[EL] ELB News and Commentary 6/17/20

[Rick Hasen]

Florida: “DeSantis offers Election Day help as Republicans say they’ll cast ballots in person”<https://electionlawblog.org/?p=112351>
Posted on June 17, 2020 8:53 pm<https://electionlawblog.org/?p=112351> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/states/florida/story/2020/06/17/florida-gov-wants-schools-and-state-workers-to-help-with-running-election-1293573>

Florida Gov. Ron DeSantis on Wednesday took steps to help localities prepare for what could be high voter turnout this year, but stopped short of extending early voting or letting counties consolidate polling places in the battleground amid signs that President Donald Trump’s disparagement of mailed ballots could be resonating with Republican voters.

DeSantis called on schools to close during the August primary and November general election to make room for what might be record voter turnout. He also issued an executive order<https://www.politico.com/states/f/?id=00000172-c4ce-dfa8-abfb-eddf21320000> that makes it easier for state employees to work at the polls on Election Day.

DeSantis, a Republican and Trump ally, has been under pressure for months from local election supervisors, who fear the coronavirus pandemic could affect their ability to recruit poll workers and manage balloting in a presidential year.

The announcements were relayed late Wednesday in a letter<https://www.politico.com/states/f/?id=00000172-c4c9-d07a-a7f7-ccdfc82d0000> from Secretary of State Laurel Lee to the state’s 67 election supervisors.

The governor acted after rising pressure from Republican allies, who worry that Florida once again could become a national laughing-stock during the 2020 state and presidential elections.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Ballot-Marking Devices Cannot Ensure the Will of the Voters”<https://electionlawblog.org/?p=112349>
Posted on June 17, 2020 8:50 pm<https://electionlawblog.org/?p=112349> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew W. Appel<https://www.liebertpub.com/doi/10.1089/elj.2019.0619>, Richard A. DeMillo<https://www.liebertpub.com/doi/10.1089/elj.2019.0619>, and Philip B. Stark<https://www.liebertpub.com/doi/10.1089/elj.2019.0619> with a new article <https://www.liebertpub.com/doi/10.1089/elj.2019.0619> in ELJ. Here is the abstract:

The complexity of U.S. elections usually requires computers to count ballots—but computers can be hacked, so election integrity requires a voting system in which paper ballots can be recounted by hand. However, paper ballots provide no assurance unless they accurately record the votes as expressed by the voters.

Voters can express their intent by indelibly hand-marking ballots or using computers called ballot-marking devices (BMDs). Voters can make mistakes in expressing their intent in either technology, but only BMDs are also subject to hacking, bugs, and misconfiguration of the software that prints the marked ballots. Most voters do not review BMD-printed ballots, and those who do often fail to notice when the printed vote is not what they expressed on the touchscreen. Furthermore, there is no action a voter can take to demonstrate to election officials that a BMD altered their expressed votes, nor is there a corrective action that election officials can take if notified by voters—there is no way to deter, contain, or correct computer hacking in BMDs. These are the essential security flaws of BMDs.

Risk-limiting audits can ensure that the votes recorded on paper ballots are tabulated correctly, but no audit can ensure that the votes on paper are the ones expressed by the voter on a touchscreen: Elections conducted on current BMDs cannot be confirmed by audits. We identify two properties of voting systems, contestability and defensibility, necessary for audits to confirm election outcomes. No available BMD certified by the Election Assistance Commission is contestable or defensible.
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Posted in voting technology<https://electionlawblog.org/?cat=40>


Ohio Petition Signature Gatherers Seek Supreme Court Relief in Covid Case<https://electionlawblog.org/?p=112347>
Posted on June 17, 2020 5:59 pm<https://electionlawblog.org/?p=112347> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the emergency application for a stay<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public%5C19a1054.html> in Thompson v. DeWine.
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Posted in direct democracy<https://electionlawblog.org/?cat=62>, Supreme Court<https://electionlawblog.org/?cat=29>


“Trump asked China’s Xi to help him win reelection, according to Bolton book”<https://electionlawblog.org/?p=112345>
Posted on June 17, 2020 2:49 pm<https://electionlawblog.org/?p=112345> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/trump-asked-chinas-xi-to-help-him-win-reelection-according-to-bolton-book/2020/06/17/d4ea601c-ad7a-11ea-868b-93d63cd833b2_story.html>:

President Trump asked Chinese President Xi Jinping to help him win the 2020 U.S. election, telling Xi during a summit dinner last year that increased agricultural purchases by Beijing from American farmers would aid his electoral prospects, according to a damning new account of life inside the Trump administration by former national security adviser John Bolton.

During a one-on-one meeting at the June 2019 Group of 20 summit in Japan, Xi complained to Trump about China critics in the United States. But Bolton writes in a book scheduled to be released next week that “Trump immediately assumed Xi meant the Democrats. Trump said approvingly that there was great hostility among the Democrats.

“He then, stunningly, turned the conversation to the coming U.S. presidential election, alluding to China’s economic capability to affect the ongoing campaigns, pleading with Xi to ensure he’d win,” Bolton writes. “He stressed the importance of farmers, and increased Chinese purchases of soybeans and wheat in the electoral outcome. I would print Trump’s exact words but the government’s prepublication review process has decided otherwise.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New Jersey: “Judge Orders New Recount in Paterson City Council Race Determined By Just One Vote”<https://electionlawblog.org/?p=112343>
Posted on June 17, 2020 2:47 pm<https://electionlawblog.org/?p=112343> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnewyork.com/news/politics/judge-orders-new-recount-in-paterson-city-council-race-determined-by-just-one-vote/2466029/>

The motion alleges the Mendez campaign used at least one individual to steal ballots out of mailboxes. That person, YaYa Luis Mendez, already confessed to the New Jersey Attorney General’s Office, McKoy says in the motion.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Voting, the Virus, and the Courts<https://electionlawblog.org/?p=112335>
Posted on June 17, 2020 10:06 am<https://electionlawblog.org/?p=112335> by Richard Pildes<https://electionlawblog.org/?author=7>

I have posted this short new essay <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3629356> on SSRN titled The Constitutional Emergency Powers of Federal Courts. Here’s the abstract:

Discussions about whether governments in constitutional democracies possess emergency powers during exigent times focus exclusively on the political branches.  But none of these discussions envision the judicial branch as an affirmative agent in designing government policies to deal with periods of crisis.  When the judicial role during emergencies is considered, the courts are envisioned only as possible checking agents against potentially abusive uses of emergency powers that the political branches might invoke.  The paradigmatic context for the judicial role is pictured as a response to a new government measure, which the emergency is said to necessitate, that impinges more than permitted in normal times on individual liberties (detention, surveillance, restrictions on freedom of movement, assembly, or worship).  The courts are conceived as ex post checks on whether the political branches of the state have compelling enough interests to justify these extraordinary actions.  As part of that inquiry, courts explore how much they should defer to the political branches’ claims of necessity for these emergency measures.  In the American context, courts also determine whether the President can act on his own and whether Congress has endorsed the action at issue.  But courts during emergencies remain ex post veto institutions over emergency policies the political branches adopt.

In the current pandemic, however, we are witnessing the federal courts assuming the mantle of a different role, particularly around issues of voting and elections.  The difference is subtle, but profound.  In the domain of elections, federal courts are themselves becoming affirmative institutions of the state taking the initiative to create new policies that the pandemic crisis is thought to warrant.  The courts are not engaging in an ex post checking function against new emergency measures the government has taken; instead, the courts are responding to the failure of governments to adopt new policies tailored to the extreme new circumstances of the pandemic.  Courts in this arena are not negatively checking and vetoing government action, they are affirmatively requiring government to adopt certain policies.  Courts are not issuing injunctions blocking coercive new emergency measures governments have adopted; instead, courts are mandating that governments exercise extraordinary powers that would not be required in normal times.  In a fragmented way thus far, primarily across district courts scattered around the country, the federal courts are moving bit by bit toward building a new election code for pandemic-time elections.  While we are not accustomed to viewing the Constitution as granting federal courts emergency powers, that is an apt overarching framework for synthesizing the various election-related decisions rapidly emerging  — with several new decisions weekly — from the federal courts.  This essay describes this framework and situates within it the actions of federal courts thus far.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“N.J. just made it easier to vote by mail in the July 7 primary”<https://electionlawblog.org/?p=112340>
Posted on June 17, 2020 9:57 am<https://electionlawblog.org/?p=112340> by Rick Hasen<https://electionlawblog.org/?author=3>

NJ.com reports.<https://www.nj.com/coronavirus/2020/06/nj-just-made-it-easier-to-vote-by-mail-in-the-july-7-primary.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Georgia elections chief launches plan to avoid repeated problems”<https://electionlawblog.org/?p=112338>
Posted on June 17, 2020 9:01 am<https://electionlawblog.org/?p=112338> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/state--regional-govt--politics/georgia-elections-chief-launches-plan-avoid-repeated-problems/Uf9Lwi0tNz3QkGvfqY89RI/>

Georgia Secretary of State Brad Raffensperger introduced proposals Wednesday to avoid another election debacle<https://www.ajc.com/news/state--regional-govt--politics/election-fiasco-reveals-flaws-with-georgia-new-voting-system/FoZjtLGPYccOrHzXHiPbDL/>, calling for more voting locations, technical support and poll worker training.

He also targeted Fulton County’s problems<https://www.ajc.com/news/local/virus-lack-preperation-lead-fulton-county-election-disaster/X61R25rc0cDXjCZkTz1ePO/> and asked state lawmakers to pass a bill that would give the State Election Board power to intervene in county elections management….

And Raffensperger said he won’t send absentee ballot<https://www.ajc.com/news/state--regional-govt--politics/election-workers-struggle-finish-counting-georgia-absentee-ballots/ra6euGvP4I5ikiami0SmBP/> request forms to 6.9 million Georgia voters again, as he did<https://www.ajc.com/news/state--regional-govt--politics/georgia-mail-absentee-ballot-request-forms-all-active-voters/s1ZcJ57g8qqIwyG6LNWfIM/> in the primary. Instead, he’ll create a website where voters can request absentee ballots themselves.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


So It May Be Those ePollBooks (at Least Partially) to Blame for Long Lines in Los Angeles and Parts of Georgia (and Why We Need Paper Backups of Registration Records, as Recommended in “Fair Elections During a Crisis” Report)<https://electionlawblog.org/?p=112333>
Posted on June 17, 2020 7:56 am<https://electionlawblog.org/?p=112333> by Rick Hasen<https://electionlawblog.org/?author=3>

Kim Zetter<https://news.yahoo.com/la-county-report-blames-voter-083006015.html>:

The hourslong wait times that snarled the March 3 primary in Los Angeles County stemmed from malfunctions in the electronic tablets used to check in voters at the polls, according to an unpublicized county report that adds to questions about the nation’s readiness for November.

The report concludes that these devices — known as electronic poll books — and not the county’s new $300 million voting machines were the source of those delays. Although the voting machines also had problems, the report faults inadequate planning, testing and programming of the poll books that workers used to check in voters and verify that they’re registered — technology that has also been implicated in this month’s meltdown at the polls in Georgia’s primary<https://www.politico.com/news/2020/06/10/jon-ossoff-georgia-election-chaos-310429>.

Electronic poll books store a copy of the county’s voter registration list and automatically update that list as each voter checks in. Because Los Angeles County did not have backup paper copies of the voter list, poll workers were not able to check in voters when the devices failed, leading to long lines.

The findings about the March primary, which Los Angeles County quietly posted to its website recently<https://lavote.net/docs/rrcc/board-correspondence/VSAP-Board-Report.pdf?v=2>, have not previously been reported.

See Recommendation 12 from our Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> report:

Recommendation 12: Election administrators should create a resilient election infrastructure to deal with the unexpected, including complications related to COVID-19. Resiliency measures include having enough ballots on hand to accommodate high voter turnout, redundant election machinery, and paper copies of e-pollbook voter registration records.

(Emphasis added).
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Posted in election administration<https://electionlawblog.org/?cat=18>


“The Cybersecurity 202: How secure are electronic pollbooks and vote reporting tools? This new program aims to find out”<https://electionlawblog.org/?p=112331>
Posted on June 17, 2020 7:45 am<https://electionlawblog.org/?p=112331> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/06/17/the-cybersecurity-202-how-secure-are-electronic-pollbooks-and-vote-reporting-tools-this-new-study-aims-to-find-out/5ee9253488e0fa32f823bf31/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Constitutional Doctrine on Absentee Voting<https://electionlawblog.org/?p=112327>
Posted on June 17, 2020 3:52 am<https://electionlawblog.org/?p=112327> by Richard Pildes<https://electionlawblog.org/?author=7>

As Rick notes, a cert. petition has been filed asking the Supreme Court to hold unconstitutional Texas’ law that permits all those — and only those — 65 and older to vote absentee for any reason. That petition implicates in part the Supreme Court’s major precedent on absentee voting, the 1969 decision in McDonald v. Board of Election Commissioners of Chicago. There is not a lot of election-law scholarship on McDonald, partly because absentee voting has not occupied the central role in most states that it will this fall. One of the more extended discussions (a highly critical one) I’m aware of can be found in this piece <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3545992> by Justin Driver.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Sen. Hawley on How Congress Functions — or Fails to Function<https://electionlawblog.org/?p=112324>
Posted on June 17, 2020 3:31 am<https://electionlawblog.org/?p=112324> by Richard Pildes<https://electionlawblog.org/?author=7>

For those of us interested <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646989> in how American government functions under conditions of extreme polarization, there is a passage worth noting inside the speech<https://www.thepublicdiscourse.com/2020/06/65043/> Sen. Hawley gave on the Senate floor yesterday (the speech is a lament on behalf of religious conservatives about the bargain they have struck with the Republican Party). It’s not that these observations about Congress haven’t been made by many others, but they have a special resonance coming from a sitting U.S. Senator:

[T]his body doesn’t want to make law. . . .

That’s because in order to make law, you have to take a vote. In order to vote, you have to be on the record. And to be on the record is to be held accountable. That’s what this body fears above all else. This body is terrified of being held accountable for anything on any subject.

For my perspective on how outside money in elections, excessive transparency requirements, and other factors have made this problem worse in recent decades, see Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, here.<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546042>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Now You Can Opt Out of Seeing Political Ads on Facebook”<https://electionlawblog.org/?p=112321>
Posted on June 16, 2020 9:14 pm<https://electionlawblog.org/?p=112321> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/06/16/technology/opt-out-political-ads-facebook.html>

For months, Facebook has weathered criticism for its willingness to show all types of political advertising<https://www.nytimes.com/2019/10/17/business/zuckerberg-facebook-free-speech.html> to its billions of users, even if those ads contained lies.

Now the company is changing tack — sort of.

On Tuesday, the social network said it would allow people in the United States to opt out of seeing social issue, electoral or political ads from candidates or political action committees in their Facebook or Instagram feeds. The ability to hide those ads will begin with a small group of users, before rolling out in the coming weeks to the rest of the United States and later to several other countries.

“Everyone wants to see politicians held accountable for what they say — and I know many people want us to moderate and remove more of their content,” Mark Zuckerberg, chief executive of Facebook, wrote in an op-ed piece in USA Today on Tuesday. “For those of you who’ve already made up your minds and just want the election to be over, we hear you — so we’re also introducing the ability to turn off seeing political ads. We’ll still remind you to vote.”

Recode<https://www.vox.com/recode/2020/6/16/21293672/facebook-mark-zuckerberg-voting-registration-elections-usa-today-political-misinformation-trump>: “Facebook still won’t take down politicians’ misleading posts, but it’s trying to register 4 million new voters”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Minnesota Settles Case Over Absentee Ballot Rules to Be Used in the Primary [Corrected Headline]<https://electionlawblog.org/?p=112319>
Posted on June 16, 2020 4:24 pm<https://electionlawblog.org/?p=112319> by Rick Hasen<https://electionlawblog.org/?author=3>

Details here<https://www.democracydocket.com/2020/06/statement-another-mn-victory/>.

Correction: An earlier version of this post mistakenly indicated these changes were for the fall. Litigation is ongoing over the fall rules.
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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
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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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