[EL] ELB News and Commentary 5/5/20

[Tyler Culberson]

This is a footnote from the methodology discussion within the text of the
research paper:

Some of these covariates, such as age, are derived from entries on voter
registration forms. Others are based on predictions from commercial
databases, which draw upon aggregate demographic data (e.g., median income
in a Census block) and proprietary individual level data (e.g., based on
smartphone activity). The use of our chosen covariates from the L2 Voter
File, including age, race/ethnicity, education, income, and occupation, is
well supported by existing research (e.g., Imai and Khanna 2016; Enamorado
and Imai 2019).

On Mon, May 4, 2020 at 11:08 PM <larrylevine at earthlink.net> wrote:

> RE: “We Should Never Have to Vote in Person Again; Our new paper shows
> vote-by-mail dramatically boosted Colorado’s turnout. It could change this
> fall’s election and every election after.”
>
> The research seems credible and the results somewhat surprising. Usually,
> for this kind of research to achieve precise accuracy of voter
> identification by information on the voter file as provided by the voter
> when registering. Your research appears to have reached sub-groups that are
> not ordinarily on the voter file. Can you tell me how you were able to
> ascertain the race, ethnicity, income, wealth and education information for
> individual voters?
>
> Larry Levine
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Rick Hasen
> *Sent:* Monday, 4 May 2020 8:57 PM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] ELB News and Commentary 5/5/20
>
>
> “How do you prevent a disputed 2020 election in Pennsylvania? Lessons from
> an expert panel” <https://electionlawblog.org/?p=111170>
>
> Posted on May 4, 2020 8:51 pm <https://electionlawblog.org/?p=111170> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> The Philadelphia Inquirer
> <https://www.inquirer.com/politics/election/preventing-pennsylvania-2020-election-crisis-20200504.html> covers
> today’s Ohio State conference.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111170&title=%E2%80%9CHow%20do%20you%20prevent%20a%20disputed%202020%20election%20in%20Pennsylvania%3F%20Lessons%20from%20an%20expert%20panel%E2%80%9D>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> Democrats File More Covid-Related Election Lawsuits in North Carolina,
> Florida <https://electionlawblog.org/?p=111168>
>
> Posted on May 4, 2020 8:46 pm <https://electionlawblog.org/?p=111168> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> North Carolina complaint
> <https://www.democracydocket.com/wp-content/uploads/sites/41/2020/05/Stringer-et-al.-v.-North-Carolina-Complaint.pdf>;
> Florida complaint
> <https://www.democracydocket.com/wp-content/uploads/sites/41/2020/05/01-Complaint-05-04-20.pdf>
> .
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111168&title=Democrats%20File%20More%20Covid-Related%20Election%20Lawsuits%20in%20North%20Carolina%20Florida>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> Oklahoma: “State Supreme Court tosses notary requirement for absentee
> ballots” <https://electionlawblog.org/?p=111166>
>
> Posted on May 4, 2020 8:43 pm <https://electionlawblog.org/?p=111166> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> *Residents casting absentee ballots in the upcoming elections will not
> have to get them notarized, the Oklahoma Supreme Court ruled Monday.*
>
> *The League of Women Voters of Oklahoma and two individuals challenged the
> requirement, saying a 2002 change in state law only required voters to
> submit a signed affidavit under the penalty of perjury.*
>
> You can find the ruling, with a dissent, here
> <https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=486523>
> .
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111166&title=Oklahoma%3A%20%E2%80%9CState%20Supreme%20Court%20tosses%20notary%20requirement%20for%20absentee%20ballots%E2%80%9D>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> Indiana Suit Seeking to Expand No-Excuse Absentee Balloting Adds Claim for
> Age Discrimination in Voting Under 26th Amendment
> <https://electionlawblog.org/?p=111164>
>
> Posted on May 4, 2020 8:38 pm <https://electionlawblog.org/?p=111164> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Amended complaint.
> <https://electionlawblog.org/wp-content/uploads/Tully-amended-complaint.pdf>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111164&title=Indiana%20Suit%20Seeking%20to%20Expand%20No-Excuse%20Absentee%20Balloting%20Adds%20Claim%20for%20Age%20Discrimination%20in%20Voting%20Under%2026th%20Amendment>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> NY Fed Draft Paper: The 1918 Pandemic Fueled Voter Extremism in Germany
> <https://electionlawblog.org/?p=111161>
>
> Posted on May 4, 2020 8:35 pm <https://electionlawblog.org/?p=111161> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Pandemics Change Cities: Municipal Spending and Voter Extremism
> in Germany, 1918-1933
> <https://www.newyorkfed.org/medialibrary/media/research/staff_reports/sr921.pdf>
>
> Abstract:
>
> *We merge several historical data sets from Germany to show that influenza
> mortality in 1918-1920 is correlated with societal changes, as measured by
> municipal spending and city-level extremist voting, in the subsequent
> decade. First, influenza deaths are associated with lower per capita
> spending, especially on services consumed by the young. Second, influenza
> deaths are correlated with the share of votes received by extremist parties
> in 1932 and 1933. Our election results are robust to controlling for city
> spending, demographics, war-related population changes, city-level wages,
> and regional unemployment, and to instrumenting influenza mortality. We
> conjecture that our findings may be the consequence of long-term societal
> changes brought about by a pandemic.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111161&title=NY%20Fed%20Draft%20Paper%3A%20The%201918%20Pandemic%20Fueled%20Voter%20Extremism%20in%20Germany>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> “We Should Never Have to Vote in Person Again; Our new paper shows
> vote-by-mail dramatically boosted Colorado’s turnout. It could change this
> fall’s election and every election after.”
> <https://electionlawblog.org/?p=111159>
>
> Posted on May 4, 2020 9:54 am <https://electionlawblog.org/?p=111159> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Charlotte Hill, Jacob Grumbach, Adam Bonica and Hakeem Jefferson have
> written this NYT oped
> <https://www.nytimes.com/2020/05/04/opinion/coronavirus-vote-by-mail.html>
> :
>
> *The idea of “all-mail voting” is straightforward: Every registered voter
> gets sent a ballot via mail to their home address, then after making their
> choices, voters mail it back; and those who want to still travel to vote in
> person can do so. In the midst of this pandemic, it’s an adjustment that
> every state legislature should try to make.*
>
> *But should we expand mail voting beyond the Covid-19 crisis?*
>
> *Nathaniel Persily, a professor at Stanford Law School, and Charles
> Stewart III, a professor of political science at M.I.T., argue in a
> recent article
> <https://www.lawfareblog.com/ten-recommendations-ensure-healthy-and-trustworthy-2020-election>,
> “States should approach this situation as an emergency, not as an
> opportunity to make long-term changes to election policy.” We disagree.*
>
> *Our new research, published yesterday, shows
> <https://www.dropbox.com/s/8n4zjvgmytim1rv/Bonica_Grumbach_Hill_Jefferson_Mail_Voting.pdf?raw=1> that
> elections with all-mail voting increase turnout among everyone, especially
> groups that tend to vote less frequently. Those results merit permanent,
> wide-scale shifts. Currently, registered voters automatically get a ballot
> by mail in five states: Oregon, Washington, Utah, Colorado and Hawaii. A
> few other states have all-mail voting in small jurisdictions
> <https://www.ncsl.org/research/elections-and-campaigns/all-mail-elections.aspx>,
> and California has been gradually rolling it out.*
>
> *Before this year, the results of research into all-mail voting’s turnout
> effect had been mixed. Past studies of all-mail voting, mostly of its early
> years in Oregon and California, argued that it does boost turnout, but
> mainly for those who already vote. If that remained true, then mail voting
> could actually exacerbate present inequalities in political participation.*
>
> *So when we began our research
> <https://www.dropbox.com/s/8n4zjvgmytim1rv/Bonica_Grumbach_Hill_Jefferson_Mail_Voting.pdf?raw=1>,
> we wouldn’t have been surprised by unequal outcomes. Young
> people, notorious for their low turnout rates
> <https://www.nytimes.com/2020/04/12/opinion/biden-sanders-young-voters.html>,
> use traditional mail less than other groups. And people of color — who have
> been subjected to centuries of voter discrimination — might be skeptical of
> adopting big changes to an electoral system that has disadvantaged them.*
>
> *Our findings
> <https://www.dropbox.com/s/8n4zjvgmytim1rv/Bonica_Grumbach_Hill_Jefferson_Mail_Voting.pdf?raw=1> show,
> however, that low-turnout groups are the very groups that stand to benefit
> most from all-mail voting. Focusing on Colorado’s recent switch to
> vote-by-mail in 2013 and using the voter file
> <https://www.pewresearch.org/fact-tank/2018/02/15/voter-files-study-qa/> —
> a comprehensive record of who turns out in American elections — we find
> that turnout goes up among everyone, especially the historically
> disenfranchised: young people, voters of color, less-educated people and
> blue-collar workers….*
>
> *We also examine the inevitable question on politicians’ minds: What will
> this do for my re-election prospects? Looking at voters by political party,
> we find that Democrats and Republicans benefit about the same amount:
> around 8 percentage points.*
>
> *This is somewhat surprising, given that groups historically associated
> with voting for Democrats benefit most from mail voting. One explanation
> may be that in Colorado, young people are choosing to register as
> independents
> <https://www.npr.org/2016/02/24/467914349/explaining-indepedent-voters-in-colorado> rather
> than as Democrats. In fact, we found that Colorado’s shift to vote-by-mail
> increased the turnout of independents by 12 percentage points, more than
> among members of either major party.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111159&title=%E2%80%9CWe%20Should%20Never%20Have%20to%20Vote%20in%20Person%20Again%3B%20Our%20new%20paper%20shows%20vote-by-mail%20dramatically%20boosted%20Colorado%E2%80%99s%20turnout.%20It%20could%20change%20this%20fall%E2%80%99s%20election%20and%20every%20election%20after.%E2%80%9D>
>
> Posted in absentee ballots <https://electionlawblog.org/?cat=53>
>
>
>
>
> Travis Crum: The Fifteenth Amendment Goes to Guam
> <https://electionlawblog.org/?p=111157>
>
> Posted on May 4, 2020 7:29 am <https://electionlawblog.org/?p=111157> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> The following is a guest post from Travis Crum
> <https://www.law.uchicago.edu/faculty/crum>:
>
> Today, the Supreme Court denied cert
> <https://www.supremecourt.gov/orders/courtorders/050420zor_k5fl.pdf> in *Guam
> v. Davis* <https://www.scotusblog.com/case-files/cases/guam-v-davis/>.
> The question presented was whether the Fifteenth Amendment permits Guam to
> limit the right to vote in a plebiscite to “native inhabitants of Guam.”
> The Ninth Circuit invalidated <https://casetext.com/case/davis-v-guam-5> this
> suffrage restriction on Fifteenth Amendment grounds. Although *Davis* is
> a rare case raising a Fifteenth Amendment claim, the Court properly denied
> cert because the decision below was correctly decided and in accordance
> with Supreme Court precedent. In this post, I’ll unpack the *Davis *decision
> and explain its relevance to Fifteenth Amendment jurisprudence.
>
> The *Davis* litigation arose out of Guam’s long-running attempt to hold a
> political-status plebiscite, which will ask voters to choose between
> independence, free association with the United States, and statehood. The
> plebiscite has not yet been scheduled, and its results are not binding.
> However, Guam’s Commission on Decolonization must transmit the result to
> the President, Congress, and the United Nations.
>
> Most importantly for present purposes, Guam sought to limit the right to
> vote in the plebiscite to “native inhabitants of Guam.” Known as Chamorros,
> “native inhabitants of Guam” are statutorily defined as “all inhabitants of
> Guam in 1898 and their descendants who have taken no affirmative steps to
> preserve or acquire foreign nationality.” The 1898 date is critical because
> it coincides with the end of the Spanish-American War and Spain’s cession
> of Guam to the United States. According to the 2010 Census
> <https://www.cia.gov/library/publications/the-world-factbook/geos/gq.html>,
> Guam is racially and ethnically diverse: 37.3% of Guamanians are Chamorro,
> 26.3% are Filipino, 9.4% are mixed race, 7.1% are white, 7% are Chuukese,
> and the remaining 12.9% are non-Filipino Asian or Pacific Islander. Thus, a
> minority of Guamanians would be eligible to vote in the plebiscite.
>
> Congress has extended the Fifteenth Amendment’s protections to Guam via
> statute <https://www.law.cornell.edu/uscode/text/48/1421b>, so there is
> no dispute about the Amendment’s applicability to the territory. Rather,
> the central questions in *Davis* concern whether the Fifteenth Amendment
> applies to a non-binding plebiscite and whether Guam’s limitation of the
> right to vote to “native inhabitants of Guam” is a racial classification.
>
> In a unanimous opinion by Judge Marsha Berzon, the Ninth Circuit struck
> down the law on Fifteenth Amendment grounds. Here are three important
> take-aways from *Davis*.
>
> First, the Fifteenth Amendment’s protection of the “right to vote” extends
> broadly to referenda, not just elections for political office. Relying on
> the *White Primary* cases
> <https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1625&context=lr>, the
> Ninth Circuit held that the Fifteenth Amendment encompasses “any
> government-held election in which the results commit a government to a
> particular course of action.” Even though the results of the plebiscite
> were not binding, the Ninth Circuit concluded that the transmission of
> those results to the federal government and the UN satisfied this standard.
>
> Second,* Davis* showcases that the Fifteenth Amendment embraces a rainbow
> electorate. Although its primary purpose was to enfranchise black men
> nationwide and to empower Congress to protect the right to vote free of
> racial discrimination, the Fifteenth Amendment’s plain language protects
> all races. Guam’s restriction of the franchise to a minority of Guamanians
> runs afoul of the Fifteenth Amendment.
>
> On this point, *Davis* is a descendant of *Rice v. Cayetano*
> <https://www.law.cornell.edu/supct/html/98-818.ZO.html>, a 2000 Supreme
> Court decision striking down a provision of the Hawaii Constitution that
> restricted the right to vote for trustees of the Office of Hawaiian Affairs
> to “Hawaiians.” Similar to the Guam statute, the Hawaii Constitution
> defined “Hawaiians” as “those persons who are descendants of people
> inhabiting the Hawaiian Islands in 1778,” the year that Captain Cook landed
> in Hawaii. As I have detailed elsewhere
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3524597>, the *Rice* Court
> concluded that the Hawaii Constitution’s use of ancestry was a proxy for
> race and was therefore forbidden under the Fifteenth Amendment as an
> “explicit, race-based voting qualification.” *Davis *is yet another
> example of the Fifteenth Amendment’s protections extending to
> classifications that closely align with “race or color,” such as language
> minority status.
>
> Third, and once again building off *Rice*, the Ninth Circuit declined to
> apply strict scrutiny and simply invalidated the suffrage restriction after
> it determined that the law was an explicit racial classification. In other
> words, a facially discriminatory law is irrefutably invalid under the
> Fifteenth Amendment. This is a subtle but important distinction from
> Fourteenth Amendment jurisprudence, which applies strict scrutiny to
> explicit racial classifications like affirmative action
> <https://www.law.cornell.edu/supremecourt/text/14-981> programs
> <https://www.law.cornell.edu/supremecourt/text/02-516?redir=1>. This
> approach also diverges from how the *Shaw* line of cases treats
> race-based redistricting, where strict scrutiny is triggered *not *when
> race is used as part of the redistricting process but *only* when race
> subordinates traditional redistricting principles.
>
> Even though the Court appropriately denied cert in *Davis*, another
> Fifteenth Amendment case is on the horizon. Last week, Arizona filed a cert
> petition
> <https://www.supremecourt.gov/DocketPDF/19/19-1257/142431/20200427105601341_Brnovich%20Petition.pdf> seeking
> review of an en banc Ninth Circuit decision
> <https://law.justia.com/cases/federal/appellate-courts/ca9/18-15845/18-15845-2020-01-27.html> invalidating
> its out-of-precinct voting rules and ballot-collection laws on statutory
> and constitutional grounds. I’ve previously posted
> <https://electionlawblog.org/?p=109188> on this blog about the Ninth
> Circuit’s holding as to the Fifteenth Amendment and its potential to
> subject Arizona to bail-in <https://ssrn.com/abstract=1516265> under
> Section 3(c) of the Voting Rights Act. Arizona’s cert petition also raises
> questions concerning Section 2 of the VRA’s application to vote-denial
> claims. In order to reverse the Ninth Circuit’s decision, the Court would
> need to grant cert on both the statutory and constitutional questions. The
> Fifteenth Amendment may be heading to the Supreme Court after all.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111157&title=Travis%20Crum%3A%20The%20Fifteenth%20Amendment%20Goes%20to%20Guam>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> “How Changes to the 2020 Census Timeline Will Impact Redistricting”
> <https://electionlawblog.org/?p=111155>
>
> Posted on May 4, 2020 7:24 am <https://electionlawblog.org/?p=111155> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> New Brennan Center analysis
> <https://www.brennancenter.org/our-work/research-reports/how-changes-2020-census-timeline-will-impact-redistricting>
> .
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111155&title=%E2%80%9CHow%20Changes%20to%20the%202020%20Census%20Timeline%20Will%20Impact%20Redistricting%E2%80%9D>
>
> 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
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>
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> -8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
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>
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