[EL] ELB News and Commentary 3/14/20

[Rick Hasen]

“Could the 2020 Election Be Postponed? Only With Great Difficulty. Here’s Why.”<https://electionlawblog.org/?p=110010>
Posted on March 14, 2020 11:28 am<https://electionlawblog.org/?p=110010> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/03/14/us/politics/election-postponed-canceled.html>

The coronavirus outbreak is inflicting new disruptions on the 2020 presidential campaign by the day, but few compare to Louisiana’s decision on Friday to reschedule its upcoming primary election.

It was a highly unusual development in an American political campaign, though not an entirely unprecedented one.

So how much disruption can voters expect in the coming months? And how freely can local, state and federal authorities switch up the timing and other details of elections? We took a crack at answering some of the questions that may be on your mind.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110010&title=%E2%80%9CCould%20the%202020%20Election%20Be%20Postponed%3F%20Only%20With%20Great%20Difficulty.%20Here%E2%80%99s%20Why.%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Can’t Cancel the Election. But States Could Do It for Him.”<https://electionlawblog.org/?p=110008>
Posted on March 14, 2020 11:26 am<https://electionlawblog.org/?p=110008> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Joseph Stern on the potential<https://slate.com/news-and-politics/2020/03/trump-cancel-election-day-constitution-state-electors-coronavirus.html> for state legislatures to choose presidential electors directly:

As the 2016 election reminded the country, the president is chosen by the Electoral College, not the popular vote. There are 538 electors, and a candidate needs 270 of them to win. Currently, every state assigns electors to the candidate who won the popular vote statewide. (Two states add a twist<https://www.fairvote.org/maine_nebraska> that’s irrelevant here.) But the Constitution does not require states to assign their electors on the basis of the statewide vote. It does not even require a statewide vote. Rather, it explains that each state “shall appoint” its electors “in such manner as the Legislature thereof may direct.” In other words, each state legislature gets to decide how electors are appointed—and, by extension, who gets their votes.

Today, every state legislature has delegated this task to the people. But at first, state legislatures just did it themselves. In the first presidential election, for instance, the legislatures of Connecticut, Delaware, Georgia, New Jersey, and South Carolina appointed electors directly. Eventually, every state moved toward the modern system. But the Supreme Court confirmed in 1892’s McPherson v. Blacker<https://supreme.justia.com/cases/federal/us/146/1/> that states were free to revert to the old method, and in 2000’s Bush v. Gore<https://www.law.cornell.edu/supct/html/00-949.ZPC.html>, the court reiterated this point. The majority declared that the state legislature “may, if it so chooses, select the electors itself,” and retains authority to “take back the power to appoint electors” even after switching to a statewide vote.

Put simply, it is perfectly constitutional for a state legislature to scrap statewide elections for president and appoint electors itself. It would also be constitutional for a state legislature to disregard the winner of the statewide vote and assign electors to the loser. And because the Constitution grants legislatures the authority to pick electors this way, Congress cannot stop them.

Due in part<https://www.nytimes.com/2019/06/28/upshot/the-gerrymandering-ruling-and-the-risk-of-a-monopoly-on-power.html> to partisan gerrymandering, Republicans control the legislatures of 28 states. Collectively, these states have 294 electoral votes. Trump himself could not cancel the entire presidential election. But he could ask these GOP-dominated legislatures to cancel their statewide presidential elections and assign their electors to him. It’s doubtful that we will face this situation in November. But imagine a worst-case scenario: The election is approaching, and the coronavirus remains rampant in our communities. States are unsure whether they have the personnel and resources to hold an election. Congress has failed to mandate no-excuse absentee balloting, and many states have declined to implement it. Or the postal service is so hard hit that it cannot reliably carry ballots to and from voters’ residences. It’s not difficult to envision Trump’s allies in state legislatures assigning their states’ electoral votes to the president, insisting that these dire circumstances justify pulling a constitutional fire alarm.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110008&title=%E2%80%9CTrump%20Can%E2%80%99t%20Cancel%20the%20Election.%20But%20States%20Could%20Do%20It%20for%20Him.%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Coronavirus threatens to disrupt the presidential primary as one state delays a vote and others race to minimize health risks”<https://electionlawblog.org/?p=110006>
Posted on March 14, 2020 11:19 am<https://electionlawblog.org/?p=110006> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/politics/coronavirus-threatens-to-disrupt-the-presidential-primary-as-one-state-delays-a-vote-and-others-race-to-minimize-health-risks/2020/03/13/89f0bfd2-6551-11ea-b3fc-7841686c5c57_story.html>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110006&title=%E2%80%9CCoronavirus%20threatens%20to%20disrupt%20the%20presidential%20primary%20as%20one%20state%20delays%20a%20vote%20and%20others%20race%20to%20minimize%20health%20risks%E2%80%9D>
Posted in campaigns<https://electionlawblog.org/?cat=59>, election administration<https://electionlawblog.org/?cat=18>


“We need to emergency-proof our elections before November. In a democracy, the vote must go on”<https://electionlawblog.org/?p=110004>
Posted on March 14, 2020 11:14 am<https://electionlawblog.org/?p=110004> by Rick Hasen<https://electionlawblog.org/?author=3>

David Daley<https://www.salon.com/2020/03/14/we-need-to-emergency-proof-our-elections-before-november-in-a-democracy-the-vote-must-go-on/> for Salon.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110004&title=%E2%80%9CWe%20need%20to%20emergency-proof%20our%20elections%20before%20November.%20In%20a%20democracy%2C%20the%20vote%20must%20go%20on%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Georgia Public Broadcasting: “‘Election Meltdown’: Author Richard Hasen On The Factors That Corrode Confidence In Election Systems”<https://electionlawblog.org/?p=110002>
Posted on March 14, 2020 11:12 am<https://electionlawblog.org/?p=110002> by Rick Hasen<https://electionlawblog.org/?author=3>

Great conversation<https://www.gpbnews.org/post/election-meltdown-author-richard-hasen-factors-corrode-confidence-election-systems> with Virginia Prescott.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110002&title=Georgia%20Public%20Broadcasting%3A%20%E2%80%9C%E2%80%98Election%20Meltdown%E2%80%99%3A%20Author%20Richard%20Hasen%20On%20The%20Factors%20That%20Corrode%20Confidence%20In%20Election%20Systems%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Arizona: “Court stops County Recorder from sending ballots to all voters for Tuesday election”<https://electionlawblog.org/?p=110000>
Posted on March 14, 2020 11:09 am<https://electionlawblog.org/?p=110000> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona Capitol Times<https://azcapitoltimes.com/news/2020/03/13/court-stops-county-recorder-from-sending-ballots-to-all-voters-for-tuesday-election/>:

A Superior Court judge has stopped Maricopa County Recorder Adrian Fontes from sending ballots to all voters who aren’t on the early voters list for Tuesday’s Presidential Preference Election.

Attorney General Mark Brnovich filed suit Friday for the emergency order after the Maricopa County Board of Supervisors and Secretary of State Katie Hobbs said Fontes disobeyed their orders to not mail out the ballots.

“The Maricopa County Recorder cannot unilaterally rewrite state election laws,” Brnovich said in a press release. “Fontes is creating chaos in our elections during an already difficult time. In times of crisis, the public looks to our elected officials to follow the law – not make reactionary decisions for political gain.”

Hobbs wrote a letter to Fontes this afternoon calling his actions illegal.

“I want to reiterate what I communicated to you on the phone this morning,” Hobbs wrote. “My Office’s position is that you do not have legal authority at this stage to mail a ballot to all voters who have not requested one. The lack of an express statutory prohibition is irrelevant. If your view were correct, counties apparently have had authority to conduct countywide all-mail elections all this time.”

I understand the motivation to make sure voters can cast their ballots, especially given COVID-19 related polling place closures i<https://www.azcentral.com/story/news/local/phoenix/2020/03/13/maricopa-county-mailing-ballots-democratic-presidential-preference-tuesday-election-coronavirus/5044933002/>n Maricopa County. But we can’t have election officials unilaterally take action in violation of state law, because changing the rules in the middle of the election without legal authority. This undermines the rule of law and voter confidence in elections, a point I make in Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr> in discussing a Florida election administrator who accepted electronically-submitted ballots after a hurricane in violation of state law (which provided other mechanisms for dealing with the hurricane emergency. As Michael Morley<https://twitter.com/michaelmorley11/status/1238857578467209218> puts it:
[cid:image002.jpg at 01D5F9F4.1DA70840]<https://twitter.com/JoshuaADouglas>
<https://twitter.com/JoshuaADouglas>
Josh Douglas<https://twitter.com/JoshuaADouglas>
✔@JoshuaADouglas<https://twitter.com/JoshuaADouglas>

 · 5h<https://twitter.com/JoshuaADouglas/status/1238812210891276289>
<https://twitter.com/JoshuaADouglas/status/1238812210891276289>


Election law during a pandemic. [👇🏻]

Court stops Phoenix election official from mailing ballots to voters who haven’t requested them.

This is an unfortunate decision. There should be a thumb on the scale for voter access during this time. https://twitter.com/generalbrnovich/status/1238616837585129472 …<https://t.co/L7MTfJ5Z4t>
<https://twitter.com/GeneralBrnovich/status/1238616837585129472>
Mark Brnovich<https://twitter.com/GeneralBrnovich/status/1238616837585129472>
✔@GeneralBrnovich<https://twitter.com/GeneralBrnovich/status/1238616837585129472>

A Superior court judge has signed off on our TRO against Recorder Fontes, temporarily stopping him from mailing out ballots to voters who did not request a ballot before the statutory deadline, in violation of Arizona law.<https://twitter.com/GeneralBrnovich/status/1238616837585129472>
 <https://twitter.com/GeneralBrnovich/status/1238616837585129472>
 <https://twitter.com/GeneralBrnovich/status/1238616837585129472>
 <https://twitter.com/GeneralBrnovich/status/1238616837585129472>

[cid:image004.jpg at 01D5F9F4.1DA70840]<https://twitter.com/michaelmorley11>
<https://twitter.com/michaelmorley11>
michaelmorley11 at michaelmorley11<https://twitter.com/michaelmorley11>


It’s an unfortunate law, and demonstrates the need for adequate election emergency statutes. But IMO it’s even worse to allow various election officials, without authorization, to unilaterally decide what election laws they’ll follow and which they’ll violate due to an emergency
<https://twitter.com/intent/like?tweet_id=1238857578467209218>
8<https://twitter.com/intent/like?tweet_id=1238857578467209218>
9:00 AM - Mar 14, 2020<https://twitter.com/michaelmorley11/status/1238857578467209218>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/michaelmorley11>
See michaelmorley11's other Tweets<https://twitter.com/michaelmorley11>

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110000&title=Arizona%3A%20%E2%80%9CCourt%20stops%20County%20Recorder%20from%20sending%20ballots%20to%20all%20voters%20for%20Tuesday%20election%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


“‘All of it presents a challenge’: Down ballot candidates grapple with impact of coronavirus”<https://electionlawblog.org/?p=109998>
Posted on March 14, 2020 11:00 am<https://electionlawblog.org/?p=109998> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/2020/03/14/politics/down-ballot-races-coronavirus/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109998&title=%E2%80%9C%E2%80%98All%20of%20it%20presents%20a%20challenge%E2%80%99%3A%20Down%20ballot%20candidates%20grapple%20with%20impact%20of%20coronavirus%E2%80%9D>
Posted in campaigns<https://electionlawblog.org/?cat=59>


NCSL Resources on Coronavirus and the Election<https://electionlawblog.org/?p=109996>
Posted on March 14, 2020 10:57 am<https://electionlawblog.org/?p=109996> by Rick Hasen<https://electionlawblog.org/?author=3>

COVID-19 and Elections<https://www.ncsl.org/research/elections-and-campaigns/state-action-on-covid-19-and-elections.aspx> –brand new.

Election Emergencies<https://www.ncsl.org/research/elections-and-campaigns/election-emergencies.aspx>—from 2018, updated this week.

On that first page, some policy options:

Policy Options

As legislators work to ensure fair elections in times of public health emergencies, they may look for policy options. NCSL does not recommend legislative changes or provide opinions on policy options. Instead, we have gathered ideas that have surfaced in response to the COVID-19 threat:

§  Review your state’s existing election emergency statutes. NCSL has a webpage, Election Emergencies<https://www.ncsl.org/research/elections-and-campaigns/election-emergencies.aspx>, which provides citations by state. In general, these laws either allow elections to be delayed or rescheduled, or for polling places to be relocated. Some explicitly give the governor the authority to change the election date. Most do not, and yet governors are likely to have broad authority under general emergency management declarations which could include changing dates.

§  Some states request, or require, that local election authorities provide contingency plans to the state. The chief election officer may provide guidance to the local authorities.

§  Many states are planning for an increase in the use of absentee, or mail, ballots. In preparation, they may want to clarify how absentee voting works: Are requirements for witness signatures (in addition to the voter’s signature) required? What is the deadline for requesting a ballot, and does it need to be extended? When must completed ballots be received? When can ballot processing begin? States could also review their capacity to tabulate larger numbers of absentee ballots, and more. See NCSL’s Voting Outside the Polling Place<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx> report, and particularly the section, Policy Decision Points.

§  In states where a voter must provide a reason to vote absentee, often there is a list of accepted reasons. This list could be expanded either through an interpretation of existing provisions that allow absentee voting for health reasons (Alabama’s <https://whnt.com/news/coronavirus/alabama-secretary-of-state-says-self-quarantined-citizens-will-have-the-option-to-cast-an-absentee-ballot/> secretary of state has made it clear that anyone who has self-quarantined can apply for an absentee ballot), or through a legislative change to add a public health risk as an acceptable reason. See NCSL’s Voting Outside the Polling Place<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx> report, and particularly the section, Qualifying for an Absentee Ballot, to review accepted reasons for requesting an absentee ballot.

§  When polling places are located in long term care facilities, moving them to locations with fewer vulnerable people may make sense. State laws often require that notice of polling place changes be provided two or three months in advance. Does this require a change in law, or can a relocation be done with emergency authority?

§  Provisional ballot laws<https://www.ncsl.org/research/elections-and-campaigns/provisional-ballots.aspx> could be reviewed. It is possible that voters might not be able to get to their designated polling place but might turn up at an election office or polling place elsewhere in the state. Would a ballot voted for just the statewide or applicable races count?
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109996&title=NCSL%20Resources%20on%20Coronavirus%20and%20the%20Election>
Posted in election administration<https://electionlawblog.org/?cat=18>


“How to Protect the 2020 Election from Coronavirus”<https://electionlawblog.org/?p=109992>
Posted on March 13, 2020 12:06 pm<https://electionlawblog.org/?p=109992> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/03/2020-election-coronavirus-bill-vote-by-mail.html> at Slate. It begins:

On Friday, Louisiana became the first state to announce<https://twitter.com/pdmcleod/status/1238510067168743424> it would be postponing its April 4 presidential primary. Meanwhile, officials in the next four states to hold primaries announced<https://twitter.com/scontorno/status/1238522828615561222> the votes would go forward this coming Tuesday. With the democratic primary contest winding down of its own momentum, how to hold an election during a pandemic may feel at the moment like one of the less urgent questions. With our national election just less than eight months away, though, it is not. Congress can and should act to secure the ability of voters to cast ballots this November sooner rather than later.

Most immediately, in light of the uncertain time frame for disruption of life and political activities due to the Coronavirus, Congress should pass a law requiring states to offer no-excuse absentee balloting for the November elections. Congress has the power to do so, and it should fully fund the efforts. The bill has to be drafted carefully to protect all voters. But time is short. For this to happen, it must happen quickly.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109992&title=%E2%80%9CHow%20to%20Protect%20the%202020%20Election%20from%20Coronavirus%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


“Louisiana postpones presidential primary due to coronavirus; It’s the first primary to be postponed since the outbreak of the virus.”<https://electionlawblog.org/?p=109990>
Posted on March 13, 2020 10:45 am<https://electionlawblog.org/?p=109990> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/03/13/louisiana-postpones-presidential-primary-due-to-coronavirus-128514?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>

Louisiana will postpone its presidential primary, which was originally scheduled for April 4, as part of the state government’s response to the coronavirus pandemic.

The state is the first in the nation to postpone a primary since the outbreak of the virus. Louisiana Secretary of State Kyle Ardoin announced the contest will be delayed until June 20.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109990&title=%E2%80%9CLouisiana%20postpones%20presidential%20primary%20due%20to%20coronavirus%3B%20It%E2%80%99s%20the%20first%20primary%20to%20be%20postponed%20since%20the%20outbreak%20of%20the%20virus.%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Montana: “Lawsuit: ballot collection law harms Native voters”<https://electionlawblog.org/?p=109988>
Posted on March 13, 2020 8:23 am<https://electionlawblog.org/?p=109988> by Rick Hasen<https://electionlawblog.org/?author=3>

Independent Record:<https://helenair.com/news/state-and-regional/govt-and-politics/lawsuit-ballot-collection-law-harms-native-voters/article_35e1e9b6-1592-54a4-a880-44cd76c8436b.html>

Five tribes in Montana, along with two get-out-the-vote organizations, filed a lawsuit in Yellowstone County on Thursday<http://helenair.com/tncms/asset/editorial/b48886fa-6478-11ea-930f-00163ec2aa77/> saying a ballot collection law<https://helenair.com/news/state-and-regional/govt-and-politics/school-elections-around-the-state-first-big-test-for-compliance/article_c5a07a2f-3667-5e50-ac6b-5b2992d389de.html> violates the state Constitution because it unfairly restricts access to voting for Native Americans.

The Ballot Interference Protection Act<http://politicalpractices.mt.gov/BIPA> (BIPA), approved by voters in the 2018 midterm election, puts parameters on returning voted ballots for another person. That includes a cap of six ballots that can be dropped off by one person and a requirement that the person dropping off the ballots complete a registry form, with a $500 penalty for violations.

Those limitations create challenges that especially harm Native Americans’ ability to vote, according to the lawsuit. There are eight tribes in Montana and seven reservations<https://tribalnations.mt.gov/tribalnations>, home to roughly 70,000 people spread out over millions of acres in rural places that have limited access to mail service and residents who because of high poverty rates don’t have reliable ways to drive to post offices or polling places.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109988&title=Montana%3A%20%E2%80%9CLawsuit%3A%20ballot%20collection%20law%20harms%20Native%20voters%E2%80%9D>
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
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/>


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200314/b9a1cea3/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200314/b9a1cea3/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 3151 bytes
Desc: image002.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200314/b9a1cea3/attachment.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 467 bytes
Desc: image003.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200314/b9a1cea3/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 3329 bytes
Desc: image004.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200314/b9a1cea3/attachment-0001.jpg>