[EL] ELB News and Commentary 5/6/20

Tue May 5 21:29:01 PDT 2020

“Lawsuit demands easier vote-by-mail process in NC”<https://electionlawblog.org/?p=111195>
Posted on May 5, 2020 9:26 pm<https://electionlawblog.org/?p=111195> by Rick Hasen<https://electionlawblog.org/?author=3>

McClatchy<https://www.mcclatchydc.com/news/politics-government/election/article242482266.html>:

A group of voters backed by Democratic legal groups sued North Carolina on Monday seeking to loosen rules around absentee mail-in ballots amid predictions that the coronavirus pandemic will make voting by mail a widespread practice.

They want the state to provide prepaid postage on all absentee ballots, change a requirement for two witnesses to sign a ballot, extend the deadline for receipt of ballots until nine days after Election Day and give voters a chance to fix signature discrepancies before election officials reject those ballots.

North Carolina’s state board of elections endorsed the first two provisions in a proposed list of election changes released in March.<https://bladenonline.com/wp-content/uploads/2020/03/North-Carolina-State-Board-of-Elections-Legislative-Recommendations-COVID-19.pdf>
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Report counsels reforms to guard against election meltdown”<https://electionlawblog.org/?p=111193>
Posted on May 5, 2020 9:13 pm<https://electionlawblog.org/?p=111193> by Rick Hasen<https://electionlawblog.org/?author=3>

Wisconsin Examiner<https://wisconsinexaminer.com/brief/report-counsels-reforms-to-guard-against-election-meltdown/>:

Political polarization and intense partisanship in media and social media have laid the groundwork for distrust about the fairness of the 2020 elections, and the COVID-19 pandemic seems likely to escalate those problems.

Those are the conclusions of a new report released last week from a group of academics and voting-rights advocates, recommending a series of steps to shore up confidence and integrity in the nation’s election systems before the November presidential elections.

The report<https://law.uci.edu/2020ElectionReport>, “Fair Elections During a Crisis,” was produced by the Ad Hoc Committee for 2020 Election Fairness and Legitimacy and grew out of a February conference organized by some of the authors and that also included journalists and state elections officials. It is sponsored by the University of California-Irvine’s Jack W. Peltason Center for the Study of Democracy with foundation support.

“Although a decade ago concerns about peaceful transitions of power were less common, Americans can no longer take for granted that election losers will concede a closely fought election after election authorities (or courts) have declared a winner,” the report states.

The conference upon which the report was based was scheduled long before the COVID-19 crisis hit and even months before the disease itself had been identified, says Julia Azari, a political science professor at Marquette University in Milwaukee who was part of the 25-member group that produced the document. At the time it took place, the sort of election-disrupting crises on people’s minds ran more in the direction of sudden natural disasters such as hurricanes or earthquakes. But in drafting the report, the authors, led by Rick Hasen of the University of California-Irvine law school, took COVID-19 into account and tailored recommendations to reflect the pandemic’s impact on the country.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“New York Must Hold Democratic Presidential Primary, Judge Rules”<https://electionlawblog.org/?p=111191>
Posted on May 5, 2020 9:01 pm<https://electionlawblog.org/?p=111191> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/05/05/us/politics/ny-presidential-primary.html>

A federal judge on Tuesday ordered elections officials in New York State to hold its Democratic primary election in June and reinstate all qualifying candidates on the ballot. The ruling came after the presidential primary was canceled late last month<https://www.nytimes.com/2020/04/27/us/politics/democratic-primary-canceled-coronavirus.html> over concerns about the coronavirus.

The order<https://www.courtlistener.com/recap/gov.uscourts.nysd.536316/gov.uscourts.nysd.536316.43.0.pdf>, filed by Judge Analisa Torres of United States District Court, came in response to a lawsuit filed last week by the former Democratic presidential candidate Andrew Yang. He sought to undo the New York State Board of Elections’ decision in late April to cancel the June 23 contest, a move it attributed to health and safety worries and the fact that the results would not change the primary’s outcome.
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Posted in political parties<https://electionlawblog.org/?cat=25>

“Democrats drop lawsuit against planned all-mail primary election after Clark County agrees to more voting sites, other concessions”<https://electionlawblog.org/?p=111186>
Posted on May 5, 2020 3:10 pm<https://electionlawblog.org/?p=111186> by Rick Hasen<https://electionlawblog.org/?author=3>

The Nevada Independent reports.<https://thenevadaindependent.com/article/clark-county-election-officials-to-expand-in-person-voting-for-primary-election-mail-ballots-to-inactive-voters>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>

Federal Court Approves Partial Settlement in Case Over Virginia Witness Requirements for Absentee Ballots<https://electionlawblog.org/?p=111184>
Posted on May 5, 2020 3:08 pm<https://electionlawblog.org/?p=111184> by Rick Hasen<https://electionlawblog.org/?author=3>

ACLU press release.<https://acluva.org/en/press-releases/federal-court-approves-partial-settlement-aclu-voting-lawsuit-challenging-virginias>

Update: You can find the decision here<https://electionlawblog.org/wp-content/uploads/virginia-consent.pdf>, and beginning at page 15 is a fascinating discussion of balancing in the era of COVID and the claims that witness requirements are needed to prevent fraud.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Vote-by-mail debate raises fears of election disinformation”<https://electionlawblog.org/?p=111182>
Posted on May 5, 2020 11:13 am<https://electionlawblog.org/?p=111182> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/ee8dd4051a53b5e7471c8a6a2ca1b8f3>:

A bitterly partisan debate unfolding on whether more Americans should cast their votes through the mail during a pandemic is provoking online disinformation and conspiracy theories that could undermine trust in the results, even if there are no major problems.

With social distancing guidelines possibly curtailing in-person voting at the polls in November, states are drawing up plans to rely more heavily on a mail-in system that has until now seen only limited use.

Historically, there is no evidence of widespread voter fraud through mail-in voting. But social media users are already pushing grandiose theories casting doubt on the method. President Donald Trump has encouraged the skepticism, saying during a televised briefing that “a lot of people cheat with mail-in voting.” On Saturday, he tweeted: “Don’t allow RIGGED ELECTIONS!”
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Posted in election administration<https://electionlawblog.org/?cat=18>, social media and social protests<https://electionlawblog.org/?cat=58>

“Tailoring Election Regulation: The Platform Is the Frame”<https://electionlawblog.org/?p=111180>
Posted on May 5, 2020 10:43 am<https://electionlawblog.org/?p=111180> by Rick Hasen<https://electionlawblog.org/?author=3>

Julie Cohen has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3573127&dgcid=ejournal_htmlemail_u.s.:constitutional:law:rights:liberties:ejournal_abstractlink> on SSRN (forthcoming, Geo. Tech L.J.). Here is the abstract:

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored to the interests it assertedly serves. I identify three frames conventionally employed in evaluating the design of speech regulation—the distribution bottleneck, the rational listener, and the intentional facilitator—and explain why each is ill-suited to the platform-based information environment, which presents different incentives and failure modes. In their place, I offer the platform itself as a new frame. I identify the harms and interests that frame brings into focus and offer some preliminary thoughts on the kinds of legislation it might permit.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Emily Bazelon NYT Magazine Deep Dive: “Will Americans Lose Their Right to Vote in the Pandemic?”<https://electionlawblog.org/?p=111178>
Posted on May 5, 2020 9:54 am<https://electionlawblog.org/?p=111178> by Rick Hasen<https://electionlawblog.org/?author=3>

Worth your time<https://www.nytimes.com/2020/05/05/magazine/voting-by-mail-2020-covid.html?referringSource=articleShare>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The bizarro tale of a phantom super PAC — and our sleuthing to find it”<https://electionlawblog.org/?p=111176>
Posted on May 5, 2020 9:04 am<https://electionlawblog.org/?p=111176> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/05/05/americans-progressive-action-super-pac-fake-234316>:

A new super PAC made a splashy entrance onto the Senate battleground scene last week, reporting millions in spending backing Democrats in key races. There’s just one problem: The ads don’t exist.

The group, Americans for Progressive Action USA, filed campaign finance<https://docquery.fec.gov/cgi-bin/forms/C00741348/1403508/se> reports<https://docquery.fec.gov/cgi-bin/forms/C00741348/1403594/se> showing more than $2.5 million in advertising and associated costs across a half-dozen Senate races last week. But six ad makers and advertising platforms listed in the filings said they’ve never heard of the super PAC and have no records of doing business with it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“85,000 voters could be removed from Florida rolls”<https://electionlawblog.org/?p=111174>
Posted on May 5, 2020 8:51 am<https://electionlawblog.org/?p=111174> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/states/florida/story/2020/05/04/85-000-voters-could-be-removed-from-florida-rolls-1282224>

A top Florida elections official testified in federal court on Monday that as many as 85,000 voters might be ineligible to cast ballots in the battleground state, but it could take years for the state to figure out who should be removed from the voting rolls.

Maria Matthews, director of the state Division of Elections, said the state has flagged thousands of voters who have been convicted of a felony. The voters might be serving a prison sentence or have convictions for murder or sex offenses that would make them ineligible to vote under Amendment 4, a measure that ended the state’s lifetime ban on voting for most people who have served time for felonies.

A potential purge of voters in Florida, which has more than 13.7 million registered voters, could have out-sized impact, because many elections are won or lost on narrow margins. President Donald Trump won Florida in 2016 by fewer than 113,000 votes.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

Wisconsin: “GOP Mailer On Absentee Ballot Requests Confuses Voters, Putting Burden On Clerks To Explain”<https://electionlawblog.org/?p=111172>
Posted on May 5, 2020 8:01 am<https://electionlawblog.org/?p=111172> by Rick Hasen<https://electionlawblog.org/?author=3>

WPR<https://www.wpr.org/node/1635386>:

A mailer from the Republican Party of Wisconsin claims voters can request an absentee ballot for the upcoming special election in Wisconsin’s 7th Congressional District with a pre-paid postcard. But there’s a problem: Most voters returning the postcards aren’t eligible to request ballots that way, and the burden is falling on local clerks to explain.

“It just created a lot of extra work,” said Wausau City Clerk Leslie Kremer.

Kremer said she’s received about 200 postcards in the last week. Except for a handful, they did not include a copy of the voter’s photo ID — a requirement in Wisconsin for most absentee ballot requests. Exceptions are members of the military, permanent overseas residents and those who are “indefinitely confined.”
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Posted in 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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