[EL] ELB News and Commentary 3/30/20

[Rick Hasen]

“What Happens in November if One Side Doesn’t Accept the Election Results? How coronavirus could contribute to a 2020 election meltdown.”<https://electionlawblog.org/?p=110308>
Posted on March 30, 2020 8:13 am<https://electionlawblog.org/?p=110308> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this new big piece for Slate<https://slate.com/news-and-politics/2020/03/2020-election-meltdown-coronavirus-delay.html>. Some snippets:

The November 2020 presidential election won’t be run perfectly—we have never had a perfect election conducted in this country or elsewhere—but the unique challenges posed by the coronavirus pandemic add special stress to what was already going to be a difficult election and underline the need to insure that it is run in a way that maximizes both voter access and integrity. Even before the current crisis I had been deeply concerned about the chances of a 2020 “election meltdown,” in which the 47 percent or more of the population on the losing side would not accept the results as legitimate. I am even more worried now because of the changes and shortcuts that will be necessary to successfully run November’s tally amidst a pandemic. Here is what we need to do to minimize the chances of a November meltdown….

The current public health crisis is only likely to increase the strains on voter confidence. In its massive economic aid package that was signed into law on Friday, Congress is providing only $400 million<https://www.washingtonpost.com/politics/senate-stimulus-package-includes-400-million-to-help-run-elections-amid-the-pandemic/2020/03/25/4d0db91e-6ebe-11ea-b148-e4ce3fbd85b5_story.html> for states to deal with expected increased costs associated with running the election during the outbreak, a woefully inadequate amount given Brennan Center $2 billion estimate<https://www.brennancenter.org/our-work/research-reports/estimated-costs-covid-19-election-resiliency-measures> for additional needs. Congress rejected Democrats’ attempts to require states to offer a no-excuse vote-by-mail option in November for the one-third of the states<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx> that still require voters to offer an excuse to vote from home.

The lack of federal funding may negatively affect voter confidence in a few ways. First, if the pandemic is still limiting our ability to move freely about society in the fall, the amount of absentee balloting is going to explode whether Congress mandates an expansion of absentee balloting or not. We have already seen the huge growth<https://www.jsonline.com/story/news/politics/2020/03/20/wisconsin-clerks-running-out-envelopes-absentee-voting/2883933001/> in absentee ballot requests for Wisconsin’s April 7 primary, along with legal challenges<https://twitter.com/patrickdmarley/status/1244336842809446401> surrounding the state’s Voter ID law . Vote-by-mail is an important step in assuring that even if the virus keeps people away from physical polling places, millions of Americans will have a means of avoiding disenfranchisement<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx>. But it is not perfect.

Vote-by-mail ballots are more likely to be rejected than other ballots, because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters<https://lawyerscommittee.org/federal-judge-grants-emergency-tro-to-halt-illegal-mail-ballot-rejections-in-gwinnett-county/>. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. Some disabled voters, meanwhile, may need to vote at physical polling places because they lack the physical ability to fill out a ballot at home. These voters too risk disenfranchisement. And in the 11 states without online voter registration<https://www.ncsl.org/research/elections-and-campaigns/electronic-or-online-voter-registration.aspx>, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours.

Further, some jurisdictions are going to be overwhelmed with the number of absentee ballots to process, whether because of the lack of scanners or workers. There will be stories of notoriously bad election administration in November, because we have some election offices in the country with poor leadership and inadequate resources—problems that will only be exacerbated by the stress of conducting an election under these conditions. Those stories will fit into a “stolen election” narrative, one likely egged on by Russians or others seeking to sow discord and undermine faith in our election. This will be on top of potential virus-related misinformation aimed at particular communities warning them against showing up to vote or telling them to vote at the wrong place or time.

Even worse, the need to process millions more absentee ballots without adequate funds and training means November’s election results could well be delayed. This is especially worrying in Detroit and Philadelphia, because both cities have a history of poor election administration and both of their states, Michigan and Pennsylvania, have recently adopted no excuse absentee balloting—and both states play a critical role in the outcome of the Electoral College that determines the presidency. Delay is going to lead to cries of fraud, when in fact good election administration—especially when dealing with absentee ballots—take time.

What if President Trump is ahead in Michigan<https://www.detroitnews.com/story/news/politics/2020/03/05/secretary-state-expect-michigan-primary-results-come-later/4963503002/> and Pennsylvania<https://www.motherjones.com/politics/2020/03/pennsylvania-election-night/> on election night and he declares victory, but after millions of absentee ballots are processed a week or so later Biden is declared the winner in those states and wins the election? Will Republicans believe Trump if he claimed the later count was the result of fraud, despite all evidence to the contrary?

Meanwhile, when election fraud—as rare as it is—does actually happen in the United States, about a quarter of the time<https://votingrights.news21.com/interactive/election-fraud-database/> it is because of absentee ballot tampering<https://slate.com/news-and-politics/2016/09/voter-fraud-exists-through-absentee-ballots-but-republicans-wont-stop-it.html>. In some states it is legal for people to collect an unlimited number of completed absentee ballots from other voters, and that raises the danger not only of fraud but of folks on the wrong side of an election believing that fraud is happening. The kind of fraud that led the North Carolina state elections board to require a do-over of the 2018 race for the state’s ninth congressional district involved the collection and tampering of such absentee ballots. Already we are seeing the usual suspects<https://www.heritage.org/election-integrity/commentary/avenues-voter-fraud-have-no-place-coronavirus-bill> on the right raise concerns that voter fraud will be rampant with increased vote by mail. Last week, for instance, Republican Rep. Thomas Massie (the same guy who objected to a voice vote on the federal coronavirus bill and made a majority of house members return to Washington. D.C. for a vote) tweeted<https://twitter.com/RepThomasMassie/status/1242573156776378371?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1242573156776378371&ref_url=http%3A%2F%2Felectionlawblog.org%2F> that “Universal vote by mail would be the end of our republic as we know it.”


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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>


Trump Says If Rates of Voting Increased as Dems Proposed in Coronavirus Bill “You’d Never Have A Republican Elected in This Country Again”<https://electionlawblog.org/?p=110306>
Posted on March 30, 2020 8:10 am<https://electionlawblog.org/?p=110306> by Rick Hasen<https://electionlawblog.org/?author=3>

Saying the quiet part<https://twitter.com/LisPower1/status/1244606910462136321> out loud:
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Lis Power at LisPower1<https://twitter.com/LisPower1>

<https://twitter.com/LisPower1/status/1244606910462136321>


Trump openly admitting if we made voting easier in America, Republicans wouldn't win elections

Trump: "The things they had in there were crazy. They had levels of voting, that if you ever agreed to it you'd never have a Republican elected in this country again."
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Supreme Court, Without Noted Dissent, Refuses to Hear Case Challenging Constitutionality of Seattle’s Campaign Finance Vouchers Program<https://electionlawblog.org/?p=110304>
Posted on March 30, 2020 8:06 am<https://electionlawblog.org/?p=110304> by Rick Hasen<https://electionlawblog.org/?author=3>

No surprise here<https://www.supremecourt.gov/orders/courtorders/033020zor_4gd5.pdf>. I’ve always found the constitutional arguments against it incredibly weak.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Some Remain Skeptical About Voting By Mail — Even During A Pandemic”<https://electionlawblog.org/?p=110302>
Posted on March 30, 2020 8:03 am<https://electionlawblog.org/?p=110302> by Rick Hasen<https://electionlawblog.org/?author=3>

Miles Parks for NPR.<https://www.npr.org/2020/03/29/823438913/some-remain-skeptical-about-voting-by-mail-even-during-a-pandemic>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Race for Virus Money Is On. Lobbyists Are Standing By. Companies see the outbreak as a chance to cash in, do some good, or both. Among the early winners: the Washington influence industry.”<https://electionlawblog.org/?p=110300>
Posted on March 29, 2020 7:34 pm<https://electionlawblog.org/?p=110300> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/03/28/us/politics/coronavirus-money-lobbyists.html>
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Posted in lobbying<https://electionlawblog.org/?cat=28>


“Rev. Joseph E. Lowery, Civil Rights Leader and King Aide, Dies at 98”<https://electionlawblog.org/?p=110298>
Posted on March 29, 2020 7:33 pm<https://electionlawblog.org/?p=110298> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/03/28/us/joseph-lowery-dead.html>

The Rev. Joseph E. Lowery, a lieutenant to the Rev. Dr. Martin Luther King Jr. who helped organize a pivotal moment in the civil rights movement — the bus boycott in Montgomery, Ala. — and who gave the benediction at President Barack Obama’s inauguration more than half a century later, died on Friday at his home in Atlanta. He was 98.

The Martin Luther King Jr. Center for Nonviolent Social Change announced his death on Twitter<https://twitter.com/TheKingCenter/status/1243741112273076224>.

Even before Rosa Parks refused to give up her seat on a Montgomery bus on Dec. 1, 1955, Mr. Lowery had successfully campaigned to integrate buses in Mobile, Ala., where he was a young Methodist minister. After Ms. Parks’s action, he huddled with Dr. King and other Alabama ministers to oversee a 381-day boycott of Montgomery’s segregated buses.

In November 1956, the Supreme Court ended racial segregation on buses in Montgomery and, by extension, everywhere else.

Mr. Lowery was at Dr. King’s side almost until the day of his assassination in April 1968. At Dr. King’s request, he presented the demands of voting-rights marchers from Selma, Ala., to Gov. George C. Wallace in 1965. Mr. Lowery also helped found the Southern Christian Leadership Conference<https://nationalsclc.org/>, Dr. King’s signature organization, and led it for 20 years, from 1977 to 1997.
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Posted in election law biz<https://electionlawblog.org/?cat=51>


“Facebook, Google and Twitter Struggle to Handle November’s Election; After spending billions to avoid a repeat of 2016, the tech giants are careening from crisis to crisis as their foes change tactics.”<https://electionlawblog.org/?p=110296>
Posted on March 29, 2020 7:30 pm<https://electionlawblog.org/?p=110296> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/03/29/technology/facebook-google-twitter-november-election.html>:

But as the events of just one day — Feb. 12 — at Facebook showed, although the companies are better equipped to deal with the types of interference they faced in 2016, they are struggling to handle the new challenges of 2020.

Their difficulties reflect how much online threats have evolved since the 2016 election. Russia and other foreign governments once conducted online influence operations in plain sight<https://www.nytimes.com/interactive/2018/09/04/technology/facebook-influence-campaigns-quiz.html>, buying Facebook ads in rubles and tweeting in broken English, but they are now using more sophisticated tactics such as bots that are nearly impossible to distinguish from hyperpartisan Americans.

More problematic, partisan groups in the United States have borrowed Russia’s 2016 playbook<https://www.nytimes.com/2018/10/11/technology/fake-news-online-disinformation.html> to create their own propaganda and disinformation campaigns, forcing the tech companies to make tough calls about restricting the speech of American citizens. Even well-funded presidential campaigns have pushed the limits<https://www.nytimes.com/2020/02/22/technology/bloomberg-social-media.html> of what the platforms will allow.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A World Without Partisan Gerrymanders? Virginia Democrats Show the Way; In a rare move, a group of lawmakers voted to give up their own redistricting power”<https://electionlawblog.org/?p=110294>
Posted on March 29, 2020 7:24 pm<https://electionlawblog.org/?p=110294> by Rick Hasen<https://electionlawblog.org/?author=3>

Jesse Wegman NYT opinion<https://www.nytimes.com/2020/03/28/opinion/virginia-gerrymandering-law.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Arkansas: “Federal suit asks to extend state’s deadline on absentee ballots”<https://electionlawblog.org/?p=110292>
Posted on March 29, 2020 7:16 pm<https://electionlawblog.org/?p=110292> by Rick Hasen<https://electionlawblog.org/?author=3>

The Arkansas Democrat-Gazette reports.<https://www.arkansasonline.com/news/2020/mar/28/suit-asks-to-extend-deadline-on-ballots/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“If a presidential nominee gets coronavirus, we’re in uncharted territory”<https://electionlawblog.org/?p=110290>
Posted on March 29, 2020 8:36 am<https://electionlawblog.org/?p=110290> by Richard Pildes<https://electionlawblog.org/?author=7>

The virus is prompting questions about what would happen if a presumptive presidential nominee or a nominee becomes incapacitated in a variety of circumstances: before the primaries have ended, after that but before the conventions, or after the conventions. I did a long interview <https://www.vox.com/2020/3/27/21186614/what-happens-presidential-nominee-coronavirus> with Vox that provides answers in these various circumstances, which we hope will not arise.

Here’s an excerpt on what would happen on the Democratic Party side if the nominee became incapacitated after the convention:

It’s nearly impossible to call back all the delegates for another convention, Pildes said. “You can’t reconstitute the convention, that’s just too unwieldy. At least to the Democratic Party, the rules specify the DNC in a circumstance like that would choose the replacement nominee for the party.”

So the number of people making the decision would be much smaller, reduced from thousands of delegates to about 447 DNC members, which are composed of state-elected members, current and former party officials (presidents, members of Congress, etc.), and representatives from party committees.

Here’s what the Democratic Party’s rules and bylaws<https://democrats.org/wp-content/uploads/2019/02/2020-Call-for-Convention-WITH-Attachments-2.26.19.pdf> say about the process:

Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.

For Democrats in 2020, that would mean DNC Chair Tom Perez would confer with House Speaker Nancy Pelosi, Senate Minority Leader Chuck Schumer, and New Jersey Gov. Phil Murphy (the current chair of the Democratic Governors Association) and then issue a report to the full 447-member DNC. The party as a whole would then meet, deliberate, and pick a new nominee.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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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