[EL] ELB News and Commentary 7/9/20

[Rick Hasen]

“Mail-In Voting Isn’t An Answer In Indian Country. Senators Urge DOJ To Accommodate Tribes.”<https://electionlawblog.org/?p=112936>
Posted on July 8, 2020 4:08 pm<https://electionlawblog.org/?p=112936> by Rick Hasen<https://electionlawblog.org/?author=3>

KUNR reports.<https://www.kunr.org/post/mail-voting-isnt-answer-indian-country-senators-urge-doj-accommodate-tribes#stream/0>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking: Voting Rights Advocates File Emergency Petition in Supreme Court to Reinstate Florida District Court Order Blocking State Law Preventing Reenfranchisement of Felons<https://electionlawblog.org/?p=112933>
Posted on July 8, 2020 2:55 pm<https://electionlawblog.org/?p=112933> by Rick Hasen<https://electionlawblog.org/?author=3>

From the emergency petition<https://campaignlegal.org/sites/default/files/2020-07/Raysor%20v.%20DeSantis%20Application%20to%20Vacate%20Stay.pdf>:

The district court’s permanent injunction—accompanied by a 125-page opinion of factual findings and legal analysis—remedied the State’s chaotic, unconstitutional pay-to-vote system, relying upon systems and procedures the State already employs. But in a one-sentence order with no explanation, and on the eve of the July 20 registration deadline, the en banc Eleventh Circuit has stayed the district court’s injunction wholesale. Not only has this thrown the election rules into chaos (with nearly one hundred thousand registered voters and three-quarters of a million citizens now uncertain of their eligibility to vote), it has revived the risk—and attendant chill—of prosecution for citizens who worry they will guess wrong about how much (if anything) they must pay to vote.

Inexplicably, the en banc court has done this despite declining—just four months ago—to rehear en banc a panel decision affirming the district court’s preliminary injunction in this very case and announcing a legal standard that would ensure that the vast majority of affected citizens in Florida would be eligible to vote. And remarkably, with no analysis, the en banc court stayed aspects of the district court’s injunction—its remedies for the procedural due process, vagueness, and National Voter Registration Act (“NVRA”) violations—that the State did not even challenge in its stay motion (either to the district court or the court of appeals), and the latter of which the State has abandoned on appeal.

Consider the plight now thrust upon three-quarters of a million would-be voters. In addition to having to guess (under threat of criminal prosecution) how much (if anything) they must pay to vote, now they must venture a second guess: which Eleventh Circuit decision tells them whether Florida may constitutionally require them to pay money they cannot afford in order to vote? The panel decision—left undisturbed by the en banc court then and now—that describes their constitutional rights in detail? Or the one-sentence order staying the district court’s subsequent injunction that offers no explanation of their constitutional rights?

This is not tenable. Argument is set to be heard the same day as the August primary, a month after registration closes for that election on July 20. Tens of, thousands of people who were already registered, or who registered between the time of the district court’s May 24 injunction and the Eleventh Circuit’s July 1 stay, undoubtedly already submitted vote-by-mail requests, which under Florida law are valid for all elections this calendar year. See Fla. Stat. § 101.62. Ballots for overseas voters affected by the district court’s injunction were required by state law to be mailed by July 2 (but could be mailed earlier). Id. Some overseas voters have already returned their completed ballots. Supervisors of Elections have no way to determine which among the millions of vote-by-mail applications should not be fulfilled pursuant to the Eleventh Circuit’s stay order, because the State has not yet determined for even a single voter whether they must pay to vote, and if so, how much. So they will mail the ballots to those who requested them, including those requested prior to the July 1 stay. Nor can the affected voters know whether they are eligible to complete and return the ballot they received. Those aware of the stay, but who are actually eligible under the State’s ever-shifting interpretation of its payto-vote law, will be discouraged from voting, because of the threat of prosecution emphasized on the State’s registration materials. The district court remedied the chaos inherent in the pay-to-vote system. The Eleventh Circuit resurrected that chaos, and then multiplied it.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“Suit Challenges Indiana’s New Law Blocking Voters from Asking the Courts to Extend Voting Hours”<https://electionlawblog.org/?p=112931>
Posted on July 8, 2020 2:09 pm<https://electionlawblog.org/?p=112931> by Rick Hasen<https://electionlawblog.org/?author=3>

Common Cause release<https://www.commoncause.org/indiana/press-release/suit-challenges-indianas-new-law-blocking-voters-from-asking-the-courts-to-extend-voting-hours/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How to Avoid an Election Crisis in November; The COVID-19 pandemic has upended usual voting procedures. Professor Richard L. Hasen explains the unprecedented challenges the United States faces this November, and offers recommendations for how election officials, political leaders, civil society, and the media can help protect the integrity of elections during a crisis.”<https://electionlawblog.org/?p=112929>
Posted on July 8, 2020 2:06 pm<https://electionlawblog.org/?p=112929> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s a Q and A<https://freedomhouse.org/article/how-avoid-election-crisis-november> I did with Freedom House on our report, Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“League Files Lawsuit to Correct Error-Prone Ballot Verification Process in New York”<https://electionlawblog.org/?p=112927>
Posted on July 8, 2020 1:59 pm<https://electionlawblog.org/?p=112927> by Rick Hasen<https://electionlawblog.org/?author=3>

Press release<https://www.lwv.org/newsroom/press-releases/league-files-lawsuit-correct-error-prone-ballot-verification-process-new?utm_source=PressRelease&utm_medium=email&utm_campaign=07082020>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


July 9 Zoom Event: “Pandemic Propaganda: A New Electoral Crisis”<https://electionlawblog.org/?p=112925>
Posted on July 8, 2020 1:58 pm<https://electionlawblog.org/?p=112925> by Rick Hasen<https://electionlawblog.org/?author=3>

Details:<https://zoom.us/webinar/register/7615924325169/WN_4Lmvy2_1TWOl99hca79cDA>

TopicPandemic Propaganda: A New Electoral CrisisDescriptionHow will the misinformation pandemic inflamed by the coronavirus crisis reshape the political landscape? And how might domestic and foreign actors weaponize rumors, conspiracy theories, and disinformation about Covid-19 against American voters in the lead-up to the November election? A distinguished panel will discuss measures that can address these challenges in the upcoming months and help ensure the 2020 election is free, fair, and safe.

Laura Rosenberger is the director of the Alliance for Securing Democracy and a senior fellow at The German Marshall Fund of the United States. The Brennan Center’s Ian Vandewalker is senior counsel for the Democracy Program, where he works to address the influence of money in politics and foreign interference in U.S. elections. Ángel Díaz is counsel in the Brennan Center’s Liberty & National Security Program; his work focuses on the intersection of technology with civil rights and civil liberties. They join Foreign Affairs executive editor Daniel Kurtz-Phelan.

This event is produced in partnership with Foreign Affairs and New York University’s John Brademas Center.

– Laura Rosenberger, Director, Alliance for Securing Democracy; Senior Fellow, The German Marshall Fund of the United States
– Ian Vandewalker, Senior Counsel, Democracy Program, Brennan Center for Justice
– Ángel Díaz, Counsel, Liberty & National Security Program, Brennan Center for Justice
– Daniel Kurtz-Phelan, Executive Editor, Foreign Affairs (Presider)Time

Jul 9, 2020 12:00 PM in Eastern Time (US and Canada)<javascript:;>
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Posted in campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>


“Social media platforms gird for 78 days of disinformation chaos after Election Day; If election results are not known on Election Day, a war of competing narratives on social media could ensue all the way to Inauguration Day”<https://electionlawblog.org/?p=112923>
Posted on July 8, 2020 11:18 am<https://electionlawblog.org/?p=112923> by Rick Hasen<https://electionlawblog.org/?author=3>

Roll Call<https://www.rollcall.com/2020/07/07/social-media-platforms-gird-for-78-days-of-disinformation-chaos-after-election-day/>:

Lawmakers and disinformation experts say social media companies must be prepared to confront the likely onslaught of lies and misleading information during that period.

States holding presidential primaries in the past few months have already seen reporting of results delayed because of an increase in voting by mail. Most states stipulate that counting of mailed ballots cannot begin until Election Day even if they are received days and weeks earlier.

Such delays in November and potential lawsuits challenging results in some states could leave an information vacuum that could be filled with disinformation, said Graham Brookie, director and managing editor of the Atlantic Council’s Digital Forensic Research Lab, which tracks online disinformation.

“It’s inevitable that we’ll have convoluted election results and it’s inevitable there’ll be a period of time when results are confusing, and it’s not clear what’s going on,” Brookie said. From social media executives to federal, state and local officials, everyone needs to be prepared for “what could happen so they can avoid the information vacuum that’s extremely vulnerable to disinformation.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Election Experts Warn of November Disaster”<https://electionlawblog.org/?p=112921>
Posted on July 8, 2020 11:00 am<https://electionlawblog.org/?p=112921> by Rick Hasen<https://electionlawblog.org/?author=3>

Stateline<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/08/election-experts-warn-of-november-disaster>:

After a presidential primary season plagued by long lines, confusion over mail-in voting and malfunctioning equipment, election experts are increasingly concerned about the resiliency of American democracy in the face of a global pandemic.

With four months until the presidential election, the litany of unresolved issues could block some voters from casting ballots and lead many citizens to distrust the outcome of one of the most pivotal races of their lifetimes.

There is widespread concern among voting activists, experts and elections officials that it will take further federal investment in local election systems, massive voter education campaigns and election administrators’ ingenuity to prevent a disaster come November.

“The coronavirus has really laid bare the cracks in our system,” said Myrna Pérez, director of the Brennan Center’s Voting Rights and Elections Program.

Even before the pandemic, Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said he was worried about the state of U.S. elections. He warned in his recent book Election Meltdown about the effects that misinformation, administrative incompetence and voter suppression efforts would have on the 2020 presidential election.

Now, to add to all those problems, there is COVID-19, which further destabilizes voting. He, like many other election experts interviewed by Stateline, said he is worried about November.

“The best-case scenario for us is that key elections are not close,” he said, “because we are going to have problems.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Voting rights of some felons in Florida in question after appeals court ruling”<https://electionlawblog.org/?p=112919>
Posted on July 8, 2020 10:58 am<https://electionlawblog.org/?p=112919> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/voting-rights-of-some-felons-in-florida-in-question-after-appeals-court-ruling/2020/07/08/ad567af4-c116-11ea-9fdd-b7ac6b051dc8_story.html?utm_campaign=wp_politics&utm_medium=referral&utm_source=rss>

Voting rights advocates scrambled this week to understand the impact of an appeals court decision blocking some Florida felons’ eligibility to participate in elections — a blow to efforts to restore voting rights to as many as 1.4 million people in the state.

The U.S. Court of Appeals for the 11th Circuit in Atlanta last week halted a judge’s order from May that had cleared the way for hundreds of thousands of felons in the state to register to vote. The lower court judge had found that a state law requiring them to pay fines and fees first amounted to an unconstitutional voting tax if they are unable to afford it.

The appeals court has scheduled a hearing on the issue for Aug. 18 — the same day as Florida’s primary election. It’s unclear if the court will decide the issue in time for the November presidential election, or if the court’s eventual ruling will be appealed to the U.S. Supreme Court.

“It is disappointing, and it will surely mean that we are once again in a state of some confusion when it comes to people’s eligibility, as we were before,” said Sean Morales-Doyle, an attorney with the Brennan Center for Justice’s Democracy Program.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“Lara Trump-RNC robocall called mail-in voting safe and secure while President railed against it”<https://electionlawblog.org/?p=112917>
Posted on July 8, 2020 8:27 am<https://electionlawblog.org/?p=112917> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/07/08/politics/kfile-lara-trump-rnc-robocall/index.html>:

While President Donald Trump has continuously railed against voting by mail, a Republican National Committee robocall in April voiced by his daughter-in-law Lara Trump said voting by mail could be done “safely and securely.”

The call was sent in support of Republican Mike Garcia in California’s 25th US House District special election, the race for the seat previously held by Democratic Rep. Katie Hill. California’s election was done almost entirely by mail after Democratic Gov. Gavin Newsom signed an executive order in March<https://www.washingtonpost.com/opinions/2020/05/15/voting-by-mail-helps-gop-californias-special-election-proved-that/> that required every voter to be mailed a ballot.

It was one of three RNC robocalls identified by CNN’s KFile in which Lara Trump and the President’s son Donald Trump Jr. urged voters to vote by mail in special elections since the beginning of the coronavirus pandemic.

“Nancy Pelosi and liberal Democrats are counting on you to sit on the sidelines this election, but you can prove them wrong. You can safely and securely vote for Mike Garcia by returning your mail in ballot by May 12,” Lara Trump said in the April robocall following a disclaimer it was sponsored by the Republican National Committee. Garcia went on to win the special election<https://www.cnn.com/2020/05/14/politics/vote-by-mail-trump-california/index.html>, defeating Democratic State Assemblywoman Christy Smith.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“‘It’s egregious’: thousands of mail-in ballots could be rejected over small errors”<https://electionlawblog.org/?p=112915>
Posted on July 8, 2020 8:04 am<https://electionlawblog.org/?p=112915> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian<https://www.theguardian.com/us-news/2020/jul/08/mail-in-ballots-rejected-small-errors>:

As more Americans vote by mail this year amid the Covid-19 pandemic, there’s concern that thousands of eligible voters like Weisfeld could have their ballots rejected for small errors without a chance to fix them. Mail-in ballots were more likely<https://www.washingtonpost.com/politics/2020/05/21/heres-problem-with-mail-in-ballots-they-might-not-be-counted/> to be rejected in the 2016 election than ones cast in person. In a typical election only a small percentage of mail-in ballots get rejected (318,728 ballots, about 1% of those returned, were uncounted in the 2016 general election), according to data<https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf> compiled by the US Election Assistance Commission (EAC). That could rise starkly during the presidential election when an unprecedented number of people are expected to vote by mail….

The vast majority of ballots that go uncounted are rejected for three reasons: the ballot arrives late, there is a problem with the signature on it, or there is no signature at all, according to EAC data. Many states don’t count ballots if they arrive after election day, regardless of when they were put in the mail. But they can also reject ballots if election officials determine the signature on the ballot doesn’t match one in a voter’s file – a decision that can be left to the whims of election officials with little guidance.

Four months ahead of the election, there are already warning signs. In May, New Jersey officials rejected nearly 10% of mail-in ballots<https://www.njspotlight.com/2020/06/one-in-10-ballots-rejected-in-last-months-vote-by-mail-elections/> during local elections held entirely by mail. In Florida, just over 18,500<https://healthyelections.org/sites/default/files/2020-06/Florida%20Election%20Memo.pdf> ballots were rejected during the state’s March primary. In Nevada, more than 6,700 ballots, were rejected because of signature matching<https://www.kolotv.com/2020/06/25/6700-nv-primary-ballots-not-counted-due-to-signature-issues/> issues. In Kentucky’s June primary, more than 3,800 ballots were rejected<https://twitter.com/JoshuaADouglas/status/1280581391063941120> in Jefferson county, home of Louisville, because they lacked a required signature.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Facebook Decisions Were ‘Setbacks for Civil Rights,’ Audit Finds”<https://electionlawblog.org/?p=112913>
Posted on July 8, 2020 8:02 am<https://electionlawblog.org/?p=112913> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/07/08/technology/facebook-civil-rights-audit.html?referringSource=articleShare>:

Facebook has not done enough to fight discrimination on its platform and has made some decisions that were “significant setbacks for civil rights,” according to a new independent audit of the company’s policies and practices.

In a 100-page prepublication report, which was obtained by The New York Times, the social network was repeatedly faulted for not having the infrastructure for handling civil rights and for prioritizing free expression on its platform over nondiscrimination. In some decisions, Facebook did not seek civil rights expertise, the auditors said, potentially setting a “terrible” precedent that could affect the November general election and other speech issues.

“Many in the civil rights community have become disheartened, frustrated and angry after years of engagement where they implored the company to do more to advance equality and fight discrimination, while also safeguarding free expression,” wrote the auditors, Laura W. Murphy and Megan Cacace, who are civil rights experts and lawyers. They said they had “vigorously advocated for more and would have liked to see the company go further to address civil rights concerns in a host of areas.”

The report, which was the culmination of two years of examination of the social network, was another blow for the Silicon Valley company. Facebook has been under pressure for allowing hate speech, misinformation and other content that can go against people’s civil rights to fester on its site. While rivals like Twitter, Snap and Reddit have all taken action in recent weeks to label, downplay or ban such content, Facebook has said it will not do so because it believes in free speech.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Partisan Gerrymandering Limits Voting Rights”<https://electionlawblog.org/?p=112911>
Posted on July 8, 2020 7:58 am<https://electionlawblog.org/?p=112911> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<https://www.americanprogress.org/issues/democracy/reports/2020/07/08/487426/partisan-gerrymandering-limits-voting-rights/> from CAP.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“The Cybersecurity 202: Trump’s voting by mail assaults could cost him the election”<https://electionlawblog.org/?p=112909>
Posted on July 8, 2020 7:55 am<https://electionlawblog.org/?p=112909> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/07/08/the-cybersecurity-202-trump-s-voting-by-mail-assaults-could-cost-him-the-election/5f051d4b602ff10807197096/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


--
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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