[EL] ELB News and Commentary 6/15/20

[Rick Hasen]

“The Rising Trump Lawyer Battling to Reshape the Electorate”<https://electionlawblog.org/?p=112277>
Posted on June 15, 2020 9:36 am<https://electionlawblog.org/?p=112277> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT profiles<https://www.nytimes.com/2020/06/15/us/elections/voting-william-consovoy-trump.html> William Consovoy.

That’s a weirdly neutral NYT title given what Consovoy does, which is to litigate to make it harder for people to register and to vote.
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Posted in election law biz<https://electionlawblog.org/?cat=51>


Incumbent Virginia Congressman, Who Loses Party Nomination at Party Convention Over Officiating at Same Sex Marriage, Claims “Voter Fraud”<https://electionlawblog.org/?p=112274>
Posted on June 15, 2020 9:31 am<https://electionlawblog.org/?p=112274> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/06/14/us/politics/denver-riggleman-virginia-primary-bob-good.html>:

Mr. Riggleman, as well as outside observers, denounced the setup — enabled by state laws that allow local party officials to choose congressional nominees by conventions instead of traditional primary elections — which has tended to benefit hard-line candidates. As of Sunday morning, Mr. Riggleman had not conceded.

“Voter fraud has been a hallmark of this nomination process and I will not stand for it,” Mr. Riggleman wrote on Twitter<https://twitter.com/Denver4VA/status/1272015902473687040> late Saturday night. The Virginia Republican Party, he continued, “needs to reevaluate their priorities. We are evaluating all our options at this time.”

Mr. Riggleman’s campaign had objected to the inclusion of a trove of votes from a specific county delegation, raising concerns about whether a handful of ballots had been cast by eligible delegates. The objections were overruled by the committee overseeing the convention.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Georgia Democrats set new primary turnout record, outpacing GOP voters”<https://electionlawblog.org/?p=112272>
Posted on June 15, 2020 9:23 am<https://electionlawblog.org/?p=112272> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC reports.<https://www.ajc.com/blog/politics/georgia-democrats-set-new-primary-turnout-record-outpacing-gop-voters/fotxE4Udba0e0q6QvDBZ8M/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Eleventh Circuit Expedites Florida Felon Disenfranchisement Case; Oral Argument Likely for August<https://electionlawblog.org/?p=112270>
Posted on June 15, 2020 9:20 am<https://electionlawblog.org/?p=112270> by Rick Hasen<https://electionlawblog.org/?author=3>

Details.<https://news.wfsu.org/wfsu-local-news/2020-06-14/court-speeds-up-voting-rights-appeal>
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“Michigan ballot application mailings to dead people raise Republican hackles”<https://electionlawblog.org/?p=112268>
Posted on June 15, 2020 9:11 am<https://electionlawblog.org/?p=112268> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit News reports<https://www.detroitnews.com/story/news/politics/2020/06/14/michigan-ballot-application-mailings-dead-people-raise-gop-hackles/5335580002/>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Democratic NC Governor Signs New North Carolina Voting Law<https://electionlawblog.org/?p=112266>
Posted on June 15, 2020 9:09 am<https://electionlawblog.org/?p=112266> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer<https://www.newsobserver.com/news/politics-government/article243492371.html>:

Democratic Gov. Roy Cooper signed a wide-ranging elections bill into law Friday, HB 1169<https://www.ncleg.gov/Sessions/2019/Bills/House/PDF/H1169v7.pdf>. It passed the N.C. General Assembly with the support of every Republican and most Democrats. In addition to its other changes listed above, the bill also includes extra money<https://www.newsobserver.com/news/coronavirus/article242924676.html> for increased cybersecurity, among other things….

Supporters of the bill had cited the long lines to vote recently in Georgia and Wisconsin that have made national news, causing hours-long waits for people trying to vote in person, as one reason to increase election spending here — in addition to making it easier to request, use and track absentee mail-in ballots.

The changes, however, will only apply to the 2020 elections . Officials believe that this year the state could see nearly half its votes cast by mail….

The Democrats who did oppose the bill said they didn’t like an unrelated section<https://www.newsobserver.com/news/politics-government/article243438961.html>, tweaking the state’s controversial voter ID law. That law has been temporarily blocked from going into place, after two different courts ruled that it appears the legislature passed it in 2018 with racist motivations<https://www.newsobserver.com/news/politics-government/article240387671.html> to target Black voters.

But the court cases aren’t over yet, and if voter ID’s Republican supporters win in court in the next few months, it’s possible that voters could be required to show ID at the polls.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, voter id<https://electionlawblog.org/?cat=9>


“The Cybersecurity 202: Reports of mail-in ballot problems, partisan rancor in Georgia primary spell trouble for November”<https://electionlawblog.org/?p=112264>
Posted on June 15, 2020 9:05 am<https://electionlawblog.org/?p=112264> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/06/15/the-cybersecurity-202-reports-of-mail-in-ballot-problems-partisan-rancor-in-georgia-primary-spell-trouble-for-november/5ee6c07e602ff12947e8c1fa/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Iowa Legislature adjourns after passing budget that includes new voter ID requirements”<https://electionlawblog.org/?p=112262>
Posted on June 15, 2020 9:03 am<https://electionlawblog.org/?p=112262> by Rick Hasen<https://electionlawblog.org/?author=3>

Des Moines Register<https://www.desmoinesregister.com/story/news/politics/2020/06/14/iowa-legislature-adjourns-2020-session-budget-voter-id-abortion-felon-voting/3184423001/>:

The Iowa Legislature adjourned its coronavirus-disrupted 2020 session Sunday after a marathon overnight debate that saw the passage of a mostly status quo budget and a controversial expansion of the state’s voter ID program.

Marc Elias suggests litigation<https://twitter.com/marceelias/status/1272301759604625408?s=20> if this is signed into law.
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Posted in voter id<https://electionlawblog.org/?cat=9>


“Political Groups Track Protesters’ Cellphone Data”<https://electionlawblog.org/?p=112260>
Posted on June 15, 2020 9:01 am<https://electionlawblog.org/?p=112260> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/how-political-groups-are-harvesting-data-from-protesters-11592156142?emailToken=097479eefc4623fefc8d41d3156c5343Pbs0sHb38TUgyNgr593gG7sFbxZI0JonwoYlUbC2R+hn0OdJ27VO8ZATGhu4AQGJ8LhqQ9pN6p9HuBADmgZsGyBDluRtgad4ectDboV58wnYp++ggtNc/syLQSldggHg&reflink=article_copyURL_share>

The protests continuing around the country are historic displays of social action. For political operatives, the mass gatherings are also a unique opportunity to harvest data on potential voters.

Advocacy and voter-registration groups are gathering a trove of data from protests by tracking the cellphones of participants and sending them messages about registering to vote or taking other actions. The tactics, which one user called “deeply spooky yet extremely helpful,” are the latest example of ways political groups are using cellphone data to target voters.

Tracking individuals through location data gathered by apps on their phones, often referred to as geofencing, has been used by businesses for years and has more recently caught on among political groups. That data allows firms to reach people’s phones with ads or other messaging—in real-time or later—without identifying individuals, proponents say.
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Posted in voter registration<https://electionlawblog.org/?cat=37>


“Covid-19 Changed How We Vote. It Could Also Change Who Votes.”<https://electionlawblog.org/?p=112258>
Posted on June 15, 2020 8:58 am<https://electionlawblog.org/?p=112258> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/06/14/us/voter-registration-coronavirus-2020-election.html?smid=em-share>:

First the Covid-19 pandemic upended how people vote, forcing a huge shift to mailed-in ballots in primary elections nationwide. Now it is taking aim at who can vote — the millions of people who would ordinarily register or update their registrations in a presidential election year.

New voter registrations in 12 states and the District of Columbia plummeted 70 percent in April compared to January, before the coronavirus became a major public issue, according to a study released Friday<https://electioninnovation.org/new-voter-registrations-in-2020/> by the Center for Election Innovation and Research<https://electioninnovation.org/our-work/>, a Washington, D.C., nonprofit.

By comparison, the center reported, new registrations in the 13 surveyed jurisdictions rose by 43 percent during the same period in 2016.

In Florida, one likely battleground state in November, there were 77,000 new registrations in January; that number fell to 21,000 in April. Another battleground state, North Carolina, plunged from 112,000 new voters in January to just 35,000 in April. Monthly registrations fell by two-thirds in Arizona and by three-quarters in California.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump supporters burn Michigan absentee ballot applications”<https://electionlawblog.org/?p=112254>
Posted on June 14, 2020 10:31 am<https://electionlawblog.org/?p=112254> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.detroitnews.com/story/news/michigan/2020/06/13/trump-supporters-burn-michigan-absentee-ballot-applications/111958524/>:

People burned letters informing them that they can vote by absentee ballot in future elections during a protest near Grand Rapids.

The applications were burned Friday during an event called Operation Incinerator outside the DeltaPlex Arena in Walker. Many people had flags, shirts and signs showing support for President Donald Trump and Republicans.

“For them just to issue them without merit, without request to absolutely everybody — that is a great waste of taxpayer money,” said Michael Farage, president of the Grand Rapids Taxpayers Association.

This is very sad and potentially will hurt Trump voters, as more face potential dangers to their safety by voting in person or choose not to vote at all.

See my earlier piece, GOP War on Mail-in Ballots May Backfire<https://www.nydailynews.com/opinion/ny-oped-how-to-vote-during-a-pandemic-20200420-spwxu5vkgngwfdwcvyw547zoy4-story.html>, NY Daily News, Apr. 20, 2020.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Trio of lawsuits challenge Minnesota absentee balloting requirements amid COVID-19”<https://electionlawblog.org/?p=112252>
Posted on June 13, 2020 3:02 pm<https://electionlawblog.org/?p=112252> by Rick Hasen<https://electionlawblog.org/?author=3>

MinnPost reports.<https://www.minnpost.com/state-government/2020/06/trio-of-lawsuits-challenge-minnesota-absentee-balloting-requirements-amid-covid-19/?utm_source=MinnPost+e-mail+newsletters&utm_campaign=e7560856c5-EMAIL_CAMPAIGN_2020_06_13_12_10&utm_medium=email&utm_term=0_3631302e9c-e7560856c5-123612473>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Activists cite tabulation flaw in mail-in ballots in Georgia”<https://electionlawblog.org/?p=112231>
Posted on June 13, 2020 12:37 pm<https://electionlawblog.org/?p=112231> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/66c2b4b36609d83aa5c08235f947ea59>:

Faulty software or poorly calibrated vote-tabulation scanners used to count mailed-in ballots in this week’s chaotic Georgia primary may have prevented thousands of votes from being counted, election officials and voting integrity activists say.

The issue was identified in at least four counties, DeKalb, Morgan, Clarke and Cherokee, according to officials who discovered them, including activists who have sued the state for alleged election mismanagement.

“The fact that it is in multiple counties tells me that it’s probably systemic,” said Richard DeMillo, a Georgia Tech computer scientist who has testified for the plaintiffs, because identical scanners and software were used to count all absentee ballots across the state. DeMillo said the only way to know for sure is through audits.

A top Georgia voting official, voting implementation manager Gabriel Sterling, said Friday that he had seen no evidence yet of the issue and found it difficult to believe the reports were “an active description of what is happening on the ground.”

“These are activists who have an ax to grind,” he said.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“‘Overwhelming’: Georgia poll worker describes voting chaos”<https://electionlawblog.org/?p=112229>
Posted on June 13, 2020 12:35 pm<https://electionlawblog.org/?p=112229> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.detroitnews.com/story/news/politics/elections/2020/06/12/overwhelming-georgia-poll-worker-describes-voting-chaos/111954750/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


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>


--
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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