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

[Rick Hasen]

“Chief Justice John Roberts was hospitalized last month after injuring his head in a fall”<https://electionlawblog.org/?p=112906>
Posted on July 7, 2020 8:31 pm<https://electionlawblog.org/?p=112906> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/courts_law/john-roberts-hospitalized-supreme-court/2020/07/07/6bc230ae-c0a0-11ea-b4f6-cb39cd8940fb_story.html?utm_campaign=wp_politics&utm_medium=referral&utm_source=rss>

Chief Justice John G. Roberts Jr. suffered a fall at a Maryland country club last month that required an overnight stay in the hospital, a Supreme Court spokeswoman confirmed Tuesday night.

The 65-year-old chief justice was taken by ambulance to a hospital after the June 21 incident at the Chevy Chase Club<https://www.chevychaseclub.org/>, which was serious enough to require sutures. He stayed at the hospital overnight for observation and was released the next morning.

Roberts has twice experienced seizures, in 1993 and in 2007, but Supreme Court spokeswoman Kathleen Arberg said doctors ruled out that possibility in the latest incident. Doctors believe he was dehydrated, she said.

Roberts did not publicly disclose the matter, and the court’s confirmation came in response to an inquiry from The Washington Post, which received a tip.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


Election Law Academics Update<https://electionlawblog.org/?p=112904>
Posted on July 7, 2020 8:23 pm<https://electionlawblog.org/?p=112904> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Tabatha Abu el-Haj<https://drexel.edu/law/faculty/fulltime_fac/Tabatha%20Abu%20El-Haj/> was promoted to full professor at Drexel Law.

Wilfred Codrington <https://www.brooklaw.edu/Contact-Us/Codrington-Wilfred> began as an assistant Professor at Brooklyn Law School.

Travis Crum<https://law.wustl.edu/faculty-staff-directory/profile/travis-crum/> began as an associate professor at Washington U. in St. Louis.

Yasmin Dawood<https://www.law.utoronto.ca/faculty-staff/full-time-faculty/yasmin-dawood> was the recipient of the 2020 Mewett Teaching Award for excellence in teaching, a student-choice award given to a faculty member by the graduating class.

Josh Douglas<https://law.uky.edu/directory/joshua-a-douglas> won the 2019-20 Robert M. and Joanne K. Duncan Teaching Award<https://law.uky.edu/news/uk-law-professor-joshua-a-douglas-receives-duncan-teaching-award> at the University of Kentucky J. David Rosenberg College of Law.

Paul Gronke<https://evic.reed.edu/> was awarded a Carnegie Fellowship<https://www.carnegie.org/awards/honoree/paul-gronke/>.

David Lublin<https://www.american.edu/spa/faculty/dlublin.cfm> became chair of the Department of Government at American University.

Michael P. McDonald<https://polisci.ufl.edu/michael-mcdonald/> was promoted to Full Professor in the Department of Political Science at the University of Florida.

Derek Muller<https://excessofdemocracy.com/bio> begins at the University of Iowa after a stint at Pepperdine

David Primo<http://www.sas.rochester.edu/psc/primo/> was promoted to full professor of political science and business administration at the University of Rochester, where he continues to hold the Ani and Mark Gabrellian professorship.

Mark Scarberry<https://law.pepperdine.edu/faculty-research/mark-scarberry/> of Pepperdine will begin teaching election law.

Stephanie Singer<https://www.pdx.edu/insidepsu/profile/stephanie-singer> was appointed Research Assistant Professor at the Hatfield School of Government at Portland State University to pursue an NSF-funded project on detecting anomalies in election results.

Daniel A. Smith<https://polisci.ufl.edu/daniel-a-smith/> was reappointed for a four year term as Chair of the Department of Political Science at the University of Florida.

Nick Stephanopoulos<https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos> moved to Harvard Law School.

Congratulations all!
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Posted in election law biz<https://electionlawblog.org/?cat=51>


“Court Blocks Montana Law That Restricts Voting Rights of Native Americans”<https://electionlawblog.org/?p=112902>
Posted on July 7, 2020 4:27 pm<https://electionlawblog.org/?p=112902> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.aclu.org/press-releases/court-blocks-montana-law-restricts-voting-rights-native-americans>:

A Montana court has blocked a state law that severely restricts the right to vote for Native Americans.

The American Civil Liberties Union, ACLU of Montana, and Native American Rights Fund successfully sought the preliminary injunction halting the so-called Montana Ballot Interference Prevention ACT (BIPA), which imposed severe restrictions on ballot collection efforts that are critical to Native American voters, particularly those living on rural reservations….

Ruling: https://www.aclu.org/legal-document/pi-order-western-native-voice-v-stapleton
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Posted in court decisions<https://electionlawblog.org/?cat=129>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“In new guidance, CDC recommends alternatives in addition to in-person voting to avoid spreading coronavirus”<https://electionlawblog.org/?p=112900>
Posted on July 7, 2020 4:18 pm<https://electionlawblog.org/?p=112900> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/in-new-guidance-cdc-recommends-alternatives-to-in-person-voting-safety-precautions-for-in-person-voting/2020/07/07/5b62cbba-c078-11ea-b178-bb7b05b94af1_story.html?wpmk=MK0000200>

The Centers for Disease Control and Prevention is recommending that voters consider alternatives to casting their ballots in person during upcoming elections, as states expand absentee and early voting options for November amid fears of spreading the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_2>.

The guidance<https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html> was issued with little fanfare on June 22 and suggested that state and local election officials take steps to minimize crowds at voting locations, including offering “alternative voting methods.” President Trump has repeatedly claimed without evidence that one popular alternative — mail-in ballots — promotes widespread voter fraud.

Voters who want to cast ballots in person should consider showing up at off-peak times, bringing their own black ink pens or touch-screen pens for voting machines, and washing their hands before entering and after leaving the polling location, the guidance said. Workers and voters alike, it said, should wear face coverings.

The guidance aims to help voters, poll workers and election officials take precautions to minimize the spread of the virus, which has already disrupted some primary elections this year and could be a source of turmoil in the upcoming presidential election.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Trump’s attacks on mail voting are turning Republicans off absentee ballots”<https://electionlawblog.org/?p=112897>
Posted on July 7, 2020 4:14 pm<https://electionlawblog.org/?p=112897> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/trumps-attacks-on-mail-voting-are-turning-republicans-off-absentee-ballots/2020/07/07/640b6126-bbd4-11ea-80b9-40ece9a701dc_story.html?wpmk=MK0000200>

President Trump’s relentless attacks on the security of mail voting are driving suspicion among GOP voters toward absentee ballots — a dynamic alarming Republican strategists, who say it could undercut their own candidates, including Trump himself.

In several primaries this spring, Democratic voters have embraced mail ballots in far larger numbers than Republicans during a campaign season defined by the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_4> pandemic. And when they urge their supporters to vote by mail, GOP campaigns around the country are hearing from more and more Republican voters who say they do not trust absentee ballots, according to multiple strategists. In one particularly vivid example, a group of Michigan voters held a public burning of their absentee ballot applications last month.

The growing Republican antagonism toward voting by mail comes even as the Trump campaign is launching a major absentee-ballot program in every competitive state, according to multiple campaign advisers — a delicate balancing act, considering what one strategist described as the president’s “imprecision” on the subject.

“It’s very concerning for Republicans,” said a top party operative who, like several others interviewed, spoke on the condition of anonymity to avoid drawing Trump’s ire. “I guarantee our Republican Senate candidates are having it drilled into them that they cannot accept this. They have to have sophisticated mail programs. If we don’t adapt, we won’t win.”

The president, however, has been arguing the opposite. Nearly daily in recent weeks, and usually on Twitter, Trump has attacked mail balloting, leveling many unsubstantiated allegations. He has claimed without evidence that it will lead to widespread fraud and that foreign governments will try to dump millions of forged ballots into U.S. elections. He has accused Democrats of using the pandemic to expand mail balloting for political gain.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“One Small Vote for Lockport, NY, One Giant Lesson for 2020 America”<https://electionlawblog.org/?p=112895>
Posted on July 7, 2020 4:12 pm<https://electionlawblog.org/?p=112895> by Rick Hasen<https://electionlawblog.org/?author=3>

NYRB<https://www.nybooks.com/daily/2020/07/07/one-small-vote-for-lockport-ny-one-giant-lesson-for-2020-america/>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Why the Stakes Are So High in N.J.’s Primary This Year Officials are monitoring the state’s first mainly vote-by-mail election closely, with an eye on its implications for November.”<https://electionlawblog.org/?p=112893>
Posted on July 7, 2020 4:10 pm<https://electionlawblog.org/?p=112893> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/07/07/nyregion/nj-election-vote-by-mail.html?action=click&module=Top%20Stories&pgtype=Homepage>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“As November Looms, So Does the Most Litigious Election Ever”<https://electionlawblog.org/?p=112891>
Posted on July 7, 2020 2:08 pm<https://electionlawblog.org/?p=112891> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Wines<https://www.nytimes.com/2020/07/07/us/2020-election-laws.html> for the NYT:

Four months before Election Day, a barrage of court rulings and lawsuits has turned one of the most divisive elections in memory into one that is on track to be the most litigated ever.

With voting amid a pandemic as the backdrop, at stake are dozens of lawsuits around the country that will determine how easy — or hard — it will be to cast a ballot.

Justin Levitt, an election scholar and associate dean at Loyola Law School in Los Angeles, is tracking nearly 130 pandemic-related election lawsuits<https://electionlawblog.org/?p=111962>. The firm of Marc Elias, a lawyer who frequently represents the Democratic Party, is pursuing more than 35 voting rights cases<https://www.democracydocket.com/our-cases/>, a number he calls an order of magnitude greater than in the past. The Republican National Committee, which pledged this spring to spend at least $20 million fighting attempts to loosen voting rules, boasts of filing or intervening in 19 suits<https://protectthevote.com/> to date.

In his book “Election Meltdown,” Richard L. Hasen, a legal scholar at the University of California-Irvine, calculated that election-related litigation nearly tripled on average between 1996 and 2018. In an interview, Mr. Hasen said 2020 is on track to become the most litigated election season ever.

Perhaps the most sweeping ruling occurred on Wednesday, when a federal appeals court blocked a lower-court ruling<https://www.nytimes.com/aponline/2020/07/01/us/ap-us-felons-voting-florida.html> that would have restored voting rights to about 774,000 impoverished Floridians with felony records. On Thursday, the Supreme Court voted along ideological lines to block<https://www.al.com/news/2020/07/plaintiffs-ask-clarence-thomas-to-let-curbside-voting-order-stand.html>, at least for now, a loosening of Alabama’s strict absentee ballot requirements in a runoff election on July 14.

Last week, another federal appeals court ruled — after three years of deliberations — that Republican legislators in Wisconsin were largely within the law<https://www.courthousenews.com/seventh-circuit-rules-on-bevy-of-wisconsin-election-laws-limits-early-voting-period/> when they imposed an array of restrictions on balloting, even if their motives were baldly political.

And in scores of state and federal courts nationwide, lawyers for advocacy groups, the Republican and Democratic Parties and their allies are litigating a sheaf of rules governing the November vote.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Facebook Fails to Appease Organizers of Ad Boycott”<https://electionlawblog.org/?p=112889>
Posted on July 7, 2020 2:06 pm<https://electionlawblog.org/?p=112889> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/07/07/technology/facebook-ad-boycott-civil-rights.html>

Mark Zuckerberg and Sheryl Sandberg, Facebook’s two top executives, met with civil rights groups on Tuesday in an attempt to mollify them over how the social network treats hate speech on its site.

But Mr. Zuckerberg, Facebook’s chief executive, and Ms. Sandberg, the chief operating officer, failed to win its critics over.

For more than an hour, Mr. Zuckerberg, Ms. Sandberg and other Facebook executives discussed the company’s handling of hate speech over Zoom with representatives from the Anti-Defamation League, the National Association for the Advancement of Colored People and Color of Change. Those groups have helped push hundreds of companies<https://www.nytimes.com/2020/06/26/business/media/Facebook-advertising-boycott.html>, such as Unilever and Best Buy, to pause their advertising on Facebook in recent weeks to protest its handling of toxic speech and misinformation.

The groups said they discussed their demands with Facebook’s leaders, including the hiring a top executive with a civil rights background, submitting to regular independent audits and updating its community standards, according to a statement<https://www.freepress.net/news/press-releases/stophateforprofit-sees-no-commitment-action-meeting-between-campaign-leaders> from the Free Press advocacy group, whose co-chief executive, Jessica J. González, was on the call.

But Mr. Zuckerberg and Ms. Sandberg did not agree to all of those requests, representatives of the groups said. Instead, they said, the Facebook executives reverted to “spin” and firing up its “powerful P.R. machine.”
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>


“They Voted Third Party in 2016, but Now They’ve Settled on Biden”<https://electionlawblog.org/?p=112887>
Posted on July 7, 2020 2:04 pm<https://electionlawblog.org/?p=112887> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/07/07/us/politics/biden-2020-third-party.html?action=click&module=Top%20Stories&pgtype=Homepage>
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Posted in third parties<https://electionlawblog.org/?cat=47>


“Can Our Ballots Be Both Secret and Secure?”<https://electionlawblog.org/?p=112885>
Posted on July 7, 2020 2:01 pm<https://electionlawblog.org/?p=112885> by Rick Hasen<https://electionlawblog.org/?author=3>

Sue Halpern<https://www.newyorker.com/news/the-future-of-democracy/can-our-ballots-be-both-secret-and-secure?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_070720&utm_campaign=aud-dev&utm_medium=email&bxid=5be9d6c324c17c6adf3e9090&cndid=24399013&hasha=309d6717cbc3e3f32e92886d7c56ad7c&hashb=83e1dab582589f34645916c2107b5abdf101af1f&hashc=1b3a10e28b2286865851cd921cd9336439724a2a25effb68159c4a6f3ad6baa0&esrc=&utm_term=TNY_Daily> in the New Yorker.
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Posted in voting technology<https://electionlawblog.org/?cat=40>


States Must Adapt Their Absentee Ballot Process to Avoid What’s Happening in New York Right Now<https://electionlawblog.org/?p=112883>
Posted on July 7, 2020 9:54 am<https://electionlawblog.org/?p=112883> by Richard Pildes<https://electionlawblog.org/?author=7>

We are now two weeks out since New York held its primary elections. As this WSJ story<https://www.wsj.com/articles/new-york-election-officials-wade-through-absentee-ballots-11593990000?mod=searchresults&page=1&pos=1> reported, officials this week just began opening nearly 400,000 absentee ballots cast in that election. In one closely contested Congressional primary, for CD 12, there were 50% more absentee ballots cast than in-person votes. A lawyer for one of the candidates says that the counting could take “weeks and weeks.”

This situation is a product of three factors and the surge in absentee voting that is now entirely predictable:
1.      NY permits absentees to be postmarked on or before Election Day.
2.      NY treats these ballots as valid if received by June 30, seven days after the election.
3.      NY does not begin the process of validating and counting these ballots until nearly two weeks after the election — regardless of when those ballots come in.

The story concludes with this quote from one county election commissioner: “If [this process is] carried through to the presidential election, it’s going to be pure chaos.”

Were this to occur in one or more states that could determine the election’s outcome, it would be extremely dangerous in our current political climate. I have identified measures (e.g., here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3613163> and here<https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown>) states can take to get on top of this situation. A key step, which should be uncontroversial, is to change state laws to permit absentee ballots that come in before Election Day to be processed in advance, so they are ready to be counted immediately once polls close.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“2020 Election Sidebar: Still No Plan for a Smooth Election”<https://electionlawblog.org/?p=112879>
Posted on July 7, 2020 7:53 am<https://electionlawblog.org/?p=112879> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder<https://www.stroock.com/uploads/JGNYLJ-0702.pdf> in NYLJ.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“What if Trump loses but insists he won?”<https://electionlawblog.org/?p=112877>
Posted on July 7, 2020 7:32 am<https://electionlawblog.org/?p=112877> by Rick Hasen<https://electionlawblog.org/?author=3>

Max Boot WaPo column:<https://www.washingtonpost.com/opinions/2020/07/06/what-if-trump-loses-insists-he-won/>

In our scenario, there was no congressional commission. Instead, the Republican Party bombarded the airwaves with claims of electoral fraud and insisted that Trump had been cheated of victory. The GOP filed suit to prevent the certification of the results. Attorney General William P. Barr, who in real life is already making specious claims<https://www.cnn.com/2020/06/25/politics/barr-mail-in-voting-election-fraud-npr/index.html> about mail-in voter fraud, supported this effort in our mock exercise by claiming to have detected efforts by Chinese intelligence, Antifa terrorists and other enemies of the people to steal the election. The goal was to tie up the proceedings in the courts, initially at the state level, and quickly force the Republican-dominated Supreme Court to intervene.

While this was going on, chaos reigned in the streets, with pro- and anti-Trump activists mobilizing massive protests and violence erupting. Democrats believed that mass protests could force the government to respect the election outcome. But, as Team Trump, we calculated that such chaos would help persuade the Supreme Court to intervene to shut down the dispute. In 2000, even two of the more moderate conservative justices — Sandra Day O’Connor and Anthony M. Kennedy — voted to end Florida’s recount and hand the election to George W. Bush. Could we count on Chief Justice John G. Roberts Jr. — the current swing vote<https://www.washingtonpost.com/opinions/2020/07/03/dont-worry-conservatives-john-roberts-hasnt-gone-dangerously-rogue/?itid=lk_inline_manual_15> — to resist similar pressure to vote for the “home team”?

The danger of an undemocratic outcome only grows in other scenarios that were “war gamed” by other participants. For instance, what if there is no clear-cut winner on election night, with Biden narrowly ahead in the electoral college but with Michigan, North Carolina and Florida still too close to call? The participants in that war game concluded the result would be “near civil war in the streets.” Far-fetched rumors<https://www.washingtonpost.com/investigations/hundreds-of-armed-men-went-to-gettysburg-to-defend-it-from-a-phantom-antifa-flag-burner-created-on-social-media/2020/07/04/206ee4da-bb05-11ea-86d5-3b9b3863273b_story.html?itid=lk_inline_manual_16> are enough to bring out armed right-wing militias today; imagine how they would respond if they imagined that there was an actual plot afoot to steal the election from their hero.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


--
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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