[EL] Klobuchar/Wyden bill

Thu Mar 19 08:43:22 PDT 2020

Like it or not, absentee balloting – vote-by-mail (VBM) – is here and it is growing. The challenge is to sooth the fears of fraud while not over-reacting to the scattered incidents, virtually all of which have emanated from one political party’s operatives. Is so-called ballot harvesting not just a modern version of the old “ride-to-the-polls” get-out-the-vote programs. In both cases, campaigns or political parties, offer assistance to voters who they expect will be favorable to their cause. Instead of focusing the debate on whether or not to permit ballot harvesting, how about focusing on ways to assure the integrity of VBM. Some sort of method of verifying the identity of the voter and then verifying that the ballot has been delivered to the elections office. As for Rick’s valid concern about public confidence in the VBM system, perhaps if the one party whose operatives have committed the fraud would stop doing that … In the meantime, why ban a process that helps many because of the evils of a few?

Larry

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Elias, Marc (Perkins Coie)
Sent: Wednesday, 18 March 2020 4:08 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:  <mailto:arothenberg at perkinscoie.com> arothenberg at perkinscoie.com or (908) 377-7531.

From: Law-election <law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu> > on behalf of Richard Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >
Date: Wednesday, March 18, 2020 at 6:56 PM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu <mailto:Martin.Lederman at law.georgetown.edu> >, Election Law Listserv <law-election at uci.edu <mailto: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 <mailto:Martin.Lederman at law.georgetown.edu> >
Date: Wednesday, March 18, 2020 at 3:50 PM
To: Rick Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >, Election Law Listserv <law-election at uci.edu <mailto: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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