[EL] A defense of Rick, and also a call for more civility

Thu Mar 19 08:36:19 PDT 2020

I also agree with Rick.  Furthermore, Marc makes an assumption about why
Arizona withdrew a previous law restricting ballot collection from
consideration.  The reality is that DOJ asked Arizona to essentially prove
a negative, which Arizona decided it could not do.  (Full disclosure: I was
part of Arizona's trial team that litigated DNC v. Hobbs in 2017, the case
where Arizona's previous withdrawal was heavily at issue).

But regardless, I want to say something about Rick.  I've litigated a case
with him as opposing counsel.  I often disagree with his viewpoint.  But I
would NEVER characterize him as buying into anyone's rhetoric.  Rick
carefully thinks through the issues and states his opinion, and generally
tries to do so without name-calling and flame-throwing.  As one of the few
remaining Republicans on the Listserve, I appreciate that.  And, even
though I often end up disagreeing with him, I consider what he says as a
result.  He has, on occasion, persuaded me that his view is correct.

Finally, I resent the tired rhetoric that the only possible reason anyone
could oppose ballot collection is because they are racist, or want to
prevent minority-race voters from voting.  Whether ballot collection should
be allowed, and if so, how it should be allowed, are policy questions about
which reasonable minds can disagree.  The fact that I may have concerns
about unlimited ballot collection does not make me a racist, any more than
the fact that another person might think unlimited ballot collection should
be allowed means he or she wants to allow ballot fraud to occur.  We would
all do better for our fellow citizens if we cut back on the partisan
rhetoric and addressed these important policy questions with more
civility.  We are election lawyers, and those who do not understand
election law look to us.  Pointing fingers at each other, and accusing one
another of things that simply aren't the case, is a bad look.

Joseph
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*Joseph E. La Rue*
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On Thu, Mar 19, 2020 at 8:17 AM Lonna Atkeson <atkeson at unm.edu> wrote:

> I have also been looking deeply at absentee balloting and have increasing
> concerns about election integrity in relation to them.  Although fraud is
> low, it exists and largely exists in absentee voting.
>
> After an unusual race in a local district and a hard look at the data I
> could not determine whether there was fraud or a great VBM mobilization
> campaign, but the anomalies are as great or greater than what we saw in the
> North Carolina 9th.
>
> Ballot chain of custody is lost in VBM and an increasing problem.
>
> I strongly agree with Rick’s discussion below.  Legitimacy, integrity, and
> security are critical factors to a successful election, access is also
> important and critical, but there needs to be a balance for voter
> confidence.  The number of people who are concerned about the integrity of
> our election system is increasing.  We need to have policies that are
> consistent with both access and integrity.
>
> Lonna
>
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> On Mar 18, 2020, at 5:14 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> *  UNM-IT Warning:* This message was sent from outside of the LoboMail
> system. Do not click on links or open attachments unless you are sure the
> content is safe. (2.3)
> 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 <http://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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