[EL] ELB News and Commentary 3/4/20

[Rick Hasen]

“L.A. elections chief apologizes for long voting lines, chaotic balloting as voters vent”; What Needs to Happen Next<https://electionlawblog.org/?p=109840>
Posted on March 4, 2020 8:32 am<https://electionlawblog.org/?p=109840> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT<https://www.latimes.com/california/story/2020-03-04/l-a-elections-chief-apologizes-for-long-lines-chaotic-balloting-as-voters-vent-anger>:

Los Angeles County’s new voting system was marked by long lines<https://www.latimes.com/california/story/2020-03-03/2020-la-county-election-polls-closed-long-lines>, snafus and growing anger among voters, with some waiting hours to cast ballots that continued well into the night.

“This was a challenging day for a lot of voters in L.A. County, and I certainly apologize for that. That’s something that has to be better,” said Los Angeles County Registrar of Voters Dean Logan.

“It was a heavy lift,” Logan said of the switch to the new system. “I had hoped for a smoother transition.”

Logan said the lack of check-in options at the vote centers was a major flaw.<https://www.latimes.com/california/story/2020-03-03/california-primary-election-los-angeles-county-voting-issues-experiences>

“The choke point seemed to be the check-in process,” he said.

It was an ugly debut for the county’s new $300-million voting system. L.A. officials spent months trying to raise awareness about two big changes: the elimination of neighborhood polling places and the debut of ballot-marking touchscreen devices in regional vote centers, available to everyone and spread throughout the county….

Voters fumed and demanded answers. As midnight approached, some were still waiting to cast ballots at several locations.

“This is like gridlock on the 405,” said Brentwood resident Myles Berkowitz, who was waiting in line around 8:30 p.m. “It’s an absolute disaster. The longest I’ve waited was in ’92 and that was for Bill] Clinton. That was an hour.”

Berkowitz stopped by the Hammer Museum in Westwood around 4 p.m. to vote but was told by a polling staffer that it would be a three-hour wait. So he drove to Felicia Mahood Senior Citizen Center in West Los Angeles, and stood in line for 20 minutes when a staffer there told Berkowitz that two of the center’s five voting machines were down.

The staffer warned it would be a 45-minute wait and suggested that Berkowitz head to another vote center at Brockton Elementary School. He drove there, only to be told it would be a two-hour wait.

Frustrated, Berkowitz headed back to the senior center, hoping the lines there had died down. They had not.

I had told John Myers of the Times of my concerns<https://www.latimes.com/california/story/2020-02-24/california-presidential-primary-could-hinge-on-big-voting-changes-in-los-angeles> with LA doing so many new things at once in a high stakes election: from new voting machines, to new e-pollbooks, to the consolidation of voting into vote centers, to same day voter registration availability at each polling station.

It was a lot. And with voters’ confidence already undermined by a series of election meltdowns, this was not good for the largest electoral jurisdiction in the country.

The point now is for Dean Logan, who I know has the best of intentions, to figure out what changes need to be made before November. There needs to be a full inquiry. Fixes likely will require additional resources. And I wonder if L.A.’s exemption from the new California law requiring each California voter voting in a jurisdiction that has switched to vote centers to automatically get an absentee ballot in the mail.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Michael Bloomberg Quits Democratic Race, Ending a Brief and Costly Bid”<https://electionlawblog.org/?p=109838>
Posted on March 4, 2020 8:11 am<https://electionlawblog.org/?p=109838> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/03/04/us/politics/michael-bloomberg-drops-out.html>:

In an unprecedented effort to self-finance a presidential campaign — which some rivals derided as an attempt to buy the White House — Mr. Bloomberg’s bid cost him more than half a billion dollars in advertising alone. He also spent lavishly on robust on-the-ground operations<https://www.nytimes.com/2020/02/13/us/politics/bloomberg-campaign-cash.html>, with more than 200 field offices across the country and thousands of paid staff. His operation dwarfed those of Democratic rivals who ultimately won states in which he had installed many dozens of employees and spent heavily on radio, television and direct mail ads.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“The Cybersecurity 202: Here are the serious tech glitches that frustrated voters on Super Tuesday”<https://electionlawblog.org/?p=109836>
Posted on March 4, 2020 7:58 am<https://electionlawblog.org/?p=109836> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/03/04/the-cybersecurity-202-here-are-the-serious-tech-glitches-that-frustrated-voters-on-super-tuesday/5e5e9f4d88e0fa101a73f33f/>:

The scenario election officials feared – Russians hacking the vote – did not come to be on Super Tuesday. But the mega-primary day was bedeviled by a slew of serious technical glitches that frustrated voters.

Voting machines shut down in Los Angeles. Network problems also forced California officials to hand out provisional ballots. In Minnesota and Texas, tools voters use to look up their polling locations were not functioning due to heavy web traffic. And there were robocalls spreading disinformation in Texas, which were reported for federal investigation.

The problems underscored how such issues can sow as much distrust and chaos as a hacking campaign — especially if rumors are left to swirl. The government’s top cybersecurity officials spent much of the day assuring the public that technology was the culprit, not Russia.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Persily: “The Paradox of Political Problem Perception (or if you will, Persily’s Paradox)” (Balkinization Symposium on Election Meltdown)<https://electionlawblog.org/?p=109834>
Posted on March 4, 2020 7:50 am<https://electionlawblog.org/?p=109834> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate Persily<https://balkin.blogspot.com/2020/03/the-paradox-of-political-problem.html>:

One of the central concerns animating Rick Hasen’s excellent book, Election Meltdown, is Americans’ decreasing confidence in the electoral system.  Genuine worries about voter suppression and voting machine insecurity, as well as manufactured anxieties due to disinformation, lead citizens to question the fairness of the system and the legitimacy of election results.  As scholars of comparative politics are quick to recount, trust in the mechanics of democracy becomes very difficult to regain once it is lost. The 2020 election, therefore, represents a turning point for the United States: Will supporters of the losing candidate question the validity of the election and the legitimacy of the winner?

I should admit that I have frequently criticized a focus on confidence and perceptions in the context of the law of democracy.   In the campaign finance context, I have worried<https://www.pennlawreview.com/print/?id=88> about the Supreme Court’s emphasis on the appearance of corruption as a justification for regulation of contributions or expenditures.  In the context of voter identification, coauthors<https://harvardlawreview.org/2008/05/vote-fraud-in-the-eye-of-the-beholder-the-role-of-public-opinion-in-the-challenge-to-voter-identification-requirements/> and I sounded an alarm<https://www.stanfordlawreview.org/print/article/revisiting-public-opinion-on-voter-identification-and-voter-fraud-in-an-era-of-increasing-partisan-polarization/> that perceptions of fraud may have been disconnected from the reality of what was happening in polling places. And in the context of race-based redistricting, wherein majority-minority districts were alleged to create “expressive harms” through racial stereotyping, coauthors and I suggested<https://www.liebertpub.com/doi/abs/10.1089/elj.2010.9405> the evidence did not back up such assessments.

Times have changed.  We now live in an era where perceptions of electoral dysfunction are at least as important, if not more so, than the reality. Those perceptions might be shaped by real or exaggerated reports of what is happening on the ground.  Or they might be caused by broad-based public cynicism fed by polarized coverage of a particular election-relevant phenomenon.

Even worse, there are also a set of problems concerning the functioning of elections, which, when you draw attention to them, you make them worse.  Analysts and critics of the system are therefore placed in a bind: Keep silent about the problem and hope your concerns are not as significant as they appear or identify the problem and be responsible for the foreseeable, if unintended, consequences when you amplify their significance.  Call this the paradox of political problem perception.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Watchdog Sues to Force Facebook to Reveal Political Ad Sponsor”<https://electionlawblog.org/?p=109832>
Posted on March 3, 2020 4:46 pm<https://electionlawblog.org/?p=109832> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://about.bgov.com/news/watchdog-sues-to-force-facebook-to-reveal-political-ad-sponsor/>

A watchdog group is seeking to force Facebook Inc.<https://www.bgov.com/core/companies/app/#!/11092218> to disclose who paid for online political ads on the social media site in 2018 that promoted Green Party candidates in certain House and Senate races.

The Campaign Legal Center (CLC) has filed a lawsuit<https://www.bloomberglaw.com/public/desktop/document/CAMPAIGNLEGALCENTERvFEDERALELECTIONCOMMISSIONDocketNo120cv00588DD?1582906864> to enable it to subpoena Facebook for information on America Progress Now. The CLC sued the Federal Election Commission for failing to act on the group’s complaint about APN, which the suit alleges “is not a real entity.” The FEC currently lacks a quorum of commissioners and can’t act on any enforcement matters.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“The U.S. is Vulnerable to an ‘Election Meltdown’<https://electionlawblog.org/?p=109830>
Posted on March 3, 2020 1:44 pm<https://electionlawblog.org/?p=109830> by Rick Hasen<https://electionlawblog.org/?author=3>

I was on Texas Public Radio <https://www.tpr.org/post/us-vulnerable-election-meltdown> discussing my new book.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Cashing in on justice; Three Senate Judiciary members outpace colleagues in contributions from judicial nominees”<https://electionlawblog.org/?p=109828>
Posted on March 3, 2020 12:00 pm<https://electionlawblog.org/?p=109828> by Rick Hasen<https://electionlawblog.org/?author=3>

Roll Call:<https://www.rollcall.com/2020/03/03/cashing-in-on-justice/>

Before they put on their robes, dozens of federal judges appointed during the Trump and Obama administrations made significant campaign contributions to Senate Judiciary Committee members and their home-state senators — the very people who could make or break their nominations.

And three Republican senators — Ted Cruz and John Cornyn of Texas and Lindsey Graham of South Carolina — got more money than the rest of the Judiciary Committee combined. Virtually all of those contributions came from judicial nominees they ultimately backed.

Home-state senators who haven’t served on the panelalso wield considerable influence on who becomes a federal judge. They’ve received significant contributions from donors who ended up on the bench. A Democrat — Bob Casey of Pennsylvania — tops that list.

A CQ Roll Call investigation documented thousands of individual contributions to lawmakers by President Donald Trump and Barack Obama’s judicial appointees in the years leading up to their nominations. Several, both Democrats and Republicans, were major political players before their lifetime appointments. And two Obama nominees appeared to make contributions after they were confirmed despite ethical canons that prohibit such gifts by sitting judges.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Primary Day: Why Presidential Nominees Should Be Chosen on a Single Day”<https://electionlawblog.org/?p=109826>
Posted on March 3, 2020 11:57 am<https://electionlawblog.org/?p=109826> by Rick Hasen<https://electionlawblog.org/?author=3>

Eugene Mazo has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3548120> on SSRN. Here is the abstract:

Why do we have an Election Day but not a Primary Day? No aspect of the presidential nomination process causes as much controversy as the primary calendar. The calendar starts off in January or February and ends in June of each election year. A total of 57 jurisdictions hold their primaries and caucuses over the course of these months. The Iowa caucuses always start off the calendar, followed by the New Hampshire primaries. The results of these contests invariably eliminate some candidates while they bestow momentum on others. More candidates participate in the first few nomination contests than in the last ones. Disproportionate power is thus given to voters whose states hold early nomination contests, while the citizens of states with later primaries are provided with less or sometimes no voice in choosing their party’s presidential nominee. In some years, a party’s presidential nomination contest has ended before citizens in late-voting states have even had a chance to cast their ballots. To gain more influence and a greater voice, states have consistently attempted to move their primaries forward in a process that has come to be known as “front-loading.” The dynamic repeatedly leads to calls for reform, as politicians, journalists, scholars, and citizens all try to rethink the primary calendar.

This chapter examines the primary calendar and what can be done to change it. It begins by explaining why Iowa and New Hampshire always hold their nomination contests first, as well as how other states have tried to match their power through front-loading. The chapter then briefly looks at the 2020 primary calendar. It then turns to examine the one reform that a majority of voters consistently support: holding all primaries and caucuses on a single day. Scheduling a national Primary Day is important not only because the current staggered nature of the calendar privileges some candidates over others, but also because it favors voters and party members in some states over those in other states. The way to remedy this problem and to ensure all voters are treated equally is to hold our 57 nomination contests on the single day.

While scheduling a national Primary Day would appear to be a simple, direct, and fair way of selecting a party’s presidential nominee, a national primary also comes with its own challenges. A national primary would change the nature of presidential campaigns by shifting the resources and spending of candidates from low-population states like Iowa, New Hampshire, and South Carolina to high-population states like California, Texas, and Florida. It would also diminish the aspirations of candidates with less money and name recognition by denying them the opportunity to build momentum in the early states. A related concern has to do with how the votes would be tallied and added in a national primary when the list of candidates running in the 57 different primaries and caucuses could potentially be very large, as well as what should happen if no single candidate manages to wins a majority of these votes. Finally, there is the thorny issue of how a single primary date could ever be imposed on the states. Whether Congress has the power to set the date on which the states hold their primaries is a constitutional question that remains unresolved. Whether the national parties would ever have the willpower to impose a national primary also remains in doubt. As a result, while the benefits of a national Primary Day may be substantial, the path to getting there comes with its own challenges.
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Posted in political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>


“Ohio’s Absentee Ballot Deadline for Prisoners Upheld on Appeal”<https://electionlawblog.org/?p=109824>
Posted on March 3, 2020 11:55 am<https://electionlawblog.org/?p=109824> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Law<https://news.bloomberglaw.com/us-law-week/ohios-absentee-ballot-deadline-for-prisoners-upheld-on-appeal>:

An Ohio law allowing unexpectedly hospitalized voters to get an absentee ballot as late as 3 p.m. on Election Day, while most voters, including prisoners, must request an absentee ballot by noon three days before, is constitutional, the Sixth Circuit ruled.<https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0068p-06.pdf>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, felon voting<https://electionlawblog.org/?cat=66>


--
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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