[EL] ELB News and Commentary 5/18/20

Mon May 18 07:57:39 PDT 2020

Must-Read NYT: “Freed by Court Ruling, Republicans Step Up Effort to Patrol Voting; Officials seek to recruit 50,000 poll watchers and spend millions to fight voter fraud. Democrats say the real goal is to stop them from voting.”<https://electionlawblog.org/?p=111461>
Posted on May 18, 2020 7:55 am<https://electionlawblog.org/?p=111461> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/05/18/us/Voting-republicans-trump.html?action=click&module=Top%20Stories&pgtype=Homepage>:

Six months before a presidential election in which turnout could matter more than persuasion, the Republican Party, the Trump campaign and conservative activists are mounting an aggressive national effort to shape who gets to vote in November — and whose ballots are counted.

Its premise is that a Republican victory in November is imperiled by widespread voter fraud, a baseless charge embraced by President Trump, but repeatedly debunked by research.<https://www.brennancenter.org/sites/default/files/analysis/Briefing_Memo_Debunking_Voter_Fraud_Myth.pdf> Democrats and voting rights advocates say the driving factor is politics, not fraud — especially since Mr. Trump’s narrow win in 2016 underscored the potentially crucial value of depressing turnout by Democrats, particularly minorities.

The Republican program, which has gained steam in recent weeks, envisions recruiting up to 50,000 volunteers in 15 key states to monitor polling places and challenge ballots and voters deemed suspicious. That is part of a $20 million plan that also allots millions to challenge lawsuits by Democrats and voting-rights advocates seeking to loosen state restrictions on balloting. The party and its allies also intend to use advertising, the internet<https://protectthevote.com/?utm_medium=email&utm_source=pu_48&utm_campaign=20200508_123842_&utm_content=&_ga=2.58845101.124784289.1588967538-1349174632.1588967538> and President Trump’s command of the airwaves to cast Democrats as agents of election theft.

The efforts are bolstered by a 2018 federal court ruling that for the first time in nearly four decades allows the national Republican Party to mount campaigns against purported voter fraud without court approval. The court ban on Republican Party voter-fraud operations was imposed in 1982, and then modified in 1986 and again in 1990,<https://www.theatlantic.com/politics/archive/2018/01/the-gop-just-received-another-tool-for-suppressing-votes/550052/> each time after courts found instances of Republicans intimidating or working to exclude minority voters in the name of preventing fraud. The party was found to have violated it yet again in 2004…

Among other things, Democrats cite Mr. Trump’s repeated demands that law-enforcement officers patrol the polls and the recent creation of voter-fraud task forces by Republicans in four state governments, at least in part at the national party’s urging.

They also point to a meeting in February attended by conservative political luminaries and at least one national Republican Party official, sponsored by the Center for National Policy, a group of conservative power brokers. The topic was voter fraud and “ballot security” operations, particularly in inner cities and areas with Native American populations, according to The Intercept, which published excerpts from a recording<https://theintercept.com/2020/04/11/republican-poll-watchers-vote-by-mail-voter-fraud/?ref=hvper.com> of the meeting.

One group represented at that meeting, Texas-based True the Vote<https://truethevote.org/>, is recruiting military veterans to become poll monitors. The group, an offshoot of a Houston Tea Party branch, was scrutinized by local prosecutors after its first poll-monitoring effort in 2012 sparked complaints of voter intimidation<https://www.theatlantic.com/magazine/archive/2012/10/the-ballot-cops/309085/>.

The group’s founder, Catherine Engelbrecht, told the gathering that Democrats could inundate the polls with phony votes. “The swarming tactics of a radicalized socialist mind-set,” she warned, “is a dangerous thing to behold.” The group did not respond to a request for comment.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>

“With Move to Remote Voting, House Alters What It Means for Congress to Meet”<https://electionlawblog.org/?p=111459>
Posted on May 18, 2020 7:50 am<https://electionlawblog.org/?p=111459> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/05/15/us/politics/remote-voting-house-coronavirus.html>
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>

“Voting registration activists are shifting their message to health care during the coronavirus pandemic”<https://electionlawblog.org/?p=111457>
Posted on May 18, 2020 7:48 am<https://electionlawblog.org/?p=111457> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/2020/05/18/voting-registration-activists-are-shifting-their-message-health-care-during-coronavirus-pandemic/>
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Posted in voter registration<https://electionlawblog.org/?cat=37>

“‘It’s Partly On Me’: GOP Official Says Fraud Warnings Hamper Vote-By-Mail Push”<https://electionlawblog.org/?p=111455>
Posted on May 18, 2020 7:46 am<https://electionlawblog.org/?p=111455> by Rick Hasen<https://electionlawblog.org/?author=3>

Pam Fessler for NPR<https://www.npr.org/2020/05/15/856189149/it-s-partly-on-me-gop-official-says-fraud-warnings-hamper-vote-by-mail-push>.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“What is ballot harvesting and how is it affecting Southern California elections? Misinformation and deeply partisan divides over ballot collecting remain, even as both parties tap the strategy heading into November.”<https://electionlawblog.org/?p=111453>
Posted on May 18, 2020 7:43 am<https://electionlawblog.org/?p=111453> by Rick Hasen<https://electionlawblog.org/?author=3>

OC Register<https://www.ocregister.com/2020/05/17/what-is-ballot-harvesting-and-how-is-it-affecting-southern-california-elections/>:

Even the term for the process is contentious. Republicans uniformly call it “ballot harvesting,” implying that election results are planted and plucked from a field of voters. Democrats and voting rights advocates prefer the term “ballot collection,” insisting it’s a service for voters at risk of being shut out of the electoral process.

Nobody knows how often it happens, or how many votes are collected in this manner. There is no mechanism in California to tally ballots that are collected versus all other ballots. And, without such data, it’s impossible to tell how much of an impact the practice actually has on any election.

Southern California election officials, and others, say they haven’t seen any evidence of ballot tampering or fraud tied to ballot harvesting. The Orange County District Attorney, for example, says they haven’t received any complaints about potential abuse by ballot collectors. And no such case has been prosecuted in California.

But that hasn’t stopped GOP voters and officials from suggesting that ballot harvesting is a shady practice, and that two years ago Democrats used it to “steal” elections in Southern California. Even President Donald Trump condemned the practice last month, tweeting, “GET RID OF BALLOT HARVESTING, IT IS RAMPANT WITH FRAUD.”

Still, the practice figures to become more common this year. It’s possible that in-person voting will be less popular because of the threat of coronavirus or shelter-in-place rules, and Democrats say the ability to collect ballots could help the elderly and immunocompromised participate in the process….

While opponents also blame ballot harvesting for delaying election results, Kelley said a rise in mail-in voting and a separate law that lets people mail their ballots on Election Day have extended the vote count and there is no evidence that ballot harvesting is a factor. In 2018, for example, Kelley said collectors dropped off some stacks of ballots shortly after ballots were mailed out, but that they didn’t see big volumes coming in that way on Election Day.

Rick Hasen, a professor at UC Irvine who specializes in election law, said he sees value to states having reasonable limits on ballot harvesting, such as Colorado’s cap of 10 ballots per collector.

“Not because collecting ballots itself in and of itself is a problem,” he said.

“But giving ballots to a third party can provide an opportunity for there to be tampering with the ballots,” he added. “And during a time period when people are so skeptical about the integrity of elections and so quick to yell ‘fraud,’ I think not having outside groups handle large numbers of ballots makes sense.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Deadlines start now for safe voting in November”<https://electionlawblog.org/?p=111451>
Posted on May 18, 2020 7:36 am<https://electionlawblog.org/?p=111451> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/deadlines-states-coronavirus-elections-471fc4a9-f651-43e5-b496-285e59e4bfb5.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“If Democrats Hold a Big Convention, Will Anybody Come? The Times interviewed 59 delegates who will help nominate Joe Biden. Most said they don’t want to risk their own health, or the health of others, by attending a full-scale convention in Milwaukee.”<https://electionlawblog.org/?p=111449>
Posted on May 18, 2020 7:32 am<https://electionlawblog.org/?p=111449> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/05/18/us/politics/democratic-convention-virus.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Justin Amash will not launch third-party bid for president”<https://electionlawblog.org/?p=111447>
Posted on May 18, 2020 7:29 am<https://electionlawblog.org/?p=111447> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/2020/05/16/politics/justin-amash-will-not-run-president/index.html>
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Posted in third parties<https://electionlawblog.org/?cat=47>
“Democrats try again with sweeping mail voting requirements”<https://electionlawblog.org/?p=111445>
Posted on May 18, 2020 7:23 am<https://electionlawblog.org/?p=111445> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.yahoo.com/news/democrats-try-again-sweeping-mail-221735808.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Sweeping lawsuit seeks to have absentee ballot requests sent to all Wisconsin voters”<https://electionlawblog.org/?p=111443>
Posted on May 18, 2020 7:13 am<https://electionlawblog.org/?p=111443> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/2020/05/18/sweeping-lawsuit-seeks-have-absentee-ballot-requests-sent-all-wisconsin-voters/5211675002/>:

A disability rights group and others sued Wisconsin election officials Monday to try to ensure the state has enough poll workers and guarantee voters who want absentee ballots receive them, adding to a cascade of litigation over how elections should be run as the coronavirus pandemic persists.

The lawsuit, filed in federal court in Madison, seeks to ensure people have ample opportunities to vote in person or by mail for the August primary and November general election. It aims to force election officials to hire more poll workers, send absentee ballot request forms to all registered voters, set up secure drop boxes for absentee ballots in every community and notify voters if their ballots won’t be counted so they have time to fix any problems.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>

“Voting by mail helps the GOP. California’s special election proved that.”<https://electionlawblog.org/?p=111441>
Posted on May 18, 2020 7:11 am<https://electionlawblog.org/?p=111441> by Rick Hasen<https://electionlawblog.org/?author=3>

Rob Stutzman WaPo oped<https://www.washingtonpost.com/opinions/2020/05/15/voting-by-mail-helps-gop-californias-special-election-proved-that/>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, campaigns<https://electionlawblog.org/?cat=59>

Brad Smith Reviews “Election Meltdown”<https://electionlawblog.org/?p=111439>
Posted on May 18, 2020 6:58 am<https://electionlawblog.org/?p=111439> by Rick Hasen<https://electionlawblog.org/?author=3>

At the Law & Liberty blog<https://lawliberty.org/book-review/liberal-meltdown-over-elections/#.XsJwSGnUnWo.twitter>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

What happens if a U.S. presidential candidate withdraws (or dies) before the election is over?<https://electionlawblog.org/?p=111436>
Posted on May 16, 2020 5:53 am<https://electionlawblog.org/?p=111436> by Richard Pildes<https://electionlawblog.org/?author=7>

With the coronavirus and candidates both in their 70s, I have been getting many questions about what happens if, unfortunately, a presidential candidate dies or becomes incapacitated at various points between now and Inauguration Day. The Washington Post today has a two-part interview with me working through the various scenarios and the legal framework, as well as political context, under which this issue would be resolved.

Part I is here<https://www.washingtonpost.com/politics/2020/05/16/what-happens-if-us-presidential-candidate-withdraws-or-dies-before-election-is-over-part-1/>.

Part II is here<https://www.washingtonpost.com/politics/2020/05/16/what-else-happens-if-us-presidential-candidate-withdraws-or-dies-before-election-is-over-part-2/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: Texas Supreme Court Temporarily Reverses Lower Appeals Court in Absentee Ballot Case, Meaning AG Paxton Can Keep Telling Counties That Voters Can’t Claim Fear of Contracting COVID-19 As Basis to Vote By Mail<https://electionlawblog.org/?p=111432>
Posted on May 15, 2020 5:40 pm<https://electionlawblog.org/?p=111432> by Rick Hasen<https://electionlawblog.org/?author=3>

The order<https://electionlawblog.org/wp-content/uploads/20-0401_STAY-ORDER-ISSUED_MAND.pdf>, with no noted dissents and no reasoning, is here. Oral argument will be on May 20. The stay is temporary, pending resolution of the case.

My earlier coverage is: 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>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

Divided NY Appeals Court Rejects Conservative Party House Candidate’s Attempt to Get on The Ballot after Missing Filing Deadline by One Day in Light of COVID-19<https://electionlawblog.org/?p=111430>
Posted on May 15, 2020 3:50 pm<https://electionlawblog.org/?p=111430> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion here<https://electionlawblog.org/wp-content/uploads/531344.pdf>.
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Posted in ballot access<https://electionlawblog.org/?cat=46>

Republicans on House Administration Committee Release Report on “Ballot Harvesting” That Comes Up with Zero Wrongdoing in California (But Is Full of Unsupported Innuendo)<https://electionlawblog.org/?p=111426>
Posted on May 15, 2020 3:31 pm<https://electionlawblog.org/?p=111426> by Rick Hasen<https://electionlawblog.org/?author=3>

At one point they try to tie California activities to the illegal activities in North Carolina (which benefitted the Republican candidate).

Really if this<https://republicans-cha.house.gov/committee-republicans-report-ballot-harvesting-california> is the best you can do, why bother?

(And I say this as someone who opposes California’s law allowing the unlimited third party collection of absentee ballots.)
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Vote at Home Policy Actions: COVID-19 Response”<https://electionlawblog.org/?p=111424>
Posted on May 15, 2020 3:24 pm<https://electionlawblog.org/?p=111424> by Rick Hasen<https://electionlawblog.org/?author=3>

A report <https://www.voteathome.org/wp-content/uploads/2020/05/NVAHI-50-State-Policy-Analysis.pdf> for all 50 states.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas”<https://electionlawblog.org/?p=111422>
Posted on May 15, 2020 3:22 pm<https://electionlawblog.org/?p=111422> by Rick Hasen<https://electionlawblog.org/?author=3>

Mike Parsons has written this article<https://minnesotalawreview.org/wp-content/uploads/2020/05/Parsons_Final.pdf> for the Minnesota Law Review. Here is the abstract:

The marketplace of ideas features prominently in First Amendment doctrine, with the Supreme Court invalidating laws that purportedly interfere with the free flow of information through society. Yet, the modern version of the market metaphor rests entirely upon contradictory conceptual assumptions, false empirical premises, and an unsupported historical narrative. Without any coherent or realistic account of how a “marketplace of ideas” actually functions—how we reason and how ideas spread—one cannot say that a law “interferes” with it.

This Article suggests a more fruitful axis for analyzing competition in the marketplace of ideas: the role of attention. The choices we make about where to direct our attention and the terms of access to that attention serve a critical function in determining which ideas spread throughout society. If speakers are “producers” and listeners are “consumers,” then our decentralized decisions about who we trust with our attention and what deserves our attention are the missing market mechanism—the way we confer value in the marketplace of ideas.

Focusing on attentional choice offers a way to cabin and clarify the judicial role while expanding and exploring the limits of the legislative role. Just as Congress can enact laws that safeguard economic competition and disrupt private practices that undermine the influence of consumer choice, so too should Congress be able to enact laws that promote free competition between ideas and protect genuine attentional choice.

This interpretive approach has consequences for the Supreme Court’s campaign-finance jurisprudence as well, where the close nexus between “money” and “speech” becomes more nuanced. Some expenditures may promote free competition, such as the cost of producing content or the cost of distributing content to meet attentional demand. These deserve full constitutional protection. Other expenditures may not. Advertising costs, for example, reflect payments for access to attention. Because advertisements by definition contain content that no one chose to consume from speakers that no one chose to trust with their attention, they allow content to circumvent the competitive process and should be more amenable to regulation.

By privileging speakers and intermediaries that have earned access to our attention, the Supreme Court can ground its doctrine more firmly in reality and better serve the First Amendment’s autonomy- and democracy-enhancing purposes. In our information-rich and attention-scarce world, the greatest threats to individual and societal self-governance now come from private actors, not state censors. An attentional theory of competition gives legislators latitude to protect the marketplace of ideas for a new generation while retaining robust constitutional defenses against any risk of government overreach.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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>

--
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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