[EL] ELB News and Commentary 1/24/20

[Rick Hasen]

“The loser of November’s election may not concede. Their voters won’t, either.”<https://electionlawblog.org/?p=109146>
Posted on January 24, 2020 8:37 am<https://electionlawblog.org/?p=109146> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this commentary for the Washington Post Sunday Outlook<https://www.washingtonpost.com/outlook/the-loser-of-novembers-election-may-not-concede-their-voters-wont-either/2020/01/23/4d81be8c-3d6c-11ea-baca-eb7ace0a3455_story.html>, a preview of my book, Election Meltdown<https://www.amazon.com/gp/product/0300248199/ref=as_li_qf_asin_il_tl?ie=UTF8&tag=slatmaga-20&creative=9325&linkCode=as2&creativeASIN=0300248199&linkId=69abbd9d274db52e081b6d392baf38c8>, out Feb. 4. It begins:

When the polls closed on Nov. 5, 2019, the initial count showed the governor of Kentucky, Republican Matt Bevins, losing to his Democratic challenger, Andy Beshear. But rather than concede that he fell short in what should have been an easy reelection, Bevins claimed<https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> that “irregularities” had muddled the result — producing no evidence to support his accusations. At first, some Kentucky legislative leaders appeared to back him, and some pointed to the legislature’s power to resolve an election dispute and choose the governor regardless of the vote. But Bevins was not popular even within his own party, and eventually, he had to concede when the local GOP did not go along with him.

We could imagine a similar scenario this November: What would happen if President Trump had an early lead that evaporated as votes were counted, and then he refused to concede? The idea isn’t too far-fetched; Trump has raised it himself. Before the 2016 election, he wouldn’t agree<https://www.washingtonpost.com/news/post-politics/wp/2016/10/20/donald-trump-says-he-will-accept-the-results-of-the-election-if-i-win/?tid=lk_inline_manual_2> to accept the results if he lost. After winning in the electoral college but losing the popular count by about 3 million votes, Trump claimed<https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tells-congressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/?tid=lk_inline_manual_2> — with no evidence whatsoever — that at least 3 million fraudulent votes had been cast for his opponent, Hillary Clinton. He set up an “election integrity” commission headed by then-Kansas secretary of state Kris Kobach to try to prove that “voter fraud” is a major problem. But after the commission faced attacks from the left and the right for demanding state voter records with an apparent plan to use them to call for stricter registration rules, Trump disbanded it<https://www.washingtonpost.com/politics/trump-abolishes-controversial-commission-studying-voter-fraud/2018/01/03/665b1878-f0e2-11e7-b3bf-ab90a706e175_story.html?tid=lk_inline_manual_2>, with no work accomplished. In 2018, the president criticized elections in Florida<https://perma.cc/GT7Q-8MRE> and California<https://perma.cc/S7BK-VWFW>, where late-counted votes shifted toward Democrats, suggesting without evidence that there was foul play.

It’s not just Trump who might not accept election results. Imagine that he wins in the electoral college, this time thanks to what Democrats believe is voter suppression in Florida. The Florida legislature and governor have already sought to stymie Amendment 4, a 2018 ballot initiative to restore voting rights to formerly incarcerated felons. When the state Supreme Court agreed<https://www.washingtonpost.com/national/florida-high-court-sides-with-governor-on-felon-voter-rights/2020/01/16/848f2d68-3882-11ea-a1ff-c48c1d59a4a1_story.html?tid=lk_inline_manual_3> that felons could not register to vote until paying all their outstanding fines, Gov. Ron DeSantis (R) praised the ruling and called voting a “privilege<https://twitter.com/GovRonDeSantis/status/1217867897906913282?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1217867897906913282&ref_url=http%3A%2F%2Felectionlawblog.org%2F>,” rather than a right. Some Democrats have called<https://www.thecentersquare.com/florida/democrats-gillum-say-florida-poll-tax-on-felons-will-fuel/article_dca6e4ac-70fd-11e9-90ab-57f1557e168e.html> the new rules a “poll tax,” and a Florida public TV station concluded<https://www.wuft.org/news/2020/01/16/florida-supreme-court-sides-with-desantis-in-felon-voter-rights-case/> that “the implications of the bill passed by a majority-Republican legislature preventing former felons from voting could work to ensure Trump wins the 2020 presidential election.” During Trump’s impeachment trial this past week, Rep. Adam Schiff (D-Calif.) said<https://www.axios.com/schiff-trump-impeachment-election-a5162595-dea0-404d-b099-582ae7e51b78.html> “we cannot be assured that the vote will be fairly won” in November because of the allegations that Trump was trying to “cheat” by pressuring Ukraine to announce an investigation into Joe Biden and his family.

External forces could cause an election meltdown, too. A recent NPR-News Hour-Marist poll<https://www.npr.org/2020/01/21/797101409/npr-poll-majority-of-americans-believe-trump-encourages-election-interference?utm_medium=RSS&utm_campaign=storiesfromnpr> found that “almost 4 in 10 Americans . . . believe it is likely another country will tamper with the votes cast in 2020 in order to change the result.” What if Russians hack into Detroit’s power grid and knock out electricity on Election Day, seriously depressing turnout — and Trump wins the electoral college because he carries Michigan? Most states do not have<https://www.washingtonpost.com/opinions/our-elections-are-wide-open-for-a-constitutional-crisis/2018/10/26/317cb7e0-d86a-11e8-83a2-d1c3da28d6b6_story.html?tid=lk_inline_manual_6> a Plan B to deal with a terrorist attack or natural disaster affecting part of a presidential election.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“The Impact of a Decade of Citizens United on Politics (Podcast)”<https://electionlawblog.org/?p=109144>
Posted on January 24, 2020 7:47 am<https://electionlawblog.org/?p=109144> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke<https://www.bloomberg.com/news/audio/2020-01-23/the-impact-of-a-decade-of-citizens-united-on-politics-podcast> to June Grasso of Bloomberg about the case.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“The Technology 202: Nonprofit expands free security services for campaigns as election season heats up”<https://electionlawblog.org/?p=109142>
Posted on January 24, 2020 7:20 am<https://electionlawblog.org/?p=109142> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-technology-202/2020/01/24/the-technology-202-nonprofit-expands-free-security-services-for-campaigns-as-election-season-heats-up/5e29d43688e0fa6ea99d342d/>
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“Libertarians Win Fight Against Kentucky on Voting”<https://electionlawblog.org/?p=109140>
Posted on January 24, 2020 7:15 am<https://electionlawblog.org/?p=109140> by Rick Hasen<https://electionlawblog.org/?author=3>

Courthouse News<https://www.courthousenews.com/libertarians-win-fight-against-kentucky-on-voting/>:

A change to the deadline for independent political candidates to register for elections signed is unconstitutional, a federal judge ruled<http://www.courthousenews.com/wp-content/uploads/2020/01/Kentucky-election-statute.pdf> Wednesday.

Kentucky House Bill 114, signed into law by former Governor Matt Bevin in March 2019, changed the deadline for state and local candidates to declare their candidacy from April 1 to the last Tuesday in January.

The law was made retroactive to include 2019, and prevented several Libertarian candidates from filing their statements of candidacy with the board of elections.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, third parties<https://electionlawblog.org/?cat=47>


City of Beverly Hills Sues Los Angeles County Over New BMD Voting Machine Design That Could Give Great Advantage to First Four Candidates Listed on the Ballot<https://electionlawblog.org/?p=109135>
Posted on January 23, 2020 5:02 pm<https://electionlawblog.org/?p=109135> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the emergency petition here.<https://electionlawblog.org/wp-content/uploads/bh-v-la-county.pdf>

Particularly concerning are the allegations in sections 22-23 of the complaint:
[cid:image002.png at 01D5D291.B5370370][cid:image003.png at 01D5D291.B5370370]
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“Wall Street donor influence shows unprecedented growth 10 years after Citizens United”<https://electionlawblog.org/?p=109133>
Posted on January 23, 2020 3:42 pm<https://electionlawblog.org/?p=109133> by Rick Hasen<https://electionlawblog.org/?author=3>

Open Secrets reports.<https://www.opensecrets.org/news/2020/01/wall-street-donor-influence-growth-10-years-citizens-united/>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“The Superfluous Fifteenth Amendment?”<https://electionlawblog.org/?p=109131>
Posted on January 23, 2020 3:30 pm<https://electionlawblog.org/?p=109131> by Rick Hasen<https://electionlawblog.org/?author=3>

Travis Crum has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3524597> on SSRN (forthcoming, Northwestern U. L. Rev.). Here is the abstract:

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both a statute and an amendment. Moderate Republicans rejected the statutory option because they believed that Congress lacked enforcement authority under the Fourteenth Amendment to impose voting qualifications on the States and that an amendment was the only politically viable option.

Given this historical evidence, this Article argues that the Fifteenth Amendment was a significant expansion of congressional authority to regulate voting rights in the States and that Congress’s Fifteenth Amendment enforcement authority is distinct from—and broader under current doctrine than—its Fourteenth Amendment enforcement authority. The Article V debate offers a persuasive reason for overturning Boerne’s congruence and proportionality test or, at a minimum, cabining it to the Fourteenth Amendment. Accordingly, laws enacted under Congress’s Fifteenth Amendment enforcement authority should be reviewed under Katzenbach’s rationality standard and the Voting Rights Act (VRA) would be on firmer constitutional ground.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The New Voter Suppression”<https://electionlawblog.org/?p=109129>
Posted on January 23, 2020 2:36 pm<https://electionlawblog.org/?p=109129> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center report:<https://www.brennancenter.org/our-work/research-reports/new-voter-suppression>

On Election Day in 1960, four unanswerable questions awaited Clarence Gaskins, a Black voter in Georgia looking to cast his ballot for president. Upon arrival at his designated polling place, he was ushered into a room that held a jar of corn, a cucumber, a watermelon, and a bar of soap. He was informed that in order to vote, he first had to answer the following correctly:

“How many kernels of corn are in the jar? How many bumps on the cucumber? How many seeds in the watermelon? And how many bubbles in the bar of soap?”

Clarence didn’t bother guessing once the polling official admitted there were no right answers. His vote was neither cast nor counted.

The connection between race and voter suppression did not end in the 1960s. While the overtly racist voter suppression tactics of the Jim Crow past are no longer with us, voter suppression remains a mainstay of electoral politics in the United States today.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, Voting Rights Act<https://electionlawblog.org/?cat=15>

--
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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