[EL] ELB News and Commentary 6/12/20

Fri Jun 12 17:54:02 PDT 2020

Now Available: Revised–and More Pessimistic–Version of My Paper, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them<https://electionlawblog.org/?p=112219>
Posted on June 12, 2020 4:06 pm<https://electionlawblog.org/?p=112219> by Rick Hasen<https://electionlawblog.org/?author=3>

I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> on SSRN, which takes into account recent troubling developments in COVID-related voting cases in the Fifth Circuit, Sixth Circuit, and Texas Supreme Court. Here is the revised abstract:

The COVID-19 global pandemic, which already has claimed over 100,000 lives in the United States by the end of May 2020, revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of the American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States.

The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decisionmaking. Third, constitutional protections for voting rights remain weak.

Despite these three pathologies and the Supreme Court’s recent decision in RNC v. DNC concerning Wisconsin ballot receipt deadlines which sided against expanded voting rights, there is room for some hope that at least some courts will provide measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation “the Democracy Canon,” an old canon of judicial interpretation counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights. But the picture is mixed, and a number of courts are not adequately accommodating voting rights during the pandemic.

More significantly, court intervention can only go so far, and long term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections. Movement toward constitutional amendment is a generational project aimed at entrenching strong voting rights protections against political backlash.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>, Uncategorized<https://electionlawblog.org/?cat=1>

Bizarre Washington Examiner Article Posits Republican Fear That Democrats Will “Wield Voting Rights Like a Cudgel” After Georgia Primary Election Meltdown<https://electionlawblog.org/?p=112217>
Posted on June 12, 2020 3:47 pm<https://electionlawblog.org/?p=112217> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Examiner<https://www.washingtonexaminer.com/news/campaigns/scares-me-to-death-georgia-republicans-fret-voting-access-issue-could-sink-trump>:

Republican insiders in Georgia are warning after a balloting meltdown in Fulton County that Democrats could wield voting rights like a cudgel, galvanizing turnout this fall to defeat President Trump in the traditionally red state.

Georgia Republicans blame problems that plagued Georgia’s primary on Democratic officials running Fulton County, a diverse enclave in metro Atlanta with a population that is nearly 44% black.

But Republicans worry they are arguing in vain. Democratic turnout among white and black voters was high in this week’s elections, even in predominantly GOP precincts. They fear it could reach historic levels in November if Democrats manage to demonize Republicans as actively suppressing minorities from voting.

In a state trending competitive, that could cost Trump Georgia’s critical 16 votes in the Electoral College against presumptive Democratic nominee Joe Biden. A sunbelt loss would jeopardize his reelection.

“It scares me to death. I’ve gotten very little sleep,” a veteran Republican strategist in Georgia said following the primary. “They’re going to fire up an already fired-up base, and that concerns me for November.”

Some thoughts<https://twitter.com/rickhasen/status/1271473922152648705>:
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

<https://twitter.com/rickhasen/status/1271473922152648705>

This story is absolutely bonkers. It sounds like Georgia Republicans are worried that Democrats will vote in droves in November because they've now seen that Georgia's election system cannot be run fairly and efficiently. "Wield voting rights like a cudgel" is odd framing. https://twitter.com/DavidMDrucker/status/1271404032112955393 …<https://t.co/tFVyIRchS6>
<https://twitter.com/DavidMDrucker/status/1271404032112955393>
David M. Drucker<https://twitter.com/DavidMDrucker/status/1271404032112955393>
✔@DavidMDrucker<https://twitter.com/DavidMDrucker/status/1271404032112955393>

NEW: GOP insiders in Georgia are warning after balloting meltdown in Fulton County that Democrats could wield voting rights like a cudgel, galvanizing turnout this fall to defeat @realDonaldTrump in traditionally red state. https://washex.am/3cTdBCQ  @dcexaminer<https://twitter.com/DavidMDrucker/status/1271404032112955393>

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1,363<https://twitter.com/intent/like?tweet_id=1271473922152648705>
9:06 AM - Jun 12, 2020<https://twitter.com/rickhasen/status/1271473922152648705>
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640 people are talking about this<https://twitter.com/rickhasen/status/1271473922152648705>

and<https://twitter.com/rickhasen/status/1271477078420905994>:
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 8h<https://twitter.com/rickhasen/status/1271474659033141250>
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Replying to @rickhasen<https://twitter.com/_/status/1271473922152648705>

I have a different concern. As I explain in #ElectionMeltdown<https://twitter.com/hashtag/ElectionMeltdown?src=hash> (https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr …<https://t.co/lo0GAzfCnB>), there's a chance Democrats and others won't accept the 2020 elections as legitimate if the see voter suppression as the reason Trump wins a state like Georgia and the electoral college.
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Another irony in this story. A Republican operative points to the problems that minority voters had voting IN PERSON in Georgia Tuesday to attack efforts to make voting BY MAIL easier. Bonkers.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>

Must-Read Nate Persily: “It’s Not Too Late to Save the 2020 Election; Avoiding a debacle for U.S. democracy will require getting as many Americans as possible to vote by mail and ensuring that polling places are safe, convenient and plentiful”<https://electionlawblog.org/?p=112215>
Posted on June 12, 2020 3:43 pm<https://electionlawblog.org/?p=112215> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ <https://www.wsj.com/articles/its-not-too-late-to-save-the-2020-election-11591973979> Saturday Essay:

On Tuesday, citizens in Georgia stood in lines for hours to vote—and some just gave up. The state struggled to handle its primary election, hobbled amid the coronavirus pandemic by a shortage of poll workers and polling places. The Atlanta Journal Constitution called it “an ordeal for voters<https://www.ajc.com/news/state--regional-govt--politics/voting-machines-and-coronavirus-force-long-lines-georgia-voters/VajM2D3aSHALhCz7KwDrpJ/>.” And with Georgia potentially in play between President Donald Trump and Democratic challenger Joe Biden, more than twice as many voters are expected in November, the paper noted.

All of this suggests that the 2020 election could become a full-on crisis for American democracy. If the type of chaos that racked Georgia this week and Wisconsin’s primary last month recurs nationwide in November, Americans will rightfully question whether we had a free and fair election. American democracy was already beset by partisan polarization and distrust, and our body politic was unprepared for the new election threat that the pandemic poses. Now the largest wave of civic unrest since the late 1960s, spurred by outrage over police brutality and racism, has made the stakes even higher.

We aren’t ready. The problems in Georgia<https://www.wsj.com/articles/in-a-warning-for-november-voters-endure-long-lines-in-georgias-primary-election-11591733287> are just the latest indication of how widespread the dysfunction is. Jurisdictions across the country are scrambling to prepare for a massive shift to mail balloting and to ensure that they can provide reasonably safe polling places. Hundreds of voting sites are being taken out of commission, either because they cannot accommodate adequate social distancing or because the civic-minded senior citizens who usually staff them aren’t willing to risk their lives to do so.

It doesn’t have to be this way. We need to prepare for this election as we would for a natural disaster like an earthquake or a hurricane—and unlike a natural disaster, we have five months of warning.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>

“Free Speech for Whom? And by Whom?”<https://electionlawblog.org/?p=112213>
Posted on June 12, 2020 3:41 pm<https://electionlawblog.org/?p=112213> by Rick Hasen<https://electionlawblog.org/?author=3>

Brendan Fischer and Kedric Payne blog<https://campaignlegal.org/update/free-speech-whom-and-whom>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“How Electronic Voting in Georgia Resulted in a Disenfranchising Debacle”<https://electionlawblog.org/?p=112211>
Posted on June 12, 2020 3:39 pm<https://electionlawblog.org/?p=112211> by Rick Hasen<https://electionlawblog.org/?author=3>

Sue Halpern<https://www.newyorker.com/news/daily-comment/how-electronic-voting-in-georgia-resulted-in-a-disenfranchising-debacle> in The New Yorker.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Alaska Supreme Court Says Initiative for a Top-Four System and Campaign Finance Disclosure Does Not Violate the Single-Subject Rule, and Therefore Can be on November 2020 Ballot”<https://electionlawblog.org/?p=112209>
Posted on June 12, 2020 3:36 pm<https://electionlawblog.org/?p=112209> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN reports<http://ballot-access.org/2020/06/12/alaska-supreme-court-says-initiative-for-a-top-four-system-and-campaign-disclosure-is-a-single-subject-and-therefore-can-be-on-november-2020-ballot/>.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, campaign finance<https://electionlawblog.org/?cat=10>, direct democracy<https://electionlawblog.org/?cat=62>

D.C. Circuit Rejects Another Challenge to Presidential Debate Committee’s Exclusion of Minor Party Candidates<https://electionlawblog.org/?p=112207>
Posted on June 12, 2020 3:34 pm<https://electionlawblog.org/?p=112207> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion here<https://www.cadc.uscourts.gov/internet/opinions.nsf/2A9F29284B7C87FC852585850051A221/$file/19-5117-1846953.pdf>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Gavin Newsom’s vote-by-mail order blocked after Republicans sue over his emergency powers”<https://electionlawblog.org/?p=112205>
Posted on June 12, 2020 3:31 pm<https://electionlawblog.org/?p=112205> by Rick Hasen<https://electionlawblog.org/?author=3>

SacBee reports.<https://t1.news.mcclatchydc.com/r/?id=h42f11e13%2Cae4221e%2Cace97d1&ac_cid=DM215586&ac_bid=1123098131&s=c2qF9N0LVyMD-dZiZ8I1QMHJ-iL1uZPgdXqiqVkk8k8=>

The order<https://ad03.asmrc.org/sites/default/files/files-uploaded/TRO.pdf>, which lasts only for two weeks pending further hearing, suggests that the governor exceeded legislative powers in ordering that every California voter be sent a ballot.

I expect that the CA Legislature will act to authorize sending the ballots if this ruling stands.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The media’s vital role in safeguarding elections”<https://electionlawblog.org/?p=112182>
Posted on June 12, 2020 7:42 am<https://electionlawblog.org/?p=112182> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<https://www.cjr.org/the_media_today/georgia_voter_suppression_election.php> at the Columbia Journalism Review, which quotes from our report, Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Covid-19, Election Protection, and the Youth Vote in 2020”<https://electionlawblog.org/?p=112180>
Posted on June 12, 2020 7:37 am<https://electionlawblog.org/?p=112180> by Rick Hasen<https://electionlawblog.org/?author=3>

Upcoming events <https://mailchi.mp/879bc688d54f/lawyers-committee-mcle> from the Civics Center and Lawyers’ Committee.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Georgia Primary and the State of Voting Rights”<https://electionlawblog.org/?p=112178>
Posted on June 12, 2020 7:28 am<https://electionlawblog.org/?p=112178> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeffrey Toobin<https://www.newyorker.com/news/daily-comment/the-georgia-primary-and-the-state-of-voting-rights?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_061120&utm_campaign=aud-dev&utm_medium=email&bxid=5e3f4222283d8e6ce612d685&cndid=59864795&hasha=c73fcf4ad15a009f9eea6323e6b0fee5&hashb=41fdf0b61b6b2336e7a91038d16ddf9b89b1c228&hashc=bd337dbe5aab4207da2151e1ad1242eab4fd27bc96076a5548e88001b8e5281f&esrc=Auto_Subs&utm_term=TNY_Daily> in The New Yorker.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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