[EL] Klobuchar/Wyden bill

Thu Mar 19 09:15:27 PDT 2020

Ballots mailed by voters on or before election day should count.  No over should be disenfranchised due to delays caused by the post office that are beyond their control.  In AZ there is data that shows the disproportionate impact this has on minority voters.  I am aware, but cannot discuss at this point, of similar data in other states.

—
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: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Date: Thursday, March 19, 2020 at 12:08 PM
To: Marc Elias <MElias at perkinscoie.com>
Cc: "Joseph E. La Rue" <joseph.e.larue at gmail.com>, Richard Hasen <rhasen at law.uci.edu>, "larrylevine at earthlink.net" <larrylevine at earthlink.net>, Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

My understanding is that Oregon likewise has long required receipt of ballots by 8 pm on election day.  Is that wrong, Marc?

On Thu, Mar 19, 2020 at 12:01 PM Elias, Marc (Perkins Coie) <MElias at perkinscoie.com<mailto:MElias at perkinscoie.com>> wrote:
We are suing Arizona over its Election Day deadline provision which disenfranchises voters in general, and minority voters at higher rates than white voters.  For those interested in the lawsuit, information can be found here: https://www.democracydocket.com/arizona/<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.democracydocket.com_arizona_&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=SIDower-FrIXQviMnBlvdB58_TyZoRjECfK1AzmLOBk&s=fCA57045P_SLU4oCaCIZFiqzxGqU2FDrVpCUQRnNF68&e=>.  The case is Voto Latino v Hobbs.

—
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: "Joseph E. La Rue" <joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>>
Date: Thursday, March 19, 2020 at 11:58 AM
To: Richard Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>, Marc Elias <MElias at perkinscoie.com<mailto:MElias at perkinscoie.com>>, 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

  I would hold up Arizona's VBM program (we call it "early voting") as an example that should be followed.  We have been doing this in Arizona for a long time, and well over 75% of our voters participate.  Here are the quick highpoints of Arizona's program:

1.  It is "no excuse" early voting--any qualified elector can participate, and they do not need to have a reason.

2.  We have what we call the Permanent Early Voter List (the "PEVL" for short), which voters can sign up for.  Once on the PEVL, they are automatically mailed an early ballot for each election for which they are qualified to vote.

3.  We also allow voters who are not on the PEVL to request an early ballot for particular elections.

4.  We require those who vote early to sign the envelope, and then compare that signature with all signatures in their voter registration records, to verify that it is the qualified elector who cast the ballot.

5.  We train our staff in our 15 counties' elections departments on how to verify signatures.

6.  When signatures do not seem to match, we endeavor to contact the voter to allow them the opportunity to "cure" their signature by proving their identity.

7.  No postage is necessary to return the early ballot.  They can be dropped into any mailbox, or returned on election day at any polling location.

8.  Family members, household members, and care givers can return a voted early ballot for a voter (yes, we currently restrict ballot collection to only those three groups--that issue is still being litigated).

9.  Early ballots must be received by 7:00 p.m. on election day (i.e., when the polls close) to be counted.

Is our system perfect?  Probably not.  But, it's a pretty good one.  It balances the interests in making sure that voting is as easy as possible, on one hand, with the interests in fraud prevention and ballot security on the other.

Just don't ask us how to pronounce "PEVL."  Some say "Pee-vil," with a long "e", while others say "Peh-vil", with an "e" as in "elephant."   Fierce debates are waged over that in Arizona!

Joseph
___________________
Joseph E. La Rue
cell: 480.737.1321
email: joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>

CONFIDENTIALITY NOTICE:  This email may be protected by the attorney-client privilege or the attorney work-product doctrine.  If you are not the intended recipient, please delete all copies of the transmission and notify the sender immediately.

On Thu, Mar 19, 2020 at 8:46 AM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Larry---it is not true that only “one political party’s operatives” have engaged in absentee ballot tampering. There are cases involving Republicans, Democrats, and people involved in nonpartisan races.

From: "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Organization: Levine and Associates
Reply-To: "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Date: Thursday, March 19, 2020 at 8:44 AM
To: "'Elias, Marc (Perkins Coie)'" <MElias at perkinscoie.com<mailto:MElias at perkinscoie.com>>, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, '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

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<mailto: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<mailto:rhasen at law.uci.edu>>; 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

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<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

________________________________

NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election<https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=as8fCEz3qbm-SGM32cIpNaa8gxcoOrdiqZi2vUvcqqU&s=GV_1bdq2Xd2TtzmmTxshvhh-FJO2j2srtrTUvtw2Zpg&e=>

________________________________

NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.

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

________________________________

NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200319/bd293b6d/attachment-0001.html>