[EL] ELB News and Commentary 7/18/20

Sat Jul 18 17:39:48 PDT 2020

“John Lewis’ Legacy Is the Right to Vote. And It’s Under Attack. A bill to restore the Voting Rights Act he championed has been sitting on Mitch McConnell’s desk for 225 days.”<https://electionlawblog.org/?p=113235>
Posted on July 18, 2020 5:23 pm<https://electionlawblog.org/?p=113235> by Rick Hasen<https://electionlawblog.org/?author=3>

Ari Berman<https://www.motherjones.com/politics/2020/07/john-lewis-legacy-is-the-right-to-vote-and-its-under-attack/>:

On March 1, as he was battling stage 4 cancer, John Lewis returned to Selma, Alabama, to commemorate the 55th anniversary of the Bloody Sunday march<https://www.history.com/news/selma-bloody-sunday-attack-civil-rights-movement>, when he was brutally beaten marching for voting rights. “We must go out and vote,” he told a crowd of thousands on the Edmund Pettus Bridge, “like we’ve never, ever voted before.” He urged the people gathered there to vote in order to “redeem the soul of America.”

The vote was personal for Lewis, who passed away late Friday evening at 80. He called it “precious, almost sacred.” He was more responsible than just about anyone for the passage of the Voting Rights Act of 1965….

But as much as Lewis wanted people to know civil rights history, he also wanted them to know that the fight for voting rights didn’t end in 1965. “I truly believe,” Lewis said last year<https://www.motherjones.com/politics/2019/01/democrats-first-order-of-business-making-it-easier-to-vote-and-harder-to-buy-elections/>, when Democrats introduced a sweeping democracy reform bill to make it easier to vote, “that the way votes were not counted and purged in states like Georgia and Florida and other states changed the outcome of the last election. That must never happen again in our country. We will make it illegal.” The bill, HR 1: The For the People Act<https://democracyreform-sarbanes.house.gov/sites/democracyreformtaskforce.house.gov/files/HR%201_TheForthePeopleAct_FINAL.pdf>, passed the House, but Senate Republicans never brought it up for a vote.

In December 2019, Lewis presided over the House as it passed legislation to restore and modernize the Voting Rights Act<https://www.motherjones.com/politics/2019/12/house-votes-to-restore-the-voting-rights-act/>, requiring states with a long history of voting discrimination to once again get federal approval for any changes to voting procedures. In a primary season marred by voting problems<https://www.motherjones.com/politics/2020/06/thought-covid-wreaked-havoc-on-the-primaries-just-wait-until-november/>, like six-hour lines in Lewis’ home state of Georgia, it’s been sitting on Mitch McConnell’s desk<https://www.motherjones.com/politics/2020/06/kentucky-votes-today-here-are-all-the-ways-mitch-mcconnell-has-made-that-harder/> for 225 days.

Lewis, ultimately, was a man of action, not words. As he said many times, he spoke with his body and his feet—marching, protesting, getting arrested more than 40 times to advocate for change. There have already been petitions to rename the Edmund Pettus Bridge<https://thehill.com/homenews/house/507939-support-swells-for-renaming-edmund-pettus-bridge-in-selma-to-honor-john-lewis> (named after a former Grand Dragon of the Alabama Ku Klux Klan) to honor Lewis. Maybe one day, a new Voting Rights Act will be named after him as well.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“A More Liberal Supreme Court? Not When It Comes to Voting Rights”<https://electionlawblog.org/?p=113233>
Posted on July 18, 2020 5:18 pm<https://electionlawblog.org/?p=113233> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak <https://www.nytimes.com/2020/07/18/us/supreme-court-voting-rights.html> deep dive for the NYT:

For the fourth time since April, the Supreme Court this week made it harder<https://www.nytimes.com/2020/07/16/us/supreme-court-felons-voting-florida.html> for Americans to vote. The ruling, Justice Sonia Sotomayor wrote in dissent, was part of “a trend of condoning disfranchisement.”

The court’s rulings — in cases from Alabama, Florida, Texas and Wisconsin — provide a contrast to an image of the court that emerged at the end of the term that ended last week, one in which liberals achieved some significant victories<https://www.nytimes.com/2020/07/10/us/supreme-court-term.html>. The recent run of election cases tell a different story.

“One might have thought that the crisis in voting created by the pandemic would have caused the justices to rise above their usual ideological and partisan divide on election questions,” said Richard L. Hasen<https://www.law.uci.edu/faculty/full-time/hasen/>, a law professor at the University of California, Irvine. “But there’s no sign of that on the horizon.”

The court’s voting-rights rulings were decided in haste, in reaction to emergency applications asking the justices to take quick action in pending appeals. The court did not hear arguments, and most of the orders it issued provided no reasoning. But the bottom line was uniform: The Supreme Court, which is dominated by five Republican appointees, sided with arguments pressed by Republicans to restrict voting rights in every case.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, voting<https://electionlawblog.org/?cat=31>

“States reject tens of thousands of mail ballots in this year’s primaries, setting off alarm bells for November”<https://electionlawblog.org/?p=113231>
Posted on July 18, 2020 4:59 pm<https://electionlawblog.org/?p=113231> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News reports.<https://www.nbcnews.com/politics/2020-election/states-reject-tens-thousands-mail-ballots-year-s-primaries-setting-n1233833>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How Outside Money Makes Governing More Difficult”<https://electionlawblog.org/?p=113229>
Posted on July 18, 2020 4:54 pm<https://electionlawblog.org/?p=113229> by Rick Hasen<https://electionlawblog.org/?author=3>

Mike Norton and Rick Pildes with a new ELJ piece<https://www.liebertpub.com/doi/abs/10.1089/elj.2019.0588#utm_source=FastTrack&utm_medium=email&utm_campaign=elj>:

Little empirical attention has been paid to the possible relationship between the sources of money in campaigns and whether political parties within the legislature are more unified or fragmented. Using recent data along with original interviews of leading party figures and former members of Congress, this article assesses how the rise of contributions from organizations outside the political parties affects the unity or disunity of the party caucus in the legislature. With highly polarized political parties, party fragmentation makes all the more difficult the building of effective governing coalitions. Exploiting state variation in political action committee (PAC) contribution limits on party voting heterogeneity—the extent to which the caucus votes together—we find that higher levels of permitted PAC contributions decrease the unity of parties in the legislature. The results hold for both the majority and the minority party; for state legislatures that are both professional and part-time; and for whether the majority leader fully controls the legislative agenda or does not do so. Through interviews with former party leaders, campaign committee and congressional staff, and rank and file members, we link this effect to federal reforms that have weakened the parties relative to outside interest groups and thus limited the leverage party leaders have to forge more unified party caucuses. As the debate over partisanship and government dysfunction in U.S. politics continues, this article adds an important component to understanding how changes in campaign finance laws have contributed to fragmenting the political parties, and hence, to making effective governing coalitions more difficult to forge.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, legislation and legislatures<https://electionlawblog.org/?cat=27>

Plaintiffs in Florida Felon Disenfranchisement Case Seek Clarification from 11th Circuit on the Scope of the Court’s Stay of the Trial Court’s Order<https://electionlawblog.org/?p=113226>
Posted on July 18, 2020 4:50 pm<https://electionlawblog.org/?p=113226> by Rick Hasen<https://electionlawblog.org/?author=3>

See this very interesting filing<https://electionlawblog.org/wp-content/uploads/florida-clarification.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Graham releases declassified docs on early months of Russia probe”<https://electionlawblog.org/?p=113224>
Posted on July 18, 2020 4:45 pm<https://electionlawblog.org/?p=113224> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/07/17/lindsey-graham-russia-probe-documents-368045?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

A Senate committee released declassified documents Friday suggesting that senior FBI officials were initially skeptical of the emerging narrative early in Donald Trump’s presidency that his campaign was in contact with Russian intelligence officers.

The Senate Judiciary Committee, chaired by Sen. Lindsey Graham (R-S.C.), published the documents as part of a GOP-led review of the origins of the Russia investigation that ensnared the president and his associates for years. Trump himself has encouraged the Senate’s probe, while Democrats have panned it as a politically motivated effort to boost the president.

The documents suggest that even as press reports began to describe connections between Americans in Trump’s orbit and figures in Russia’s shadowy intelligence services, the FBI had gathered little, if any, evidence that such ties existed.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Cost, hassle of stamps questioned as mail-in voting surges”<https://electionlawblog.org/?p=113222>
Posted on July 18, 2020 4:37 pm<https://electionlawblog.org/?p=113222> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.detroitnews.com/story/news/nation/2020/07/18/cost-hassle-stamps-questioned-mail-voting-surges/112299972/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Who’s going to derail the U.S. presidential election? The culprit may be close to home”<https://electionlawblog.org/?p=113220>
Posted on July 18, 2020 4:34 pm<https://electionlawblog.org/?p=113220> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today<https://www.yahoo.com/news/whos-going-derail-u-presidential-080005643.html>:

Fearing nightmare scenarios such as attacks on voter registration databases and state websites tallying results, U.S. officials are leading simulated training exercises to get ready for Nov. 3.

The “tabletop exercises,” to be held virtually because of coronavirus, will include thousands of state and local election officials in addition to intelligence and cybersecurity officials in Washington amid concerns about threats from Russia, China and other countries.

“We try to make it a pretty bad day,” said Matthew Masterson, an adviser with the Cybersecurity and Infrastructure Security Agency, or CISA, part of the Department of Homeland Security. CISA <https://www.cisa.gov/election-security> is charged with helping to protect the nation’s critical infrastructure from cyber and physical attacks, including its election systems.

Still, Masterson and other experts say the U.S. is now far better prepared to weather potential election meddling by Russia<https://www.usatoday.com/story/news/politics/2019/04/22/mueller-report-what-know-russian-election-interference/3538877002/> or other foreign adversaries than in 2016, when the Kremlin hacked into Democratic Party emails and orchestrated a sophisticated disinformation campaign <https://www.dni.gov/files/documents/ICA_2017_01.pdf> designed to help elect then-candidate Donald Trump.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“New York’s Delay in Counting Votes Could Signal a Real Disaster in November”<https://electionlawblog.org/?p=113218>
Posted on July 18, 2020 4:15 pm<https://electionlawblog.org/?p=113218> by Richard Pildes<https://electionlawblog.org/?author=7>

Vice News:

New York hasn’t put out any numbers on the overall rejection rate. But fully 14% of all absentee ballots were tossed out in New York’s 2018 elections, by far the highest rate in the country compared to an average rejection rate of 1% to 3% in most other states. And unofficial counts suggest this year’s rejection rate will be even higher.

New Reformers, a Queens-based progressive group, released numbers showing that almost a quarter of absentee ballots cast in their borough have been rejected. Other election attorneys said the rejection rates across the city ranged from about 20% in Manhattan — which has been much slower than other places in counting ballots — to almost 30% in parts of Brooklyn.

Those are massive numbers that can swing close races, like the tight primary that House Oversight Committee Chair Carolyn Maloney (D-N.Y.) is in against progressive challenger Suraj Patel.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

California: “Supreme Court orders redistricting delay”<https://electionlawblog.org/?p=113216>
Posted on July 17, 2020 1:32 pm<https://electionlawblog.org/?p=113216> by Rick Hasen<https://electionlawblog.org/?author=3>

At the Lectern:<http://www.atthelectern.com/supreme-court-orders-redistricting-delay/>

Acting with unusual speed and using an exceptional procedure in light of the COVID-19 pandemic, the Supreme Court today issued an opinion extending by four months constitutional and statutory deadlines for the state Citizens Redistricting Commission<https://wedrawthelines.ca.gov/> to submit Congressional, state legislative, and Board of Equalization district maps for the 2022 election.

The extension is necessary, the court said, because “the usual order of redistricting operations has been upended by the COVID-19 pandemic.”  The pandemic has caused a likely delay in producing the federal Census data on which the maps are based.  The court explained that redrawing district lines based on the data “ensure[s] compliance with the constitutional one-person, one-vote rule.”
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Posted in redistricting<https://electionlawblog.org/?cat=6>

New State Lawsuit in Alaska Argues that Giving Right to Absentee Ballots Only to Older Voters Violates 26th Amendment<https://electionlawblog.org/?p=113214>
Posted on July 17, 2020 1:24 pm<https://electionlawblog.org/?p=113214> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the complaint at this link<https://equalcitizens.us/wp-content/uploads/2020/07/26A-Complaint-Alaska-July-17.pdf>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D113214&title=New%20State%20Lawsuit%20in%20Alaska%20Argues%20that%20Giving%20Right%20to%20Absentee%20Ballots%20Only%20to%20Older%20Voters%20Violates%2026th%20Amendment>
Posted in election administration<https://electionlawblog.org/?cat=18>

“GOP to Trump: Change tune on mail-in voting or risk ugly November”<https://electionlawblog.org/?p=113211>
Posted on July 17, 2020 8:37 am<https://electionlawblog.org/?p=113211> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/07/16/politics/republican-reaction-trump-mail-in-voting/index.html>:

Republican officials throughout the country are reacting with growing alarm to President Donald Trump’s attacks on <https://www.cnn.com/2020/06/23/politics/trump-war-mail-in-voting-lacks-republican-allies/index.html> mail-in ballots, saying his unsubstantiated claims of mass voting fraud are already corroding the views of GOP voters, who may ultimately choose not to vote at all if they can’t make it to the polls come November.

Behind the scenes, top Republicans are urging senior Trump campaign officials to press the President to change his messaging and embrace mail-in voting, warning that the party could lose the battle for control of Congress and the White House if he doesn’t change his tune, according to multiple GOP sources. Trump officials, sources said, are fully aware of the concerns.The impact could be detrimental to the GOP up and down the ticket, according to a bevy of Republican election officials, field operatives, pollsters and lawmakers who are watching the matter closely.

Every vote will count in critical battleground states, they argue, fearful that deterring GOP voters from choosing a convenient option to cast their ballots could ultimately sway the outcome of races that are decided by a couple of percentage points.

And with the coronavirus pandemic potentially bound to get worse in the fall, voting by mail is becoming an increasingly popular option since many voters may prefer not to wait in long lines at polling stations. That will leave Democrats with a major advantage if their voters send their ballots by mail while Republican voters forgo that option simply because they are listening to the concerns of the President….

And Republicans, too, are concerned that Trump’s criticism of the process could cast doubt on the integrity of the election, particularly in closely contested states like Ohio.

“It is irresponsible — whether it’s a Republican or Democrat — for people to create a sense, incorrectly, in the minds of voters that they can’t trust their elections,” said Ohio Secretary of State Frank LaRose, a Republican, referring to both the President’s claims and Biden’s recent suggestion that Trump might not leave office if he loses.

In Ohio, nearly 8 million registered voters will get absentee ballot requests after Labor Day, and LaRose predicts that roughly 35%-40% of the ballots will ultimately come by mail in November, up from roughly 20%-25% in past elections, amounting to the “highest level of vote-by-mail that we’ve ever seen in our state’s history.”

“When people try to say that voting by mail or absentee mailing benefits one party — it just doesn’t bear out in Ohio. People want to vote,” LaRose said. But asked if fewer Republican voters may choose to vote absentee in November because of the President’s criticisms, he said: “That’s absolutely a possibility.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

Michigan: “Absentee ballot lawsuits against Benson: Everything you need to know”<https://electionlawblog.org/?p=113208>
Posted on July 17, 2020 8:28 am<https://electionlawblog.org/?p=113208> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit Free Press reports<https://www.freep.com/story/news/local/michigan/detroit/2020/07/16/michigan-absentee-ballots-jocelyn-benson-lawsuits/5438890002/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Major USPS Changes Could Hamper Vote-By-Mail At The Worst Possible Time”<https://electionlawblog.org/?p=113206>
Posted on July 17, 2020 8:19 am<https://electionlawblog.org/?p=113206> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/news/usps-delays-elections-vote-by-mail-worries>:

Election officials who were already facing major challenges in making voting accessible operations during the pandemic were thrown a new curveball this week.

Mail service could be slowed down in coming months, as part of a campaign to overhaul the U.S. Postal Service launched by new agency leadership appointed by President Trump.

The proposed operational changes were first reported by the Washington Post this week<https://www.washingtonpost.com/business/2020/07/14/postal-service-trump-dejoy-delay-mail/>, based on internal documents, some of which TPM has also obtained. In a statement to TPM, the U.S. Postal Service said that the “overall plan” had not been “finalized,” while stressing that the agency is “committed to delivering Election Mail in a timely manner.”

But major questions remain about how the newly-reported changes could affect the ability of absentee voters to get their ballots in on time to be counted. Several other aspects of the election process also rely on the mail, and there is now a scramble, in light of the recent USPS news, to understand what steps election officials need to take to keep things running smoothly.

In interviews with TPM, election officials, vote-by-mail experts, and mail vendors outlined ways the proposed changes negatively impact the vote-by-mail process, which is being adopted in record numbers across the country amid the COVID-19 outbreak.

They provided several scenarios in which the refusal to let USPS employees work overtime — the main driver of the changes being described — could lead to voters being disenfranchised.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Facebook is adding a label to all posts about voting from federal officials and political candidates, including the president”<https://electionlawblog.org/?p=113204>
Posted on July 17, 2020 7:53 am<https://electionlawblog.org/?p=113204> by Rick Hasen<https://electionlawblog.org/?author=3>

Business Insider reports.<https://www.yahoo.com/news/facebook-adding-label-posts-voting-142856656.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Whitmer: Michigan weighing pros, cons of mask requirement for in-person voting”<https://electionlawblog.org/?p=113202>
Posted on July 17, 2020 7:50 am<https://electionlawblog.org/?p=113202> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit Free Press reports.<https://www.freep.com/story/news/politics/2020/07/16/governor-whitmer-mask-mandate-election-voting/5451206002/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Recent Stories Confirm the Importance of In-Person Voting This Fall<https://electionlawblog.org/?p=113199>
Posted on July 17, 2020 5:04 am<https://electionlawblog.org/?p=113199> by Richard Pildes<https://electionlawblog.org/?author=7>

Policymakers and election officials are rightly racing to prepare for unprecedented levels of absentee voting this fall.  But it is also essential that we ensure a robust capacity for in-person voting this fall.

Back in June, I explained<https://www.washingtonpost.com/opinions/2020/06/23/absentee-ballots-will-be-critical-this-fall-in-person-voting-is-even-more-essential/> why it remains important to focus just as much on the in-person voting option as on the absentee option.  Now that more information has come out about the primaries, I want to pull together a number of stories that illustrate concretely the major issues with the absentee process that make it critical to ensure the capacity for in-person voting this fall:

1.  The high rates at which absentee ballots are rejected:  see here<https://www.washingtonpost.com/politics/tens-of-thousands-of-mail-ballots-have-been-tossed-out-in-this-years-primaries-what-will-happen-in-november/2020/07/16/fa5d7e96-c527-11ea-b037-f9711f89ee46_story.html> and here<https://www.npr.org/2020/07/13/889751095/signed-sealed-undelivered-thousands-of-mail-in-ballots-rejected-for-tardiness>.

2.  The problem of requested absentees not getting delivered to voters or not being returned on time to get counted:  see here<https://www.washingtonpost.com/politics/scattered-problems-with-mail-in-ballots-this-year-signal-potential-november-challenges-for-postal-service/2020/07/15/0dfb8b42-c216-11ea-b178-bb7b05b94af1_story.html> and here<https://www.detroitnews.com/story/news/local/michigan/2020/07/15/court-denies-mich-absentee-ballots-come-election/112261952/> and here<https://www.nytimes.com/2020/07/14/us/politics/voting-lines-2020-elections.html>.

3.  The fact that many voters prefer to vote in person, despite the virus, because they do not trust the absentee process to count their votes fairly:  see here<https://publicintegrity.org/politics/elections/in-south-carolina-a-peek-at-covid-19s-impact-on-elections-polling-place/>, as well as all the stories about long lines even in states that have no-excuse absentee voting. Update: in CA, 30% still prefer to vote in-person, see here<https://calmatters.org/commentary/my-turn/2020/07/republicans-and-democrats-in-california-prefer-a-mail-ballot-but-safe-accessible-options-are-important/>.

4.  The long, dangerous delays between Election Day and when a winner can be announced:  see here<https://www.nytimes.com/2020/07/17/nyregion/election-absentee-ballots-primary.html> and here<https://www.nytimes.com/interactive/2020/06/23/us/elections/results-kentucky-senate-primary-election.html> for recent examples

I have written<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3613163> on a number of policy changes that would make the absentee process run smoother than all this.  But even with those changes, a strong in-person voting option will still remain essential this fall.

To be sure, there have also been problems with in-person voting thus far, particularly the long lines due in part to polling place consolidations.  I’ll have another short piece coming out soon on one major change that would address that issue and enhance the capacity for in-person voting this fall.
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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