[EL] ELB News and Commentary 7/21/20

[Rick Hasen]

“‘Things could get very ugly’: Experts fear post-election crisis as Trump sets the stage to dispute the results in November”<https://electionlawblog.org/?p=113301>
Posted on July 20, 2020 8:48 pm<https://electionlawblog.org/?p=113301> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN deep dive<https://www.cnn.com/2020/07/20/politics/disputed-election-crisis-trump/index.html>:

Voting experts and political strategists from across the political spectrum are increasingly alarmed about the potential for a disputed presidential election in November, one in which one candidate openly questions the legitimacy of the results or even refuses to concede.

These experts are keenly aware of President Donald Trump’s well-documented history <https://www.cnn.com/2020/06/22/politics/trump-voter-fraud-lies-fact-check/index.html> of lying about voter fraud and claiming that elections were “rigged” when he doesn’t like the outcome. They also see a Democratic base that is still burned from 2016, when its nominee was dragged down in part by Russian meddling operation<https://www.cnn.com/2020/04/21/politics/senate-report-russia-interference/index.html>, won the popular vote, and lost to Trump.

Interviews with nearly 20 election experts, former lawmakers, political strategists, legal scholars and historians indicate there are widespread fears of a nightmare scenario in November, where Trump’s norm-breaking behavior — coupled with the unprecedented challenges of pandemic-era voting — test the limits of American democracy and plunge the country into a constitutional crisis.”

There’s a significant scope for an unprecedented post-election crisis in this country,” said Larry Diamond, an expert on democratic institutions at the conservative-leaning Hoover Institution.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Dem leaders demand FBI briefing on ‘foreign interference campaign’ targeting lawmakers”<https://electionlawblog.org/?p=113293>
Posted on July 20, 2020 1:21 pm<https://electionlawblog.org/?p=113293> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/07/20/democrats-fbi-briefing-foreign-interference-campaign-373134>:

Democratic leaders are asking the FBI<https://intelligence.house.gov/uploadedfiles/20200713_big_4_letter_to_fbi_director_wray_-_defensive_briefing_signed.pdf> for an urgent briefing arising out of concern that members of Congress are being targeted by a foreign operation intended to influence the 2020 presidential election, according to a letter they released publicly on Monday.

Among the Democrats’ concerns is that a Senate investigation being led by Sen. Ron Johnson (R-Wis.) has become a vehicle for “laundering” a foreign operation to damage Joe Biden, according to two people familiar with the demand.

Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer demanded the all-Congress briefing Monday, citing “specific” intelligence that a foreign influence operation targeted lawmakers to “launder and amplify disinformation in order to influence congressional activity.”

Though the letter did not mention the Johnson investigation, it included a classified addendum that the two sources say identified the probe as one of the sources of their concern.

“We are gravely concerned, in particular, that Congress appears to be the target of a concerted foreign interference campaign, which seeks to launder and amplify disinformation in order to influence congressional activity, public debate, and the presidential election in November,” Pelosi (D-Calif.) and Schumer (D-N.Y.) wrote in their letter, which was also signed by the chair of the House Intelligence Committee, Rep. Adam Schiff (D-Calif.), and the vice chair of the Senate Intelligence Committee, Sen. Mark Warner (D-Va.).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Maryland “Hogan defends use of all polling sites, requiring applications for mail-in ballots”<https://electionlawblog.org/?p=113291>
Posted on July 20, 2020 12:58 pm<https://electionlawblog.org/?p=113291> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/local/md-politics/hogan-defends-use-of-all-polling-sites-requiring-applications-for-mail-in-ballots/2020/07/20/09f0cdc6-cab0-11ea-91f1-28aca4d833a0_story.html?utm_source=rss&utm_medium=referral&utm_campaign=wp_politics>:

Gov. Larry Hogan on Monday defended his decision to hold a traditional election <https://www.washingtonpost.com/local/md-politics/maryland-election-hogan/2020/07/08/46e9e172-c12d-11ea-9fdd-b7ac6b051dc8_story.html?itid=lk_inline_manual_1> in November, despite growing concerns from voting rights advocates and election officials about the impact of his choice amid a global pandemic.

Hogan (R) said he opted for a “normal” election instead of a “vote by mail only” because of the chaos that occurred<https://www.washingtonpost.com/local/dc-politics/voting-problems-in-dc-maryland-lead-to-calls-for-top-officials-to-resign/2020/06/03/24b47220-a5a8-11ea-b619-3f9133bbb482_story.html?itid=lk_inline_manual_3> during the June 2 primary, when the state mailed ballots to every voter and opened only a few polling sites in each jurisdiction. Far more voters than expected opted to cast their ballots in person, leading to huge lines and hours-long waits in many placed.

“I’m encouraging everyone to vote by mail instead of vote by mail only, which is what some of our Democratic colleagues are pushing for,” Hogan said during an appearance on the television show “The View,” where he explained his decision to open all polling sites in the state and mail absentee-ballot applications to every voter, rather than the ballots themselves.

“In the primary we had, the state board of elections screwed up getting ballots out.” Hogan said. “They mailed the wrong ballots, they mailed Spanish ballots to English speakers. They sent things to the wrong districts. They got them out too late.”

Voting rights advocates have increasingly criticized Hogan’s decision not to limit polling sites or mail ballots to every voter, calling it misguided. Attorney General Brian Frosh (D) has urged Hogan to reverse his order, saying it could have “devastating consequences.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Provocative Report on California Citizens Redistricting Commission Selection Process Raises New Questions about Legislative Role in Striking Latinx Applicants”<https://electionlawblog.org/?p=113289>
Posted on July 20, 2020 12:35 pm<https://electionlawblog.org/?p=113289> by Rick Hasen<https://electionlawblog.org/?author=3>

Common Cause<https://www.commoncause.org/media/provocative-report-on-california-citizens-redistricting-commission-selection-process-raises-new-questions-about-legislative-role-in-striking-latinx-applicants/>:

 A report released today by the University of Southern California (USC), the University of Minnesota and the University of Houston researchers makes the provocative recommendation that the California State Legislature should no longer have the power to strike finalists from the pool of applicants for California’s Citizens Redistricting Commission. The report was issued in the wake of a series of controversial strikes in the selection of the new slate of commissioners.

“The removal of seven of the 14 Latinx finalists by legislative leaders has been controversial, especially because the strikes are shrouded in secrecy, compared to an otherwise transparent selection process,” said Kathay Feng, Common Cause National Redistricting & Representation Director. “The closed-door striking of finalists by the legislature runs counter to the goals of transparency and accountability for the Citizens Redistricting Commission. It leaves open the question of why so many qualified Latinx applicants were removed from the pool, undermining the voters’ mandate of creating a Commission that reflects the state’s racial and ethnic diversity.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Your Local Election Clerk Is Fighting Global Disinformation”<https://electionlawblog.org/?p=113287>
Posted on July 20, 2020 12:28 pm<https://electionlawblog.org/?p=113287> by Rick Hasen<https://electionlawblog.org/?author=3>

Stateline reports.<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/20/how-your-local-election-clerk-is-fighting-global-disinformation?utm_campaign=2020-7-20+SD&utm_medium=email&utm_source=Pew>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Honor John Lewis with a Senate vote on the voting rights he fought for his whole life”<https://electionlawblog.org/?p=113285>
Posted on July 20, 2020 12:20 pm<https://electionlawblog.org/?p=113285> by Rick Hasen<https://electionlawblog.org/?author=3>

Kristen Clarke oped<https://www.usatoday.com/story/opinion/2020/07/20/honor-john-lewis-pass-voting-rights-act-mitch-mcconnell-column/5468222002/> for USA Today.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“‘Everybody Is Suing’: Trump-Biden Election Sets Up Legal Logjam”<https://electionlawblog.org/?p=113282>
Posted on July 20, 2020 12:14 pm<https://electionlawblog.org/?p=113282> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg<https://www.bloombergquint.com/politics/2020-election-will-be-the-most-litigated-in-u-s-history>:

The 2020 election between President Donald Trump and Joe Biden is shaping up to be the most litigated in U.S. history, as changes to balloting prompted by the coronavirus pandemic spur lawsuits that could leave the outcome in suspense for days or even weeks.

A recent count by Loyola Marymount University law professor Justin Levitt found 154 cases already filed across 41 states and the District of Columbia<https://electionlawblog.org/?p=111962>. Many more are expected in the months ahead as Republicans, Democrats and advocacy groups battle over how to vote during a pandemic.

“Everybody is suing about everything,” Levitt said.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Watson asking attorney general whether Mississippi Legislature made it harder to vote in pandemic”<https://electionlawblog.org/?p=113277>
Posted on July 20, 2020 9:26 am<https://electionlawblog.org/?p=113277> by Rick Hasen<https://electionlawblog.org/?author=3>

Mississippi Today<https://mississippitoday.org/2020/07/20/watson-asking-attorney-general-whether-mississippi-legislature-made-it-harder-to-vote-in-pandemic/>:

Secretary of State Michael Watson is asking for an official opinion from Attorney General Lynn Fitch’s office about whether a bill passed by the state Legislature will make it more difficult for Mississippians to vote if COVID-19 is still an issue during the Nov. 3 election.

The bill, which was signed into law earlier this month by Gov. Tate Reeves, specifies people can vote early during the pandemic if:

They are under a physician-imposed quarantine related to the coronavirus.

They are providing care for a dependent under quarantine.

Watson is asking the attorney general to issue an opinion on whether the new language conflicts with existing language that gave local circuit clerks discretion in allowing people to vote early. In May, during a joint meeting of the House and Senate elections committees, Watson said that existing law could be used to allow people to vote early because of concerns about COVID-19 at the discretion of the circuit clerks. The language allowed people to vote early because of “a temporary disability.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“National Security Leaders Urge Congress to Provide Election Officials with Additional Funds”<https://electionlawblog.org/?p=113275>
Posted on July 20, 2020 7:32 am<https://electionlawblog.org/?p=113275> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center:

Early this morning, 34 national security leaders — including Madeline Albright, Chuck Hagel, Tom Ridge, Michael Chertoff, Susan Rice, John Kerry, Leon Panetta, James Clapper, and Janet Napolitano — sent the letter here<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUQn7HFwKYVxeOA1FiRc8e78YPOGjQTfk8XKm6ku17PXCGZZXQq0v887A1yRJQMwlAXZ7XQJV8gpYeofCJx8iv2DdpnR8160XpNs8FhvXJqxtsflNPUkQSOaVrBUxdR4L8pWlMyqQfk3YCod4uoZUPgbz0mnYwE0VJUDnllcppYj0pi6u_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9WYQaKBivUy1T8WVV5SEsot6LNYKqnp6npUmk-2BndGPTX8bSw4N3wQe0DewKAWnUvH33GuR-2FtRTkiWDzNFYZV1t-2FKFcM3EapIEgC2AtcxmpBJy3D78tHPl-2B3bIhfQQMMqedEKYrz6mxNLclC-2FQaVrYdF2VOJrSzkLmwAafsl2PIGupCpD9ShXDtr9nEM8XYU6-2F484c1RN-2BQaGHZGWmnP14i7bTrH6NHlBClOVgCGDrqHZoePROQT9dZTDAXo7XDjvfE-3D> (full text and signers below) to congressional leaders on the urgent need for federal funding in the next stimulus package to keep U.S. elections safe, secure, and reliable, despite the coronavirus. They call on Congress to help state and local governments now struggling under the costs of accommodating the demand for mail voting and providing safe in-person polling.

The letter<https://www.brennancenter.org/our-work/research-reports/national-security-leaders-urge-congress-provide-election-officials>’s signers see protecting the 2020 election from Covid-19 as critical to our nation’s security and position in the world. They represent every presidential administration from Reagan forward….
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Election lawsuits set record pace amid COVID-19 pandemic as results decide who votes and how Nov. 3”<https://electionlawblog.org/?p=113272>
Posted on July 20, 2020 7:30 am<https://electionlawblog.org/?p=113272> by Rick Hasen<https://electionlawblog.org/?author=3>

Bart Jansen deep dive for USA Today<https://www.usatoday.com/story/news/politics/elections/2020/07/20/elections-lawsuits-set-rules-amid-covid-19-pandemic-for-nov-3-election/5383322002/>:

Requiring an excuse for absentee voting. Paying for postage for mail-in ballots. Purging names from voter registration lists. Placing the names on ballots to provide an advantage in so-called “donkey votes.”

These are among the disputes that have generated a record number of lawsuits over the Nov. 3 election. Decisions in the cases will determine who will vote and how. And the political ground is shifting even during the ongoing primaries, as rulings change in the weeks before votes are cast.

“The ease of our ability to cast a vote that will be fairly counted depends in part on where you live,” said Richard Hasen, a law professor at University of California, Irvine and expert on election law. “I think there’s a lot of concern about voting rules, especially given the fact that we’re trying to conduct voting in the midst of a pandemic when the pandemic itself is a major campaign issue and where there is great uncertainty about the future generally.”…

Candidates, voters, party groups and advocacy groups have filed at least 151 lawsuits related to coronavirus and the election in 41 states through July 15, according to a count by Justin Levitt at Hasen’s electionlawblog.org<https://electionlawblog.org/?p=111962>. The pace is set to eclipse the record number of election lawsuits in 2018, after the number of lawsuits per election cycle tripled in the past 20 years, according to Hasen’s book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.

The legal challenges come amid growing skepticism about elections. About one in four voters called voter fraud the biggest threat to the election, in an NPR/PBS Marist poll from January<https://www.npr.org/2020/01/21/797101409/npr-poll-majority-of-americans-believe-trump-encourages-election-interference>. But NPR noted the poll signaled how voters lived in different media bubbles: Voter fraud topped the list of concerns for Republicans and voter suppression was the greatest concern for Democrats.

“Election litigation is going up, regardless of the coronavirus,” Hasen said. “Part of it is this culture of disagreement over voting rules and hyperpolarization of society and unclear voting standards and decentralization.”

Part of the confusion about election rules stems from state and local governance of how elections are conducted. There are about 10,500 jurisdictions nationwide that administer elections, according to the Government Accountability Office<https://www.gao.gov/assets/680/678131.pdf>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>


“Voting Rights Leaders Call for Universal Voting in the U.S.”<https://electionlawblog.org/?p=113270>
Posted on July 20, 2020 7:22 am<https://electionlawblog.org/?p=113270> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

In a new report released today, a diverse group of 25 experts in U.S. politics, elections, and civil rights make the case for universal civic duty voting—that is, mandatory participation in elections—in the United States. “Lift Every Voice: The Urgency of Universal Civic Duty Voting,<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUVRh2R3OQ91hnc4Rd1WjBm77lxFPVgZ4wrqR2Nefp-2Fi-2BA8xkSRgRW5Cvh4WPh2-2Fa4H6AA422oEh4n9iuoibvhvYNBpaW-2F9lKxasNhFL1y7QAoEQ-2B8JBTkPvJlKXJjYD-2Bwg-3D-3DBd2o_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VPcZ7A7sKKN1B712BzJmzri3liNm86K9c1zcTQBOj7JDj7h-2BH0vMLSk8osp2B0JnqYTnR00pp6xrEOM-2FMzh-2BGeI5QL-2FlEIX4j73ubAw0VEH2rRqRZHPGdgkJ8kUgBegRo1CqAtzAHdzTr8eqwKKyLDJvfHHGJpvzGUX1YAu5lmbZB3NX-2BakY1MQLZcmDT81nIGt61iaOGtB14WLAVS62vhEwpBpmnJhx4CNOWvtuDIa9S3z62vo7ucDsJCyrflqbo-3D>” is the culmination of an 18-month effort to examine the need for—and path toward—universal civic duty voting.

“We see voting as a civic responsibility no less important than jury duty,” write the report’s authors, a group of 25 leading scholars, practitioners, and advocates who have dedicated their careers to strengthening access to voting and democratic governance in the United States. The working group, convened jointly by the Brookings Institution and the Ash Center was co-chaired by E.J. Dionne, Jr., the W. Averell Harriman Chair and Senior Fellow at Brookings Governance Studies and Miles Rapoport, the Senior Practice Fellow in American Democracy at the Ash Center. A complete list of members is included below.

Underscoring that voting is both a right and a duty, the working group recommends adopting universal civic duty voting for most federal, state, and municipal elections. Requiring citizens to participate, the report authors argue, would survive legal challenges and is “consistent with our Constitution’s guarantees of free speech, robust forms of collective action, and effective government.” The proposal for universal civic duty voting would require mandatory participation in elections, not mandatory voting, allowing voters to choose ‘none of the above,’ or decline to participate for conscientious objections.

The report authors make the case that universal civic duty voting would help ensure increased political participation in communities of color that have long confronted exclusion from our democracy. Coupled with legal and political reforms, universal civic duty voting would drastically undercut voter suppression measures, and strongly encourage election officials and other institutions to work for unimpeded access to the ballot box. Universal voting, the authors write, “would clarify the priorities of election officials at every point in the process: Their primary task would be to allow citizens to embrace their duties, not to block their participation.”

Working group member Janai Nelson, Associate Director-Counsel of the NAACP Legal Defense and Educational Fund explains: “Our constitution guarantees the right to free speech and protects against racial discrimination in voting. Nonetheless, virulent voter suppression — like stringent voter ID laws, voter purges, targeted polling site closures, attacks on early voting and onerous and unsafe absentee ballot requirements — are silencing the voices of far too many Black voters and other voters of color. Universal voting has the potential to directly and efficiently eliminate the voter suppression tactics that prevent our increasingly diverse electorate from being heard. Universal voting would also improve representation, encourage greater accountability to all constituents, and advance the integrity of our democracy. As we rethink structural racism in this critical moment in history, we have an opportunity for true societal transformation by taking the proposal of universal voting seriously and implementing it in service of disenfranchised communities.”

The implementation of civic duty voting, and the legislation to enact the policy at each level of government, would vary based on jurisdiction, but the working group outlines core elements required to make universal voting a success. These include expanded funding for election administration, protections and provisions for communities of color and those with disabilities, as well as robust public education and civic education in schools.

The report, which concludes with a checklist of policy recommendations for federal, state, and local government, businesses, and community organizations, emphasizes that action from multiple civic actors will be needed to enact change.

“Lift Every Voice: The Urgency of Universal Civic Duty Voting” is available on the Brookings website at https://www.brookings.edu/research/lift-every-voice-the-urgency-of-universal-civic-duty-voting<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUVRh2R3OQ91hnc4Rd1WjBm77lxFPVgZ4wrqR2Nefp-2Fi-2BA8xkSRgRW5Cvh4WPh2-2Fa4H6AA422oEh4n9iuoibvhvYNBpaW-2F9lKxasNhFL1y7QAe6Go8V7XUsf4ZnG9C49o6g-3D-3D9Wdy_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VPcZ7A7sKKN1B712BzJmzri3liNm86K9c1zcTQBOj7JDj7h-2BH0vMLSk8osp2B0JnqYTnR00pp6xrEOM-2FMzh-2BGeEWNPMkLirirOcisrIloNRfnJ8iw9B5bNhT2VBm2psd8gyfPK146oY8SxzeaAEbwRN7TXa5HDUvGgh0ed6HorNXuQrpkaYestT93MueZtHdYj8-2BQj-2FmTOnj0cm-2BMGFg-2Bw8D7OF62wZjigYUsnCLOJiYp5cTllO-2F5bbhlZ0cYeDkw-3D>.

At 1:00pm EST on July 20, Brookings and the Ash Center will co-host an online discussion about the report and panelists will answer viewer questions. Tune in to watch it live at https://www.brookings.edu/events/lift-every-voice-the-urgency-of-universal-civic-duty-voting/<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUVRh2R3OQ91hnc4Rd1WjBm4j0-2BtXyxrVQQK8ta7iAH29he6tvKPPiYMwsjnDoQY4PVfbIiWHTP9U1eQUImT9TZPtCLgjBGd6JrL-2FXCP4-2FUHAutWWkxAGo67fYsNUvqnfcA-3D-3DHoxA_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VPcZ7A7sKKN1B712BzJmzri3liNm86K9c1zcTQBOj7JDj7h-2BH0vMLSk8osp2B0JnqYTnR00pp6xrEOM-2FMzh-2BGePhTkE-2FqV6AwXMTAbDBfrw459GZStJBtBAw8AsmxcLQ6rYCm4Wg8wmlF6e2kx6ZX42nBQJQmVyqFaeJRyZ3I-2BSB0mJEGLDGixUR5ybOIyxW48MeHBVPaiEvByIqNC7H7iRyTQwCCG-2FHQLT42be5M1g9jAS5FvwUA9Nir8AuhCYcI-3D>. Archival video will be available after its conclusion.
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Posted in voting<https://electionlawblog.org/?cat=31>


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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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