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

[Rick Hasen]

“Senator Dumped Up to $1.7 Million of Stock After Reassuring Public About Coronavirus Preparedness”<https://electionlawblog.org/?p=110127>
Posted on March 19, 2020 8:24 pm<https://electionlawblog.org/?p=110127> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica<https://www.propublica.org/article/senator-dumped-up-to-1-6-million-of-stock-after-reassuring-public-about-coronavirus-preparedness>:

Soon after he offered public assurances that the government was ready to battle the coronavirus, the powerful chairman of the Senate Intelligence Committee, Richard Burr<https://projects.propublica.org/represent/members/B001135-richard-m-burr>, sold off a significant percentage of his stocks, unloading between $628,000 and $1.72 million of his holdings on Feb. 13 in 33 separate transactions<https://efdsearch.senate.gov/search/view/paper/156b69ba-6f48-4a32-b796-707093c476c6/>.

As the head of the intelligence committee, Burr, a North Carolina Republican, has access to the government’s most highly classified information about threats to America’s security. His committee was receiving daily coronavirus briefings around this time, according to a Reuters story<https://www.reuters.com/article/us-china-health-usa-intelligence/u-s-spy-agencies-monitor-coronavirus-spread-concerns-about-india-sources-idUSKCN20L37R>.

A week after Burr’s sales, the stock market began a sharp decline and has lost about 30% since.

Daily Beast:<https://www.thedailybeast.com/sen-kelly-loeffler-dumped-millions-in-stock-after-coronavirus-briefing?ref=home>

The Senate’s newest member sold off seven figures worth of stock holdings in the days and weeks after a private, all-senators meeting on the novel coronavirus that subsequently hammered U.S. equities.

Sen. Kelly Loeffler (R-GA) reported the first sale of stock jointly owned by her and her husband on Jan. 24, the very day that her committee, the Senate Health Committee, hosted a private, all-senators briefing<https://www.help.senate.gov/chair/newsroom/press/senate-health-committee-announces-briefing-to-update-senators-on-coronavirus> from administration officials, including the CDC director and Anthony Fauci, the head of the National Institutes of Health of the United States, on the coronavirus.

“Appreciate today’s briefing from the President’s top health officials on the novel coronavirus outbreak,” she tweeted<https://twitter.com/SenatorLoeffler/status/1220910430115241984> about the briefing at the time.

That first transaction was a sale of stock in the company Resideo Technologies worth between $50,001 and $100,000. The company’s stock price has fallen by more than half since then, and the Dow Jones Industrial Average overall has shed approximately 10,000 points, dropping about a third of its value.

It was the first of 29 stock transactions that Loeffler and her husband made through mid-February, all but two of which were sales. One of Loeffler’s two purchases was stock worth between $100,000 and $250,000 in Citrix, a technology company that offers teleworking software and which has seen a small bump in its stock price since Loeffler bought in as a result of coronavirus-induced market turmoil.
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>


“Voting by Mail Is the Hot New Idea. Is There Time to Make It Work?”<https://electionlawblog.org/?p=110125>
Posted on March 19, 2020 8:18 pm<https://electionlawblog.org/?p=110125> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/03/19/us/politics/voting-by-mail-coronavirus.html>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


Foley: “Public Health, Closing Polls, and the Tenth Amendment”<https://electionlawblog.org/?p=110123>
Posted on March 19, 2020 3:24 pm<https://electionlawblog.org/?p=110123> 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/>:

After what happened with Ohio’s primary this week, some—including Ohio’s own Senator Sherrod Brown<https://www.dispatch.com/news/20200318/sherrod-brown-worries-trump-could-use-ohio-primary-as-precedent-to-delay-general-election>—have expressed fear that President Trump might attempt to use it as a precedent to close the polls on November 3, the date of the general election this year.

But there is an important constitutional reason why what the state government’s health director in Ohio, Dr. Amy Acton, did to protect public health is not a power that the federal government, including President Trump, can exercise.  The reason is the Tenth Amendment, in the federal Constitution, which the U.S. Supreme Court has interpreted in a series of cases (most recently one involving sports gambling in New Jersey<https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf>) to preclude the federal government from “commandeering” a state government’s own sovereign powers to regulate as the state government determines best for the citizens of that state.

While the U.S. Supreme Court has not had need to apply this “anti-commandeering” principle to a state government’s operation of polling places on Election Day, the principle would seem to apply straightforwardly based on the logic of the Court’s relevant precedents, especially the major opinion<https://www.law.cornell.edu/supct/html/95-1478.ZS.html> written by Justice Scalia involving the Brady Act, Printz v. United States, which purported to direct state and local enforcement officers how to conduct background checks for gun purchases.  Indeed, this is a point that I have discussed with the students in my Constitutional Law course over the years.

Operating the polls on Election Day is a core administrative function of state and local governments, essentially similar to police background checks.  “The Federal Government,” Justice Scalia explained for the Court, may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”  He elaborated: “such commands are fundamentally incompatible with our constitutional system of dual sovereignty”—just as much as it would be for federal officials to be “impressed into service for the execution of state laws.” Thus, even if the federal government reached a policy judgment that the polls should not open on November 3 as scheduled for health-related reasons, the federal government could not constitutionally enforce that policy judgment by ordering state and election officials what to do, namely to shut down the polling operations that these state and local officials were preparing to undertake.
Continue reading →<https://electionlawblog.org/?p=110123#more-110123>
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Estimated Costs of Covid-19 Election Resiliency Measures”<https://electionlawblog.org/?p=110121>
Posted on March 19, 2020 3:20 pm<https://electionlawblog.org/?p=110121> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center analysis<https://www.brennancenter.org/our-work/research-reports/estimated-costs-covid-19-election-resiliency-measures>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Must-read from Nate Persily and Charles Stewart: “Ten Recommendations to Ensure a Healthy and Trustworthy 2020 Election”<https://electionlawblog.org/?p=110119>
Posted on March 19, 2020 2:14 pm<https://electionlawblog.org/?p=110119> by Rick Hasen<https://electionlawblog.org/?author=3>

Over<https://www.lawfareblog.com/ten-recommendations-ensure-healthy-and-trustworthy-2020-election> at Lawfare:

This past week has provided ample evidence that states are in need of reliable plans to carry out elections without interruption in the face of the unfolding medical crisis. Ohio Governor Mike DeWine caused alarm when he decided<https://www.cleveland.com/open/2020/03/ohio-polls-remain-closed-following-overnight-ruling-from-ohio-supreme-court.html> to postpone the presidential primary the day before it was scheduled to occur. DeWine’s action may have been justified on public health grounds, but it illustrated the confusion that can arise when states are caught between opening polling places and endangering the health of citizens. Meanwhile, the governor of Arizona and the director of elections for Maricopa County fought<https://azcapitoltimes.com/news/2020/03/13/court-stops-county-recorder-from-sending-ballots-to-all-voters-for-tuesday-election/> over whether the county could send out mail-in ballots even to voters who have not requested them. Their battle illustrates that without a definitive statewide plan, state and local election officials can be locked in litigation when they should be cooperating to face serious challenges to the continuity of elections.

Despite the challenge presented by COVID-19, the 2020 elections must go forward. The elections to be held on Nov. 3 are not optional. They cannot be postponed, even if dangers to public health remain as great as they are likely to get over the next few weeks. The nation must act now to ensure that there will be no doubt, regardless of the spread of infection, that the elections will be conducted on schedule and that they will be free and fair.

Doing so requires an effort in election resilience that is unprecedented in American history. However, there are some clear paths toward achieving the desired result. We offer 10 steps in that direction.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Coronavirus threatens the November election, can vote by mail save it?”<https://electionlawblog.org/?p=110117>
Posted on March 19, 2020 12:20 pm<https://electionlawblog.org/?p=110117> by Rick Hasen<https://electionlawblog.org/?author=3>

Evan Halper<https://www.latimes.com/politics/story/2020-03-19/calls-mount-making-november-mail-in-ballot> for the LAT.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Kentucky Poised to Enact New Voter ID Law (While People Can’t go to DMV) But Not Deal with Coronavirus Election Dislocations and Josh Douglas is Angry<https://electionlawblog.org/?p=110115>
Posted on March 19, 2020 12:19 pm<https://electionlawblog.org/?p=110115> by Rick Hasen<https://electionlawblog.org/?author=3>

Read his oped<https://www.kentucky.com/opinion/op-ed/article241335376.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voter id<https://electionlawblog.org/?cat=9>


“Postponing An Election: Prudent or Bad Precedent?”<https://electionlawblog.org/?p=110113>
Posted on March 19, 2020 12:16 pm<https://electionlawblog.org/?p=110113> by Rick Hasen<https://electionlawblog.org/?author=3>

Smart thoughts<https://bipartisanpolicy.org/blog/postponing-an-election-prudent-or-bad-precedent/> from Michael Thorning of BPC about postponing primaries and other elections during an emergency:

If a state chooses, in accordance with state and federal law, to postpone an election there are two key considerations for maintaining the contest’s legitimacy: 1) it should not be done at the eleventh-hour and 2) there needs to be a defined plan for how the election will proceed later.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


I Spoke to Ken Rudin for His “Political Junkie” Podcast about “The Virus and the Vote”<https://electionlawblog.org/?p=110111>
Posted on March 19, 2020 8:36 am<https://electionlawblog.org/?p=110111> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen here.<https://www.krpoliticaljunkie.com/episode-320/>
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Posted in election administration<https://electionlawblog.org/?cat=18>


I Did a Q and A with ProPublica’s ElectionLand: “Elections May Have to Change During the Coronavirus Outbreak. Here’s How.”<https://electionlawblog.org/?p=110109>
Posted on March 19, 2020 7:23 am<https://electionlawblog.org/?p=110109> by Rick Hasen<https://electionlawblog.org/?author=3>

Subhed: <https://www.propublica.org/article/elections-may-have-to-change-during-the-coronavirus-outbreak-heres-how> “States may shift primary dates, but only Congress can change the federal elections. We spoke to an elections expert to learn what you need to know about how coronavirus could affect the way voters cast their ballots in November.”
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Who actually has the power to postpone the Pennsylvania primary over coronavirus? And will they agree?”<https://electionlawblog.org/?p=110107>
Posted on March 19, 2020 7:11 am<https://electionlawblog.org/?p=110107> by Rick Hasen<https://electionlawblog.org/?author=3>

Philadelphia Inquirer<https://www.inquirer.com/health/coronavirus/pa-primary-postpone-coronavirus-governor-legislature-20200318.html>:

Everyday life is suspended. Democracy is not.

And now it’s on officials to figure out how to keep it going as pandemic strikes during a presidential election year.

County elections officials in Pennsylvania are urging the state to postpone the April 28 primary election<https://www.inquirer.com/health/coronavirus/postpone-pa-primary-election-coronavirus-20200317.html> because of the coronavirus<https://www.inquirer.com/health/coronavirus/>, and Gov. Tom Wolf has said it’s under consideration<https://www.inquirer.com/health/coronavirus/pa-primary-election-delay-coronavirus-20200316.html>. But the national Democratic Party has asked states not to move their elections, and lawmakers in Harrisburg, especially Republican ones, appear so far unwilling to take such drastic action.
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Posted in election administration<https://electionlawblog.org/?cat=18>


National Vote at Home Issues Its Report on Scaling Up Absentee Balloting for November in Light of COVID-19<https://electionlawblog.org/?p=110105>
Posted on March 19, 2020 7:09 am<https://electionlawblog.org/?p=110105> by Rick Hasen<https://electionlawblog.org/?author=3>

You can read the report here<https://www.voteathome.org/wp-content/uploads/2020/03/VAHScale_StrategyPlan.pdf>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Election Meltdown: How to Ensure Voting Integrity in 2020”<https://electionlawblog.org/?p=110103>
Posted on March 19, 2020 7:06 am<https://electionlawblog.org/?p=110103> by Rick Hasen<https://electionlawblog.org/?author=3>

I did a Q and A <https://www.governing.com/now/Election-Meltdown-How-to-Ensure-Voting-Integrity-in-2020.html> with Carl Smith of Governing magazine, about issues raised in my book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Steven Rosenfeld Looks Under the Hood at Detroit’s Absentee Ballot Processing, and It is Not Pretty<https://electionlawblog.org/?p=110101>
Posted on March 19, 2020 7:04 am<https://electionlawblog.org/?p=110101> by Rick Hasen<https://electionlawblog.org/?author=3>

For those like me who want and expect expanded absentee balloting in November, a reminder<https://www.alternet.org/2020/03/why-nationwide-voting-by-mail-isnt-a-silver-bullet-in-a-pandemic/> that there’s a lot of work to do.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, 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
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>


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