[EL] Klobuchar/Wyden bill

Thu Mar 19 11:18:50 PDT 2020

States have followed two practices.

I don’t want to misstate the specifics of the law, but my belief is that Oregon requires that ballots arrive at the election office or in a designated drop box by 8 pm. The election administration / election sciences field generally refers to these as “on election day” vote at home states.

Others—notably Washington—require that envelopes be postmarked on election day but can arrive during some designated period afterwards. The field generally refers to these as “postmark vote at home” states.

Regardless of the system put in place, any election official in a jurisdiction or state with substantial number of vote at home ballots will tell you that a vital part of the system is to establish a good working relationship with the US Postal Service. What I have heard from numerous election officials is that USPS, the Postal Carriers Union, and individual postal carriers welcome this relationship and take pride in assuring that ballots are delivered safely and securely.

Some of the anecdotes shared on this list are worrisome and should be paid close attention to, but at the same time, we don’t want to compare how commercial / junk mail is treated vs. a large format, clearly marked document, with special markings and tracking information. This is NOT normal mail, and in states with mature systems, citizens can track their ballot from the time it is sent to the time is is scanned and finally accepted. I get text message updates at every point in the process.

Before rejecting a move to allowing no-excuse absentee balloting nationwide, I’d urge everyone to look to some of the best practice recommendations from groups like the National Vote at Home Institute (full disclosure: I am on their advisory circle) or review practices in states like Arizona (thanks Joe!), Oregon, Washington, Colorado, California, and other states.

I would also caution against generalizing from problems in one state or in one county or in one congressional race and assuming this is a problem with vote at home generally, and not a flaw in local or state procedures or the legal regime.

---
Paul Gronke
Professor, Reed College
Director, Early Voting Information Center
http://earlyvoting.net

General Inquiries: Laura Swann swannla at reed.edu

Media Inquiries: Kevin Myers myersk at reed.edu

> On Mar 19, 2020, at 9:07 AM, Marty Lederman <Martin.Lederman at law.georgetown.edu> wrote:
> 
> My understanding is that Oregon likewise has long required receipt of ballots by 8 pm on election day.  Is that wrong, Marc?
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> 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://www.democracydocket.com/arizona/>.  The case is Voto Latino v Hobbs.
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> Marc Elias
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> Perkins Coie LLP
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> 700 13th St, NW
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> Washington, DC 20005
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> (202) 434-1609
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> For scheduling, or if it is urgent, contact Allie Rothenberg: arothenberg at perkinscoie.com <mailto:arothenberg at perkinscoie.com> or (908) 377-7531.
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> 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:
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> 1.  It is "no excuse" early voting--any qualified elector can participate, and they do not need to have a reason.
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> 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.
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> 3.  We also allow voters who are not on the PEVL to request an early ballot for particular elections.
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> 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.
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> 5.  We train our staff in our 15 counties' elections departments on how to verify signatures.
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> 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.
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> 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.
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> 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).
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> 9.  Early ballots must be received by 7:00 p.m. on election day (i.e., when the polls close) to be counted.
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> 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.
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> 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!
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> Joseph
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> ___________________
> Joseph E. La Rue
> 
> cell: 480.737.1321
> email: joseph.e.larue at gmail.com <mailto:joseph.e.larue at gmail.com>
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> 
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> On Thu, Mar 19, 2020 at 8:46 AM Rick Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>> wrote:
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> 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.
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> 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
> 
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> 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?
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> Larry
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> 
> 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
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> 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.
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> 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.
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> 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.
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> 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.
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> 
> 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.
> 
> 
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> 
> 
> 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.
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> 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.
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> 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
> 
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> 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
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> 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:
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> 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.
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> Does the summary description sound promising?  Sufficient?
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> If anyone finds the language, please send along, thanks.
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> FWIW, I'm inclined to think that Congress should simply require states to adopt the Oregon method before November, to wit:
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> 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.
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> 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.
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> --
> 
> Marty Lederman
> 
> Georgetown University Law Center
> 
> 600 New Jersey Avenue, NW
> 
> Washington, DC 20001
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> 202-662-9937
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> --
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> Marty Lederman
> 
> Georgetown University Law Center
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> 600 New Jersey Avenue, NW
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> Washington, DC 20001
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> 202-662-9937
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