[EL] ELB News and Commentary 5/19/20

Tue May 19 07:09:50 PDT 2020

My New Draft Article: “Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them”<https://electionlawblog.org/?p=111481>
Posted on May 19, 2020 7:07 am<https://electionlawblog.org/?p=111481> by Rick Hasen<https://electionlawblog.org/?author=3>

I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> on SSRN, which is a work in progress aimed at a moving target. Comments welcome. Here is the abstract:

The COVID-19 global pandemic, which already has claimed approximately 90,000 lives in the United States as of mid-May 2020, revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States. For example, whether someone who fears contracting COVID-19 at a polling place will be able to vote by mail successfully in the November 2020 presidential election will depend upon where that person lives; how legislative, administrative, and potentially judicial bodies acting in a highly polarized atmosphere have interpreted laws related to absentee balloting; the ability of local election officials to process an expected flood of requests for absentee ballots; the ability of voters and of the United States Postal Service to return those ballots before the deadline for receipt; and the capacity for election officials to properly count those votes. The recent fight over a potential delay in the April 7 Wisconsin primary in light of the pandemic does not instill confidence that American voting rights will be protected in the November 2020 elections.

The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decisionmaking. Third, constitutional protections for voting rights remain weak.

Despite these three pathologies, the insufficient progress correcting them twenty years after the Florida debacle culminating in Bush v. Gore, and the polarized, disappointing path of the Wisconsin primary and the Supreme Court’s decision concerning Wisconsin ballot receipt deadlines, there is room for some hope that courts will provide a good measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation “the Democracy Canon,” an old canon of judicial interpretation counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights.

Court intervention can only go so far, however, and long term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting<https://electionlawblog.org/?cat=31>, Voting Rights Act<https://electionlawblog.org/?cat=15>

“Secretary of State: All Michigan voters will get absentee ballot applications at home”<https://electionlawblog.org/?p=111479>
Posted on May 19, 2020 6:49 am<https://electionlawblog.org/?p=111479> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press:<https://www.freep.com/story/news/politics/elections/2020/05/19/all-michigan-voters-get-absentee-ballot-applications-in-mail/5218266002/>

Secretary of State Jocelyn Benson said Tuesday all of Michigan’s 7.7 million registered voters will be mailed absentee ballot applications so they can take part in elections in August and November without the risk of in-person voting if they choose to do so.

Benson, in a move likely to anger some Republicans and potentially lead to a court battle, said the threat posed by the spread of coronavirus, which has already killed 4,915 Michiganders since March but has been on the decline in recent weeks, is still too great to consider having people go en masse to the polls to vote in the Aug. 4 and Nov. 3 elections. Benson is a Democrat.

“By mailing applications we have ensured that no Michigander has to choose between their health and their right to vote,” Benson said. She noted that in 50 local elections held across the state on May 5<https://www.freep.com/story/news/local/michigan/2020/05/05/michigan-absentee-ballot-elections/3085416001/>, turnout was up significantly from other years and that the vast majority of voters cast absentee ballots by mail or through a drop box.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Take Some Deep Breaths and Prepare to Wait for Election Results; It will enhance the legitimacy of the election if we take the time for an accurate count”<https://electionlawblog.org/?p=111477>
Posted on May 19, 2020 6:46 am<https://electionlawblog.org/?p=111477> by Rick Hasen<https://electionlawblog.org/?author=3>

Ellen Weintraub and Kevin Kruse NYT oped.<https://www.nytimes.com/2020/05/18/opinion/2020-election-results-delay.html>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Phantom super PAC says it returned donations”<https://electionlawblog.org/?p=111475>
Posted on May 19, 2020 6:45 am<https://electionlawblog.org/?p=111475> by Rick Hasen<https://electionlawblog.org/?author=3>

Odd ending<https://www.politico.com/news/2020/05/18/phantom-super-pac-says-it-returned-donations-267062?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318> to an odd story:

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. Since then, no ads from the super PAC have appeared on television or in the public databases of either Facebook or Google.

The filing also had other inconsistencies, including several vendors listed as doing business in Washington not appearing in a public database maintained by the District of Columbia government.

In a new filing with the FEC<https://docquery.fec.gov/pdf/784/202005189232787784/202005189232787784.pdf> on Monday, Americans for Progressive Action USA reported that it returned more than $4.8 million in donations it said it received from three donors with Texas addresses. In memo lines explaining why the donations were being returned, three reasons were listed: “refund due to POLITICO”, “refund” and “refund after Montellaro” — the last name of a POLITICO reporter.

The new filing made no mention of the extensive advertising campaign it previously reported.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

Bay Area Book Festival: “Courts, COVID-19, and Voter Suppression”<https://electionlawblog.org/?p=111473>
Posted on May 19, 2020 6:43 am<https://electionlawblog.org/?p=111473> by Rick Hasen<https://electionlawblog.org/?author=3>

I was very happy to participate in this panel (where I talked about my book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>) with Alan Hirsch, Abdi Soltani, and Lala Wu for the Bay Area Book Festival Unbound. Watch here:<https://www.youtube.com/watch?time_continue=2&v=3Wrk90RNND4&feature=emb_logo>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Electoral College, the Senate and the Founders”<https://electionlawblog.org/?p=111471>
Posted on May 18, 2020 8:40 pm<https://electionlawblog.org/?p=111471> by Rick Hasen<https://electionlawblog.org/?author=3>

Lyle Denniston<https://lyldenlawnews.com/2020/05/18/electoral-college-the-senate-and-the-founders/>:

No matter how the U.S. Supreme Court rules on the current constitutional controversy over voting by electors in the Electoral College, members of that body will meet in their own states next December to cast crucial votes for the presidency.  The Court has not been asked to strike down the College.

Only in a fairly loose sense, however, will the outcome in the College truly reflect the political will of the nation, when judged by how representative the College is, or is not.  That is a rather harsh judgment; why might that be so?  It flows from a shared problem in the makeup of both the U.S. Senate and the Electoral College, a problem dating back to the founding era.

Looking first at the Senate and then at the College, the problem of representation begins to emerge.  Under the Constitution, the Senate was designed explicitly not to be a truly representative part of the national government, even though it shares half of the power to enact laws with the far more representative House.

Each state gets two Senators, regardless of population; the House is supposed to reflect states’ population variations, although gerrymandering can compromise how representative it truly is.

What about the Electoral College, the place where presidential elections are actually decided?   Each state gets two guaranteed votes in the College to reflect its guaranteed two seats in the Senate and each state gets at least a guaranteed third College vote, however small that state may be.

With those considerations in mind, consider this odd fact: at the Supreme Court’s hearings last week on the Electoral College, not one of the Justices seemed worried about how under-representative the College is, even though there was much talk about the need for the electors to respect the votes cast by the people.  (Neither was there any expressed concern about the makeup of the Senate, despite how that links to the College’s membership.)

Consider a further point, which seems like a constitutional reality but may be debatable: the Constitution makes it extremely difficult to change the makeup of the College so that it would be more representative, and also makes it even more difficult (maybe close to impossible) to change the Senate itself in that way….
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Election Litigation in the Time of the Pandemic”<https://electionlawblog.org/?p=111468>
Posted on May 18, 2020 7:14 pm<https://electionlawblog.org/?p=111468> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

This short piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604763> of mine on election law cases involving the pandemic is coming out soon in the University of Chicago Law Review Online.

In this brief essay, I consider how courts have deployed the framework of sliding-scale scrutiny in the time of the pandemic. In particular, three novel issues have arisen in recent cases: (1) how to conceptualize burdens that are attributable to both state action and the pandemic; (2) whether to fault plaintiffs for not having taken precautionary steps before the pandemic hit; and (3) what weight to give to the so-called Purcell<https://1.next.westlaw.com/Document/I06aac020602d11dbb38df5bc58c34d92/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)> principle, which frowns on late-breaking judicial changes to electoral rules. Overall, I think most courts have reached the right answers on these issues. The Supreme Court, however, is the glaring exception to this encouraging trend. This leads me to two conclusions. One is that sliding-scale scrutiny is an impressively flexible doctrine, able to resolve adequately new kinds of claims in the midst of an unprecedented calamity. The other is that the current Court remains what I have called<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483321> the anti-Carolene Court, implacably hostile to efforts to vindicate democratic values.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

I Spoke to Warren Olney’s “To The Point” About USPS, Vote by Mail, and Elections During a Pandemic<https://electionlawblog.org/?p=111465>
Posted on May 18, 2020 5:48 pm<https://electionlawblog.org/?p=111465> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen here<https://www.kcrw.com/news/shows/to-the-point/gene-sperling-economic-dignity-frontline-workers-covid-nurses>, beginning at the 48-minute mark.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“ACS Columbus: Balancing Public Health and Election Administration”<https://electionlawblog.org/?p=111463>
Posted on May 18, 2020 8:34 am<https://electionlawblog.org/?p=111463> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to participating in this event<http://getinvolved.acslaw.org/component/events/event/602> with Ned Foley Tuesday at noon eastern (registration required):

The recent primary elections in Wisconsin and Ohio demonstrated just how disruptive the current global health crisis is to voting – and how important it will be to protect our elections this November. No voters should be forced to choose between casting their ballots and protecting their health and safety. As states face the prospect of administering a November presidential election during a pandemic, lawmakers and election officials alike need to prioritize safe, equitable access to the ballot in order to preserve our most important democratic institutions.

Join the ACS Columbus, Austin, Chicago, Cincinnati, Georgia, Hoosier, Knoxville, Los Angeles, Madison, Michigan, and Northeast Ohio Chapters, as well as election experts, as we explore how states can best adapt to this new reality and what other COVID-impacted elections in the United States can teach us about the path forward.

Featuring:

Edward Foley, Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and Director of the Election Law Program, The Ohio State University’s Moritz College of Law

Richard Hasen, Chancellor’s Professor of Law and Political Science, UC Irvine School of Law

Moderated by:

Katy Shanahan, Ohio State Director, All on the Line; Co-President, ACS Columbus Lawyer Chapter

Attendees will be sent dial-in information upon registration.
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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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