[EL] ELB News and Commentary 7/6/20

Sun Jul 5 19:13:04 PDT 2020

“Kanye West tweets that he’s running for president”<https://electionlawblog.org/?p=112831>
Posted on July 5, 2020 11:43 am<https://electionlawblog.org/?p=112831> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<https://www.latimes.com/california/story/2020-07-04/kanye-west-tweets-that-hes-running-for-president>

It’s unclear whether West has filed any of the necessary paperwork to formally join the race between incumbent Donald Trump — for whom West has expressed admiration — and Joe Biden, the presumptive Democratic nominee. West and his wife Kim Kardashian West have visited Trump in the White House.

Within about an hour, West’s message had been retweeted more than 100,000 times and had sparked debate about his motives, including speculation among some of his 29 million followers that the move, if serious, might be part of an effort to draw Black supporters away from Biden to help Trump.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump’s push to amplify racism unnerves Republicans who have long enabled him”<https://electionlawblog.org/?p=112829>
Posted on July 5, 2020 11:37 am<https://electionlawblog.org/?p=112829> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Post:<https://www.washingtonpost.com/politics/trump-racism-white-nationalism-republicans/2020/07/04/2b0aebe6-bbaf-11ea-80b9-40ece9a701dc_story.html>

President Trump’s unyielding push to preserve Confederate symbols and the legacy of white domination, crystallized by his harsh denunciation of the racial justice movement Friday night at Mount Rushmore, has unnerved Republicans who have long enabled him but now fear losing power and forever associating their party with his racial animus.

Although amplifying racism and stoking culture wars have been mainstays of Trump’s public identity for decades, they have been particularly pronounced this summer as the president has reacted to the national reckoning over systemic discrimination by seeking to weaponize the anger and resentment of some white Americans for his own political gain.

Trump has left little doubt through his utterances the past few weeks that he sees himself not only as the Republican standard-bearer but as leader of a modern grievance movement animated by civic strife and marked by calls for “white power,” the phrase chanted by one of his supporters in a video the president shared<https://www.washingtonpost.com/politics/2020/06/28/trump-promotes-video-supporter-saying-white-power/?itid=lk_inline_manual_5> last weekend on Twitter. He later deleted the video<https://www.washingtonpost.com/politics/trump-white-power-tweet-set-off-a-scramble-inside-the-white-house--but-no-clear-condemnation/2020/06/29/6fd88c2c-ba21-11ea-8cf5-9c1b8d7f84c6_story.html?itid=lk_inline_manual_5> but did not disavow its message.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Facebook groups pivot to attacks on Black Lives Matter”<https://electionlawblog.org/?p=112827>
Posted on July 5, 2020 11:32 am<https://electionlawblog.org/?p=112827> by Rick Hasen<https://electionlawblog.org/?author=3>

News Hour:<https://www.pbs.org/newshour/nation/facebook-groups-pivot-to-attacks-on-black-lives-matter>

A loose network of Facebook groups that took root across the country in April to organize protests over coronavirus stay-at-home orders has become a hub of misinformation and conspiracy theories that have pivoted to a variety of new targets. Their latest: Black Lives Matter and the nationwide protests of racial injustice.

These groups, which now boast a collective audience of more than 1 million members, are still thriving after most states started lifting virus restrictions.

And many have expanded their focus.

One group transformed itself last month from “Reopen California” to “California Patriots Pro Law & Order,” with recent posts mocking Black Lives Matter or changing the slogan to “White Lives Matter.” Members have used profane slurs to refer to Black people and protesters, calling them “animals,” “racist” and “thugs”— a direct violation of Facebook’s hate speech standards.

Others have become gathering grounds for promoting conspiracy theories about the protests, suggesting protesters were paid to go to demonstrations and that even the death of George Floyd, an unarmed Black man who died in the custody of Minneapolis police, was staged.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Ned Foley on Why the Wirth-Rogers Electoral College Scenario is Unlikely (and What to Really Worry About)<https://electionlawblog.org/?p=112823>
Posted on July 4, 2020 10:38 am<https://electionlawblog.org/?p=112823> by Rick Hasen<https://electionlawblog.org/?author=3>

The other day Tim Wirth and Tom Rogers wrote: How Trump Could Lose the Election and Still Remain President<https://www.newsweek.com/how-trump-could-lose-election-still-remain-president-opinion-1513975>.

Ned Foley responds in a thread starting here<https://twitter.com/Nedfoley/status/1279429409741639681>:

Another critique<https://reason.com/2020/07/04/can-trump-really-lose-the-election-and-remain-president/> from Michael Abamowicz.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Covid-19 and Legislative Activity: A Cross-National Study”<https://electionlawblog.org/?p=112819>
Posted on July 3, 2020 4:15 pm<https://electionlawblog.org/?p=112819> by Rick Hasen<https://electionlawblog.org/?author=3>

New paper<https://www.researchgate.net/publication/342514148_Covid-19_and_Legislative_Activity_A_Cross-National_Study>:

Insufficient attention has been given to studying a vital organ jeopardized by covid-19: legislatures. Legislatures across the globe have been shut down or limited due to covid-19. In a comprehensive multidisciplinary study, exploring legislatures across 159 countries, we show that there is no causal relation between the severity of covid-19 and limitations on legislatures’ operation. This suggests that legislatures are at risk of being shut down either due to unfounded fear from covid-19 or as an excuse for silencing legislatures. We find that legislatures in healthy democracies are relatively immune to this risk, while those in frail democracies and authoritarian regimes are more at risk of becoming casualties of covid-19. In partially free countries, the use of technology can mitigate this risk.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>

Georgetown Law Journal Publishes 19th Amendment Special Edition; Proud to Be Part of It<https://electionlawblog.org/?p=112816>
Posted on July 3, 2020 10:55 am<https://electionlawblog.org/?p=112816> by Rick Hasen<https://electionlawblog.org/?author=3>

Table of Contents:<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/>

Nineteenth Amendment Edition
Letter from the Editor-in-Chief

Letter from the Editor-in-Chief<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/letter-from-the-editor-in-chief/>
Grace Paras

Foreword

Foreword<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/foreword/>
Hon. M. Margaret McKeown

Transcript

Excerpted Transcript of “Searching for Equality: The Nineteenth Amendment and Beyond”<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/transcript/>
A conversation between United States Supreme Court Justice Ruth Bader Ginsburg and Ninth Circuit Court of Appeals Judge M. Margaret McKeown

Articles

Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/thin-and-thick-conceptions-of-the-nineteenth-amendment-right-to-vote-and-congresss-power-to-enforce-it/>
Richard L. Hasen & Leah M. Litman

Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/reconstructing-liberty-equality-and-marriage-the-missing-nineteenth-amendment-argument/>
Nan D. Hunter

The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/the-welfare-queen-goes-to-the-polls-race-based-fractures-in-gender-politics-and-opportunities-for-intersectional-coalitions/>
Catherine Powell & Camille Gear Rich

The Pregnant Citizen, from Suffrage to the Present<https://www.law.georgetown.edu/georgetown-law-journal/nineteenth-amendment-edition/the-pregnant-citizen-from-suffrage-to-the-present/>
Reva B. Siegel
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Posted in 19th Amendment<https://electionlawblog.org/?cat=128>

“Can Trump’s anti-mail-voting crusade hurt him in key states?”<https://electionlawblog.org/?p=112813>
Posted on July 3, 2020 10:40 am<https://electionlawblog.org/?p=112813> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.thetelegraph.com/news/article/Can-Trump-s-anti-mail-voting-crusade-hurt-him-in-15384643.php>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Voting rules changed quickly for the primaries. But the battle over how Americans will cast ballots in the fall is just heating up.”<https://electionlawblog.org/?p=112805>
Posted on July 3, 2020 9:55 am<https://electionlawblog.org/?p=112805> by Rick Hasen<https://electionlawblog.org/?author=3>

Extensive WaPo report<https://www.washingtonpost.com/politics/voting-rules-changed-quickly-for-the-primaries-but-the-battle-over-how-americans-will-cast-ballots-in-the-fall-is-just-heating-up/2020/07/03/9b865dfa-ba43-11ea-80b9-40ece9a701dc_story.html?wpmk=MK0000200>:

When the novel coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_2> pandemic collided with this year’s primaries, states across the country raced to temporarily adjust voting procedures to make it safer for people to cast their ballots.

But efforts to set rules for the general election are now locked in more intractable fights, fueled by deepening polarization around voting practices and a torrent of litigation aimed at shaping how ballots are cast and counted.

While the vast majority of voters were permitted to cast absentee ballots during the primaries, only about 10 states so far have announced that they will make voting by mail easier for November, raising fears that Election Day could be marked by long lines and unsafe conditions at polling locations if the health crisis persists.

With Republican governors under pressure from President Trump not to expand voting by mail and many legislatures adjourned for the year or deadlocked along party lines, changes in the coming months are likely to come through court decisions.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Media Can’t Treat Election Night 2020 Like Years Past; Because of mail ballots, there’s a good chance the winner of the presidential race won’t be declared on election night, so the TV networks need to manage expectations.”<https://electionlawblog.org/?p=112803>
Posted on July 3, 2020 9:50 am<https://electionlawblog.org/?p=112803> by Rick Hasen<https://electionlawblog.org/?author=3>

Walter Shapiro<https://www.brennancenter.org/our-work/analysis-opinion/media-cant-treat-election-night-2020-years-past?utm_source=twitter&utm_medium=socialmedia> at the Brennan Center.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Sixth Circuit Refuses to Stay U.S. District Court Opinion that Gave Ballot Access Relief to Michigan Initiatives”<https://electionlawblog.org/?p=112800>
Posted on July 3, 2020 9:46 am<https://electionlawblog.org/?p=112800> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN<http://ballot-access.org/2020/07/03/sixth-circuit-refuses-to-stay-u-s-district-court-opinion-that-gave-ballot-access-relief-to-michigan-initiatives/>:

On July 2, the Sixth Circuit issued an order<https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0201p-06.pdf> in SawariMedia v Whitmer, 20-1594. This is the case over whether Michigan must give ballot access relief to initiative proponents. The U.S. District Court had said the state must either cut the number of signatures, or give substantially more time to finish the petition. Michigan asked for a stay, but the Sixth Circuit refused the state’s request.

The three judges were Eric L. Clay, a Clinton appointee; Alan E. Norris, a Reagan appointee; and Joan Larsen, a Trump appointee. Larsen was formerly on the Michigan Supreme Court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Biden campaign readying hundreds of lawyers in expansive vote protection effort”<https://electionlawblog.org/?p=112777>
Posted on July 2, 2020 8:33 pm<https://electionlawblog.org/?p=112777> by Rick Hasen<https://electionlawblog.org/?author=3>

The “armies of lawyers” stories are coming earlier<https://www.cnn.com/2020/07/02/politics/biden-voter-protection-efforts/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29> this election season.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Supreme Court, on 5-4 Vote, Blocks Federal District Courts Rules Easing Voting in Alabama Primary in Light of COVID-19<https://electionlawblog.org/?p=112775>
Posted on July 2, 2020 5:57 pm<https://electionlawblog.org/?p=112775> by Rick Hasen<https://electionlawblog.org/?author=3>

The Court’s order is here,<https://www.supremecourt.gov/orders/courtorders/070220zr_n7io.pdf> breaking along ideological/party lines.

I expected this. See my earlier post, Alabama Goes to Supreme Court to Reverse Lower Court Orders Making Voting Easier During Pandemic (and I Expect Alabama Will Win)<https://electionlawblog.org/?p=112696>

These changes are coming close to the election, so they implicate the Purcell principle<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>. But beyond that, they show the conservative majority on the Supreme Court is not going to put a thumb on the scale favoring voters in this election and instead will view the pandemic-created dislocations in the voting process as not enough of a reason to depart from usual voting rules when states fail to bend their rules to accommodate voter safety and convenience during the pandemic. It is of a piece with the 5-4 decision in RNC v. DNC.

I explore these themes, and the increasing party divide in the courts on the COVID cases, in Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them (manuscript under review) (June 2020 draft available)<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> (forthcoming Election Law Journal). This is what I wrote there about RNC v. DNC:

Beyond the sloppiness, and most troubling, is the cavalier nature of the Supreme Court’s opinion. It ignored the pandemic and treated the situation as ordinary litigation in an ordinary time. It failed to even mention the voting rights that the plaintiffs were seeking to vindicate. The opinion sent a message that the Court cares little about the voting rights of people in the state, especially AfricanAmerican voters in Milwaukee who had been facing great risk related to the virus.

In this extraordinary time of a pandemic, the Supreme Court chose to vote remotely for safety reasons while denying some Wisconsin voters a chance to do the same. Not only did the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It demonstrated that the Court majority could not build a bridge for a unanimous compromise opinion. The signal it sends is that there may well be have partisan warfare at the Court over election issues in the upcoming election, which is already shaping up to be one conducted under conditions of deep polarization and a pandemic.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Why Are Federal Jurists Cheering on Voter Suppression in Wisconsin?”<https://electionlawblog.org/?p=112773>
Posted on July 2, 2020 1:45 pm<https://electionlawblog.org/?p=112773> by Rick Hasen<https://electionlawblog.org/?author=3>

John Nichols<https://www.thenation.com/article/politics/early-voting-wisconsin-court/> for The Nation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Greg Sargent: “Why Facebook probably won’t police Trump’s lies about voting”<https://electionlawblog.org/?p=112768>
Posted on July 2, 2020 1:36 pm<https://electionlawblog.org/?p=112768> by Rick Hasen<https://electionlawblog.org/?author=3>

Important piece<https://www.washingtonpost.com/opinions/2020/07/02/why-facebook-probably-wont-police-trumps-lies-about-voting/>:

Under pressure to combat the disinformation that politicians — most notably the president of the United States — are spreading on its platforms, Facebook recently announced<https://www.facebook.com/zuck/posts/10112048980882521> a new effort to combat lies geared in particular toward misleading Americans about voting.

Disinformation aimed at voting is a particularly pernicious form of it, especially right now. These days much of it is designed to cripple efforts to expand vote-by-mail, at a time when more and more Americans want to avail themselves of it so they can vote safely during a pandemic.

President Trump has been lying relentlessly about vote-by-mail for weeks, in an obvious effort to dissuade localities from scaling up for more mail voting, because he believes<https://www.washingtonpost.com/politics/2020/03/30/trump-voting-republicans/?itid=lk_inline_manual_5> more people voting this way makes his reelection less likely.

Unfortunately, even though Facebook is vowing a vigorous effort to clean up information about voting, it is unlikely to do much to prevent Trump from spreading his lies about vote-by-mail in particular.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, social media and social protests<https://electionlawblog.org/?cat=58>

“Candidates Sue New Jersey Over Restrictions on Campaign Slogans”<https://electionlawblog.org/?p=112766>
Posted on July 2, 2020 11:39 am<https://electionlawblog.org/?p=112766> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

Two candidates for Congress in New Jersey today asked<http://r20.rs6.net/tn.jsp?f=0018OM8-gruu32p6RescTEtWDn9QKPnPVbqGK5gSnjizTOtr6kTvffB0Tulf0XwoGbMEbuvCyylFsQGHAIsAEjjFEzkDDTCG4xKaTdK6cjA5rlqXm0j7mY5161013J9ZZWSwFxLCX_k6Oa0lE5FTG63PsQ7pZ8Wdu3Beu-8Rb83N2ax67mokIwM_tQbduNk5yBY6Svz5jKbKFypfr-OzxUhxY9Agx-6D3yCMeM15PNKn7hiAvSUvRb9w-uHMgVFE4GDt-dHmvmktIg=&c=jB_fhkXuGGPmHq4dMXnQmhEElOclizpjEAQ_Vr3Toaix38pwRHH_gg==&ch=9aFjEM7bRSZcXeMaS6gZ5ZYJ4JG1IcG0u_Xs-cYH4QbBitZt8OAp1A==> a federal court to declare the state’s restrictions on campaign slogans unconstitutional. The Institute for Free Speech is representing the candidates, Eugene Mazo and Lisa McCormick, in the First Amendment challenge.

“New Jersey’s regulation of campaign slogans is one of the country’s most blatant violations of candidates’ right to free speech. The state effectively allows groups to register slogans just to prevent candidates from using them. Campaigns must be allowed to speak to voters in their own words and with their own slogans,” said Institute for Free Speech Attorney Ryan Morrison.

New Jersey law allows candidates in primary elections for Congress to include a slogan of up to six words next to their name on the ballot. The law, however, prohibits slogans from naming or referring to any other person or any incorporated entity in New Jersey, unless the candidate receives their permission. This has fueled a competition in the state to incorporate entities in order to own the rights to their names for ballot slogans and exclude others from using them.

Eugene Mazo is a law professor who is seeking the Democratic nomination to the U.S. House of Representatives in New Jersey’s 10th Congressional District. Mazo submitted three slogans, but all were rejected by the state because each named an incorporated entity in New Jersey. To avoid having no slogan appear on the ballot, Mazo did what other candidates do: he registered corporations of his own in the state, named after slogans he wished to use. “I have studied American democracy as a scholar, a voter, and now as a political candidate. And what I can tell you is that New Jersey’s ballot restrictions are unconstitutional. Simply put, they violate the First Amendment. My goal in filing this lawsuit is to create an equal playing field for candidates of diverse political views who believe, as I do, that free speech is sacred. Under our Constitution, New Jersey has no right to regulate what a political candidate can say to his or her voters,” said Mazo.

Lisa McCormick is a small business owner who is seeking the Democratic nomination for the House in New Jersey’s 12th Congressional District. State officials denied her choice of slogan – “Not Me. Us.” – because McCormick did not have permission from the incorporated entity organized in New Jersey under that name. A second slogan naming Bernie Sanders was also denied because she did not have Sanders’ permission to use his name. Ultimately, McCormick was able to secure permission to use the slogan, “Democrats United for Progress.” Candidates have the right to use the rhetoric and language of their choice in their slogans. Yet New Jersey’s law allows anyone to claim ownership of a slogan simply by incorporating an entity under that name. This system is unwise and unconstitutional. The case is Mazo and McCormick v. Way, et al. It is before the United States District Court for the District of New Jersey, Newark Division. Mazo and McCormick are represented by attorneys from the Institute for Free Speech and Walter M. Luers. To read the complaint, click here<http://r20.rs6.net/tn.jsp?f=0018OM8-gruu32p6RescTEtWDn9QKPnPVbqGK5gSnjizTOtr6kTvffB0Tulf0XwoGbMEbuvCyylFsQGHAIsAEjjFEzkDDTCG4xKaTdK6cjA5rlqXm0j7mY5161013J9ZZWSwFxLCX_k6Oa0lE5FTG63PsQ7pZ8Wdu3Beu-8Rb83N2ax67mokIwM_tQbduNk5yBY6Svz5jKbKFypfr-OzxUhxY9Agx-6D3yCMeM15PNKn7hiAvSUvRb9w-uHMgVFE4GDt-dHmvmktIg=&c=jB_fhkXuGGPmHq4dMXnQmhEElOclizpjEAQ_Vr3Toaix38pwRHH_gg==&ch=9aFjEM7bRSZcXeMaS6gZ5ZYJ4JG1IcG0u_Xs-cYH4QbBitZt8OAp1A==>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

I’ll Be Talking Voting Rights with The Texas Observer at Virtual Event 7/7<https://electionlawblog.org/?p=112764>
Posted on July 2, 2020 10:36 am<https://electionlawblog.org/?p=112764> by Rick Hasen<https://electionlawblog.org/?author=3>

Announcement and registration link:<https://www.eventbrite.com/e/voting-in-a-pandemic-tickets-110864253968>

Voting in Texas has never been easy. Join the Texas Observer for a discussion of the voting challenges in Texas ahead of the July runoffs.

About this Event

Voting in Texas has never been easy. But with a pandemic and civil uprising sweeping across the United States, Texans may need to brace for even more chaos than usual. Important runoff elections for a U.S. Senate seat (and other offices) take place on July 14, with early voting starting on June 29 and ending on July 10. What can voters expect to face as they try to go to the polls in Texas—a state with a long history of voter suppression? How limited will mail-in voting be, as fights against expansion are waged in the courts? What other impacts might the onset, and second wave of COVID-19 deliver?

Texas Observer civil rights reporter Michael Barajas will tackle 2020 voting questions in conversation with national elections expert Rick Hasen, author of Election Meltdown, Joaquin Gonzalez, an attorney who monitored polls and complaints for the Texas Civil Rights Project, Clarice Caldwell, a teacher and voter in San Antonio, and Joshua Muhammad, a PVAMU alum, former individual plaintiff, and current Chairperson of organizational plaintiff The Panther Party.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

--
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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