[EL] Klobuchar/Wyden bill

Wed Mar 18 16:21:57 PDT 2020

Well, I have and I do.

—
Marc Elias
Perkins Coie LLP
700 13th St, NW
Washington, DC 20005
(202) 434-1609

For scheduling, or if it is urgent, contact Allie Rothenberg: arothenberg at perkinscoie.com<mailto:arothenberg at perkinscoie.com> or (908) 377-7531.

From: Richard Hasen <rhasen at law.uci.edu>
Date: Wednesday, March 18, 2020 at 7:20 PM
To: Marc Elias <MElias at perkinscoie.com>, Marty Lederman <Martin.Lederman at law.georgetown.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

I haven’t read the briefs or reviewed the full record, so I do not have an informed opinion.

From: "Elias, Marc (Perkins Coie)" <MElias at perkinscoie.com>
Date: Wednesday, March 18, 2020 at 4:18 PM
To: Rick Hasen <rhasen at law.uci.edu>, Marty Lederman <Martin.Lederman at law.georgetown.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

So, based on your extensive research, two questions:

If you were on the 9th Circuit, would you have voted in the majority to overturn the AZ ban or the dissent to uphold it?
If you were on the Montana Court, would you uphold or overturn the MT law being challenged by the Tribes?

—
Marc Elias
Perkins Coie LLP
700 13th St, NW
Washington, DC 20005
(202) 434-1609

For scheduling, or if it is urgent, contact Allie Rothenberg: arothenberg at perkinscoie.com<mailto:arothenberg at perkinscoie.com> or (908) 377-7531.

From: Richard Hasen <rhasen at law.uci.edu>
Date: Wednesday, March 18, 2020 at 7:14 PM
To: Marc Elias <MElias at perkinscoie.com>, Marty Lederman <Martin.Lederman at law.georgetown.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

Don’t make assumptions Marc. I have not bought into anyone’s rhetoric. I have studied this issue for over two decades.
I’ve laid out my position in our conversation on twitter, which folks can read if they want to, and I make the case for the potential danger of “ballot harvesting” in my recent book, Election Meltdown.
Suffice it to say that although election crimes are rare, they disproportionately happen with absentee ballots outside the presence of election officials. The News21 study of election crimes from 2000-2012 found that 24 percent of total election crimes involved absentee ballots (and I think that is an undercount based upon their coding).
 There is a long history of absentee ballot fraud in parts of the United States, including Kentucky, parts of Appalachia, Southern Florida, and Southern Texas. We even had a mayor’s race in Miami thrown out because of large scale absentee ballot fraud.
And in this era of high suspicion and partisanship, I think we need measures to improve voter confidence in the system. Allowing unlimited collection of absentee ballots by anyone, as this proposed law does, is a recipe for abuse and heightened concerns of chicanery.

From: "Elias, Marc (Perkins Coie)" <MElias at perkinscoie.com>
Date: Wednesday, March 18, 2020 at 4:09 PM
To: Rick Hasen <rhasen at law.uci.edu>, Marty Lederman <Martin.Lederman at law.georgetown.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

My position in a nutshell: There is a reason why the Arizona Republican legislature tried to ban ballot collection only to withdraw it when DOJ raised section 5 concerns.  There is a reason why, after Shelby County, the same legislature then reintroduced the ban.  There is a reason that the 9th Circuit found that banning ballot collection in AZ was an act of intentional racial discrimination.

It is the same reason why Republicans in Montana promoted a ballot initiative to ban ballot collection in that state, and why the largest Native American Tribes are suing the state to overturn the ban.

It is also why Republicans in NC in 2016 tried to stop local African American groups from running legal programs in North Carolina and then in 2019—after a Republican campaign committed out-and-out fraud used it as an excuse to clamp down.  And that is what Advance Carolina—and African American grassroots organization is suing North Carolina.

Republicans have been looking for tactics to inhibit minority voters from voting in ever creative ways.  This is just one example.  It is a shame that some, like Rick, have bought into their rhetoric. I assume he would have precleared the AZ law before Shelby County and would have been in dissent in the 9th Circuit.  I assume he would also be opposing the Tribes today in Montana.  That is deeply unfortunate.

Marc
—
Marc Elias
Perkins Coie LLP
700 13th St, NW
Washington, DC 20005
(202) 434-1609

For scheduling, or if it is urgent, contact Allie Rothenberg: arothenberg at perkinscoie.com<mailto:arothenberg at perkinscoie.com> or (908) 377-7531.

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Richard Hasen <rhasen at law.uci.edu>
Date: Wednesday, March 18, 2020 at 6:56 PM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

Marc Elias and I got into a back and forth on twitter over the provision allowing for the unlimited collection of absentee ballots (sometimes referred to as “ballot harvesting”) that is contained in the bill. I oppose this provision (though strongly support other parts of the bill) because of the risk of ballot tampering. (I think exceptions should be made for areas not reached easily by U.S. mail.)  I like Colorado’s limit of one person collecting no more than 10 envelopes from others, and I think the names of the collectors should be on the ballot envelopes.
The concern is not just about actual ballot tampering (as we have seen with not just the North Carolina Ninth Congressional District, but in pockets around the country over time), but also public confidence in the process.

From: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Date: Wednesday, March 18, 2020 at 3:50 PM
To: Rick Hasen <rhasen at law.uci.edu>, Election Law Listserv <law-election at uci.edu>
Subject: [EL] Klobuchar/Wyden bill

Here's the bill<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.klobuchar.senate.gov_public_-5Fcache_files_9_1_91a07f05-2Db6b3-2D4c6e-2Da363-2D652ecbe16ac0_142B6E0F07685857CC10772388587756.natural-2Ddisaster-2Dand-2Demergency-2Dballot-2Dact-2Dof-2D2020.pdf&d=DwMGaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=KjLtw5JOJ5bem-LmprKuuB1I8pARCbS6DPTDwrfcFH0&s=Gh8Je-AdZOTcMomKgGxvzHePeP08FsAneoKbmlHEvt8&e=>.  I'd deeply appreciate people's thoughts on its merits/possible problems.  Thanks

On Wed, Mar 18, 2020 at 7:47 AM Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>> wrote:
They announced the Natural Disaster and Emergency Ballot Act last Friday<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.klobuchar.senate.gov_public_index.cfm_2020_3_with-2Dunprecedented-2Ddisruptions-2Dexpected-2Dfrom-2Dcoronavirus-2Dklobuchar-2Dand-2Dwyden-2Dintroduce-2Dbill-2Dto-2Densure-2Damericans-2Dare-2Dstill-2Dable-2Dto-2Dvote&d=DwMGaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=KjLtw5JOJ5bem-LmprKuuB1I8pARCbS6DPTDwrfcFH0&s=wmS2-hAbYM9YW5svga_gcUv9zHqWb1uvAdiBwgIIbFg&e=>, but I haven't been able to find any bill language anywhere, and Congress.com doesn't show it as having yet been introduced.

Does the summary description sound promising?  Sufficient?

If anyone finds the language, please send along, thanks.

FWIW, I'm inclined to think that Congress should simply require states to adopt the Oregon method before November, to wit:

County clerks mail official ballots to all registered voters between Oct. 14-20.  Voters can mail the ballots back or deposit them at a central location (a "polling" place) at any time between when they receive them and election day (but they must be received by election day).  And if a ballot mailed to a voter is destroyed, spoiled, lost, or never received, the voter may request and easily obtain a replacement ballot.

Several of you who support widespread VbM and who know much more about such things than I do have cautioned me offline that it'd be difficult/hazardous to impose such a requirement nationwide for this year's general election (even if it's an ideal solution for future elections).  I remain puzzled about why all states couldn't implement it if they began doing so now--why it's not an easier lift than a bunch of other emergency initiatives that are occurring as we speak--but I'm duly chastened by the skepticism of those of you who are more in-the-know.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

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