[EL] Reducing the Risk of an Election Meltdown

Fri Mar 20 14:25:56 PDT 2020

In his essay, Rick writes about what might happen if “President Trump seemingly pulling ahead on election night and in the important next-day coverage but then falling behind over the next week or more as those decisive states shift to the Democratic column when the full canvass of votes becomes complete.”

Many of you may be familiar with this (now-published) piece already, : Preparing for a Disputed Presidential Election<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3446021>, but perhaps it is worth mentioning again that it explores in detail exactly the kind of dispute that Rick’s essay envisions, including the possibility that the dispute could go all the way to Congress on January 6, 2021, invoking the problematic procedures of the Electoral Count Act, 3 U.S.C. 15 and if not resolved quickly in Congress then perhaps even all the way to noon on January 20.

Contemplating those scenarios should provide extra incentive to reduce the number of late-counted ballots along the lines that Rick describes.

Best, Ned

-[cid:image001.png at 01D33ED4.263B5D90]

Edward B. Foley
Director, Election Law @ Moritz
Ebersold Chair in Constitutional Law
Moritz College of Law  
614-292-4288
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Pildes <rick.pildes at nyu.edu>
Date: Friday, March 20, 2020 at 2:40 PM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu>, Rick Hasen <rhasen at law.uci.edu>, "law-election at uci.edu" <law-election at uci.edu>
Subject: [EL] Reducing the Risk of an Election Meltdown

I’ve now posted an essay on Lawfare about one particular risk that vote by mail poses to a stable election outcome and measures to reduce that risk:

https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown<https://urldefense.com/v3/__https:/www.lawfareblog.com/reducing-one-source-potential-election-meltdown__;!!KGKeukY!n4QF9Fh9yV-VLWQxE0Kfu5dO1Vi57uW5bqhs_42ydUOwNBvOzV3VCShI6f1jJ48dFQ$>

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Marty Lederman
Sent: Friday, March 20, 2020 1:32 PM
To: Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Klobuchar/Wyden bill; and Persily/Stewart post

Sorry, here's the link to the K-W 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=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=oV1yfHPtwj407qcVSG7f7jEj04YjjbAq6e186nUqEkg&e=> again.

On Fri, Mar 20, 2020 at 12:24 PM Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>> wrote:
I hope no one minds if I "re-hijack" this thread in order to:

-- encourage reactions to the remainder of the K/W bill<https://urldefense.proofpoint.com/v2/url?u=http-3A__v&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=DtgQxv_ViPGrtDWzX75VA5YuctC8s8thAmUXMcFU_VM&e=>, apart from the "harvesting" provision;

-- to draw attention to Nate (and Charles Stewart's) terrific blogpost<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.lawfareblog.com_ten-2Drecommendations-2Densure-2Dhealthy-2Dand-2Dtrustworthy-2D2020-2Delection&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=VrLcNiPpXyPmY8gjmAOpX31Nkdms125HAoz3MDZnlvo&e=>, mostly about what states must do now;

and

-- to ask Nate and Charles, if they're "watching," what they think Congress ought to do (apart from appropriating massive amounts of aid); in particular, whether they favor K/W and/or other efforts to require states to adopt more robust Voting-by-Mail.

On Wed, Mar 18, 2020 at 6:49 PM Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>> wrote:
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=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=oV1yfHPtwj407qcVSG7f7jEj04YjjbAq6e186nUqEkg&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=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=pwxTsi-5ouqOvJcM2imC9o3_U869xgLEuS1XuHjsFpM&s=-qo-Wg0E4bgQQSLyMQC5coGJGHowuF4eOEjS_48wSjA&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

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

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