[EL] ELB News and Commentary 3/17/20
Rick Hasen
rhasen at law.uci.edu
Tue Mar 17 21:31:14 PDT 2020
“Shuttered polling places and a dearth of cleaning supplies: Voters confront pandemic-fueled confusion at the polls”<https://electionlawblog.org/?p=110065>
Posted on March 17, 2020 9:02 pm<https://electionlawblog.org/?p=110065> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/politics/shuttered-polling-places-and-a-dearth-of-cleaning-supplies-voters-confront-pandemic-fueled-confusion-at-the-polls/2020/03/17/55dba1f6-685f-11ea-b313-df458622c2cc_story.html>
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Posted in election administration<https://electionlawblog.org/?cat=18>
“‘Chaos and Confusion’: Voters Cast Ballots in Virus’ Shadow”<https://electionlawblog.org/?p=110063>
Posted on March 17, 2020 8:58 pm<https://electionlawblog.org/?p=110063> by Rick Hasen<https://electionlawblog.org/?author=3>
The Daily Beast reports.<https://www.thedailybeast.com/chaos-and-confusion-voters-cast-ballots-in-virus-shadow>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Could Trump delay the November election? Not without risking forfeit to a Democrat”<https://electionlawblog.org/?p=110061>
Posted on March 17, 2020 8:54 pm<https://electionlawblog.org/?p=110061> by Rick Hasen<https://electionlawblog.org/?author=3>
LAT reports.<https://www.latimes.com/politics/story/2020-03-17/no-trump-cant-postpone-the-november-election-but-thats-the-first-question>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Why We Should Abolish the Electoral College”<https://electionlawblog.org/?p=110059>
Posted on March 17, 2020 8:44 pm<https://electionlawblog.org/?p=110059> by Rick Hasen<https://electionlawblog.org/?author=3>
Josh Chafetz reviews<https://www.nytimes.com/2020/03/17/books/review/let-the-people-pick-the-president-jesse-wegman.html> Jesse Wegman’s new book, Let the People Pick the President.<https://www.amazon.com/Let-People-Pick-President-Abolishing-ebook/dp/B07XBCKLKQ/ref=sr_1_1?keywords=let+the+people+pick+the+president&qid=1584503056&s=digital-text&sr=1-1>
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Posted in electoral college<https://electionlawblog.org/?cat=44>
“The Coronavirus Outbreak Has Made Voting In Illinois Today A Full Mess”<https://electionlawblog.org/?p=110057>
Posted on March 17, 2020 8:39 pm<https://electionlawblog.org/?p=110057> by Rick Hasen<https://electionlawblog.org/?author=3>
BuzzFeed News:<https://www.buzzfeednews.com/article/mollyhensleyclancy/coronavirus-illinois-primary-voting-election>
Voters and poll workers reported chaos, nonfunctional polling places, unsanitary conditions, and low turnout across the state of Illinois on Tuesday as the primary election continued despite the coronavirus outbreak<https://www.buzzfeednews.com/collection/coronavirus>.
After the state scrambled to move polling places away from nursing homes and other vulnerable populations, some voters said they were unable to vote because their new polling places lacked basic voting supplies.
With scores of election judges and volunteers dropping out at the last minute in the face of the outbreak, the city of Chicago was asking “able bodied voters” to act as last-minute poll workers as a way to deal with understaffed polling locations, according to an email viewed by BuzzFeed News. The Cook County Clerk’s Office posted that it was “waiving all training requirements” for applicants who wanted to serve as election judges.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Ohio Democratic Party sues over delay of primary election”<https://electionlawblog.org/?p=110055>
Posted on March 17, 2020 8:36 pm<https://electionlawblog.org/?p=110055> by Rick Hasen<https://electionlawblog.org/?author=3>
AP<https://www.detroitnews.com/story/news/politics/2020/03/17/ohio-democratic-party-sues-delay-primary-election/111431342/>:
Politicians of all stripes expressed frustration Tuesday after Ohio’s primary was postponed until June by the state’s elected officials amid concerns attendance at polling places would contribute to coronavirus pandemic.
The Ohio Democratic Party sued Tuesday afternoon over Secretary of State Frank LaRose’s decision to set a new date, saying that power rests only with the Legislature. Messages were left seeking comment from LaRose, a Republican, and the state attorney general, who represents him.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
I Talked to Slate’s Mike Pesca About Ohio’s Primary Delay Issues<https://electionlawblog.org/?p=110053>
Posted on March 17, 2020 8:32 pm<https://electionlawblog.org/?p=110053> by Rick Hasen<https://electionlawblog.org/?author=3>
You can listen <https://slate.com/podcasts/the-gist/2020/03/rick-hasen-vote-postponement> to The Gist.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“At Party for Donald Trump Jr.’s Girlfriend, Donors Helped Pick Up the Tab”<https://electionlawblog.org/?p=110051>
Posted on March 17, 2020 8:30 pm<https://electionlawblog.org/?p=110051> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports.<https://www.nytimes.com/2020/03/17/us/politics/trump-donors-guilfoyle-party.html?action=click&module=News&pgtype=Homepage>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
Foley: Ohio: Deciding How Best to Preserve a Fair Election, with Equal Voting Rights, While Saving Lives—in the Context of a Fast-Changing Emergency, and without Adequate Statutory Provisions<https://electionlawblog.org/?p=110049>
Posted on March 17, 2020 3:39 pm<https://electionlawblog.org/?p=110049> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a guest post from Ned Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/>:
Thanks, Rick, for giving me opportunity to present some thoughts here on the Ohio situation. Like you<https://electionlawblog.org/?p=110045>, I’m juggling, and so these thoughts are tentative and subject to revision upon further information and deliberation.
Meanwhile, however, I disagree with the assessment that “abuse of power” is what happened in Ohio. We both agree that it was appropriate for Dr. Amy Acton to close the polls today as part of the state’s effort to “flatten the curve” to protect not only poll workers, and voters, but the entire hospital system—with its limited number of ICU units, ventilators, etc. (I see also that Michael Morley<https://electionlawblog.org/?p=110047> agrees with this, although he seems more willing to second-guess aspects of Dr. Acton’s decision to close the polls today than I am. I also have seen reports of problems with voting in Florida and Illinois today that indicate that closing the polls in Ohio was the correct decision<https://www.cnn.com/2020/03/17/politics/ohio-florida-illinois-arizona-primary/index.html>, and I certainly hope that the different decision in other states does not negatively affect hospital capacity in a couple of weeks.) I don’t fault Dr. Acton for waiting until yesterday to make this decision. The medical facts relating to COVID-19 have been changing daily, or even more frequently. Dr. Acton, on behalf of Ohio, is trying to be very proactive in flattening the curve. For example, Ohio closed bars and restaurants before Washington State did. Even as late as the weekend, the medical circumstances in her judgment didn’t require closing the polls today. But once her assessment of the medical situation changed, she was obligated to protect the public health system.
I also emphatically agree with you and Michael<https://electionlawblog.org/?p=110047> that it would have been much better if Ohio already had in place a good statute for dealing with an acute emergency situation of this nature, in terms of managing the electoral process in light of the public health necessity. As much as possible, these decisions should be driven by clear statutes adopted in advance of the election itself. That, indeed, is the number one principle of the American Law Institute’s set of principles for election administration<https://urldefense.com/v3/__https:/www.ali.org/news/articles/now-available-principles-law-election-administration/__;!!KGKeukY!ko2J1uGlnlZ_0zs_WXOUGKhjjWg8-uP1Hkq7ydWTCPMhkp90GwJZcfqKj05lEb_bFg$>. But that adequate statutory framework, regrettably, did not exist yesterday, and so the question is what should happen in that context.
If your position is that Ohio’s secretary of state (or governor) was obligated to go to the state’s legislature for emergency legislation to deal with the situation, I disagree with that based on my current understanding. Under title 35 of Ohio’s Revised Code, the Secretary of State is the state’s chief elections officer with broad authority to issue directives to local boards of elections. Secretary LaRose exercised that statutory authority last night, after Dr. Acton issued her order closing the polls. (Michael’s analysis<https://electionlawblog.org/?p=110047> doesn’t change my conclusion on this point; I don’t see his Point II.a addressing this aspect of Ohio’s existing statutory law.)
Most importantly, in exercising this statutory authority to issue directives to local election boards, the Secretary of State is obligated to comply with the federal Constitution as the supreme law of the land. Once Dr. Acton closed the polls today, Secretary LaRose faced a federal constitutional problem that he was obligated to address by directive as the state’s chief elections officer, without waiting for the state’s legislature (or a court) to act. It would have been a violation of the equal protection clause of the Fourteenth Amendment to let the March primary stand as is, with some absentee and in-person early votes already cast, and other Ohio voters having reasonably relied on the expectation that they would be able to cast their votes in person on Election Day today. Dr. Acton (and the governor) didn’t nullify the votes already cast. As the state’s chief elections officer, Secretary LaRose needed to issue a directive that in his best good-faith judgment would remedy the federal constitutional problem caused by Dr. Acton’s legitimate and appropriate health-based order. One might disagree with details of Secretary LaRose’s directive. But, in my judgment, it was far from an “abuse of power” for him to issue it. On the contrary, I think he had a legal obligation under both Ohio law and the federal Constitution to issue some sort of directive along the lines he did.
To be sure, if the state legislature wants to become involved and supersede Secretary LaRose’s directive with a different remedy consistent with the federal Constitution, it has every right to do so. (News reports<https://www.dispatch.com/news/20200317/house-speaker-calls-ohio-lawmakers-back-to-legally-set-new-primary-date/1> today suggest that it will.) It has higher authority that the Secretary. It could pick a different date than June 2. It could change details of the directive. But Secretary LaRose didn’t need to wait for the legislature, nor need to go to the legislature. It was appropriate, indeed obligatory, for Secretary LaRose to issue his best good-faith directive last night, after Dr. Acton’s decision, and his directive stands under Ohio law as the best way to implement federal constitutional requirements unless the state legislature wants something different. Likewise, a state or federal court could adjust Secretary LaRose’s directive based on its judicial understanding of what the federal Constitution now requires in terms of equal voting rights after Dr. Acton’s decision. (Already, there at least one<https://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=882617.pdf> lawsuit in the Ohio Supreme Court.) But any such judicial adjustment doesn’t make it wrong for Secretary LaRose to have attempted his best good-faith effort to comply with federal constitutional law last night.
If there is one thing to criticize Governor DeWine and Secretary LaRose over what happened yesterday (and I’m loathe to do so given the acute emergency they were dealing with as best they could), it is their willingness to wait for the trial court’s ruling on the private-plaintiff lawsuit. I wouldn’t use the term “manufacture” as you do, but I think they regrettably sent the signal that they were going to take their cue from the court. And then when that judge essentially punted the whole matter back to them as statewide officials, they were left where they were originally with valuable time having passed. Based on my reading of the relevant Ohio and federal law, I don’t think they needed judicial guidance in advance. I can understand why they might have found it valuable, but in hindsight the better move would have been for Dr. Acton to issue her health-based order without waiting for a ruling from the local trial judge in the private-plaintiff lawsuit. But this innocent misstep, made with good intentions, does not make anything that Governor DeWine, Secretary LaRose, or Dr. Acton did an “abuse of power”.
Finally, as for something like this happening in November, I very much agree that it’s an issue that needs to be addressed, and thus a subject for separate discussion. I note here briefly, however, a few points. First, the rules for primaries and general elections are very different, and what happened yesterday in Ohio is not necessarily an appropriate precedent even for comparable circumstances in a general election; the two must be considered separately. Second, the specific health-related circumstances surrounding the November general election may be very different from those yesterday; as you have said, there is time now to expand opportunities for vote by mail (something that could not have been done instantly yesterday or even a week or two ago). Third, and most fundamentally, there is of course reason to be vigilant to make sure that no incumbent abuses an emergency situation in an effort to hold onto power contrary to the genuine will of the electorate—and any electoral response to a genuine emergency should make sure that nothing like that happens—but it is important to note that nothing like that was occurring in Ohio yesterday. There is every reason to think that Ohio’s officials were acting genuinely in the public interest as they saw it, not abusing power for partisan, incumbency-protection, or any other inappropriate purpose. It does not seem right to say that what happened yesterday in Ohio was “an abuse of power” based on a fear that other incumbent politicians in different situations might engage in future abuse. Our judgments about (admittedly rare and fast-moving) emergency situations ought to be able to distinguish these very different circumstances.
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Posted in election administration<https://electionlawblog.org/?cat=18>
Morley: Election Emergencies: Coronavirus and the Ohio 2020 Primaries<https://electionlawblog.org/?p=110047>
Posted on March 17, 2020 1:34 pm<https://electionlawblog.org/?p=110047> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a guest post from Michael Morley<https://law.fsu.edu/faculty-staff/michael-morley>:
Developments concerning Ohio’s 2020 primary are still unfolding, but the incident already provides several important lessons that both election officials and the public must keep in mind as we approach the general election in November. Earlier this week, Ohio Governor Mike DeWine announced that he lacked legal authority<https://www.cnbc.com/2020/03/16/ohio-governor-pushes-to-extend-primary-voting-from-tuesday-until-june-2.html> to unilaterally delay the primaries. Some voters sued in Ohio state court for a temporary restraining order enjoining the state from conducting in-person voting as scheduled today. The state did not oppose the request, but the court denied the motion<https://www.cnbc.com/2020/03/16/ohio-governor-pushes-to-extend-primary-voting-from-tuesday-until-june-2.html>, holding that the parties had failed to justify such an extraordinary last-minute request, and there was no basis in state law for it. This ruling currently remains on appeal.
In response, the Director of the Ohio Department of Health issued an order<https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/odh-directors-order-closure-polling-locations> closing all polling places throughout the State of Ohio today. And the Secretary of State followed up with another order<https://www.ohiosos.gov/globalassets/elections/directives/2020/dir2020-06am.pdf> rescheduling in-person voting for the 2020 Primaries for June 2, 2020; allowing absentee balloting to continue until then; and extending the deadlines for requesting absentee ballots, counting them, canvassing, and certifying election results. Importantly, the order does not extend the deadline for voter registration for the primaries; only voters who were legally eligible to vote on March 17 will be permitted to vote on June 2 (a valid restriction, but one that is almost certain to trigger its own set of challenges).
This morning, the Ohio Supreme Court rejected an emergency petition<http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-997.pdf> for a writ of mandamus that would have compelled Ohio executive officials to proceed with in-person voting today. Three of the seven Justices recused themselves. That order, issued without explanation, does not confirm the legality of any of the steps that have been taken by the state’s executive officials.
In assessing the state’s response to the coronavirus emergency, it is useful to distinguish between: (i) the Department of Health order prohibiting in-person voting today, and (ii) the Secretary of State’s order purporting to provide alternative voting opportunities. After discussing each of these orders, this post will conclude with some broadly applicable thoughts concerning official efforts to respond to election emergencies.
I. The Ohio Health Department Order
Since I don’t have any background in Ohio’s public health statutes, I’m willing to accept the assumption that the Director of the state health department has general statutory authority to prohibit people from assembling in public places in order to avoid the spread of infectious disease or otherwise mitigate major public health problems. And, overall, delaying the primary was certainly within the range of reasonable possible responses to the unique threat posed by the coronavirus. The virus not only directly threatens human life—particularly the lives of particularly vulnerable populations, such as the elderly—but also poses a risk of exceeding our nation’s health care capacity, particularly hospital beds and ventilators. The threat of community spread has led to the remarkably extraordinary precautions, ranging from the closure of schools, cancellation of sporting events, and other major limitations on public gatherings throughout the nation, to the shuttering of such crowded iconic America landmarks as the Las Vegas Strip and Disney World. In that context, the decision to close polling locations as a public health measure is easily defensible. Having said that, there are also several factors worth considering that weigh against the Director’s actions.
a. Backdoor election postponement—My biggest reservation is that the Ohio Election Code specifically deals with both elections in general, and even various types of election emergencies in particular. In crafting the Code, the legislature did not give the Governor authority to postpone elections or otherwise refuse to hold in-person voting in accordance with statutory requirements. Given the Election Code’s complexity, I have concerns about creatively stretching other broad grants of discretion under other, completely unrelated statutes to allow the rules governing elections to be substantially modified and elections themselves to be postponed. From a statutory interpretation perspective, principles such as expressio unius and the “major questions” doctrine may counsel against construing the Director of the health department’s authority so broadly.
b. Incomplete authority / bootstrapping – Even accepting the reasonable assumption that the Ohio Health Department may have authority to prevent people from congregating at polling places, it does not have any power – and does not purport to have the power – to exercise authority over all the other aspects of the electoral process that refusing to hold in-person voting will impact. The Health Department’s order cannot change the statutory date of the primary, laws requiring the counting of absentee and provisional ballots, deadlines for canvassing and certification, and other such provisions. As far as I can tell, at the time they decided to refuse to proceed with the March 17 primary, the Governor and Secretary of State were simply unilaterally ignoring these other provisions of the Election Code without either statutory authorization or judicial approval (though either of those facts may change).
This creates something of a bootstrapping problem. The Governor and Secretary of State were able to present other state officials with a fait accompli of a cancelled election, effectively compelling them to allow voting on a later date. Even if a state or federal court were to conclude that the postponement of in-person voting today were illegal or not sufficiently warranted, there would be no way to provide any relief other than allowing in-person voting to occur on a later day. Especially since a state trial court had already refused a TRO delaying the election—despite the state’s consent—this seems problematic.
c. Timing—The fact that the decision to cancel the election came only a few hours before election day is at least a prudential reason that weighs against it. Admittedly, Corona presents a rapidly evolving situation, with new developments continuously unfolding. But it’s not clear that the last-minute decision to cancel the election was based on newly revealed information that wasn’t previously available. The only fact identified in the Health Department’s order that arose on March 16 is that 50 cases of Corona were confirmed throughout the state (and it’s likely state officials knew about some or many of them beforehand). Circumstances that may have easily justified officials in deciding, with proper judicial authorization, to delay the election a few days earlier might not necessarily be sufficient to warrant a unilateral last-minute cancellation. But that’s primarily a policy consideration, rather than a legal constraint. And it would be equally problematic to say there’s a “deadline” for saving human life. If the Governor came to realize that he underestimated the risk posed by a virus such as Corona, but still had time left to act, we would not want to unnecessarily jeopardize public health by saying he was “too late.”
d. Risk—On the one hand, the virtually unprecedented national effort to curtail community spread of the Coronavirus seems to confirm that the public health risk was sufficient to warrant postponing the election. Many pollworkers and voters are elderly, and thus are at particular risk of suffering serious consequences from infection. In considering the substantive reasonableness of the Health Department’s decision, however, I do think other states’ actions are relevant considerations. A few states have postponed their elections, while others are following through with them. It is possible that the states proceeding with their elections as scheduled are under-protecting people’s lives. Yet the fact that there is such a diversity of approaches, especially combined with the trial court’s refusal of a TRO, may suggest that this is not such a one-sided, indisputably clear issue that unilateral executive action at the eleventh hour was warranted (even if a more careful roll-out, in advance, and especially with the proper legal authorization, would have been more appropriate). But again, these are primarily policy considerations rather than legal constraints.
e. Voter Participation—In terms of encouraging voter participation, rescheduling the election for June might be a wash. First, we have no idea whether things with the Coronavirus will be better, worse, or the same by then. Postponing the election for that day presupposes that some fairly short-term improvements will occur, and I don’t know whether that’s scientifically warranted. Second, even if some people will be willing to show up to vote at that point who would’ve stayed home on the originally scheduled election day, any such increase may be offset by diminished participation. Voter groups may not have the resources to mount the same get-out-the-vote efforts as they had lined up for the original election day. Voters may be less clear about the new election day or have less interest in participating. There’s usually a participation drop-off between a main election and a run-off; though I haven’t seen data about rescheduled elections, I would imagine the results may be somewhat comparable. Again, though, these are policy considerations rather than legal constraints.
Overall, as a practical matter, I substantively agree that delaying the election was a valid exercise of discretion. I am concerned about using the public health code as a means of making an end run around the constraints the Election Code places on state executive officials’ discretion concerning election emergencies. And I particularly object to the fact that state executive officials made this decision at the eleventh hour, without either legislative or judicial authorization. Though they likely reached a good substantive result in this case, I would not want to see this used as a precedent—particularly for the general election for President (which is subject to additional federal statutory and constitutional timing constraints).
II. The Ohio Secretary of State’s Order
Of the two orders, I believe the Secretary of State’s is the more legally problematic.
a. Authority—Since the Health Department’s order denied people the opportunity to vote in person on Election Day, rescheduling Election Day is a reasonable, proportionate, and likely constitutionally required remedy. I don’t think the Secretary of State has the statutory authority, however, to unilaterally adopt either a new election day or new deadlines for absentee ballot requests, receipt of completed absentee ballots, canvassing, and certification. This order will require either legislative or judicial action to become legally authorized and enforceable. Nevertheless, with or without this order, a new day for in-person voting seems to be an unavoidable remedy.
b. Absentee voting—In my opinion, the most controversial part of the Secretary’s order is his decision to allow two-and-a-half months extra of absentee voting. His order allows voters to submit applications for absentee ballots so long as they are postmarked by May 26, 2020, and allows completed absentee ballots to be returned so long as they are postmarked by June 1 and received by June 12, 2020.
On the one hand, as a practical matter, if the election is being held in June, there doesn’t seem to be a reason to prohibit absentee voting between now and then. These are several countervailing considerations, however:
● Practical problems—Having a total of four months of absentee voting increases the likelihood of something going wrong—ballots may be inadvertently misplaced, damaged, or destroyed; the potential for fraud increases; and additional administrative burdens are placed on already overstretched election officials.
● Measuring public sentiment—Allowing people to vote over a four-month period does not seem well-suited to producing the kind of roughly contemporaneous reflection of public opinion we generally expect elections to provide (though to the extent voter preferences are stable, that’s not much of a practical concern)
● Inappropriately overbroad remedy—Most importantly, extending the absentee voting period is not tailored to remedying the problem of postponing Election Day. The state legislature already provided for a lengthy period of absentee voting, and the Health Department order did not interfere with that. Rather, the order only denied people the opportunity to vote in person on Election Day; rescheduling Election Day is sufficient to address that. Allowing an additional two-and-a-half months of absentee voting is a further unnecessary departure from election rules that does not redress the underlying problem of people being barred from voting in person today.
The legislature, of course, may step in and attempt to authorize this additional absentee voting period (but see the next point below). Without such authorization, however, I don’t believe either the Secretary of State or even a court can validly approve it. To the contrary, a court’s only authority is granting relief tailored to remedying the deprivation of the right to vote on Election Day. Allowing over two months of additional voting may well constitute an abuse of equitable remedial discretion.
● Due process considerations—Even if the legislature were to statutorily approve an extended absentee voting period, another important issue remains: the Due Process Clause generally prohibits the rules for an election from being changed once the election has started. Before Ohio’s 2020 Primary began, of course, the legislature was free to authorize as long of an absentee voting period as it wanted, and could have passed election emergency laws allowing for longer periods. But once the election began, the legislature’s discretion to change the rules governing it became much more limited. Although emergencies can always arise requiring a response, due process concerns likely require any such changes to be tailored to addressing the particular unexpected obstacles created by the emergencies. Since a failure to hold Election Day today can be substantially remedied by rescheduling it for a future day, the additional step of allowing two extra months of absentee voting would again likely be outside the scope of this remedial discretion and may violate due process restrictions.
c. Provisional ballots— Any ballots cast, either in person or by mail, after today likely must be treated as provisional ballots under Help America Vote Act (“HAVA”), thereby facilitating challenges to them in court.
III. Takeaways
Overall, I think this incident usefully establishes several things:
● Statutory framework—States need election emergency statutes that specify what various officials may and may not do when natural disasters, terrorist attacks, public health crises, or other unexpected threats impact an impending or ongoing election. These laws must identify the officials empowered to act, the circumstances under which they may take such extraordinary actions, and cabin their discretion as to the nature and scope of relief to be granted.
● Public communications—States must ensure clear and consistent messaging to the public about any changes to the electoral process as a result of an emergency. County and local officials should not unilaterally notify election personnel or the public about potential changes impacting statewide or other multi-jurisdiction elections without specific confirmation from state’s chief election official. It is particular unacceptable for the press to publish conflicting reports over whether an election is actually going to happen as scheduled.
● Timing—Election emergencies must be addressed as early as possible. This is an especially challenging endeavor involving tradeoffs and balancing. Officials justifiably don’t want to modify or postpone elections too early, because a particular risk may come to pass or may be less severe than originally feared. Hurricanes, for example, may unexpectedly veer off into the ocean without ever hitting the mainland. On the other hand, taking action too late undermines public confidence, creates confusion and uncertainty, can raise unnecessary legal questions, and may have partisan implications.
● Bipartisanship—Bipartisan consensus, where possible, can help legitimate a state’s response to an election emergency. If the Governor had been able to present a united front with both major political parties or, in the case of the primary, the major remaining candidates, the court may have been more willing to grant the requested relief, and there may have been less public opposition or skepticism about his decision.
● Existing Rules—The basic rules governing elections should be enforced to the greatest degree possible, even in the course of an election emergency. When an emergency requires a departure from the ordinary rules of procedure, election officials should nevertheless endeavor to comply with those ordinary rules to the greatest extent possible. Election modifications should be as limited as possible, consistent with alleviating the obstacles to voting posed by the emergency. Officials should not unnecessarily suspend additional rules, or grant overbroad relief that is not well tailored to overcoming the particular barriers to voting the emergency created. Election modifications (tweaking particular rules governing an election) are preferable to election postponements (holding the election at a future date). And postponements (in which the voters and candidates are held constant) are obviously preferable to complete cancellations, in which a completely new election is held at some unspecified point several months later.
● Separation of Powers—This incident demonstrates how executive officials can effectively force the other branches’ hands concerning the electoral process. Executive officials can take unilateral action that becomes a fait accompli and, as a practical matter, is impossible to challenge or undo without impermissibly limiting people’s opportunities to vote. For example, there would have been no way of implementing an order from the Ohio Supreme Court or a federal court that the election had to proceed today. Moreover, a court would be unlikely to allow people to lose their opportunity to vote in person based on the Governor’s or Health Department’s actions, and would therefore likely order a new day of voting. Thus, even in the course of holding that state executive officials lacked power to postpone the election, the court inevitably would, in effect, be ordering a postponed election. In both crafting election emergency laws, and judging the actions of state officials in response to election emergencies, we should be sensitive to the need for checks and balances on discretion concerning the critically important issue of elections.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Ohio Government Officials Abused Their Power in How They Closed Polling Places Today; It Shows Why It is URGENT for Congress to Guarantee No-Excuse Vote-by-Mail for November. What If Trump Did Something Similar?<https://electionlawblog.org/?p=110045>
Posted on March 17, 2020 8:50 am<https://electionlawblog.org/?p=110045> by Rick Hasen<https://electionlawblog.org/?author=3>
I’m juggling a lot of different things, so this post will be brief. (I will soon be posting a more detailed analysis of the legal issues from Michael Morley.)
I have no problem with Ohio government officials deciding that health conditions were so precarious that people could not go to the polls and to take legal steps to move the election. (I think it is a decision that should have been made sooner, and not left to the day before the election.) But the way in which this occurred shows an abuse of power and the danger to November’s election.
First Ohio officials tried to manufacture a lawsuit to get a court order to close the polls. When that failed because the court believed that moving the election day could disenfranchise voters on the evening of the election, the state’s health officer ordered the polls closed for health reasons. And then the state announced, without apparent statutory authority, that in-person voting was going to be moved to a later date. (The details of that order are troubling, like treating later-arriving ballots as provisional ballots and extending an election period over many months).
What the Ohio governor should have done is had the state legislature on an emergency basis move the polling date to June. (States with upcoming primaries need to examine their state laws to see who has the authority to move a primary election day and if authority needs to be given by state legislatures, it should happen now.) To move an election without statutory authority is an abuse of power.
One can imagine a terrible scenario in November where the President declares martial law or otherwise claims authority to close polling places at the last minute on health-related grounds. That is not an order to shut down the election itself (something the President lacks the authority to do).
This is why Congress needs to act NOW to require states to offer no excuse vote by mail for the November election and pay for it. I made the argument for it in this Slate piece<https://slate.com/news-and-politics/2020/03/2020-election-coronavirus-bill-vote-by-mail.html>. But Ohio’s example shows why this is all the more urgent. It’s expensive and complicated and messy to greatly expand vote-by-mail. But the alternative is the potential for massive disenfranchisement in November.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
March 25, Harvard Ash Center: “VIRTUAL Book talk with Richard Hasen, author of ‘Election Meltdown'”<https://electionlawblog.org/?p=110043>
Posted on March 17, 2020 8:30 am<https://electionlawblog.org/?p=110043> by Rick Hasen<https://electionlawblog.org/?author=3>
You can watch<https://ash.harvard.edu/event/book-talk-richard-hasen-author-election-meltdown> my conversation with Tova Wang on Zoom.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“Coronavirus: Ohio Supreme Court allows delay to primary election”<https://electionlawblog.org/?p=110041>
Posted on March 17, 2020 8:08 am<https://electionlawblog.org/?p=110041> by Rick Hasen<https://electionlawblog.org/?author=3>
Columbus Dispatch reports<https://www.dispatch.com/news/20200316/coronavirus-ohio-supreme-court-allows-delay-to-primary-election>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Coronavirus, 2020 Election and the New ID Laws Are Brewing a Perfect Storm. Are We Prepared?”<https://electionlawblog.org/?p=110038>
Posted on March 17, 2020 8:06 am<https://electionlawblog.org/?p=110038> by Rick Hasen<https://electionlawblog.org/?author=3>
Kathleen Unger Newsweek oped.<https://www.newsweek.com/real-id-coronavirus-elections-perfect-storm-unger-1492615>
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Posted in election administration<https://electionlawblog.org/?cat=18>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>
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