[EL] ELB News and Commentary 6/5/20

Fri Jun 5 08:45:16 PDT 2020

Ohio House Passes Bill That Would Make It Harder to Vote During the Pandemic<https://electionlawblog.org/?p=111916>
Posted on June 5, 2020 8:26 am<https://electionlawblog.org/?p=111916> by Rick Hasen<https://electionlawblog.org/?author=3>

Dayton Daily News:<https://epaper.daytondailynews.com/popovers/dynamic_article_popover.aspx?guid=2e85ac9d-a440-40c3-89e4-71cf5bea699e&pbid=66ab59ea-5cfc-438d-83e4-dc9e4a34f79d&utm_source=app.pagesuite&utm_medium=app-interaction&utm_campaign=pagesuite-epaper-html5_share-article>

The Ohio House voted 61-34 along party lines Thursday in favor of an elections bill that voting rights groups say will make casting ballots during a pandemic more difficult.

House Bill 680 would block the Ohio secretary of state from prepaying return postage on applications for absentee ballots or on the ballots themselves. It calls for shortening the time allowed for requesting an absentee ballot to seven days before Election Day.

It would also block public officials from canceling or delaying an election. Gov. Mike DeWine and Ohio Department of Health Director Amy Acton used a public health order to close polling places for the March 17 presidential primary to prevent the spread of the coronavirus.

The fast-tracked legislation, first introduced May 27, encountered opposition from groups such as the NAACP, League of Women Voters of Ohio, Common Cause Ohio, AARP Ohio, ACLU of Ohio, Ohio Council of Churches, and others. The bill moves to the Senate now for consideration there.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Facebook, Twitter and Google Write Their Own Rules for Political Ads—and What You See”<https://electionlawblog.org/?p=111914>
Posted on June 5, 2020 8:14 am<https://electionlawblog.org/?p=111914> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ deep dive.<https://www.wsj.com/graphics/how-google-facebook-and-twitter-patrol-political-ads/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“California lawmaker scrambles to fix bill to make it clear ballots won’t go to phantom voters”<https://electionlawblog.org/?p=111912>
Posted on June 5, 2020 8:12 am<https://electionlawblog.org/?p=111912> by Rick Hasen<https://electionlawblog.org/?author=3>

The SF Chronicle reports.<https://www.sfchronicle.com/politics/article/California-lawmaker-scrambles-to-fix-bill-to-15317858.php>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“The Cybersecurity 202: Attempted hacks of Trump and Biden campaigns reveal a race to disrupt the 2020 general election”<https://electionlawblog.org/?p=111910>
Posted on June 5, 2020 8:05 am<https://electionlawblog.org/?p=111910> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/06/05/the-cybersecurity-202-attempted-hacks-of-trump-and-biden-campaigns-reveal-a-race-to-disrupt-the-2020-general-election/5ed98eb6602ff12947e84d7c/>:

It’s official: The race to hack the 2020 general election is in full swing.

Iran tried to hack into Gmail accounts used by President Trump’s reelection campaign staff, the leader of Google’s threat-hunting team revealed in a tweet<https://twitter.com/ShaneHuntley/status/1268589219842109440>. China, meanwhile, tried to hack staff for former vice president Joe Biden, the presumptive Democratic presidential nominee, Shane Huntley said.

The hackers didn’t successfully breach those accounts. But these nation state-backed hacking campaigns are likely to be the just the beginning of a general election campaign that will be ripe for disruption by U.S. adversaries.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“California D.A.s Call for Ban on Police Union Money and Endorsements in Prosecutorial Elections”<https://electionlawblog.org/?p=111908>
Posted on June 5, 2020 7:59 am<https://electionlawblog.org/?p=111908> by Rick Hasen<https://electionlawblog.org/?author=3>

Eliahyu Kamisher<https://theappeal.org/california-das-call-for-ban-on-police-union-money-and-endorsements-in-prosecutorial-elections/> reports for The Appeal:

But a ban on direct campaign contributions will have relatively little effect on the influence of police unions, said Robert Stern, a former attorney who has worked extensively on California campaign finance reform. He noted that the majority of their money is funneled through political action committees, or PACs, that are not subject to contribution limits.

The Los Angeles police union (LAPPL), through two PACs, spent $1 million<https://theappeal.org/george-gascon-los-angeles-police-union/> toward defeating Gascón, who is opposing incumbent Jackie Lacey in a November runoff election for district attorney. Law enforcement groups also spent over $650,000 to oppose Boudin’s contentious run for San Francisco’s top prosecutor role.

On Monday, the LAPPL focused its anger on Boudin and Gascón, accusing them in a statement of “exploiting the tragic and horrific death of George Floyd.” The union said there is no similar proposal to eliminate contributions from other special interest groups, including defense and civil attorneys. …

Stern said the bar is unlikely to regulate union spending or political support and a move to do so could run afoul of the First Amendment if taken to court.

“It’s more of moral suasion than it would be law, I just don’t see how the unions would be stopped from doing it,” said Stern, who served as the first general counsel of California’s Fair Political Practices Commission.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

Breaking: Tennessee State Court Holds that, Given COVID-19, State Constitution Requires Offering Any Voter The Opportunity to Vote by Absentee Ballot in Upcoming Election<https://electionlawblog.org/?p=111906>
Posted on June 4, 2020 6:17 pm<https://electionlawblog.org/?p=111906> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion here<https://www.aclu.org/legal-document/order-lay-v-goins>. We will see if the state appeals.

One interesting aspect of the opinion is the discussion of the supposed antifraud benefits of requiring in person voting: “The court notes that voters will be able to wear face masks when voting. These conditions obscure identity and undercut the defense that in-person voting during the pandemic poses less of a threat of voter fraud.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Mail-in Voting May Delay US Presidential Election Results”<https://electionlawblog.org/?p=111904>
Posted on June 4, 2020 3:28 pm<https://electionlawblog.org/?p=111904> by Rick Hasen<https://electionlawblog.org/?author=3>

VOA reports<https://learningenglish.voanews.com/a/mail-in-voting-may-delay-us-presidential-election-results/5441386.html>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Will We Actually Get to Vote in November?”<https://electionlawblog.org/?p=111902>
Posted on June 4, 2020 2:32 pm<https://electionlawblog.org/?p=111902> by Rick Hasen<https://electionlawblog.org/?author=3>

Sue Halpern<https://www.newyorker.com/news/daily-comment/will-we-actually-get-to-vote-in-november> in The New Yorker:

A few weeks ago, when I asked the legal scholar Rick Hasen about a scenario, then circulating, that laid out a “legal” way for the Trump Administration to bypass elections and keep Trump in power, he said it would lead to rioting in the streets. That was before there was rioting in the streets, which has given the Trump Administration an opportunity to mobilize U.S. soldiers to police U.S. citizens, and local governments to deploy militarized police forces that have shown little respect for constitutional rights as they fire rubber bullets, deploy tear gas, and charge and beat peaceful protesters. The spectre of violence in the streets, which horrifies most Americans, appears to energize our self-declared “law-and-order President.” Certainly, it gives cover for greater surveillance and the thwarting of dissent. On Tuesday, as voters went to the polls in eight states and the District of Columbia<https://www.nytimes.com/2020/06/02/us/politics/2020-primaries-today.html>, with many citizens under curfew orders, we saw a whole new way to keep citizens from voting.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Senate panel approves legislation requiring campaigns to report foreign election help”<https://electionlawblog.org/?p=111900>
Posted on June 4, 2020 2:30 pm<https://electionlawblog.org/?p=111900> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/06/03/politics/senate-intelligence-committee-reporting-foreign-election-help/index.html>:

The Senate Intelligence Committee quietly approved on Wednesday a measure that would require presidential campaigns to report offers of foreign election influence to federal authorities, a move taken in response to Russian election interference in 2016 and one that could draw the attention of President Donald Trump, committee sources say.

Senate Republicans, however, are preparing to remove the provision from the bill when it heads to the Senate floor.The committee adopted the measure behind closed doors in a classified setting, adding it to the Intelligence Authorization Act, a bill setting policy for the intelligence community. The amendment was offered by Sen. Mark Warner of Virginia, the committee’s top Democrat and the author of the standalone legislation, and GOP Sen. Susan Collins of Maine. It passed 8-7, with Collins joining the panel’s seven Democrats.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Union Impact on Voter Participation—And How to Expand It”<https://electionlawblog.org/?p=111898>
Posted on June 4, 2020 2:26 pm<https://electionlawblog.org/?p=111898> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<https://ash.harvard.edu/publications/union-impact-voter-participation%E2%80%94and-how-expand-it> from Tova Wang at the Ash Center.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: 5th Circuit Stays Lower Court Order on Challenge to Texas Absentee Voting Rules During a Pandemic, Creating Some Bad Law Along the Way<https://electionlawblog.org/?p=111895>
Posted on June 4, 2020 10:37 am<https://electionlawblog.org/?p=111895> by Rick Hasen<https://electionlawblog.org/?author=3>

You can read the court’s opinion by Judge Jerry Smith, along with separate concurrences by Judge Ho and Costa at this link<https://www.scribd.com/document/464364786/Texas-Democratic-Party-v-Abbott-5th-Circuit-opinion-granting-motion-for-stay>.

The result is no surprise; see my May 19 post, Breaking: Federal District Court, in Sweeping Opinion, Holds That Texas Must Allow Voters Who Wish to Vote by Mail to Do So In Light of COVID, But The Opinion is Vulnerable to Reversal by 5th Circuit<https://electionlawblog.org/?p=111499>.

Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.

Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668>.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.

Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.

Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.
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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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