regular problem in Pennsylvania,” said Suzanne Almeida, interim director of Common Cause PA, one of the parties in the lawsuit. The Trump campaign did not immediately respond to a request for comment for this story.
> 
> The non-redacted portion of the Trump campaign’s response consists in large part of news reports and copies of the campaign’s open records requests to counties. It contains no new evidence of fraud beyond what local news outlets have previously reported. The examples of fraud that it does provide include the case of four poll workers who admitted to harassment and intimidation of voters at one polling place during a special election in 2017. It also includes an election judge who altered vote totals in his polling place between 2014 and 2016 at the behest of a political consultant. And while the amended complaint brought by the campaign cites a few incidents of mail-in fraud, none were mentioned in the discovery document.
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> Posted in absentee ballots, fraudulent fraud squad
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> 7th Circuit Affirms Order Easing Way for Libertarian Party and Others Onto the Illinois Ballot, After Illinois Elections Board Changed Its Mind
> Posted on August 20, 2020 11:33 am by Rick Hasen
> From the unsigned order:
> Once again in its appellate briefs the Board asks this court to reverse the district court’s decisions and permit the Board to determine the best options for balancing the, plaintiffs’ interests with the statutory ballot access requirements in Illinois. In doing so, the Board devotes not a word to addressing the harm this would cause to candidates and parties who have relied on the agreed preliminary injunction order. Nor does the Board explain how it would make the relevant determinations regarding ballot access, but any change made now, after the deadline for submitting signatures has passed, is certain to severely limit or prevent third-party or independent candidates from accessing the November ballot. The Supreme Court has instructed that federal courts should refrain from changing state election rules as an election approaches. See, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., ––– U.S. –––, 140 S. Ct. 1205, 1207 (2020) (per curiam); Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam). In reviewing the claims before us, we decline to allow the Board to change the ballot-access requirements on the eve of the deadline for certifying the final contents of the ballot. Indeed, the Purcell principle takes on added force where, as here, the Board seeks to challenge injunctive relief that it initially agreed was necessary and proper. And only after engaging in meaningful delay, including in pursuing this appeal, did the Board change course and put at risk the reliance the plaintiffs have placed in the orders entered by the district court.
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> Posted in ballot access, court decisions, third parties
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> Public Health Experts: We Do Not Need 6 Feet of Social Distancing in the Polling Booths
> Posted on August 20, 2020 8:53 am by Richard Pildes
>             In-person voting is going to remain critical this fall – far moreso than is widely recognized currently.  Yet as of now, many election officials are assuming they must ensure 6 feet of social distance between the actual polling booths; CDC Guidelines appear to recommend that measure.  That would have significant effects on in-person voting; it would reduce the capacity of many polling sites by one-third.  That could lead to longer lines, deterring some from voting; the need to abandon some traditional polling locations and replace them with larger venues farther from people’s residences, which can increase voter confusion, as well as the time and expense of voting.
>             Drs. William Hanage, Harvard T. H. Chan School of Public Health, and Anabelle De St Maurice, David Geffen School of Medicine, UCLA, are two of the country’s leading public-health experts. Together we have published an essay, in Politico Magazine, which suggests that – as a matter of public health—we do not need 6 feet of social distancing at the polls.  Indeed, imposing such a requirement could increase health risks overall, if it leads to longer lines or the need to use public transportation to get to more distant polling sites.  We urge the CDC to re-consider, or clarify, whether the familiar 6 feet of social distance is needed at the polling booths.  As noted, this issue has much greater significance for ensuring robust in-person voting capacity than one might think.
> Here is an excerpt:
> 
> The reasons for appropriate social distance in places like schools, workplaces and religious institutions are well understood. But voting in the polling booth is different. While casting their ballots, voters spend only a few minutes next to each other; in 2016, the average time was about five minutes. Voters don’t usually talk to each other, which reduces the risk of droplet transmission. They don’t face each other, but rather face forward nearly the entire time. Some booths have 6-foot high curtain dividers; other places are installing plexiglass dividers between booths (though this is expensive).
> Researchers and public health officials believe that viral transmission is strongly linked to how long someone is exposed to an infected person, whether the infected individual is wearing a mask, and whether or not the infected individual is likely to generate infectious droplets through coughing or sneezing. The CDC itself recognizes that the duration of exposure to an infected person is a critical factor in whether the exposure is low-risk or high-risk, as do European health agencies and independent scientists. Public-health officials do contact tracing only of those within 6 feet of an infected person for 15 minutes or more. Few voters spend anywhere near that long at a polling booth. Voting alongside others does not meet the CDC’s own definition of a close contact.
> Other measures can be taken to mitigate against exposure at the voting booth. A significant percentage of voters this fall will be wearing masks. For voters who do not wear masks, distinct polling booths could be set up that, just for those voters, ensures 6 feet of distance between them. And we urge that all polling sites be adequately ventilated.
> 
> It is unlikely that CDC officials, when issuing these guidelines, focused on how dramatically the distancing recommendation could affect the capacity for in-person voting. That is not the CDC’s mission, nor does the CDC have expertise in how waiting time affects voter participation, or how moving polling sites creates voter confusion, or how critical in-person voting will be to a successful election this fall.
> The most dangerous scenario this fall, if the election is close, is if millions of ballots in key states cannot be counted until well after Election Night. If the outcome turns on that, the situation could quickly get explosive. The best way to avoid that situation is for people to vote in person or, if they vote absentee, to vote early. Election officials right now are making plans for polling sites based on the assumption that polling booths will have to reflect 6 feet of distance between voters. That policy threatens the capacity we need for in-person voting. We ask the CDC to reconsider or clarify whether that is truly necessary.
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> Posted in Uncategorized
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> “Mail Delays Could Hurt The Census, Too”
> Posted on August 20, 2020 8:08 am by Rick Hasen
> Hansi Lo Wang for NPR:
> Under pressure from the Trump administration to deliver 2020 census results by the end of this year, the U.S. Census Bureau has set a cutoff date for receiving paper forms for the once-a-decade head count, NPR has learned.
> 
> The bureau confirms to NPR that it plans to only process paper census questionnaires postmarked by Sept. 30 — its new end date for all counting efforts — and received by Oct. 7 at one of its two data processing centers in Phoenix and Jeffersonville, Ind.
> Although the vast majority of households (80%) that have filled out a census form on their own did so online, paper forms have been the second-most popular way for those households — about 1 in 5 — to get counted, especially in rural areas.
> That’s why recent cuts to the U.S. Postal Service are raising concerns among census advocates. While much of the country’s attention has been on the potential impact on November’s election, some census watchers are worried that any delivery delays over the next few weeks could jeopardize the accuracy of census data collected from sparsely populated parts of the country.
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> Posted in census litigation
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> -- 
> 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
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
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