[EL] ELB News and Commentary 5/15/20
Rick Hasen
rhasen at law.uci.edu
Fri May 15 07:31:05 PDT 2020
Federal Court Dismisses Lawsuit Asking For COVID-Related Delay and Changes in Upcoming Georgia Primary Election, Saying Case Presents Non-Justiciable Political Questions<https://electionlawblog.org/?p=111419>
Posted on May 15, 2020 7:27 am<https://electionlawblog.org/?p=111419> by Rick Hasen<https://electionlawblog.org/?author=3>
You can find this troubling ruling here<https://electionlawblog.org/wp-content/uploads/covid-ga.pdf>. I’ll have more to say about it in a long piece in the works.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“The Cybersecurity 202: New Jersey lawsuit tries to block Internet voting in the state”<https://electionlawblog.org/?p=111416>
Posted on May 14, 2020 8:48 pm<https://electionlawblog.org/?p=111416> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/05/14/the-cybersecurity-202-new-jersey-lawsuit-tries-to-block-internet-voting-in-the-state/5ebc74ba88e0fa17cddfabbe/>
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Posted in voting technology<https://electionlawblog.org/?cat=40>
“Repeal Of Clean Missouri Redistricting Plan Will Go To Voters”<https://electionlawblog.org/?p=111414>
Posted on May 14, 2020 8:44 pm<https://electionlawblog.org/?p=111414> by Rick Hasen<https://electionlawblog.org/?author=3>
St. Louis Public Radio:<https://news.stlpublicradio.org/post/repeal-clean-missouri-redistricting-plan-will-go-voters#stream/0>
The way Missouri draws its state House and Senate districts will be up for referendum later this year after the House Wednesday backed a ballot initiative aimed at repealing the so-called Clean Missouri redistricting system.
It’s a move that could greatly increase the power of appellate judges to draw state legislative districts — and make compactness a bigger priority in mapmaking than competitiveness and partisan fairness.
But most of the speakers on Wednesday focused on a provision in Hegeman’s ballot item that counts population based on eligible voters as opposed to total population — a move lawmakers like Rep. Jon Carpenter, D-Clay County, said could leave children out when adding up the amount of people that live in certain areas.
“To go from total population to only voters … undoes 231 years of the way it has always been done in the United States of America,” Carpenter said. “This is a radical and fundamental change to the democratic process in this country.”
Rep. Peter Merideth, D-St. Louis, also pointed out that the measure does away with language aimed at encouraging racial groups to join together in creating “coalition districts.”<https://news.stlpublicradio.org/post/clean-missouri-debate-zeroes-impact-minority-representation>
“There’s a lot of research out there that shows minority communities often, when collectively put together, vote in different ways than majority communities,” Merideth said. “So this protection was put in place to make sure we don’t have lines drawn intentionally in a way that limits those communities’ impact on the process.”
But Democratic Rep. Maria Chappelle-Nadal, of University City, voted for Hegeman’s resolution. She’s argued for several years that the language<https://news.stlpublicradio.org/post/clean-missouri-debate-zeroes-impact-minority-representation> in the Clean Missouri redistricting system is not strong enough to prevent majority-black districts from becoming more white.
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Posted in redistricting<https://electionlawblog.org/?cat=6>
“Judge Denies Bid to Block Montana Rules on Political Action Committee Names”<https://electionlawblog.org/?p=111408>
Posted on May 14, 2020 6:47 pm<https://electionlawblog.org/?p=111408> by Rick Hasen<https://electionlawblog.org/?author=3>
Courthouse News reports.<https://www.courthousenews.com/judge-denies-bid-to-block-montana-rules-on-political-action-committee-names/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Young people will vote if you get them registered | COMMENTARY”<https://electionlawblog.org/?p=111406>
Posted on May 14, 2020 6:45 pm<https://electionlawblog.org/?p=111406> by Rick Hasen<https://electionlawblog.org/?author=3>
Vicki Shapiro<https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0515-youth-vote-20200514-ocguabpiejfnjmnmogwi47cae4-story.html> in the Baltimore Sun.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Dirty Tricks: Eight Falsehoods that Could Undermine the 2020 Election”<https://electionlawblog.org/?p=111404>
Posted on May 14, 2020 6:43 pm<https://electionlawblog.org/?p=111404> by Rick Hasen<https://electionlawblog.org/?author=3>
Brennan Center posting<https://www.brennancenter.org/our-work/research-reports/dirty-tricks-eight-falsehoods-could-undermine-2020-election>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Voter Suppression and the 2020 Elections: A Threat to Our Democracy?”<https://electionlawblog.org/?p=111400>
Posted on May 14, 2020 6:39 pm<https://electionlawblog.org/?p=111400> by Rick Hasen<https://electionlawblog.org/?author=3>
Looking forward to participating in this virtual event on May 20.
[cid:image002.jpg at 01D62A8A.CA4BFF80]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Why There Are Not Risks on Both Sides of the “Faithless Elector” Cases<https://electionlawblog.org/?p=111392>
Posted on May 14, 2020 3:39 pm<https://electionlawblog.org/?p=111392> by Richard Pildes<https://electionlawblog.org/?author=7>
At the Supreme Court oral argument yesterday in the “faithless electors” cases, Justice Kavanaugh creatively invoked what he called “the avoid-chaos principle of judging,” by which he meant that “if it’s a close call or a tiebreaker” . . . “we should not facilitate or create chaos.” <https://www.nytimes.com/2020/05/13/us/supreme-court-electoral-college.html?smid=tw-share> But a central claim<https://medium.com/@lessig/what-rick-hasen-is-missing-a9c07d2582d2> Larry Lessig makes in his argument<https://www.supremecourt.gov/DocketPDF/19/19-465/134567/20200302120308025_19-465-19-518ts.pdf> that the Constitution requires presidential electors to be free to vote for whomever they’d like, regardless of the popular vote in their state, is that chaos lurks on both sides of the case: the Court and the country face significant risks either way. Everyone is aware of the risks should Lessig’s side prevail: if electors are free to defy the popular vote, the country would be thrown into turmoil, or worse, in a close election should enough electors do this that it flips the outcome of the presidential election. That’s the specter of chaos to which Justice Kavanaugh was referring. Indeed, much of the discussion of how likely electors would be to defy their state’s popular vote ignores the legitimation effect of Supreme Court decisions; a Supreme Court decision announcing, for the first time, that the Constitution gives electors the right to vote their own preferences would bolster the moral legitimacy of electors taking this decision into their own hands.
But I want to focus instead on the supposed risks on the other side. Lessig asserts those risks trace to the 20th Amendment. The Amendment provides that if a president-elect dies after the Electoral College vote on Dec. 14th but before inauguration, the vice-president elect becomes President. But the Amendment says nothing about what happens if a candidate who wins the popular vote in various states on Nov. 3rd dies in the 5-6 weeks before the Electoral College votes. If states are free to bind their electors to vote for the popular-vote victor, then what happens? If those electors are still bound to vote for a dead candidate, the contest would then end up in the House of Representatives, if no candidate is able to gain a majority of the electoral votes. The House would then choose the President (one state, one vote) from among the three candidates who received the largest number of electoral votes. So on this story, death of the winner between election day and the Electoral College vote presents its own risk of electoral meltdown. But if we interpret the Constitution to mean electors are always free in all circumstances to vote for whomever they prefer, we avoid this risk because electors could ignore a state law binding them to vote for the popular-vote winner, even if that person has died.
The 20th Amendment, however, does not create any risk of this sort. The states that bind their electors can easily address the remote possibility of death in this 5-6 week window by amending those laws to specify what the electors can or must do should that occur. These state laws do not do that now because when legislatures were enacting these laws, no one was thinking about a situation that has never occurred and is only a remote possibility. But this is indeed a gap in state law and those laws should be fixed to address this possibility. The states might bind the electors to vote for the same-party candidate who has been nominated for Vice President, which is the likely result, or they could specify that electors are free to vote their conscience under this surreal sceanario. This is an option completely open to the states even if the Court holds that states can bind their electors. In other words, we do not need the nuclear option of leaving electors free to vote their own preferences to fully address the purported risks that would arise should this rare scenario ever arise.
But let’s say states do not get around to amending these laws: what would happen, as a practical matter, in this scenario with electors legally bound to vote for a dead winner? These electors are not going to be any more bound, realistically, than electors from states that do not formally bind their electors. Most of the states do not impose any personal sanction on electors who violate these laws. Washington and Oklahoma are the only states that impose a fine, of $1000; two other states make it a crime, though South Carolina does not specify what the punishment is. Other state laws merely providing for replacing a faithless elector with another one.
Faced with an apparent legal obligation to vote for a dead candidate in a few states that either impose a fine or have the power to replace the elector, most electors are surely going to go ahead in these extreme circumstances and vote for a living candidate. And almost certainly, they would vote in the same way the electors from the same party in other states who are not bound decide to cast their vote in this unusual context. That would most likely be the vice-presidential candidate of the same party as the presidential candidate who won that state, but has now died. States would be highly unlikely to impose any fines for that action; even if they did, I have no doubt those electors would be made whole after the fact. For the same reason, states that have the power to replace the elector would be unlikely to do so. And even if they did, the elector is no worse off for having ignored state law by declining to vote for a dead candidate.
In deciding whether the Constitution prohibits states from legally binding their electors to vote for the state’s popular vote winner, these issues about the potential consequences of the decision might or might not be relevant to different Justices. But Lessig believes it is important to neutralize the argument that a decision in his favor would create the risk of destabilizing presidential elections. That’s why it’s important to suggest that there are significant risks no matter which way the Court comes out. But that is simply wrong. There is an easy, readily available way to avoid any risk that, if states can bind their electors, they will bind them to vote for dead candidates. State law can fully eliminate this risk. The Court should feel free to resolve the cases without any concern that permitting states to bind their electors creates any meaningful risk, even if we ever face, for the first time, a situation in which a winning candidate dies in the 5-6 weeks between the election and the meeting of the Electoral College.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Registering and Voting in the Era of COVID-19”<https://electionlawblog.org/?p=111390>
Posted on May 14, 2020 1:29 pm<https://electionlawblog.org/?p=111390> by Rick Hasen<https://electionlawblog.org/?author=3>
New report<https://642cf75b-6e65-4c0d-82e2-11357e0523f7.filesusr.com/ugd/85cfb4_a4b8b7d86f73490397df8ca9299c5ed2.pdf> from the Fair Elections Center.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“COVID-19 Silenced Voters of Color in Wisconsin”<https://electionlawblog.org/?p=111388>
Posted on May 14, 2020 1:28 pm<https://electionlawblog.org/?p=111388> by Rick Hasen<https://electionlawblog.org/?author=3>
Demos:<https://www.demos.org/blog/covid-19-silenced-voters-color-wisconsin>
From recent headlines, you might think election concerns are overblown. Media reports after Wisconsin held its presidential primary on April 7 called voter turnout “extraordinarily high<https://www.washingtonpost.com/politics/2020/04/15/wisconsin-primary-had-extraordinarily-high-voter-turnout/>,” even though the election took place during a global pandemic. Unfortunately, this optimism misses an important and extremely troubling dynamic: Data show significant gaps in voter participation across racial groups in Wisconsin. As we have seen with the public health and economic fallout, the COVID-19 pandemic has further exposed the flaws in our current election system and disproportionately affected Black and brown voters.
Nowhere was this more apparent than in Milwaukee. A new analysis of 2020 election data<https://data.milwaukee.gov/dataset/april-7-2020-spring-election/resource/3e78f0b1-c195-483d-99ac-22158369c72f> in Milwaukee City shows that wards with higher Black and Hispanic populations had significantly lower voter turnout compared to wards with a high percentage of white residents. Average voter turnout in Black and Hispanic wards was 30 percentage points lower than the average voter turnout in white wards.1<https://www.demos.org/blog/covid-19-silenced-voters-color-wisconsin#footnote1_rzg0qcg>
On April 7, thousands of Wisconsin residents risked their lives to vote in person. Many voters reported facing hurdles<https://apnews.com/be402510fea98fd7c37067ca05fd8e1a> and health risks while attempting to vote, including people who applied for absentee ballots but did not receive them by Election Day, as well as people who were forced to wait in line for hours to vote. In Milwaukee, which is home<https://data.census.gov/cedsci/table?q=S2901%3A%20CITIZEN,%20VOTING-AGE%20POPULATION%20BY%20SELECTED%20CHARACTERISTICS&hidePreview=true&table=S2901&tid=ACSST1Y2018.S2901&lastDisplayedRow=28&g=1600000US5553000_0400000US55> to 60.32 percent of Wisconsin’s Black voters and 29.69 percent of the state’s Hispanic voters, officials decreased the number of polling locations from 180 to just 5. In the days leading up to the primary election, COVID-19 was spreading in Wisconsin, and it was particularly rampant in Black neighborhoods in Milwaukee—statistics from the first week of April show that African Americans made up almost half of Milwaukee County’s COVID-19 cases, and 81 percent of the county’s COVID-19 deaths.
While white wards had an average of 49 percent voter turnout, Black and Hispanic wards had an average of about 18 percent turnout.
Although a record number of absentee ballots were returned during the 2020 primary election in Wisconsin, overall vote counts do not tell us how COVID-19 is impacting access to the ballot box for different racial groups. While white wards had an average of 49 percent voter turnout, Black and Hispanic wards had an average of about 18 percent turnout.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
New BPC Report: Accessing the Vote During a Pandemic<https://electionlawblog.org/?p=111386>
Posted on May 14, 2020 12:58 pm<https://electionlawblog.org/?p=111386> by Rick Hasen<https://electionlawblog.org/?author=3>
New from the Bipartisan Policy Center<https://bipartisanpolicy.org/report/accessing-the-vote-during-a-pandemic/>:
State and local election administrators across the country are planning for voting in primaries and the November general election during the rapidly evolving COVID-19 pandemic. These officials are guided by the deeply held belief that every eligible voter be afforded a safe opportunity to vote. Election administrators are drafting realistic contingency plans for voting in real-time. They do not, however, have the power to implement these plans without state policymakers who may need to adjust, at least temporarily, state requirements to make voting work during a public health crisis.
Policymakers need to understand the full breadth of issues that can arise throughout the remainder of the primary season and the general election campaign if election administrators are not given the room to be flexible and meet voters where they are.
The authors come to the opinions in this document from decades of experience. Christopher Thomas was the state election director for Michigan for 36 years and served as a commissioner on the Presidential Commission on Election Administration in 2013. Matthew Weil has served on the research team at the U.S. Election Assistance Commission and is the director of the Elections Project at the Bipartisan Policy Center, which is responsible for the BPC Task Force on Elections.
The BPC Task Force on Elections released a full report in January 2020 on policy recommendations that would modernize the entire election ecosystem. Those recommendations remain relevant for states considering even temporary changes to confront this year’s unexpected crisis.
There is limited time left this year to make sure election administrators have the support they need from policymakers to ensure a free and fair election. This document focuses on considerations for accessing the ballot, most specifically via vote by mail. The extent to which states will expand voting by mail varies based on many factors. States that choose to push more voters toward this option must address policy, implementation, and capacity issues on an extraordinarily short timeline. Separate documents from the Bipartisan Policy Center will focus on new concerns during the COVID-19 pandemic about registering to vote and how votes will be counted.
We submit that this should be considered the starting point for state-level policymakers. These include secretaries of state, who are the most common chief election official, but also state election boards and governors who may have a say in changes to voting in their states. These executive and legislative branch leaders must confront thorny policy problems in the months to come if voting rules will be clear come November.
Regardless of what decisions are made, we strongly believe by November there will be high voter interest in the presidential election; voting by mail will likely represent well over half the ballots cast; and some amount of Election Day voting will continue but may be very different than normal….
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>
“Voter protection group created to counter Georgia fraud investigations”<https://electionlawblog.org/?p=111384>
Posted on May 14, 2020 12:55 pm<https://electionlawblog.org/?p=111384> by Rick Hasen<https://electionlawblog.org/?author=3>
AJC reports<https://www.ajc.com/news/state--regional-govt--politics/voter-protection-group-created-counter-georgia-fraud-investigations/EL8pZfYHuGQ08XIUR1lo9N/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Divided Texas Appeals Court Imposes Stay Pending Appeal Allowing Texas Voters Afraid of Contracting COVID-19 to Vote by Mail, But It May Not Be the Last Word<https://electionlawblog.org/?p=111379>
Posted on May 14, 2020 10:00 am<https://electionlawblog.org/?p=111379> by Rick Hasen<https://electionlawblog.org/?author=3>
You can read the majority’s order here<https://electionlawblog.org/wp-content/uploads/ORDER-ISSD-051420.pdf> and the dissent here<https://electionlawblog.org/wp-content/uploads/DISSENT-TO-ORDER-ISSD-051420.pdf>.
The question is technical, turning in part upon the power of the appeals court to issue a stay when the state has appealed. The court did not address the technical question of what constitutes a valid excuse to vote by mail under state law. As things now stand with this order, voters who are afraid of contracting the virus may request a vote by mail ballot.
But given that there is pending federal legislation over this question, and a new original action<https://electionlawblog.org/?p=111353> filed by the State of Texas in the Texas Supreme Court, I expect that there will be further orders on this question.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
“Republicans Disagree On Voter Fraud Risk For Mail-In Voting”<https://electionlawblog.org/?p=111377>
Posted on May 14, 2020 6:58 am<https://electionlawblog.org/?p=111377> by Rick Hasen<https://electionlawblog.org/?author=3>
Pam Fessler reports<https://www.npr.org/2020/05/14/855855742/republicans-disagree-on-voter-fraud-risk-for-mail-in-voting> for NPR.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Florida election supervisors make urgent plea for help to make 2020 voting safe”<https://electionlawblog.org/?p=111375>
Posted on May 14, 2020 6:51 am<https://electionlawblog.org/?p=111375> by Rick Hasen<https://electionlawblog.org/?author=3>
Sun-Sentinel:<https://www.sun-sentinel.com/coronavirus/fl-ne-florida-coronavirus-elecion-preparations-democrats-desantis-20200513-pnkqjqgamvhwdcmt6sgl6sdv3e-story.html>
Florida elections supervisors said Wednesday that Gov. Ron DeSantis needs to “act immediately” to take steps to alleviate coronavirus-caused strains on the state’s voting systems.
They want emergency changes in state rules, and they said DeSantis needs to access $20.2 million in federal money to help pay for election changes necessitated by the pandemic. While Florida waits, other states are out buying up supplies.
A letter to DeSantis indicated frustration on the part of the 67 county supervisors of elections, who sent him a detailed request for emergency changes in election rules<https://www.sun-sentinel.com/news/politics/fl-ne-mail-voting-florida-trump-claims-20200410-tov3mgc2bnfmrn4faykfnmbaji-story.html> on April 7. Five weeks later, the supervisors are still waiting.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“States Should Embrace Vote by Mail and Early Voting To Protect Higher-Risk Populations From Coronavirus”<https://electionlawblog.org/?p=111373>
Posted on May 14, 2020 6:45 am<https://electionlawblog.org/?p=111373> by Rick Hasen<https://electionlawblog.org/?author=3>
Danielle Root<https://www.americanprogress.org/issues/democracy/news/2020/05/14/485072/states-embrace-vote-mail-early-voting-protect-higher-risk-populations-coronavirus/> for CAP.
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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
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http://electionlawblog.org<http://electionlawblog.org/>
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