[EL] Klobuchar/Wyden bill

Fri Mar 20 08:29:37 PDT 2020

I have a few points to make and then I’m fine to leave it:

The examples I gave show that Democrats, those involved in nonpartisan races, and Republicans (happy to send links to some of those stories if anyone wants) each have each been involved in scandals related to the tampering with absentee ballots. Unlike claims of voter impersonation, which are about as rare as they come (and provide the flimsy excuse for state voter id laws), election crimes involving absentee ballots are real. They are relatively rare, but they happen. And they happen across the political spectrum.

But absentee balloting is also a tremendous convenience to voters, and so we accept the increased risks of fraud in order to give voters convenience. That means there’s a special obligation to take steps to militate against that fraud. Aggressive prosecution of those who engage in these activities is one deterrent; limiting those who can handle absentee ballots is another.  That too involves a tradeoff, especially in places not well served by the U.S. mail. So I favor exemptions to limits on the number of absentee ballots that a stranger may collect in such areas. I also believe it is unconstitutional for the state to limit the ability to collect absentee ballots for intentionally racially discriminatory reasons; but not every effort to limit the collection (or “harvesting”) of absentee ballots by strangers is done for this unconstitutional reason. There is a perfectly constitutional reason to limit it: to prevent tampering with absentee ballots, which is much more likely to occur with organized efforts by strangers to collect ballots.

The coronavirus situation means we need to vastly expand absentee balloting in November to minimize the risk that people will be disenfranchised. It is no panacea and will not help every voter. But we also need to run an election that people will accept as fair and run with integrity. Reasonable limits on who and how people can handle absentee ballots is an important part of that effort. To claim that the risk of absentee ballot tampering occurs only on onside of the political aisle ignores the reality of ballot tampering in the past.

Rick

From: "larrylevine at earthlink.net" <larrylevine at earthlink.net>
Organization: Levine and Associates
Reply-To: "larrylevine at earthlink.net" <larrylevine at earthlink.net>
Date: Thursday, March 19, 2020 at 8:36 PM
To: Rick Hasen <rhasen at law.uci.edu>, "'Elias, Marc (Perkins Coie)'" <MElias at perkinscoie.com>, 'Marty Lederman' <Martin.Lederman at law.georgetown.edu>, Election Law Listserv <law-election at uci.edu>
Subject: RE: [EL] Klobuchar/Wyden bill

Five of these articles have nothing to do with ballot harvesting. The one from the Post Dispatch won’t open.
I think this is a subject on which we will not agree. So, why don’t we leave it at that.
Larry

From: Rick Hasen <rhasen at law.uci.edu>
Sent: Thursday, 19 March 2020 7:59 PM
To: larrylevine at earthlink.net; 'Elias, Marc (Perkins Coie)' <MElias at perkinscoie.com>; 'Marty Lederman' <Martin.Lederman at law.georgetown.edu>; 'Election Law Listserv' <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill

That’s ridiculous Larry. Here are some recent stories that were linked on ELB involving non-Republicans (Democrats or non-partisan races) accused of or involved in absentee ballot fraud. When these issues come up, they regularly involve candidates from across the political spectrum.

https://www.nj.com/hudson/2019/06/developers-conviction-for-voter-fraud-raises-questions-of-vote-by-mail-ballots-in-hoboken.html

https://www.dallasnews.com/news/2018/03/27/dallas-county-da-candidate-says-voter-fraud-cost-her-democratic-primary-sues-winner-and-election-officials/

https://www.inquirer.com/philly/news/new_jersey/shore/atlantic-city-election-ballots-gilliam-guardian-20171031.html

https://electionlawblog.org/?p=94007

https://www.stltoday.com/news/local/metro/st-louis-prosecutor-uncovers-important-evidence-in-voter-fraud-probe/article_3986c015-a31a-591d-a99d-f72362d6f92f.html

http://kingfish1935.blogspot.com/2018/12/more-canton-corruption.html

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 5:53 PM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, "'Elias, Marc (Perkins Coie)'" <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 think if empirical evidence existed one way or the other you would have it from the research you did to claim both parties are of equal blame. I’ve searched and I can find no empirical evidence either way. So I’m left with impressions formed from closely following news reports and postings on the law list. Let me put the question this way: how many instances of vote-by-mail fraud can you name citing each party before you run to the end of the list of one party while the other list keeps growing. Are you saying there are not more instances involving one party than the other?
While I enjoy your work and your writing, I’m afraid this is one on which we will continue to differ, unless you can present empirical evidence.
Larry

From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Sent: Thursday, 19 March 2020 9:09 AM
To: larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>; 'Elias, Marc (Perkins Coie)' <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 do not believe there is empirical support for your statement. If there is, please point me to it. Indeed it reminds me of statements like those on the right I’ve characterized as members of the “fraudulent fraud squad” who claim that most voter fraud is committed by Democrats.

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 9:07 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, "'Elias, Marc (Perkins Coie)'" <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

Isn’t that a bit like saying, “Both parties are the same?” I don’t think I said it was exclusive to operatives of one party, just that most of it has come from that direction. If it happened 10 times from one party and once from another it could accurately be said it involves both parties. Accurate but deceptively so.
Larry

From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Sent: Thursday, 19 March 2020 8:46 AM
To: larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>; 'Elias, Marc (Perkins Coie)' <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

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

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