[EL] Klobuchar/Wyden bill

Wed Mar 18 16:39:04 PDT 2020

The en banc 9th Circuit may have spoken but let's not forget that Arizona
won at trial before an Obama-appointed judge and in the initial 9th Circuit
opinion. The Supreme Court may also have a say and hopefully does given
some of the deficiencies in the ruling. The en ban opinion is problematic
for a number of reasons, particularly in its VRA discriminatory intent
analysis.

J Justin Riemer
772-559-1567
JJustinRiemer at gmail.com

On Wed, Mar 18, 2020 at 7:23 PM Elias, Marc (Perkins Coie) <
MElias at perkinscoie.com> wrote:

> 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 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 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 9
> th 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 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> 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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