[EL] ELB News and Commentary 6/30/20

[Rick Hasen]

“What alleged voter fraud in Paterson, N.J., tells us about November — and what it doesn’t”<https://electionlawblog.org/?p=112684>
Posted on June 30, 2020 9:18 am<https://electionlawblog.org/?p=112684> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2020/06/29/what-alleged-voter-fraud-paterson-nj-tells-us-about-november-and-what-it-doesnt/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


“Can a Group of Policy Experts Prevent an Election Catastrophe in 2020?”<https://electionlawblog.org/?p=112682>
Posted on June 30, 2020 9:06 am<https://electionlawblog.org/?p=112682> by Rick Hasen<https://electionlawblog.org/?author=3>

David Corn<https://www.motherjones.com/politics/2020/06/can-a-group-of-policy-experts-prevent-an-election-catastrophe-in-2020/> for Mother Jones:

Edward Foley has a nightmare. It’s a poli-sci horror tale. A professor of constitutional law and elections expert at The Ohio State University’s Moritz College of Law, Foley foresees a scenario for the coming election that could tear apart American democracy.

Peer ahead to election night and imagine a close contest between Donald Trump and the Democratic presidential nominee, so close that the results in Pennsylvania will decide the winner. As the evening proceeds, Trump is narrowly ahead in the Keystone State, with the news networks tallying the incoming votes. When 100 percent of the precincts report, Trump is up by 20,000 votes, and he tweets: “The race is over. Another four years to keep Making America Great Again.” But hold on. The next day—and in the days ahead—as the counting of absentee and provisional votes occurs in routine fashion, Trump’s lead declines. The election is being stolen, Trump proclaims. His devotees take to the streets. The final result comes in: The Democrat triumphs by several thousand votes. “THIS THEFT WILL NOT STAND,” Trump tweets, and he declares political war.

In a 55-page law review article<https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2719&context=luclj> published last year, Foley depicts in granular detail what could happen at this point, if Trump and the Republicans opt to challenge the Pennsylvania results. Here’s a spoiler: It’s a damn mess with no clear outcome. And this one case study of how the 2020 presidential race could become a disaster has caught the attention of academics, former government officials, and policy advocates who have been banding together in different forms to try to address the many ways the election might be disrupted or contested.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Send Every N.Y. Voter a Ballot”<https://electionlawblog.org/?p=112680>
Posted on June 30, 2020 9:03 am<https://electionlawblog.org/?p=112680> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder and Nick Reade in NYDN<https://www.stroock.com/uploads/JerryGoldfederNYDailyNews0629.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Rep. Katie Porter flexes political power with new fundraising committee to support progressive candidates”<https://electionlawblog.org/?p=112678>
Posted on June 30, 2020 8:59 am<https://electionlawblog.org/?p=112678> by Rick Hasen<https://electionlawblog.org/?author=3>

OC Register<https://www.ocregister.com/2020/06/29/rep-katie-porter-flexes-political-power-with-new-fundraising-committee-to-support-progressive-candidates/>:

As she heads into the heart of her first re-election campaign, Rep. Katie Porter of Irvine is quickly becoming a power broker in the House of Representatives.

She’s a Democrat in a flip district that still leans slightly red. But Porter is confident enough in her re-election chances that she’s announced the launch of her own “leadership PAC,” a political action committee that lets her raise and spend money separate from her own campaign fund, including for candidates other than herself.

These PACs have drawn criticism from ethics watchdogs and others over the years because they have fewer restrictions and less oversight than campaign funds. A majority of House Democrats and Republicans have them anyway, though many launch them quietly. And they’re less common among freshman members in potentially competitive races, such as Porter’s 45th District seat.

But through her leadership PAC, Porter can leverage her rising national profile and solid fundraising chops to help elect other progressive candidates who are facing tough races across the country. That, in turn, could mean more friends — and power — along the way.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“Voting in an Era of Crisis”<https://electionlawblog.org/?p=112676>
Posted on June 30, 2020 8:57 am<https://electionlawblog.org/?p=112676> by Rick Hasen<https://electionlawblog.org/?author=3>

New piece in the ABA Journal from Jason Abel.<https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/voting-in-2020/voting-in-an-era-of-crisis/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump campaign sues Pa. over mail-in drop-off sites for ballots”<https://electionlawblog.org/?p=112674>
Posted on June 29, 2020 5:37 pm<https://electionlawblog.org/?p=112674> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.pennlive.com/news/2020/06/trump-campaign-sues-pa-over-mail-in-drop-off-sites-for-ballots.html>:

 President Donald Trump’s re-election campaign, the national Republican Party and four Pennsylvania members of Congress sued Monday to force changes to how the state collects and counts mail-in ballots under revamped rules.

The federal lawsuit filed in Pittsburgh claims that as voters jumped to make use of the greatly broadened eligibility for mail-in ballots during the June 2 primary, practices and procedures by elections officials ran afoul of state law and the state and federal constitutions.

It claims the defendants, which are the 67 county election boards and Secretary of State Kathy Boockvar, “have inexplicably chosen a path that jeopardizes election security and will lead — and has already led — to the disenfranchisement of voters, questions about the accuracy of election results, and ultimately chaos” ahead of the Nov. 3 general election.

A spokeswoman for Boockvar, a Democrat, declined comment about the litigation, as did the head of the County Commissioners Association of Pennsylvania, whose members administer elections.

The head of the Pennsylvania Democratic Party called the lawsuit an effort to suppress votes as a campaign tactic, noting Democrats far outpaced Republicans in getting their voters to apply for mail-in ballots ahead of the primary.

“Statewide vote-by-mail was a bipartisan proposal passed by Republican majorities in Harrisburg,” said Sinceré Harris, the state Democrats’ executive director.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“LWV of Wisconsin Files Amended Complaint Asking for Safe, Reliable Absentee Ballot Process in November”<https://electionlawblog.org/?p=112671>
Posted on June 29, 2020 5:17 pm<https://electionlawblog.org/?p=112671> by Rick Hasen<https://electionlawblog.org/?author=3>

Release.<https://www.lwv.org/newsroom/press-releases/lwv-wisconsin-files-amended-complaint-asking-safe-reliable-absentee-ballot?utm_source=PressRelease&utm_medium=email&utm_campaign=062920>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Looming Threat to Voting in Person; Amid a push for mail-in balloting, states still need a better strategy for safety at the polls.”<https://electionlawblog.org/?p=112669>
Posted on June 29, 2020 5:13 pm<https://electionlawblog.org/?p=112669> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate Persily and Charles Stewart for The Atlantic<https://www.theatlantic.com/ideas/archive/2020/06/looming-threat-voting-person/613552/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Breaking: 7th Circuit, after 3 Year Delay, Decides Challenge to Wisconsin Voter ID and Related Voting Provisions, in Short Unanimous Opinion, Upholding and Striking Down Some Parts of Law; This is Mostly a Loss for Voting Rights Plaintiffs<https://electionlawblog.org/?p=112659>
Posted on June 29, 2020 4:37 pm<https://electionlawblog.org/?p=112659> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 27-page unanimous decision, with no explanation for the 3 year delay<https://electionlawblog.org/?p=112449> in this case, at this link<https://electionlawblog.org/wp-content/uploads/FrankOWI-decision.pdf>.

This is mostly a loss for the plaintiffs in these cases, as the appeals court rejected many (though not all) of the challenges to Wisconsin election law. There is a small victory on student ids and a chance to litigate more over how Wisconsin handles the voter id process for voters having trouble getting ids. But overall this is a very voter-unfriendly decision (and I say that not necessarily because of the holdings but because of the dismissiveness of the panel’s approach to voting rights issues and what it means for future challenges).

Some details:

This appeal is complicated: it comes from two separate cases where various election laws were challenged as unconstitutional, a violation of the Voting Rights Act, or both. Some of the decisions of the lower court judges were inconsistent, and some of the issues, came up to the 7th Circuit in earlier challenges to the voter id aspects of the law. Judge Easterbrook, as is his style, gives breezy and superficial treatment to many of these voting issues, making the three year delay in a unanimous case all the more inexplicable.

The opinion starts out with a very troubling discussion of Judge Adelman’s findings that some of these restrictive Wisconsin voting laws were passed with racial and partisan animus. The 7th Circuit found little direct evidence of racial discrimination and then suggested, in a very troubling way, that making it harder to vote on the basis of party is perfectly acceptable. (“If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.”). In support of this terrible idea, Judge Easterbrook cites the Rucho case from the Supreme Court, which held that there are no judicially manageable standards to separate permissible from impermissible consideration of party in redistricting. But that did not carry over into voting rules, like rules for early voting, and the Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules.

Making matters even worse, Judge Easterbrook dismisses without analysis the argument that discriminating against Democrats when so much of the party is made up of racial minorities can in some circumstances be a form of racial discrimination. (“The record does not show that legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.”).

Judge Easterbrook also dismissed age discrimination arguments under the 26th amendment in a short few sentences. Almost as quickly, the court rejected arguments under the Voting Rights Act that cutbacks on early voting opportunities discriminated against minority voters. More generally, the court criticized the district court for viewing election changes in isolation, viewing Wisconsin’s law overall as providing many opportunities to vote easily.

In one good part of the opinion, the court held that students can vote with an expired student id, or at least that’s how it appears from the court’s opinion. [This part has been corrected.]

Two lower courts had required Wisconsin to provide a way of dealing with voters who lacked the ability to easily get a valid id for voting. The court rejected both injunctions but gave one of the courts on remand a chance to rewrite the injunction so that it would both protect voters and give the state flexibility as it worked out the details of its system.

It’s pretty clear overall that the judge thought more of Judge Peterson’s analysis than Judge Adelman (who has been mildly admonished<https://www.wied.uscourts.gov/sites/wied/files/documents/judicial-conduct_2020%3A07-20-90046_90044.pdf> for his writings on the partisanship of the Supreme Court). The 7th Circuit said the cases should be consolidated in front of one judge (the court didn’t say which one) so that there won’t be more inconsistent rulings.

[This post has been updated.]
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Posted in court decisions<https://electionlawblog.org/?cat=129>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>


--
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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