[EL] ELB News and Commentary 6/16/20

[Rick Hasen]

New Jersey: “One in 10 Ballots Rejected in Last Month’s Vote-by-Mail Elections”<https://electionlawblog.org/?p=112298>
Posted on June 15, 2020 9:16 pm<https://electionlawblog.org/?p=112298> by Rick Hasen<https://electionlawblog.org/?author=3>

NJ Spotlight<https://www.njspotlight.com/2020/06/one-in-10-ballots-rejected-in-last-months-vote-by-mail-elections/>:

About one in every 10 people who mailed in ballots in last month’s special elections had their votes rejected, which could forebode the potential disenfranchisement of tens of thousands of New Jerseyans in next month’s primaries.

An NJ Spotlight analysis of the vote-by-mail ballots cast in 31 municipalities that held nonpartisan municipal, school board or special elections on May 12 — an entirely mail-in election — found that election officials did not count 9.6% of ballots sent in. A database provided by the state Division of Elections shows more than a dozen reasons for rejecting ballots. Most commonly, officials did not count ballots because the signature on the ballot did not match the one on file, the ballot arrived too late or the required certificate was not enclosed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Federal Court Orders Minnesota to Conduct a Lottery for Ballot Order, Preliminary Enjoining Law that Put Democrats Last on Ballot<https://electionlawblog.org/?p=112296>
Posted on June 15, 2020 9:04 pm<https://electionlawblog.org/?p=112296> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the court’s order at this link<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/06/MN-Ballot-Order.pdf>. The court along the way was pretty dismissive of the rights of third parties.

The Eleventh Circuit rejected a similar challenge to Florida law on standing grounds<https://electionlawblog.org/?p=111066>.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, court decisions<https://electionlawblog.org/?cat=129>


“Predictive Facts”<https://electionlawblog.org/?p=112294>
Posted on June 15, 2020 8:45 pm<https://electionlawblog.org/?p=112294> by Rick Hasen<https://electionlawblog.org/?author=3>

Brent Ferguson has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3627911> on SSRN (forthcoming, Washington Law Review). Here is the abstract:

A substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations.

Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact — facts not specific to a certain plaintiff or defendant but concerning the world more generally, such as the finding in Buckley v. Valeo that independent campaign spending does not create a corruption threat because it is relatively unhelpful to candidates. And after scholars began to recognize how important such factual conclusions were, courts increased their reliance empirical evidence when declaring legislative facts. But this Article contends that the Supreme Court has often circumvented the pressure to rely on evidence by recharacterizing its factual conclusions as predictions. Thus, for instance, rather than conclude that a longstanding law regulating newspapers has discouraged political discussion, the Court has simply asserted that the law would discourage such discussion if it were upheld. And rather than conclude that minority viewpoints are sufficiently represented on juries even in states with no jury unanimity requirement, the Court has predicted that minority viewpoints will be heard even without the unanimity rule. By deciding cases in this manner, the Court has made predictions that operate as if they are legislative facts even when it performs no factual inquiry.

The Article first looks closely at a set of cases in which such predictive factfinding has occurred, including those in which a law has existed for decades, but the Court has not asked whether there is existing evidence that the predicted outcome has happened. While conceding that predictive judgments are necessarily implicated in many cases, the Article nonetheless insists that the Court should approach those judgments cautiously. That is because the Court’s predictions are frequently incorrect, and they can create factual precedent by enshrining erroneous conclusions into law that lower courts adhere to even if facts change or the prediction is proven incorrect. Further, making unsupported predictions threatens the adversarial system because predictions are often made by amici or judges rather than the parties to a case. Finally, the prevalence of unsupported predictions may be undermining the judiciary’s legitimacy.

The Court can start to remedy the problem by recognizing its existence and avoiding unnecessary predictions. When predictions are unavoidable, the Supreme Court and lower courts can try to improve the accuracy of their forecasts, consider remanding the case for more factual development, or issue a provisional decision that would encourage future litigation if a prediction turns out to be incorrect.
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Posted in court decisions<https://electionlawblog.org/?cat=129>, Uncategorized<https://electionlawblog.org/?cat=1>


“Federal Court Rules in Favor of Alabama Voters during COVID-19 Pandemic”<https://electionlawblog.org/?p=112292>
Posted on June 15, 2020 8:33 pm<https://electionlawblog.org/?p=112292> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.naacpldf.org/press-release/federal-court-rules-in-favor-of-alabama-voters-during-covid-19-pandemic/>:

 Today, in a decision<https://www.naacpldf.org/wp-content/uploads/055-MEMORANDUM-OPINION.pdf> that will protect the health and right to vote of medically vulnerable Alabamians, a federal court waived onerous absentee ballot requirements in at least Jefferson, Mobile, and Lee Counties – including the requirement that voters have their absentee ballot notarized or witnessed by two adults and the requirement that absentee voters who are 65 and older or disabled mail-in copies of their photo IDs – and lifted the statewide prohibition on curbside voting at in-person polling locations for the July 14, 2020, election.

The U.S. District Court for the Northern District of Alabama issued the ruling providing immediate relief in response to a motion for preliminary injunction filed by the NAACP Legal Defense & Educational Fund, Inc. (LDF), Southern Poverty Law Center (SPLC), and the Alabama Disabilities Advocacy Program (ADAP) on behalf of the plaintiffs, People First of Alabama, Greater Birmingham Ministries, and the Alabama NAACP, in the case. The ruling comes prior to any trial proceedings that may take place in People First of Alabama v. Merrill<https://www.splcenter.org/seeking-justice/case-docket/people-first-alabama-et-al-v-john-merrill-et-al>.

The next major election in Alabama will take place on Tuesday, July 14. The deadline to request an absentee ballot for the July election is Monday, June 29.

Since Thursday of last week, Alabama has broken the single-day coronavirus records four days in a row,<https://thehill.com/policy/healthcare/502755-alabama-breaks-single-day-coronavirus-record-four-straight-days> demonstrating the state does not have community transmission under control. COVID-19 continues to endanger older voters, Black voters, and voters with disabilities whose pre-existing health conditions make them particularly at-risk for complications and death from the illness. The Court’s ruling waives the witness and photo ID requirement for those voters whose age or medical condition makes them more vulnerable to serious illness from COVID-19.

Some Alabama voters, like plaintiffs Robert Clopton, Annie Carolyn Thompson and Eric Peebles, meet multiple characteristics, therefore increasing their risk.

Finding that the plaintiffs demonstrated irreparable harm, the court held that “if the challenged election laws are not enjoined, the individual plaintiffs and similarly-situated voters could likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voting group recalls 80,000 unusable ballot applications in North Carolina”<https://electionlawblog.org/?p=112289>
Posted on June 15, 2020 4:38 pm<https://electionlawblog.org/?p=112289> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/politics/2020-election/voting-group-recalls-80-000-unusable-ballot-applications-north-carolina-n1229511>:

A voting advocacy group is recalling 80,000 North Carolina absentee ballot applications for having voters’ names and addresses pre-printed on them.

The group, the Center for Voter Information, has sent millions of election mailers this year alone. The group said it was confused by a state law that requires every field of a ballot application be filled out by the voter.

The incident highlights the difficulties even experienced election advocates run into when encouraging Americans to vote by mail because of the coronavirus pandemic.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Leonard Leo-Backed (and Orwellian-Named) “Honest Elections Project” Takes Position that Courts Should Not Modify Any Voting Rules to Help Voters in Light of COVID-19 Pandemic<https://electionlawblog.org/?p=112282>
Posted on June 15, 2020 10:59 am<https://electionlawblog.org/?p=112282> by Rick Hasen<https://electionlawblog.org/?author=3>

From the brief authored by the Consovoy firm:<https://electionlawblog.org/wp-content/uploads/miller-HEP-brief.pdf>

“COVID-19 cannot make an otherwise constitutional law unconstitutional.A global virus is not state action. Even if it were, the State’s interest in maintaining the integrity of elections does not go away during a pandemic. If anything, that interest is heightened and outweighs any burdens associated with the virus (which affect both individuals and States alike).”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Eighth Circuit Grants Stay Pending Appeal in Arkansas Case Blocking District Court Rule Relaxing Some Requirements for Initiative Petition Circulators<https://electionlawblog.org/?p=112279>
Posted on June 15, 2020 10:51 am<https://electionlawblog.org/?p=112279> by Rick Hasen<https://electionlawblog.org/?author=3>

Order here<https://electionlawblog.org/wp-content/uploads/miller-stay.pdf>. There’s also an expedited briefing schedule.
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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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