[EL] 11th Circuit initial en banc in Florida felon disenfranchisement case/more news

Wed Jul 1 11:34:55 PDT 2020

Breaking: 11th Circuit Will Hear Florida Felon Cases Initially En Banc, Stays District Court Order (a Bad Sign for Plaintiffs)<https://electionlawblog.org/?p=112739>
Posted on July 1, 2020 11:31 am<https://electionlawblog.org/?p=112739> by Rick Hasen<https://electionlawblog.org/?author=3>

Back on May 25, I wrote In Detailed and Thoughtful Opinion, Federal Court Holds Florida Law Requiring Ex-Felons to Repay Fines Before Restoration of Voting Rights Unconstitutional for Those Who Cannot Afford to Pay and Those Who Cannot Know How Much They Owe<https://electionlawblog.org/?p=111644>.

The case was expedited<https://electionlawblog.org/?p=112270> for appeal before the 11th Circuit, but now comes news<https://twitter.com/joshgerstein/status/1278392399069212672> that not only has the 11th Circuit taken the rare step of deciding this case en banc (by the full court); it has also put the district court’s ruling on hold. This could well signal a reversal, and the potential that a number of felons will remain disenfranchised in Florida at the time of the November election.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

“GOP support for mail voting is growing, but hard to hear over Trump”<https://electionlawblog.org/?p=112737>
Posted on July 1, 2020 11:19 am<https://electionlawblog.org/?p=112737> by Rick Hasen<https://electionlawblog.org/?author=3>

Eliza Newlin Carney<https://thefulcrum.us/vote-by-mail-2646306822> for The Fulcrum.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Allowing Only Older Americans to Vote by Mail Leads to Severe Racial Disparities”<https://electionlawblog.org/?p=112733>
Posted on July 1, 2020 10:50 am<https://electionlawblog.org/?p=112733> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

The following is a guest post from Chris Warshaw<https://politicalscience.columbian.gwu.edu/christopher-warshaw>, a political scientist at George Washington University:

On November 3, 2020, voters across the country will go to the polls to cast their ballots for President, among other local, state, and federal offices. In thirty-four states and the District of Columbia, they will—if they choose to—be able to vote by mail without providing any excuse for needing to do so. In nine states, they will only be able to vote by mail if they are able to provide a valid excuse for needing to vote by mail.[1]<https://electionlawblog.org/#_ftn1> And in seven states—Indiana, Kentucky, Louisiana, Mississippi, South Carolina, Tennessee, and Texas—older voters are permitted to vote by mail without an excuse, while all other voters must provide an excuse to do so.[2]<https://electionlawblog.org/#_ftn2>

In Texas, that latter category of access to vote by mail was recently challenged as violating the Twenty-Sixth Amendment, which states that “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” This case will soon be heard in the Fifth Circuit<https://www.texastribune.org/2020/05/20/federal-appeals-court-temporarily-blocks-voting-mail-expansion-texas/>, and possibly, the United States Supreme Court<https://www.nytimes.com/2020/06/26/us/supreme-court-texas-vote-by-mail.html> as well.

Whether or not it is constitutional to provide more or fewer voting options to voters based on their age, the demographic implications of providing no-excuse mail voting to only older voters extend beyond preferencing just a voter’s age. It also has differential effects across racial and ethnic groups. White Americans tend to be much older than members of other racial and ethnic groups. Across the nation, about 24% of Whites are 65 or older, while only 15% of Blacks and 12% of Hispanics are senior citizens.[3]<https://electionlawblog.org/#_ftn3> This means that older Americans are much whiter than the general population. Non-Hispanic Whites constitute about 68.5% of the nation’s citizen voting age population.  But over 79% of senior citizens are White.
[cid:image002.png at 01D64F9B.A40C6810]

These racial disparities are magnified in the six states where only older citizens are allowed to cast no-excuse absentee ballots.[4]<https://electionlawblog.org/#_ftn4>  In Texas, for example, non-Hispanic Whites are about twice as likely to be 65 or older as Blacks or Hispanics. In South Carolina, Whites are over 2.5 times more likely be senior citizens than Hispanics. In Tennessee, Whites are nearly three times more likely to be over 65 as Hispanics. More detailed state-level data on racial disparities between all voting age citizens and older citizens are here<http://chriswarshaw.com/papers/age_race_export.pdf>.

The racial disparities across age groups mean that voting rules which make it easier for senior citizens to vote than younger Americans inevitably advantage White voters relative to Blacks, Hispanics, and other racial groups. This means that elections in Indiana, Louisiana, Mississippi, South Carolina, Tennessee, and Texas are inherently biased against racial minorities. This could mean that these rules fall afoul of the Voting Rights Act. At a broader level, these rules harm democratic representation. They are probably skewing election outcomes in these states, and possibly downstream policy outcomes as well, in favor of the preferences of Whites. These racial biases are likely to be magnified in 2020 because many voters may be deterred from voting-in-person due to fears of being infected with Covid-19.

________________________________

[1]<https://electionlawblog.org/#_ftnref1> Those states are Alabama, Arkansas, Connecticut, Delaware, Massachusetts, Missouri, New Hampshire, New York, and West Virginia. See https://www.vote.org/absentee-voting-rules/.

[2]<https://electionlawblog.org/#_ftnref2> See id; see also https://slate.com/news-and-politics/2020/04/26th-amendment-texas-absentee-ballots.html.

[3]<https://electionlawblog.org/#_ftnref3> I used the 2014-2018 5-year sample of the American Community Survey to analyze the age distribution of voting age citizens across racial groups.

[4]<https://electionlawblog.org/#_ftnref4> Under Kentucky law, a voter may vote by mail if “on account of age, disability or illness, [the voter] is not able to appear at the polls on election day may vote by a mail-in absentee ballot.” See Kentucky Revised Statutes § 117.075(1). Because the statute does not explicitly provide an age floor for qualifying for a mail-in ballot, I used age 65 in the chart for Kentucky for illustrative purposes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“In Texas, Voting Reflects Partisan Split Over How to Deal With Virus”<https://electionlawblog.org/?p=112731>
Posted on July 1, 2020 10:41 am<https://electionlawblog.org/?p=112731> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/06/29/us/texas-early-voting-coronavirus.html?smid=tw-share>

For months, Republican leaders in Texas resisted calls by Democrats to allow widespread mail-in voting, more swayed by President Trump’s concerns about mail-ballot “fraud”<https://www.nytimes.com/2020/06/24/us/politics/trump-vote-by-mail.html> than by the threat the coronavirus<https://www.nytimes.com/news-event/coronavirus> might pose at polling places.

The pandemic would have run its course by the time voting began, they believed. The election had been postponed<https://gov.texas.gov/news/post/governor-abbott-postpones-runoff-primary-election-in-response-to-covid-19>, after all, and would not take place until long after Gov. Greg Abbott had embarked on an aggressive reopening of the state.

But the virus did not go away, and instead has surged in Texas<https://www.nytimes.com/interactive/2020/us/texas-coronavirus-cases.html>, catching Mr. Abbott off guard. And as early voting began on Monday in statewide primary runoff contests, local election officials were scrambling to make polling sites as safe as possible.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Georgia: “‘We don’t have enough money,’ Bibb elections board says of budget reduction”<https://electionlawblog.org/?p=112729>
Posted on July 1, 2020 8:02 am<https://electionlawblog.org/?p=112729> by Rick Hasen<https://electionlawblog.org/?author=3>

The Macon Telegraph reports<https://www.macon.com/news/local/article243770802.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Court: Thwarting congressional ethics office not a crime”<https://electionlawblog.org/?p=112727>
Posted on July 1, 2020 7:55 am<https://electionlawblog.org/?p=112727> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/06/30/congressional-ethics-office-crime-346579?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

A law prohibiting obstruction of Congress does not apply to schemes targeting the House’s Office of Congressional Ethics, a federal appeals court declared Tuesday.

The D.C. Circuit Court of Appeals issued the ruling<https://slack-redir.net/link?url=https%3A%2F%2Fwww.cadc.uscourts.gov%2Finternet%2Fopinions.nsf%2FB22DE29BF0C2F318852585970052BA5C%2F%24file%2F18-3055-1849460.pdf> as it upheld a broader criminal case against David Bowser, who served as chief of staff to Rep. Paul Broun (R-Ga.)
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Posted in ethics investigations<https://electionlawblog.org/?cat=42>

Now Posted: Final Version of My Georgetown Law Journal Paper with Leah Litman, “Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It”<https://electionlawblog.org/?p=112725>
Posted on July 1, 2020 7:49 am<https://electionlawblog.org/?p=112725> by Rick Hasen<https://electionlawblog.org/?author=3>

You can download it at this link<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501114>. When the full symposium issue on the 19th Amendment posts, I’ll provide a link to that as well.
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Posted in 19th Amendment<https://electionlawblog.org/?cat=128>

“Groups launch effort to mobilize poll workers amid coronavirus pandemic”<https://electionlawblog.org/?p=112723>
Posted on July 1, 2020 7:46 am<https://electionlawblog.org/?p=112723> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/06/30/politics/poll-workers-recruiting-effort/index.html>:

A group of civic-minded organizations have joined together to recruit thousands of volunteers to work the polls this November, as states grapple with how the coronavirus pandemic<https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/> could affect voting in the fall.

The nonprofit organizations and businesses behind the new effort, “Power the Polls,” are Civic Alliance, Comedy Central, Fair Elections Center, Levi Strauss & Co., Patagonia, Time To Vote, Pizza to the Polls, MTV, Uber and We Can Vote. The groups seek to get as many as 250,000 people to help keep in-person elections running as safely and efficiently as possible this fall.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Judge Blocks Paterson Councilman-Elect Facing Voter Fraud Charges From Taking Office”<https://electionlawblog.org/?p=112721>
Posted on July 1, 2020 7:44 am<https://electionlawblog.org/?p=112721> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC New York reports.<https://www.nbcnewyork.com/news/local/judge-to-block-paterson-councilman-elect-facing-voter-fraud-charges-from-taking-office/2492448/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>

“N.J. Election Fraud Case Draws A Trump Tweet But Suggests Safeguards Are Working”<https://electionlawblog.org/?p=112719>
Posted on July 1, 2020 7:42 am<https://electionlawblog.org/?p=112719> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2020/07/01/885074932/n-j-election-fraud-case-draws-a-trump-tweet-but-suggests-safeguards-are-working>

When voters cast a ballot in person in New Jersey, they are required to sign a poll book to match their signature to election records. The same is true of mail-in ballots, and election officials check the ballot to make sure the signatures match.

During the state’s primary on July 7, election officials will notify voters if they reject a ballot because of a signature mismatch. Burns said it was not only a way for voters to ensure their vote is counted, but also functions as a warning that another person may have attempted to vote fraudulently in their name.

UC Irvine’s Hasen said the security measures used in New Jersey were likely enough to raise the suspicion of authorities. “Even on this small scale, what you see is that having a conspiracy like this to try to affect the outcome of an election is very difficult to do without detection.”

Burns suggested the rare instances of election fraud are not typically committed by individual voters themselves but rather organized groups.

“This is not a voter fraud issue,” she said. “It’s crimes being committed against voters.”

Hasen emphasized that the Paterson case shows how difficult carrying out the kind of widespread fraud Trump insists is possible.

“Imagine trying to swing the outcome of a presidential election, how many people you would have to get involved or how many ballots you would have to try to intercept without detection in order to try to have a meaningful impact on races that are typically decided by tens of thousands of votes if not more in a particular state,” said Hasen.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>

“Trump Camp, RNC Goes After PA’s Use Of Drop Boxes For Mail-In Ballots”<https://electionlawblog.org/?p=112717>
Posted on July 1, 2020 7:38 am<https://electionlawblog.org/?p=112717> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/news/trump-campaign-rnc-drop-boxes-pennsylvania>:

A new lawsuit filed by the Trump campaign and the Republican National Committee seeks to block the use of drop boxes for Pennsylvania voters to submit their mail-in ballots.

The lawsuit, announced Monday, alleges that by letting voters submit their mail ballots at locations other than at their county board of elections’ offices or through the mail, election officials ran afoul of state law. It also claims that the use of drop boxes in Pennsylvania’s primary amounted to a violation of the U.S. constitution.

“Upending our entire election process and undermining ballot security through unmonitored by-mail voting is the single greatest threat to free and fair elections,” the lawsuit claims.

Not every Pennsylvania county set up drop boxes for voters, but many did, particularly as concerns grew that voters weren’t receiving their ballots in time for them to be returned by mail.

Election officials in several other states also set up mail ballot drop boxes for their spring and summer primaries, during which absentee voting skyrocketed due to the pandemic. The use of drop boxes is also common<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx#provide> in states that had widely-used absentee voting or mail-in voting operations prior to the pandemic, and some of those states require the use of drop boxes in a way that maximizes convenience for voters.
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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
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http://electionlawblog.org<http://electionlawblog.org/>

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