[EL] ELB News and Commentary 6/3/20

Wed Jun 3 10:05:02 PDT 2020

“Pennsylvania held an election. We won’t know the results for days. Here’s what that means for November.”<https://electionlawblog.org/?p=111860>
Posted on June 3, 2020 10:03 am<https://electionlawblog.org/?p=111860> by Rick Hasen<https://electionlawblog.org/?author=3>

The Philly Inquirer reports<https://www.inquirer.com/politics/election/pa-2020-primary-election-results-mail-ballots-20200602.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“U.S. Supreme Court asked to rule on Kobach’s signature Kansas voter registration law”<https://electionlawblog.org/?p=111858>
Posted on June 3, 2020 9:59 am<https://electionlawblog.org/?p=111858> by Rick Hasen<https://electionlawblog.org/?author=3>

Wichita Eagle:<https://www.kansas.com/news/politics-government/article243198846.html>

Kansas will ask the U.S. Supreme Court to rule on a state law championed by former secretary of state Kris Kobach — struck down by lower courts— that requires residents to prove their citizenship when registering to vote.

The request, announced Tuesday morning by Kansas Attorney General Derek Schmidt, sets up a potentially historic showdown over voting rights if the court takes the case, with the justices possibly deciding how far states can go in imposing requirements on would-be voters.

Dale Ho, lead attorney for the American Civil Liberties Union in the case, said he was confident that the plaintiffs would prevail at the Supreme Court— as they had at the district court and appeals level.

“It stopped more than 30,000 Kansans from exercising their right to vote. Kansas’ law has been found to violate federal law multiple times, as well as the United States Constitution,” Ho said.

“It’s sad that the secretary of state and the attorney general of Kansas would seek to resuscitate Kris Kobach’s sorry legacy of voter suppression,” Ho said in a phone call….

Rick Hasen, an election law professor at the University of California, Irvine School of Law, said he was surprised by Kansas’ decision to seek a Supreme Court review of the case.

“The Supreme Court’s rules require it to defer to the factual findings of the trial court, and the the trial court found as a matter of fact that Kobach utterly failed to prove his case that noncitizen voter fraud was a real problem in Kansas. He called it the ‘tip of the iceberg’ but the trial court found it to be an ‘icicle’ made up mostly of administrative error,” Hasen said in a message.

Schwab said judicial review is needed “to provide clarity” on the issue.

“This is a really important appeal. It has consequences for the entire country, so I’m hopeful the Supreme Court will take the case and if they do take the case I am confident they will overturn the 10th circuit,” Kobach said in a phone call Tuesday.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, NVRA (motor voter)<https://electionlawblog.org/?cat=33>

“Trump’s Attacks on Vote-by-Mail Worry Some Election Officials”<https://electionlawblog.org/?p=111856>
Posted on June 3, 2020 9:30 am<https://electionlawblog.org/?p=111856> by Rick Hasen<https://electionlawblog.org/?author=3>

Stateline reports.<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/06/03/trumps-attacks-on-vote-by-mail-worry-some-election-officials>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Maryland Lt. Gov. Rutherford calls on state board elections director to resign following mail-in primary issues”<https://electionlawblog.org/?p=111854>
Posted on June 3, 2020 9:24 am<https://electionlawblog.org/?p=111854> by Rick Hasen<https://electionlawblog.org/?author=3>

Baltimore Sun:<https://www.baltimoresun.com/politics/elections/bs-md-ci-rutherford-calls-on-lamone-to-resign-20200603-4gxpb2jzuba6bnxxyuxexawd44-story.html>

Maryland’s second-in-command called on the state’s elections director to resign Wednesday, citing issues with the ways ballots have been delivered and returns have been counted in two largely mail-in contests conducted during the coronavirus pandemic.

Lt. Gov. Boyd K. Rutherford, a Republican who serves under Gov. Larry Hogan, said at the opening of an online meeting of the Board of Public Works that the state should seek “new leadership” to head the Maryland State Board of Elections.

“I really think it’s time for the administrator at the Board of Elections to step down,” he said.

The rebuke follows the disappearance of as many as 75,000 counted ballots<https://www.baltimoresun.com/politics/elections/bs-md-pol-ballot-error-baltimore-district-1-20200603-n26t43fkmjadplqeqybloj4dki-story.html> from the state’s website early Wednesday morning. Those votes, sent in by mail and collected from drop boxes through the weekend, appeared on the site at about 11:30 p.m. Tuesday. At about 2 a.m., the city’s early returns were not available on the state site and instead were marked as “NR” for not reported.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Eleventh Circuit Panel Tells District Court to Apply Anderson-Burdick Balancing in Libertarian Party Suit Over Georgia Ballot Access Requirements<https://electionlawblog.org/?p=111852>
Posted on June 3, 2020 9:15 am<https://electionlawblog.org/?p=111852> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion here<http://ballot-access.org/wp-content/uploads/2020/06/2020-06-03-opinion-issued.pdf> (via BAN<http://ballot-access.org/2020/06/03/eleventh-circuit-procedural-win-in-libertarian-georgia-ballot-access-case/>).
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Posted in ballot access<https://electionlawblog.org/?cat=46>

“Ballot error led to uncountable results in Baltimore City Council race, candidates demand answers”<https://electionlawblog.org/?p=111850>
Posted on June 3, 2020 9:12 am<https://electionlawblog.org/?p=111850> by Rick Hasen<https://electionlawblog.org/?author=3>

Baltimore Sun:<https://www.baltimoresun.com/politics/elections/bs-md-pol-ballot-error-baltimore-district-1-20200603-n26t43fkmjadplqeqybloj4dki-story.html>

An error on ballots mailed to voters in Baltimore’s District 1 led to inaccurate returns that cannot be counted, election officials said Wednesday, and candidates are now demanding answers from state and local leaders as they await results in several close races….

In a statement issued Wednesday morning, the State Board of Elections said Maryland’s mail vendor SeaChange failed to correct an error in the ballot title for the council contest. State officials found the error while proofing ballots during the printing process, and requested SeaChange make the change.

“While the error was corrected in the official voting database, the error was not corrected on a portion of the ballots that were mailed to voters in District 1,” the state Board of Elections said. “Due to this inconsistency, vote by mail ballot styles for District 1 could not be counted properly.”
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Posted in election administration<https://electionlawblog.org/?cat=18>

“The Cybersecurity 202: Chaos in primary elections offers troubling signs for November”<https://electionlawblog.org/?p=111848>
Posted on June 3, 2020 9:05 am<https://electionlawblog.org/?p=111848> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/06/03/the-cybersecurity-202-chaos-in-primary-elections-offers-troubling-signs-for-november/5ed6f7f388e0fa32f8230ad6/>

Sometimes-chaotic primary elections across eight states and the District of Columbia foreshadowed challenges that could undermine the security and legitimacy of the general election in November.

There were signs of dangerous shortcuts and workarounds, especially in the District where officials couldn’t get mail-in ballots out to everyone who requested them and resorted to accepting emailed ballots<https://twitter.com/CM_Silverman/status/1267831422053765120>. Security experts warn<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/05/11/the-cybersecurity-202-internet-based-voting-is-the-new-front-in-the-election-security-wars/5eb85e4e602ff11bb1179347/> such ballots are highly vulnerable to hacking because voters can’t verify they were recorded accurately.

That was the biggest security concern on a night that was also marked by hours-long lines for in-person voting, last-minute extensions for absentee voting, and anxiety about going to the polls during the coronavirus pandemic and nationwide protests against police violence, which prompted curfews in some places including Washington and Philadelphia.

The good news was that Department of Homeland Security officials said they hadn’t seen any signs of cyberattacks or significant disinformation campaigns from Russia or elsewhere as of a midday briefing. But they warned that disinformation attacks in particular might take more time to identify.

Overall, the day produced a middling report card for election officials, with one big note: Needs improvement before November.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“California lawmakers advance mail-ballot legislation to bolster Newsom election change”<https://electionlawblog.org/?p=111846>
Posted on June 3, 2020 9:00 am<https://electionlawblog.org/?p=111846> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/states/california/story/2020/06/02/california-lawmakers-advance-mail-ballot-legislation-to-bolster-newsom-election-change-1290086?nname=california-playbook&nid=00000150-384f-da43-aff2-bf7fd35a0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=641189>:

The California Republican Party and its national GOP counterparts have sued to stymie Newsom, arguing he had exceeded his statutory authority. Former Rep. Darrell Issa, who is running to return to Congress, has also challenged Newsom’s order.

President Donald Trump has blasted mail voting on the grounds that it undermines Republicans, and he has repeatedly mischaracterized Newsom’s order to bolster his claims that mail balloting invites fraud.

While Newsom has said he already believes his order is on “firm legal ground,” he allowed that “to the extent [legislators] want to codify it I think that could help as well.”

“I do think there’s some existing legal authority” to pursue that goal, said Sen. Henry Stern (D-Canoga Park), “but I see this measure as a critical piece of girding that effort.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Elegy for Anti-corruption Law: How the Bridgegate Case Could Crush Corruption Prosecutions and Boost Liars”<https://electionlawblog.org/?p=111844>
Posted on June 3, 2020 8:57 am<https://electionlawblog.org/?p=111844> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3605509> on SSRN (forthcoming, American University Law Review). Here is the abstract:

This piece discusses how the case Kelly v. United States, which was pending before the Supreme Court when this piece was written, was likely to expand two different developments in the Roberts Court’s jurisprudence: (1) expanding the constitutional protections for lying under the First Amendment and (2) narrowing the definition of corruption. This Piece describes how lower courts ruled in the Kelly case as well as arguments deployed by Kelly’s lawyers at the Supreme Court to try to exonerate their client Bridget Anne Kelly for her role in the Bridgegate scandal.

Epilogue: As this piece was being printed, the Supreme Court decided Kelly v. United States, 590 U. S. ____ , No. 18-1059 (U.S. May. 7, 2020). As predicted by the piece, the Supreme Court in Kelly expanded the Skilling case and narrowed what counts as corruption concluding “not every corrupt act by state or local officials is a federal crime.”
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Posted in bribery<https://electionlawblog.org/?cat=54>

House Judiciary Hearing on Voting Rights During Covid Happening Now<https://electionlawblog.org/?p=111842>
Posted on June 3, 2020 8:47 am<https://electionlawblog.org/?p=111842> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here<https://www.youtube.com/watch?v=5smxgTCuinU&feature=youtu.be>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
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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