[EL] ELB News and Commentary 3/19/20

Wed Mar 18 20:02:32 PDT 2020

“Two congressmen test positive for the coronavirus, forcing other lawmakers to self-quarantine”<https://electionlawblog.org/?p=110099>
Posted on March 18, 2020 7:58 pm<https://electionlawblog.org/?p=110099> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/first-member-of-congress-tests-positive-for-the-coronavirus/2020/03/18/2f0334b6-696f-11ea-9923-57073adce27c_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How is coronavirus affecting primaries? What about November’s general election?”<https://electionlawblog.org/?p=110097>
Posted on March 18, 2020 7:52 pm<https://electionlawblog.org/?p=110097> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke with Madeline Brand <https://www.kcrw.com/news/shows/press-play-with-madeleine-brand/hospitals-prepare-for-coronavirus-patients/coronavirus-election> for KCRW’s Press Play.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Nationwide drive to safeguard voting intensifies as coronavirus spreads”<https://electionlawblog.org/?p=110095>
Posted on March 18, 2020 4:08 pm<https://electionlawblog.org/?p=110095> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/nationwide-quest-to-safeguard-voting-intensifies-as-coronavirus-spreads/2020/03/18/35b6564e-692e-11ea-abef-020f086a3fab_story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

David Gans: “We Held an Election During the 1918 Flu Epidemic. We Can Hold an Election Now.”<https://electionlawblog.org/?p=110093>
Posted on March 18, 2020 4:03 pm<https://electionlawblog.org/?p=110093> by Rick Hasen<https://electionlawblog.org/?author=3>

Important historical perspective<https://slate.com/news-and-politics/2020/03/spanish-flu-it-2020-election-during-coronavirus.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Franita and Foley Podcast: “Voting in the time of the virus”<https://electionlawblog.org/?p=110091>
Posted on March 18, 2020 4:01 pm<https://electionlawblog.org/?p=110091> by Rick Hasen<https://electionlawblog.org/?author=3>

New Franita and Foley podcast<https://soundcloud.com/freeandfair/voting-in-the-time-of-the-virus>, with guest Michael Morley.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The November Presidential Election Needs Emergency Federal Funding”<https://electionlawblog.org/?p=110089>
Posted on March 18, 2020 4:00 pm<https://electionlawblog.org/?p=110089> by Rick Hasen<https://electionlawblog.org/?author=3>

New BPC blog post.<https://bipartisanpolicy.org/blog/the-november-presidential-election-needs-emergency-federal-funding/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Democrats sue to extend Wisconsin’s deadlines for online voter registration and counting absentee ballots”<https://electionlawblog.org/?p=110087>
Posted on March 18, 2020 1:13 pm<https://electionlawblog.org/?p=110087> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel reports<https://www.jsonline.com/story/news/politics/2020/03/18/wisconsin-absentee-voting-ballot-online-registration-deadlines-voter-id-coronavirus-lawsuit/2862992001/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Biden and Sanders should work together now to protect the election”<https://electionlawblog.org/?p=110085>
Posted on March 18, 2020 1:08 pm<https://electionlawblog.org/?p=110085> by Rick Hasen<https://electionlawblog.org/?author=3>

EJ Dionne:<https://www.washingtonpost.com/opinions/2020/03/18/protecting-election-can-unite-biden-sanders/>

If Sanders and Biden want an immediate joint project, they can unite in pointing to the dangers to the election process itself, brought home by Gov. Mike DeWine’s decision <https://www.businessinsider.com/ohio-postpones-march-17-primary-until-june-cancels-in-person-voting-2020-3> to cancel in-person voting in Ohio primary on Tuesday. DeWine argued that opening the polls would undermine efforts to contain the coronavirus.AD

Sen. Sherrod Brown (D-Ohio) said on MSNBC that he believed DeWine, a Republican, acted “in totally good faith,” but expressed worry about “any precedent” the cancellation might set. Larry Sabato<http://centerforpolitics.org/staff/larry-j-sabato/>, a political scientist at the University of Virginia, made the second point more sharply, telling me that “this is the Trump era, when old rules don’t always apply and outrageous things occur with regularity.”

Guaranteeing that the virus will not be used in the fall as a pretext to disrupt the election should be a key component of any broad stimulus bill. Sens. Amy Klobuchar (D-Minn.) and Ron Wyden (D-Ore.)<https://www.washingtonpost.com/opinions/2020/03/16/heres-how-guarantee-coronavirus-wont-disrupt-our-elections/?tid=lk_inline_manual_23&itid=lk_inline_manual_23>, along with election specialist Rick Hasen<https://www.law.uci.edu/faculty/full-time/hasen/> of the University of California at Irvine, have proposed <https://slate.com/news-and-politics/2020/03/2020-election-coronavirus-bill-vote-by-mail.html> that all states offer unrestricted absentee voting and mail-in ballots, with the effort funded by the federal government.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“We are not ready for an election during a pandemic”<https://electionlawblog.org/?p=110083>
Posted on March 18, 2020 1:01 pm<https://electionlawblog.org/?p=110083> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent in WaPo:<https://www.washingtonpost.com/opinions/2020/03/18/we-are-not-ready-an-election-during-pandemic/>

It is now becoming distressingly clear that we may be facing severe societal disruptions that could stretch over many months. A big unknown is just how prepared we are to weather these disruptions and what will emerge on the other side.

One extremely consequential area in which this remains a big question mark is with the upcoming election — and a batch of new proposals, including a new report from the Center for American Progress<https://www.americanprogress.org/issues/democracy/news/2020/03/18/481794/election-contingency-planning-coronavirus-pandemic/>, are now being released, in hopes of jump-starting a serious national conversation about it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Voting by Mail in the Age of Coronavirus: A Good Idea, but Not a Total Solution”<https://electionlawblog.org/?p=110081>
Posted on March 18, 2020 12:25 pm<https://electionlawblog.org/?p=110081> by Rick Hasen<https://electionlawblog.org/?author=3>

Matt Weil of BPC:<https://bipartisanpolicy.org/blog/voting-by-mail-in-the-age-of-coronavirus-a-good-idea-but-not-a-total-solution/>

First, local administrators will need major technology upgrades and staff trainings. Some states do very little voting by mail and would have a difficult task of ramping up without these quick investments. In 2018, 31 states saw fewer than 15% of their voters cast ballots by mail. In those states alone, shifting from 15% voting by mail to 100% voting by mail could mean 70 million more ballots in the mail system this November.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“A reference guide for election officials and others looking for information on election administration during the COVID-19 pandemic.”<https://electionlawblog.org/?p=110079>
Posted on March 18, 2020 12:06 pm<https://electionlawblog.org/?p=110079> by Rick Hasen<https://electionlawblog.org/?author=3>

Over at the MIT Election Lab.<https://electionlab.mit.edu/elections-and-covid-19>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Sherrod Brown worries Trump could use Ohio primary as precedent to delay general election”<https://electionlawblog.org/?p=110077>
Posted on March 18, 2020 12:01 pm<https://electionlawblog.org/?p=110077> by Rick Hasen<https://electionlawblog.org/?author=3>

The Columbus Dispatch reports.<https://www.dispatch.com/news/20200318/sherrod-brown-worries-trump-could-use-ohio-primary-as-precedent-to-delay-general-election>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Why vote-by-mail may not save our elections from the virus’ disruption”<https://electionlawblog.org/?p=110075>
Posted on March 18, 2020 11:03 am<https://electionlawblog.org/?p=110075> by Rick Hasen<https://electionlawblog.org/?author=3>

Kim Zetter<https://www.politico.com/news/2020/03/17/vote-by-mail-elections-coronavirus-134618> for Politico.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Foley: Ohio Right Now in Some Historical Perspective: A Follow-Up to Previous Analysis<https://electionlawblog.org/?p=110073>
Posted on March 18, 2020 9:50 am<https://electionlawblog.org/?p=110073> 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/>:

Building upon what I wrote yesterday<https://electionlawblog.org/?p=110049>, I think it’s useful to put Ohio Secretary of State LaRose’s Monday night directive<https://www.ohiosos.gov/globalassets/elections/directives/2020/dir2020-06am.pdf> (now challenged in the Ohio Supreme Court<https://supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2020/0388>) in some historical context.

I recall all the flurry of directives that previous Ohio Secretaries of States have issued in the midst of the voting and vote-counting process in previous years—especially 2008, 2010, and 2012—responding to new developments and changed circumstances.  These are all conveniently archived on the SoS website<https://www.ohiosos.gov/elections/elections-officials/rules/archive/>.

These in-the-moment directives have involved Secretaries from different parties (for example, Jennifer Brunner, a Democrat; Jon Husted, a Republican).  None of course have involved a pathogen/pandemic like COVID-19.  But there have been a variety of reasons for changed circumstances, involving voter registration, provisional ballots, absentee ballots.  For example, I recall a computer technology glitch in Franklin County triggering a big problem with how the voter registration database interacted with provisional ballots and needed new guidance from the Secretary of State.

Also, a number of new directives from the Secretary of State, either Brunner or Husted, were in response to court orders, state or federal, and the need for the Secretary of State – complying with Fourteenth Amendment equal protection (and due process) principles – to update administrative procedures in light of these court orders.   While not exactly the same as Dr. Acton’s health order, there is an important similarity here. Another authoritative legal actor has issued an order within that actor’s zone of authority that has caused an election administration consequence that the Secretary of State is responsible for handling as chief elections officer.  Obviously, the Secretary of State in figuring out how to handle it, and what directive to issue in the immediate context, must consult Ohio’s statutory law, to the extent that covers the situation (and consider it in relationship to constitutional requirements, as well as federal Voting Rights Act requirements, which obviously have supremacy over Ohio state statutes).  But if the state statutory law is inadequate, particularly in light of the new condition created by the state or federal court order, the Secretary of State must move forward given the overall legal landscape, which includes the new order as well as the statutes. The Secretary of State does not need to wait for a new statute from the General Assembly, if a state or federal court order has changed the reality on the ground in an election currently underway that needs to be administered.  The situation in light of Dr. Acton’s health order was similar, in terms of the immediate obligation it thrust upon the Secretary of State

(If one wants to consult the specific statutory authority that empowers Ohio’s Secretary of State to issue the kind of directives that Secretaries, including Brunner and Husted, have issued in previous middle-of-election circumstances, section 3501.05<http://codes.ohio.gov/orc/3501.05v1> of Ohio Revised Codes is a good place to start, and it refers to 3501.053<http://codes.ohio.gov/orc/3501.053>, which provides “The secretary of state may issue instructions as to the proper method of conducting elections to members of the boards of elections by permanent or temporary directives.” It is the inclusion of “temporary” as well as “permanent” directives that gives the Secretary of State the power to react as necessary to new circumstances, whether they be computer failures or an unexpected pandemic virus.)

That, at any rate, is how I see it (at least at the moment and absent further info or input), and in my judgment in conforms to how Secretaries Brunner and Husted acted in the most comparable circumstances each of them faced “in the heat of the moment”, which to be sure was never as hot as this.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“We are not ready to hold an election during a pandemic. Just look at Ohio.”<https://electionlawblog.org/?p=110071>
Posted on March 18, 2020 9:28 am<https://electionlawblog.org/?p=110071> by Rick Hasen<https://electionlawblog.org/?author=3>

Ian Millhiser<https://www.vox.com/2020/3/18/21183492/election-coronavirus-ohio-pandemic-supreme-court-speweik> for Vox.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Must-read David Leonhardt: “No Stimulus Without Election Protection Now is the time to make sure America can vote in November.”<https://electionlawblog.org/?p=110069>
Posted on March 18, 2020 8:31 am<https://electionlawblog.org/?p=110069> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT column<https://www.nytimes.com/2020/03/18/opinion/coronavirus-primary-voting-2020.html>:

Congress will almost certainly pass a very large stimulus bill soon — as it should, because the economy is in crisis. But there is another looming crisis, in addition to the recession and the public health crisis, and it’s one that Congress should be taking as seriously as the economy.

Our usual methods for conducting elections may not work in November.

Yesterday’s postponed primary in Ohio, which is the subject of a legal fight, highlights the problems. Come November, people may still not be able to gather safely at polling places, and election workers — many of them elderly — may not be able to interact safely with hundreds of people. That’s terribly worrisome. As Seth Masket<https://twitter.com/smotus/status/1239905927475560453> of the University of Denver has pointed out, elections are an essential institution in a democracy, much as grocery stores are.

Fortunately, House Democrats have the political leverage to fix the problem, even if President Trump and congressional Republicans don’t feel the same urgency. (Republicans, alas, have spent more time restricting<https://www.nytimes.com/2016/11/08/opinion/the-real-voter-fraud.html> voting rights in recent years than protecting them.)

Here’s what Democrats can do: Refuse to pass any big stimulus bill unless it includes provisions to ensure that the country can hold a presidential election this fall. That may sound like bare-knuckle politics, but preserving democracy calls for toughness.

Richard Hasen, an election law expert at the University of California, Irvine, put it well in a message to me on Tuesday:

Election bills are notoriously hard to get through Congress. And we don’t know when Congress will be able to meet again. The only way a congressionally mandated expansion of [voting access] for November’s elections is going to pass is if it is folded into one of the existing coronavirus bills needed to keep this country going during the crisis.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Must Read from David Becker: “Mail-in ballots to avoid coronavirus? Yes, but here’s how to minimize chaos and unfairness.”<https://electionlawblog.org/?p=110067>
Posted on March 18, 2020 8:00 am<https://electionlawblog.org/?p=110067> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo oped<https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoid-coronavirus-yes-heres-how-minimize-chaos-unfairness/>:

Do these challenges mean the idea of expanding the use of mail-in ballots for November should be abandoned? Absolutely not. There’s a lot that can be done to encourage the reform in a way that promotes democratic participation without risking disenfranchisement.

First, eliminate the requirement in more than a dozen states that voters must first produce an excuse for needing a mail-in ballot. Make it easy to request a ballot in the mail. A single statewide website for ballot requests is the most convenient.

Second, election officials should engage in an unprecedented effort to promote the use of mail ballots for any voters who feel more comfortable voting that way.

Third, states should begin immediately identifying polling places that will be large enough to accommodate voters in November without requiring them to stand in close proximity for long periods of time. And states need to recruit more poll workers who are a lower risk for infection.

Finally, the federal government and the states must provide additional funding to support these contingencies. Several hundred million dollars might be needed to ensure a smooth process in an election with staggeringly more mail ballots than the nation has ever seen.
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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
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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