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

Tue May 19 07:22:19 PDT 2020

Your new draft article looks EXCELLENT Rick.

Keep up the good work!

John

On 5/19/2020 7:09 AM, Rick Hasen wrote:
>
>
>     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./
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111481&title=My%20New%20Draft%20Article%3A%20%E2%80%9CThree%20Pathologies%20of%20American%20Voting%20Rights%20Illuminated%20by%20the%20COVID-19%20Pandemic%2C%20and%20How%20to%20Treat%20and%20Cure%20Them%E2%80%9D>
>
> Posted inelection 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./
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111479&title=%E2%80%9CSecretary%20of%20State%3A%20All%20Michigan%20voters%20will%20get%20absentee%20ballot%20applications%20at%20home%E2%80%9D>
>
> Posted inUncategorized <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>
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111477&title=%E2%80%9CTake%20Some%20Deep%20Breaths%20and%20Prepare%20to%20Wait%20for%20Election%20Results%3B%20It%20will%20enhance%20the%20legitimacy%20of%20the%20election%20if%20we%20take%20the%20time%20for%20an%20accurate%20count%E2%80%9D>
>
> Posted inElection 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./
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111475&title=%E2%80%9CPhantom%20super%20PAC%20says%20it%20returned%20donations%E2%80%9D>
>
> Posted incampaigns <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>
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111473&title=Bay%20Area%20Book%20Festival%3A%20%E2%80%9CCourts%2C%20COVID-19%2C%20and%20Voter%20Suppression%E2%80%9D>
>
> Posted inElection 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…./
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111471&title=%E2%80%9CElectoral%20College%2C%20the%20Senate%20and%20the%20Founders%E2%80%9D>
>
> Posted inelectoral 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./
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111468&title=%E2%80%9CElection%20Litigation%20in%20the%20Time%20of%20the%20Pandemic%E2%80%9D>
>
> Posted inUncategorized <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.
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111465&title=I%20Spoke%20to%20Warren%20Olney%E2%80%99s%20%E2%80%9CTo%20The%20Point%E2%80%9D%20About%20USPS%2C%20Vote%20by%20Mail%2C%20and%20Elections%20During%20a%20Pandemic>
>
> Posted inUncategorized <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.///
>
> Share 
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111463&title=%E2%80%9CACS%20Columbus%3A%20Balancing%20Public%20Health%20and%20Election%20Administration%E2%80%9D>
>
> Posted inelection 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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> Law-election at department-lists.uci.edu
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