[EL] ELB News and Commentary 6/4/20

[Rick Hasen]

“The Cybersecurity 202: D.C.’s use of email voting shows what could go wrong in November”<https://electionlawblog.org/?p=111892>
Posted on June 4, 2020 9:34 am<https://electionlawblog.org/?p=111892> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/06/04/the-cybersecurity-202-d-c-s-use-of-email-voting-shows-what-could-go-wrong-in-november/5ed7dd38602ff12947e83396/>

This would be a disaster for the general election. Our cross-ideological, cross-disciplinary committee report, Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>, is unequivocal: “Online return of ballots should not be contemplated for the November 2020 elections.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Private Prison Contractor Continues to Illegally Spend Millions in Elections: CLC Appeals Decision”<https://electionlawblog.org/?p=111890>
Posted on June 4, 2020 9:30 am<https://electionlawblog.org/?p=111890> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://campaignlegal.org/press-releases/private-prison-contractor-continues-illegally-spend-millions-elections-clc-appeals>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“D.C. Lets Voters Submit Ballots by Email After Mail Problems; Some states that are preparing for voting by mail to be more popular in the November election than in past years had hiccups on Tuesday”<https://electionlawblog.org/?p=111888>
Posted on June 4, 2020 9:25 am<https://electionlawblog.org/?p=111888> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/d-c-letsvoters-submit-ballots-by-email-after-mail-problems-11591211518?mod=politics_lead_pos7>:

The Washington, D.C., Board of Elections, inundated with complaints from voters who said they didn’t receive absentee ballots in the mail, created an unusual workaround for Tuesday’s primary: allowing voters to submit ballots by email.

That conflicts with security recommendations typically given by experts, but one local official said she thought it was worth the risk given the unusual circumstances. “I guess there are Russian hackers that can do anything, but I doubt they’re really concerned with the Ward 2 D.C. election,” said Councilmember Elissa Silverman.

Washington, D.C., and seven states holding presidential primaries on Tuesday had promoted voting by mail because of concerns about in-person voting during the coronavirus pandemic. Ms. Silverman, who wasn’t on the ballot, said hundreds of voters asked her office for help after they didn’t receive absentee ballots they requested, and she called for an investigation into what happened.

Rachel Coll, a spokeswoman for the elections board, said late Tuesday that it wasn’t clear why some absentee ballots weren’t received and how many voters were affected. She called the decision to allow ballots to be submitted over email a “last resort” available to those who tried unsuccessfully to get absentee ballots.

The elections board said Wednesday that it had received and counted approximately 50,000 absentee ballots, out of around 91,000 that district voters had requested. The board said it would count absentee ballots through June 12 as long as they were postmarked by June 2. In-person voters totaled 33,194, including the early voting period and on Election Day.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Low rates of fraud in vote-by-mail states show the benefits outweigh the risks”<https://electionlawblog.org/?p=111886>
Posted on June 4, 2020 9:22 am<https://electionlawblog.org/?p=111886> by Rick Hasen<https://electionlawblog.org/?author=3>

Brookings<https://www.brookings.edu/blog/fixgov/2020/06/02/low-rates-of-fraud-in-vote-by-mail-states-show-the-benefits-outweigh-the-risks/>:

Heritage makes their full database available, so we were able to look into the cases of voter fraud that they claim represent rampant illegal activity. We began with the five states that have already used universal vote-by-mail systems and thus have one or more elections under their belt. Then we looked at the way Heritage categorizes cases of voter fraud. Most of their categories, such as false voter registration or ballot petition fraud, can occur regardless of whether a state has implemented vote-by-mail. However, we might expect that duplicate voting and fraudulent use of an absentee ballot—both of which typically involve one person voting their own ballot and someone else’s ballot as well—would be easier in vote-by-mail states than in states where the voter would have to physically travel between precincts or from one county to another.

The following table lists the five states that have been using vote-by-mail prior to 2018. We looked at their fraud cases from the Heritage sample to see how many were of a type that vote-by-mail systems might be more vulnerable to and how many votes were affected. Our conclusion, from Heritage’s data: There is surprisingly little voter fraud and not nearly enough to justify blocking vote-by-mail systems in a pandemic….

The above chart refutes the contention that mail-in ballot systems are rife with fraud in several ways. First, note the small number of voter fraud cases overall. Next, note that a subset of those cases involve types of fraud to which mail-in ballot systems would be especially susceptible. Next, look at the time periods covered by these data. In Oregon, the first state to adopt a universal vote-by-mail system, the Heritage researchers had to cover a period of 19 years in order to find 15 cases of voter fraud! Less than one case a year hardly qualifies as rampant voter fraud.

But perhaps the most revealing column is the one listing the number of fraudulent votes attempted by mail. Republicans would have you believe that vote fraud is widespread enough to affect elections. But the fraud uncovered by the Heritage study is inconsequential. What has been uncovered in these five vote-by-mail states is on the individual level and not on an organized level. For instance, Janice Waters of Marysville, Washington<https://www.heritage.org/voterfraud/search?state=WA>, was found guilty of voting a ballot for her son who was a convicted felon and thus not eligible to vote. Jane Kay Balogh, also from Washington, was convicted of registering her dog Duncan to vote at her address and filling out an absentee ballot for him. Waters was sentenced to jail time, later converted to community service; Balogh got a deferred sentence plus community service and had to pay court costs. In Oregon<https://www.heritage.org/voterfraud/search?state=OR>, Terri Louise Kobialka was convicted of filling out a ballot mailed to her apartment in the name of a former roommate. She was fined $500 and ordered to do 120 hours of community service.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


John Oliver’s “Last Week Tonight” Tackles Vote by Mail<https://electionlawblog.org/?p=111884>
Posted on June 4, 2020 9:18 am<https://electionlawblog.org/?p=111884> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.youtube.com/watch?v=l-nEHkgm_Gk>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Maryland Congressional Delegation Calling for Comprehensive Review of State’s June 2 Primary Elections”<https://electionlawblog.org/?p=111882>
Posted on June 4, 2020 9:16 am<https://electionlawblog.org/?p=111882> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://raskin.house.gov/media/press-releases/maryland-congressional-delegation-calls-comprehensive-review-state-s-june-2>:

Congressman Jamie Raskin (MD-08) and Members of the Maryland Congressional Delegation, including Senators Ben Cardin and Chris Van Hollen and Congressmen Steny H. Hoyer, Dutch Ruppersberger, John Sarbanes, Kweisi Mfume, Anthony G. Brown and David Trone (all D-Md.), issued the following statement today after Maryland’s June 2 primary election, held amid the COVID-19 pandemic and nationwide protests against police brutality and inequality:

“The primary election in Maryland on Tuesday was conducted under extraordinary circumstances that required timing changes and significant adjustments to voting methods.  Under this pressure, it is clear there have been a number of breakdowns in the process.

“With the full participation and cooperation of the Maryland State Board of Elections and the Board’s staff, there must be an urgent, thorough and rigorous review of the Maryland primary election to identify problems that occurred, take steps to address them and ensure that as a state we are well-prepared to conduct a safe, free and fair election in November. Policymakers and election administrators at every level of government have a responsibility to join in this effort and do so in a way that bolsters the confidence of Maryland voters and make sure that they are able to cast their vote and have that vote accurately counted.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Why Is Voting By Mail (Suddenly) Controversial? Here’s What You Need To Know”<https://electionlawblog.org/?p=111880>
Posted on June 4, 2020 9:13 am<https://electionlawblog.org/?p=111880> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR reports<https://www.npr.org/2020/06/04/864899178/why-is-voting-by-mail-suddenly-controversial-heres-what-you-need-to-know>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Native American Rights Foundation Report: “Obstacles at Every Turn”<https://electionlawblog.org/?p=111878>
Posted on June 4, 2020 9:02 am<https://electionlawblog.org/?p=111878> by Rick Hasen<https://electionlawblog.org/?author=3>

NARF<https://vote.narf.org/obstacles-at-every-turn/>:

In 2017 and 2018, the Native American Voting Rights Coalition—founded by the Native American Rights Fund—held nine public hearings<https://vote.narf.org/field-hearings/> to better understand how Native Americans are systemically and culturally kept from fully exercising their franchise. More than 120 witnesses testified from dozens of tribes across the country.

The final report, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters<https://vote.narf.org/obstacles_at_every_turn/>,  was released June 4, 2020, and provides detailed evidence that Native people face obstacles at every turn in the electoral process: from registering to vote, to casting votes, to having votes counted.

Some of these findings affect non-Natives as well. Many are particular to the Indian Country experience in 2020. Some were put in place specifically to suppress turnout.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Age Discrimination in Voting at Home Report”<https://electionlawblog.org/?p=111876>
Posted on June 4, 2020 8:59 am<https://electionlawblog.org/?p=111876> by Rick Hasen<https://electionlawblog.org/?author=3>

A consortium of scholars and groups has released this report<https://andrewgoodman.org/wp-content/uploads/2020/06/Age-Discrimination-In-Voting-At-Home-Report_Final.pdf>. Here is the summary<https://andrewgoodman.org/vote-at-home-26/>:

Seven states currently discriminate on the basis of age in their vote-at-home (also known as absentee ballot) systems. Specifically, Texas, South Carolina, Indiana, Tennessee, Mississippi, Louisiana, and Kentucky allow older voters to vote at home for any reason, but younger voters need specific excuses. Missouri may soon join this group of states if the Governor signs a pending bill to modify voting procedures during the COVID-19 pandemic.

In this novel report, a coalition including Equal Citizens, The Andrew Goodman Foundation, UCLA Voting Rights Project, Vote at Home Institute, and Stris & Maher LLP explains why these laws are unconstitutional under the Twenty-Sixth Amendment, which prohibits age discrimination in voting.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“LWV of North Dakota Wins Case for Fair Ballot Signature Match”<https://electionlawblog.org/?p=111874>
Posted on June 3, 2020 5:28 pm<https://electionlawblog.org/?p=111874> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.lwv.org/newsroom/press-releases/lwv-north-dakota-wins-case-fair-ballot-signature-match?utm_source=PressRelease&utm_medium=email&utm_campaign=06032020>:

Today, a federal judge ruled<https://www.lwv.org/sites/default/files/2020-06/North%20Dakota%20Order%20Granting%20Prelim%20Injunction.pdf> that North Dakota’s process for absentee ballot verification will include a notification and remedy method for voters whose ballots are flagged for rejection due to signature mismatch. The decision comes in time for the state’s primary election on June 9 and will also apply to the November 3 general election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Republicans Want Wisconsin Supreme Court (Dominated by Conservatives) Rather than a Federal Court to Draw Redistricting Maps After Census Results are In<https://electionlawblog.org/?p=111871>
Posted on June 3, 2020 12:34 pm<https://electionlawblog.org/?p=111871> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/2020/06/03/legal-fight-over-next-round-redistricting-begins-wisconsin/3134235001/>:

The legal fight over the next round of redistricting in Wisconsin kicked off Wednesday, a full year before lawmakers begin drawing election maps.

The filing of a request to change state court rules by a former Republican legislative leader reflects the enormity of the political stakes. And it tacitly recognizes that it is all but certain to be courts that have the final say on what legislative and congressional districts look like for the next decade.

Where the lines are drawn plays a major role in determining who controls the Legislature and has an upper hand in the state’s congressional delegation. Republican lawmakers established maps in 2011 that handed them large majorities in the Statehouse and an advantage in five of the state’s eight congressional districts.

The move<https://www.documentcloud.org/documents/6935764-Memorandum-in-Support-of-Rules-Petition.html> to keep any litigation in state court was brought by former Assembly Speaker Scott Jensen with the help of the conservative Wisconsin Institute for Law & Liberty. It seeks to put in place new rules<https://www.documentcloud.org/documents/6935764-Memorandum-in-Support-of-Rules-Petition.html> to try to ensure the state Supreme Court — instead of federal courts — decides any redistricting litigation.

Both sides believe state court is a better forum for Republicans because conservatives control the Wisconsin Supreme Court. Litigation over the current maps played out before a panel of federal judges that dealt Republicans setbacks until the U.S. Supreme Court set a precedent in their favor in a pair of lawsuits from other states.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


Committee on House Administration Hearing June 4: The Impact Of COVID-19 On Voting Rights And Election Administration: Ensuring Safe And Fair Elections<https://electionlawblog.org/?p=111869>
Posted on June 3, 2020 12:30 pm<https://electionlawblog.org/?p=111869> by Rick Hasen<https://electionlawblog.org/?author=3>

Details<https://cha.house.gov/committee-activity/hearings/impact-covid-19-voting-rights-and-election-administration-ensuring-safe>.

UPDATE: This hearing has been postponed until June 11.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Newsom orders new California in-person voting rules for November election”<https://electionlawblog.org/?p=111867>
Posted on June 3, 2020 11:19 am<https://electionlawblog.org/?p=111867> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<https://www.latimes.com/california/story/2020-06-03/california-in-person-voting-november-election-rules-gavin-newsom-order>

Gov. Gavin Newsom gave California counties permission on Wednesday to limit their in-person voting operations for the Nov. 3 election as protection against the spread of the coronavirus — but only if they also offer three days of early voting, a tradeoff some local officials said could be expensive and challenging.

The decision, detailed in an executive order, comes almost one month after Newsom instructed California counties to mail all of the state’s 20.6 million voters an absentee ballot<https://www.latimes.com/california/story/2020-05-08/all-california-voters-will-be-asked-to-vote-by-mail-in-november-2020-coronavirus> for the upcoming election. In doing so, he noted that voting locations would still be provided, primarily for voters with disabilities and those seeking assistance in a language other than English.

But Newsom’s earlier executive order<https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-to-protect-public-health-by-mailing-every-registered-voter-a-ballot-ahead-of-the-november-general-election/>, issued May 8, was silent on rules governing where and when to set up voting sites, leaving elections officials in limbo on plans for the upcoming presidential election. The cost to implement new guidelines could be substantial, exceeding the federal dollars already earmarked for election assistance during the pandemic and further straining county government budgets stretched thin by public health and safety spending.

Newsom’s order offers no information as to whether additional state funds will be set aside, though elections funding could be boosted in the state budget the Legislature must send to his desk by June 15….

The change presents two notable challenges for counties that have no experience with early voting. First, they will have to operate locations for four consecutive days, requiring some poll workers to work more hours or the enlistment of additional volunteers. Many poll workers are seniors who might not participate this year given their heightened risk for COVID-19 infection. The governor’s executive order on Wednesday raised the possibility of county employees being assigned to elections work.

Second, voting locations will have to be prepared to accommodate possibility thousands of voters who could show up over the four-day period, both those who choose to not vote by mail and new voters who can register as late as election day<https://www.latimes.com/california/story/2019-10-08/californians-register-to-vote-any-polling-place-2020-new-law>. Not all of these voters may be eligible to use the same ballot, requiring additional supplies. And because voters could likely choose any of a county’s limited voting locations, poll workers will need more than just an old-fashioned paper printout of voters who live nearby to check eligibility.
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Posted in election administration<https://electionlawblog.org/?cat=18>


FedSoc Podcast with Steve Klein on Bridgegate Decision<https://electionlawblog.org/?p=111865>
Posted on June 3, 2020 11:17 am<https://electionlawblog.org/?p=111865> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen here<https://fedsoc.org/events/courthouse-steps-decision-teleforum-kelly-v-united-states>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“President Trump tried to register to vote in Florida using an out-of-state address”<https://electionlawblog.org/?p=111863>
Posted on June 3, 2020 10:12 am<https://electionlawblog.org/?p=111863> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/lifestyle/style/president-trump-tried-to-register-to-vote-in-florida-using-an-out-of-state-address/2020/06/03/687d0014-a4f2-11ea-b473-04905b1af82b_story.html?utm_campaign=wp_main&utm_medium=social&utm_source=twitter>:

President Trump originally tried to register to vote in Florida while claiming his “legal residence” was in another part of the country — Washington, D.C. — according to Florida elections records.

The September 2019 registration application listed Trump’s legal residence as 1600 Pennsylvania Ave. NW, the location of the White House. That created a potential problem for Trump: Florida law requires voters to be legal residents of the state. A month later, Trump resubmitted his application to use a Florida address and in March he voted by mail in Florida’s Republican primary.

The revisions complicate Trump’s own record as a voter at a time when the president has made unsubstantiated claims of widespread fraud in mail-in balloting….

The voter application is dated Sept. 27, 2019 — the same day that Trump made the domicile change. On one of his forms that day he was telling Florida officials that his “legal residence” was Washington, D.C., and on another he was saying he was a “bona fide resident” of Palm Beach.

Florida voter-registration applicants are warned on registration forms that they may be subject to fines and even prison time if they do not provide truthful information.

There has been at least one recent instance in Florida in which a public official faced legal consequences for registering to vote at an address that was not her legal residence. Last year, the city manager of Deltona, Fl., entered into an agreement<https://bit.ly/3gODdUm> with the local state’s attorney’s office to pay more than $5,000 in fees and reimbursements for the state’s investigation to avoid being prosecuted on criminal charges in a voter-registration case. She had registered to vote using the address of Deltona’s City Hall, rather than her home address, and had cast ballots in elections using that registration.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“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>


--
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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