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

[Rick Hasen]

“Trump’s bogus attacks on mail-in voting could hurt his supporters, too; The president is undermining democracy. He could also be undermining his own campaign.”<https://electionlawblog.org/?p=111539>
Posted on May 20, 2020 10:51 am<https://electionlawblog.org/?p=111539> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://www.washingtonpost.com/outlook/2020/05/20/trump-mail-vote-fraud/> for the Washington Post. It begins:

On Wednesday morning, President Trump threatened to withhold aid from Michigan<https://twitter.com/realDonaldTrump/status/1263074783673102337> and Nevada<https://twitter.com/realDonaldTrump/status/1263094958417985538> because of purportedly illegal activity related to absentee ballots. In reality, the states are doing nothing illegal — they are trying to ensure that voters can exercise their right to vote without jeopardizing their health during a pandemic.

Even putting aside the likely unconstitutionality<https://twitter.com/sbagen/status/1263107436904316929> of the president conditioning aid to states upon acceding to his political demands, Trump’s unsupported claims are exceedingly troubling because they seek to cast doubt on the legitimacy and fairness of the upcoming elections without reason. And Trump may not realize it, but they are also politically counterproductive for him: Rural Republican voters, even in blue states, may be the ones most hurt in November by attacks on mail-in balloting….

By claiming that Democrats cheat, he’s laying the groundwork for instability and a potential political crisis in November should he lose. Democracy depends upon the losers of an election accepting the election results as legitimate and agreeing to regroup to fight to regain political power in the next election. If large numbers of voters believe that the winning side cheated in elections, we could have unrest and resistance to lawful government orders.

I am particularly worried about states like Michigan, which for the first time will see a tsunami of absentee ballots in November. These states do not have long histories of counting absentee ballots, which takes much more time than counting in-person ballots (because absentee ballot envelopes need to be checked and processed before ballots can be counted). It will be the big Democratic cities like Detroit that will take the longest for ballots to be counted. It is entirely conceivable that Trump could be ahead in the ballot count on election night based on votes cast in person, only to see his lead disappear and Democrat Joe Biden declared the state’s winner days later. What if Trump claims victory on election night and claims without evidence that the later-counted ballots are infected with massive fraud? As I explain in 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>,” he made just such an unsubstantiated claim about a disputed U.S. Senate race in Florida in 2018. He could use the period during delayed counting to rile up his supporters.

The president’s dangerous tweets stand to undermine our democracy. In a recent report<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>, a committee of election experts that I chaired issued 14 recommendations to ensure that we have a fair election during the pandemic and that the vast majority of voters will accept the results of the election as legitimate. Among the key recommendations are that states should reduce delays in the counting of absentee ballots and that the media should help inform the public that because of increased absentee voting, “delays in election reporting are to be expected, not evidence of fraud, and that the 2020 presidential election may be ‘too early to call’ until days after Election Day.”

But, ironically, Trump’s claims about voter fraud also increase the chances that he is going to lose in November. We know that rural Republican voters had a harder time<https://www.nytimes.com/2020/04/14/us/politics/trump-wisconsin-2020-election.html?smid=nytcore-ios-share> voting by mail in Wisconsin when it held its recent primary under pandemic conditions. As political scientist Michael McDonald<https://twitter.com/ElectProject/status/1263099986750967808> pointed out, rural counties are going to have the hardest time dealing with an absentee ballot surge because these areas are more likely to lack adequate resources and training. Why would Trump voters jump through extra hoops to vote by mail if they believe, as the president is telling them, that the system is rife with fraud? The voters Trump is hurting is his own<https://www.nydailynews.com/opinion/ny-oped-how-to-vote-during-a-pandemic-20200420-spwxu5vkgngwfdwcvyw547zoy4-story.html>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
St. Louis Law University Journal Publishes Election Law Symposium Issue, Including My Keynote Childress Lecture, ” Deep Fakes, Bots, and Siloed Justices: American Election Law in a ‘Post-Truth’ World”<https://electionlawblog.org/?p=111536>
Posted on May 20, 2020 10:47 am<https://electionlawblog.org/?p=111536> by Rick Hasen<https://electionlawblog.org/?author=3>

Very excited about this,<https://scholarship.law.slu.edu/lj/> and grateful to Dan Blair, Chad Flanders and the folks at St. Louis U. that made this happen:

Childress Lecture

Deep Fakes, Bots, and Siloed Justices: American Election Law in a “Post-Truth” World<https://scholarship.law.slu.edu/lj/vol64/iss4/3>
Richard L. Hasen

Truth, Democracy, and the Limits of Law<https://scholarship.law.slu.edu/lj/vol64/iss4/4>
Daniel P. Tokaji

Motivated Reasoning, Post-Truth, and Election Law<https://scholarship.law.slu.edu/lj/vol64/iss4/5>
Guy-Uriel E. Charles

Election Law Originalism: The Supreme Court’s Elitist Conception of Democracy<https://scholarship.law.slu.edu/lj/vol64/iss4/6>
Yasmin Dawood

Was the 2016 Election Legitimate?<https://scholarship.law.slu.edu/lj/vol64/iss4/7>
Chad Flanders

Elect<https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=1787&context=lj>ion Law on the Ground: Challenges in Missouri<https://scholarship.law.slu.edu/lj/vol64/iss4/8>
Denise Lieberman

Chameleon Congressional Districts<https://scholarship.law.slu.edu/lj/vol64/iss4/9>
Derek T. Muller
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>
“Trump Steps Up Attacks on Mail Vote, Making False Claims About Fraud; President Trump threatened to withhold federal funding for Michigan and Nevada if the states moved forward in expanding vote by mail.”<https://electionlawblog.org/?p=111534>
Posted on May 20, 2020 9:42 am<https://electionlawblog.org/?p=111534> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/05/20/us/politics/trump-michigan-vote-by-mail.html>:

 President Trump<https://www.nytimes.com/interactive/2020/us/elections/donald-trump.html> on Wednesday escalated his assault against mail voting, falsely claiming that Michigan and Nevada were engaged in voter fraud and had acted illegally, and threatening to withhold federal funds to those states if they proceed in expanding vote-by-mail efforts.

The president inaccurately accused the two states of sending mail ballots to its residents. In fact, the secretaries of state in Michigan and Nevada sent applications for mail ballots, as election officials have done in other states, including those led by Republicans.

The Twitter posts<https://twitter.com/realDonaldTrump/status/1263074783673102337?s=20> were the latest in a series of broadsides the president has aimed at a process that has become the primary vehicle for casting ballots in an electoral system transformed by the coronavirus pandemic.

As most states largely abandon in-person voting because of health concerns, Mr. Trump, along with many of his Republican allies, have launched a series of false attacks to demonize mail voting as fraught with fraud and delivering an inherent advantage to Democratic candidates — despite there being scant evidence<https://www.nytimes.com/2020/04/10/us/politics/vote-by-mail.html> for either claim.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
Yale Student Challenged by Incumbent on Residency Grounds Wins Right to Remain on NY Assembly Ballot<https://electionlawblog.org/?p=111532>
Posted on May 20, 2020 9:38 am<https://electionlawblog.org/?p=111532> by Rick Hasen<https://electionlawblog.org/?author=3>

NY County Politics<https://www.newyorkcountypolitics.com/2020/05/19/koffman-wins-suit-against-assemblymember-quart/>:

The First Department Court has reached a decision; Cameron Koffman is staying on the ballot for Assembly District 73.

Last Month, Assemblymember Dan Quart (D-Murray Hill, Lenox Hill) sued to remove his challenger, 22-year-old Cameron Koffman, from the ballot. The suit alleged that Koffman’s four years at Yale disqualify him from the assembly, which requires that candidates spend five continuous years as New York State residents prior to the election.

On May 14, however, the First Department Court officially dismissed Quart’s suit. The court’s reasoning was that, while Koffman was living on-campus in Yale, his permanent address was still in New York. Furthermore, in 2017 Koffman served jury duty in New York County, and did not request exemption on the grounds that he was no longer a resident of New York.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Electoral college debate ft. Jamelle Bouie & Kate Shaw vs. Bradley Smith & Tara Ross<https://electionlawblog.org/?p=111530>
Posted on May 20, 2020 9:35 am<https://electionlawblog.org/?p=111530> by Rick Hasen<https://electionlawblog.org/?author=3>
Tonight at 6:00pm ET, Intelligence Squared U.S. holds its first two-on-two virtual debate, arguing over the motion “The Electoral College Has Outlived Its Usefulness“.

New York Times columnist Jamelle Bouie and Cardozo law professor Kate Shaw argue in favor of the motion.

Former FEC Chairman Bradley A. Smith and ‘Why We Need the Electoral College’ author Tara Ross argue against it.

Audience vote will determine the winner, based on who changed the most minds over the course of the hour-long debate.

The debate will stream for free online, but requires advance registration to access. Register here<https://bit.ly/IQ2ElecReg> and tune in tonight.
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Posted in electoral college<https://electionlawblog.org/?cat=44>
There’s a Genuine Absentee Ballot Fraud Scandal Going On in Paterson, New Jersey and It Is Going to Get a Lot of National Attention: What Lessons Should We Learn?<https://electionlawblog.org/?p=111528>
Posted on May 20, 2020 9:31 am<https://electionlawblog.org/?p=111528> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’s some coverage<https://www.nbcnewyork.com/news/local/corruption-allegations-keep-growing-in-paterson-vote-by-mail-election/2416111/> from NBC New York:

Numerous residents are now complaining that they never received or sent in a vote-by-mail ballot — even though Passaic County Board of Election records show a ballot in their name was mailed in.

Ramona Javier made that exact complaint from her front stoop along Chestnut Street. “We did not receive vote by mail ballots and thus we did not vote,” she said in Spanish. When she was shown an official list of some of the people who voted on her block – and that her name was on that list — Javier said, ”This is corruption. This is fraud.”

Javier said there are eight relatives and immediate neighbors she knows of listed as having voted — but who insist they never even received ballots, including one relative who she says has been in Florida for weeks.

And more:<https://www.nbcnewyork.com/news/local/nj-gov-phil-murphy-faces-voter-frustration-amid-paterson-election-controversy/2419474/>

Hundreds of votes were allegedly found bundled and stuffed in a single mailbox in neighboring Haledon. Postal workers also said they discovered hundreds of other mail-by-vote ballots stuffed in mailboxes in part of the city. And cell phone video posted on social media appears to show one voter mailing many votes. These issues raise questions if there was an organized effort by any of the campaigns to try to steal the election. Past close council seats have been decided by a dozen or two vote margin.

Resident Dion Lattimer said this week, ”If you guys are stuffing ballots, it just means our vote doesn’t count.”

Murphy responded to directly to Latimer’s concerns on Friday. “I would say to Dion Lattimer – keep the faith,” Murphy said. “Every vote counts.”

But Mayor Andre Sayegh and numerous council candidates are growing increasingly concerned about whether a fair vote tally can be reached. County election officials have already set aside 800 votes already amid the corruption allegations<https://www.nbcnewyork.com/news/local/hundreds-of-mail-in-votes-already-set-aside-due-to-paterson-voter-fraud-claims/2414171/> — about five percent of the total number of ballots returned. Counting of the vote has stopped until Tuesday so election workers tally the votes then to help avoid chances of exposure to the coronavirus over several days of counting.

I expect Trump and his supporters will point to this as evidence that voter fraud via absentee ballots can happen. But as I explained in this Washington Post piece<https://www.washingtonpost.com/opinions/2020/04/09/trump-is-wrong-about-dangers-absentee-ballots/>, absentee ballot fraud is very rare — there were 491 prosecutions nationwide related to absentee ballots in all elections nationwide between 2000 and 2012, out of literally billions of ballots cast. And when someone tries an absentee ballot scheme like this clumsy attempt in Patterson it is hard to hide. People get caught. Just look at what happened in the North Carolina 9th congressional district in 2018, where a Republican operative tampering with absentee ballots has been indicted for fraud.

The rise in vote by mail should lead to increased vigilance against this sort of activity. But the push to expand vote by mail is worth it given the great health benefits of increased voting by mail during a pandemic, the small risk of fraud, and the likelihood that fraud will get caught.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>
“20 for 20: 20 Ways to Protect the 2020 Presidential Election”<https://electionlawblog.org/?p=111526>
Posted on May 20, 2020 9:08 am<https://electionlawblog.org/?p=111526> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

The Alliance for Securing Democracy<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUbsE6vHcY-2FqVN-2BUJcBwIkNLqHM-2BlER3Dpaq7bhKpbvaUFo8k_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VeNf7DXVM25aaY2qnIK7TDCKxS7WQacKl2Gx-2FZCQ5mJAaEj84nTpZn1sheaHcWs2mnuzIuHDjzhFqiDH3w-2Fo8fiXs1Ui3J41MyOUleH3qxSYPwq8w2jbOVmveqMFDhan5RRPXIjUIKRWRr7NNk-2FV0ubCFdaiWajGop8EWfXYLyrDt0Bs17briovmM70-2FLW5RY4A41-2BHl5Mgyeyj28hVBfX8XksQNj84lTiRMo5UvBXcpLTSLBuGpVV7h4wuAqrMFw-3D> (ASD) at the German Marshall Fund of the United States and the Bipartisan Policy Center (BPC) today released 20 for 20: 20 Ways to Protect the 2020 Presidential Election<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUbsE6vHcY-2FqVN-2BUJcBwIkNKnzxSCOuTDgJXQ8wRLBkXVEpHAkCEz-2BEiwiD7gx5Pc7GXpNBZt44q-2BZgswYLU2tyl6Tz2-2B-2B6IlTKz5BUKPjKTkSLFWIrHnCLLxKWBgB1E6nA-3D-3DF-kl_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VeNf7DXVM25aaY2qnIK7TDCKxS7WQacKl2Gx-2FZCQ5mJAaEj84nTpZn1sheaHcWs2mnuzIuHDjzhFqiDH3w-2Fo8fKAPDgb6DpPjjdJLNfV7uOUR8HYU3ltaB0KGLL7bCZoI75jMvj7LOOr6xJqPrz-2F1JED18WgSrAuJuGkD708yHjqLwScuVUTiLY2DkWW8rMBttImNhvH6F6-2BW63RaRQXKoghk2PDi1drmSAgs5nyJh2Fu5eMOmjGNVGTTbk0pYX4Y-3D>. In this report, ASD’s Elections Integrity Fellow David Levine<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUbsE6vHcY-2FqVN-2BUJcBwIkNLW-2FAFkxICqPP-2B3d7qJmFdH5mD6ZPuVBQX2VDQKMJEwvQ-3D-3Dsd06_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VeNf7DXVM25aaY2qnIK7TDCKxS7WQacKl2Gx-2FZCQ5mJAaEj84nTpZn1sheaHcWs2mnuzIuHDjzhFqiDH3w-2Fo8fU7R-2FyphpAYMIb4EHWChYopKoW8hmvDlJF0ZIoXBRV9CEKQ4fD-2BAUfQTH-2FIzJwD5hc2PGpFh1pyFlMRVnTAnINI4HAqrHmH-2FSOuTevAg5C3jnCfpN2hcBTgcJXsltlftrJUDQlaUfirVfFXWtAoYKZHh-2BI6IRgxfMmygUcHwkrUQ-3D> and BPC’s Elections Project Director Matthew Weil<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUQdHRgFjt4mR-2Fs1HdJIo5ADggD5OoVEb4TG0yS168YQTpRleZOGCjro6stQptklvfw-3D-3Dhk9J_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9VeNf7DXVM25aaY2qnIK7TDCKxS7WQacKl2Gx-2FZCQ5mJAaEj84nTpZn1sheaHcWs2mnuzIuHDjzhFqiDH3w-2Fo8fBHV7qLrSaX6dwBIfLavNmXXrN93ih5fBV39Abmvi2-2F9NdpIkqHBCXdXo7MQvYCV6UJSxYsSIwKgXbJLRb1wOaJpHSV1I1KdOqH44-2FHzaU1QOvnfsKsfhUhJ-2BW15Rj9-2FhChWiJfxDFMNCjIgjLANlKBUnMtFKOe6yxqZibF8me1s-3D> identify 20 ways states could further protect the 2020 presidential election with additional funding….

Some of the 20 recommendations include:

Mitigate the potential risks associated with administering more voting by mail due to the coronavirus

Help local election officials work with Facebook and Twitter to be identified as trusted sources

Use a social media monitoring service to help fight election disinformation and/or misinformation efforts

Further protect the state’s voter registration database from bad actors

Hire additional cybersecurity staff
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Posted in election administration<https://electionlawblog.org/?cat=18>
Tweet of the Day<https://electionlawblog.org/?p=111524>
Posted on May 20, 2020 8:56 am<https://electionlawblog.org/?p=111524> by Rick Hasen<https://electionlawblog.org/?author=3>

WTAF<https://twitter.com/samstein/status/1263131682099658753>:
[cid:image002.jpg at 01D62E94.BD842580]<https://twitter.com/samstein>
<https://twitter.com/samstein>
Sam Stein<https://twitter.com/samstein>
✔@samstein<https://twitter.com/samstein>

<https://twitter.com/samstein/status/1263131682099658753>


How ridiculous had the anti-vote by mail push gotten? A reader sends along this from a South Carolina State Senate candidate saying he opposed vote by mail but wants you to vote absentee if you need to.
[View image on Twitter]<https://twitter.com/samstein/status/1263131682099658753/photo/1>
<https://twitter.com/intent/like?tweet_id=1263131682099658753>
1,503<https://twitter.com/intent/like?tweet_id=1263131682099658753>
8:37 AM - May 20, 2020<https://twitter.com/samstein/status/1263131682099658753>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/samstein/status/1263131682099658753>
649 people are talking about this<https://twitter.com/samstein/status/1263131682099658753>

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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
Federal District Court, Relying on 6th Circuit Esshaki Case, is First Court to Ease Initiative Requirements in Light of the Pandemic<https://electionlawblog.org/?p=111521>
Posted on May 20, 2020 8:54 am<https://electionlawblog.org/?p=111521> by Rick Hasen<https://electionlawblog.org/?author=3>

The court<http://www.acluohio.org/wp-content/uploads/2020/05/Ohio-Federal-Order.pdf> follows the important Sixth Circuit opinion in Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) (which did not involve initatives). I write about Esshaki in this draft paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668>.

(via BAN<http://www.acluohio.org/wp-content/uploads/2020/05/Ohio-Federal-Order.pdf>)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Plaintiffs in Case Challenging Georgia Election Procedures in Light of COVID-19 Ask Federal Court to Reconsider Decision Holding Case Raises Non-Justiciable Political Questions (Reconsideration is Warranted)<https://electionlawblog.org/?p=111518>
Posted on May 20, 2020 7:13 am<https://electionlawblog.org/?p=111518> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the motion here<https://electionlawblog.org/wp-content/uploads/2020519-CGG-Covid-Doc.-48-Rule-59-Motion-to-Reconsider-.pdf>.

Here is what I say about the district court’s initial <https://electionlawblog.org/wp-content/uploads/covid-ga.pdf> political question ruling in my draft paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> on how courts have considered election cases under pandemic conditions:

Not all the judicial opinions have engaged in careful balancing of rights and interests. A federal district court in Georgia recently dismissed a constitutional challenge to Georgia’s rules and procedures for conducting the primary election in light of the pandemic. The court held that it should not engage in Anderson-Burdick balancing because the challenges raised nonjusticiable political questions.[1]<https://electionlawblog.org/#_ftn1> Although the court purported to rely upon Judge William Pryor’s separate concurrence in the recent Florida ballot order case in the Eleventh Circuit,[2]<https://electionlawblog.org/#_ftn2> the district court misread Judge Pryor, who distinguished ballot order challenges that Judge Pryor found nonjusticiable from normal voting rights challenges that should be adjudicated under Anderson-Burdick.[3]<https://electionlawblog.org/#_ftn3>

This move among conservative judges toward nonjusticiability of voting rights claims is especially worrying. The approach of the trial court in the Georgia case would essentially give states a free hand to pass legislation that favors incumbents or a political party and to discriminate against a voting minority in the state with no justification whatsoever. It would render existing constitutional protections of voting rights a nullity by depending upon state actors with the potential to manipulate election rules in their self-interest to police themselves.

So far, the opinion in the Georgia case is an outlier, and other courts have recognized that courts must not only applying the Anderson-Burdick balancing test to voting rights challenges but also account for the pandemic context in balancing. Doing so will not inevitably lead to plaintiff victories. For example, claims that come too close to the election are likely to fail under the Purcell Principle. Sometimes courts will not recognize that plaintiffs’ rights are strong enough, or they will see the government’s interests as sufficiently compelling.

________________________________

[1]<https://electionlawblog.org/#_ftnref1> Id. at *17 (“The basic problem with the voters and organizations’ complaint is that it is not based on the right to vote at all, so we cannot evaluate their complaint using the legal standards that apply to laws that burden the right to vote. As the voters and organizations correctly point out, we must evaluate laws that burden voting rights using the approach of Anderson and Burdick, which requires us to weigh the burden imposed by the law against the state interests justifying the law.”).

________________________________

[1]<https://electionlawblog.org/#_ftnref1> Coalition for Good Governance v. Raffensberger, Order, Doc. 43, No. 1:20-cv-1677-TCB at 10 n.2 (N.D. Ga. May 14, 2020), https://electionlawblog.org/wp-content/uploads/covid-ga.pdf.

[2]<https://electionlawblog.org/#_ftnref2> Jacobson v. Fla. Sec’y of State, No. 19-14552, 2020 WL 2049076, at *14 (11th Cir. Apr. 29, 2020) (Pryor, J. concurring).

[3]<https://electionlawblog.org/#_ftnref3> Id. at *17 (“The basic problem with the voters and organizations’ complaint is that it is not based on the right to vote at all, so we cannot evaluate their complaint using the legal standards that apply to laws that burden the right to vote. As the voters and organizations correctly point out, we must evaluate laws that burden voting rights using the approach of Anderson and Burdick, which requires us to weigh the burden imposed by the law against the state interests justifying the law.”).
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111518&title=Plaintiffs%20in%20Case%20Challenging%20Georgia%20Election%20Procedures%20in%20Light%20of%20COVID-19%20Ask%20Federal%20Court%20to%20Reconsider%20Decision%20Holding%20Case%20Raises%20Non-Justiciable%20Political%20Questions%20(Reconsideration%20is%20Warranted)>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“LWV of Louisiana Challenges State’s Election Plan to Better Serve Voters during COVID-19”<https://electionlawblog.org/?p=111515>
Posted on May 20, 2020 7:04 am<https://electionlawblog.org/?p=111515> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.lwv.org/newsroom/press-releases/lwv-louisiana-challenges-states-election-plan-better-serve-voters-during?utm_source=PressRelease&utm_medium=email&utm_campaign=05192020>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111515&title=%E2%80%9CLWV%20of%20Louisiana%20Challenges%20State%E2%80%99s%20Election%20Plan%20to%20Better%20Serve%20Voters%20during%20COVID-19%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Separation of Parties, Not Powers<https://electionlawblog.org/?p=111513>
Posted on May 20, 2020 6:03 am<https://electionlawblog.org/?p=111513> by Richard Pildes<https://electionlawblog.org/?author=7>

This quote<https://www.politico.com/news/2020/05/19/mcconnells-gop-takes-trumps-election-year-cues-268477> from Senator John Thune, #2 in the Senate Republican leadership, pretty much distills into a sentence the thesis of my work<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=890105> on why the shared electoral fate of same-party members in the White House, Senate, and House — in an era of nationalized elections<https://press.uchicago.edu/ucp/books/book/chicago/I/bo27596045.html> and hyperpolarized<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646989> parties — means that the system of checks and balances no longer functions as the Framers envisioned:

“I just think that everybody realizes that our fortunes sort of rise or fall together,” said Sen. John Thune (R-S.D.), the party whip. “One thing we have to do is to make sure that we are united on our agenda and make sure that there’s not separation between the White House and Republicans in Congress.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111513&title=Separation%20of%20Parties%2C%20Not%20Powers>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Senate confirms Trump appointee to Federal Election Commission, restoring panel’s voting quorum for the first time since August”<https://electionlawblog.org/?p=111507>
Posted on May 19, 2020 3:22 pm<https://electionlawblog.org/?p=111507> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/senate-confirms-trump-appointee-to-federal-election-commission-restoring-panels-voting-quorum-for-the-first-time-since-august/2020/05/19/de94796c-99e4-11ea-ac72-3841fcc9b35f_story.html>

The Senate on Tuesday confirmed a conservative Texas lawyer nominated by President Trump to the Federal Election Commission, restoring a voting quorum on the agency for the first time since August<https://www.washingtonpost.com/politics/gop-appointee-resigns-from-federal-election-commission-leaving-it-without-a-quorum/2019/08/26/d05b9cb6-c822-11e9-a4f3-c081a126de70_story.html?tid=lk_inline_manual_1&itid=lk_inline_manual_1> amid a mounting backlog of complaints and requests for guidance in an election year.

James E. “Trey” Trainor III, an Austin-based election law attorney, has pushed for less regulation of money in politics<https://www.washingtonpost.com/politics/senate-takes-step-to-move-forward-on-nomination-of-new-fec-commissioner/2020/03/10/eb0fd9fe-62e7-11ea-b3fc-7841686c5c57_story.html?tid=lk_inline_manual_2&itid=lk_inline_manual_2> and opposed efforts to require politically active nonprofit organizations to disclose their donors. He previously advised the Republican National Committee and Trump during the 2016 election.

The party-line confirmation of Trainor ends the longest period in the agency’s history without a quorum, giving the panel the four votes necessary to regulate and enforce federal campaign finance laws.

With Trainor, the commission is again equally divided ideologically, which could resume the FEC’s practice of often deadlocking on alleged elections violations. Two vacancies remain on the panel, and it is unclear when the Senate will take action to fill them.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111507&title=%E2%80%9CSenate%20confirms%20Trump%20appointee%20to%20Federal%20Election%20Commission%2C%20restoring%20panel%E2%80%99s%20voting%20quorum%20for%20the%20first%20time%20since%20August%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>
“Emergency rule allows Ga. absentee ballots to be opened early”<https://electionlawblog.org/?p=111504>
Posted on May 19, 2020 3:20 pm<https://electionlawblog.org/?p=111504> by Richard Pildes<https://electionlawblog.org/?author=7>

This<https://www.ajc.com/news/state--regional-govt--politics/emergency-rule-allows-georgia-absentee-ballots-opened-early/JoXEUSQUcZup0UvTFSFpsK/> is a change I have advocating<https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown> for all states for the fall election. Of particular importance in Michigan and North Carolina, which I believe still have not made this change. From the story:

The board voted unanimously to pass the emergency rule, which will help election officials handle record numbers<https://www.ajc.com/news/state--regional-govt--politics/over-million-georgia-voters-request-absentee-ballots/gfEtMitQBrE34Gj7zEmtFO/> of absentee ballots. In previous elections, absentee ballots couldn’t be processed until election day. . . .

“For this once-in-a-lifetime unprecedented emergency, this regulation painstakingly attempts to balance transparency and security,” State Election Board member Matt Mashburn said during the meeting held via teleconference.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111504&title=%E2%80%9CEmergency%20rule%20allows%20Ga.%20absentee%20ballots%20to%20be%20opened%20early%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Breaking: Federal District Court, in Sweeping Opinion, Holds That Texas Must Allow Voters Who Wish to Vote by Mail to Do So In Light of COVID, But The Opinion is Vulnerable to Reversal by 5th Circuit<https://electionlawblog.org/?p=111499>
Posted on May 19, 2020 2:59 pm<https://electionlawblog.org/?p=111499> by Rick Hasen<https://electionlawblog.org/?author=3>

In a sweeping opinion<https://electionlawblog.org/wp-content/uploads/injunction.pdf> complete with lofty language and an odd choice of using Appendices, a federal district court has held that it would be unconstitutional to bar Texas voters who lack immunity from COVID-19 and wish to vote by mail to be able to do so. Texas has taken the position that the statute does not allow voters under 65 to vote by mail without an excuse, and that the potential to contract the virus does not count as a disability under the statute. Among other things, the court found the law violates the 26th amendment (barring discrimination on the basis of age), the Equal Protection Clause, and the First Amendment.

Although I am very sympathetic with the aims of this litigation, there are good reasons to believe it will soon be reversed by the 5th Circuit.

To begin with, there is pending litigation in the Texas courts (including a case before the state supreme court), over whether the Texas statute in fact precludes someone from voting using the “disability” excuse if one lacks immunity to the virus and fears contracting it. Ordinarily a federal court should abstain from deciding a constitutional issue if the issue might be resolved by statutory interpretation, and there is good reason to defer to the state supreme court’s own interpretation of the statute. This looks like the federal court jumping the gun.

Second, although there are strong factual findings about the nature of the virus and the dangers of voting in person during the pandemic, the legal analysis is shakier. Early in the opinion the court writes that the Anderson-Burdick balancing test requires rational basis, and later on the court seems to apply strict (or stricter scrutiny). It is quite novel to apply the 26th amendment in this context, and although I’m quite sympathetic to the argument, it requires much more development and recognition of its novelty. I suspect the much more conservative 5th Circuit is going to be much more skeptical of these arguments than this district court is.

Indeed, when one reads from the opening of the opinion, it is clear where the judge’s sympathy lies. My sympathy lies there too, and I think there’s a VERY STRONG case to be made<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> under both statutory interpretation and constitutional law principles to get there, but this is not the kind of careful, cautious opinion that could potentially survive 5th Circuit review.

Stay tuned.

[This post has been updated.]
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111499&title=Breaking%3A%20Federal%20District%20Court%2C%20in%20Sweeping%20Opinion%2C%20Holds%20That%20Texas%20Must%20Allow%20Voters%20Who%20Wish%20to%20Vote%20by%20Mail%20to%20Do%20So%20In%20Light%20of%20COVID%2C%20But%20The%20Opinion%20is%20Vulnerable%20to%20Reversal%20by%205th%20Circuit>
Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>
New NBER Paper Shows Higher Rates of COVID-19 Among Wisconsin Counties Using More In-Person Voting Compared to Vote By Mail in April 7 Primary<https://electionlawblog.org/?p=111497>
Posted on May 19, 2020 12:52 pm<https://electionlawblog.org/?p=111497> by Rick Hasen<https://electionlawblog.org/?author=3>

New NBER paper<https://www.nber.org/papers/w27187?utm_campaign=ntwh&utm_medium=email&utm_source=ntwg29> from Chad D. Cotti, Bryan Engelhardt, Joshua Foster, Erik T. Nesson, and Paul S. Niekamp:

On April 7, 2020, Wisconsin held a major election for state positions and presidential preferences for both major parties. News reports showed pictures of long lines of voters due to fewer polling locations and suggested that the election may further the spread of the SARS-CoV-2 virus. A contract-tracing analysis by the Wisconsin Department of Health identified 52 confirmed cases of COVID-19 to in-person voting, but no research has conducted a broader analysis of the extent to which in-person voting increased the number of COVID-19 cases. We use county level data on voting and COVID-19 tests to connect the election to the spread of the SARS-CoV-2 virus. We find a statistically and economically significant association between in-person voting and the spread of COVID-19 two to three weeks after the election. Furthermore, we find the consolidation of polling locations, and relatively fewer absentee votes, increased positive testing rates two to three weeks after the election. Our results offer estimates of the potential increased costs of in-person voting as well as potential benefits of absentee voting during a pandemic.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111497&title=New%20NBER%20Paper%20Shows%20Higher%20Rates%20of%20COVID-19%20Among%20Wisconsin%20Counties%20Using%20More%20In-Person%20Voting%20Compared%20to%20Vote%20By%20Mail%20in%20April%207%20Primary>
Posted in election administration<https://electionlawblog.org/?cat=18>
“LWV of Minnesota Challenges Absentee Ballot Signature Witness Requirement”<https://electionlawblog.org/?p=111495>
Posted on May 19, 2020 12:46 pm<https://electionlawblog.org/?p=111495> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.lwv.org/newsroom/press-releases/lwv-minnesota-challenges-absentee-ballot-signature-witness-requirement?utm_source=PressRelease&utm_medium=email&utm_campaign=05192020>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111495&title=%E2%80%9CLWV%20of%20Minnesota%20Challenges%20Absentee%20Ballot%20Signature%20Witness%20Requirement%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Thousands of absentee ballots in Wisconsin weren’t counted because of mailing problems and tech glitches”<https://electionlawblog.org/?p=111493>
Posted on May 19, 2020 12:45 pm<https://electionlawblog.org/?p=111493> by Rick Hasen<https://electionlawblog.org/?author=3>

The Milwaukee Journal-Sentinel reports.<https://www.jsonline.com/story/news/politics/2020/05/19/glitches-mailing-problems-mar-absentee-voting-wisconsin/5219371002/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111493&title=%E2%80%9CThousands%20of%20absentee%20ballots%20in%20Wisconsin%20weren%E2%80%99t%20counted%20because%20of%20mailing%20problems%20and%20tech%20glitches%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“How battleground states are preparing for the pandemic election’s massive increase in voting by mail”<https://electionlawblog.org/?p=111490>
Posted on May 19, 2020 12:44 pm<https://electionlawblog.org/?p=111490> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact reports.<https://www.politifact.com/article/2020/may/19/how-are-election-officials-preparing-pandemic-elec/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111490&title=%E2%80%9CHow%20battleground%20states%20are%20preparing%20for%20the%20pandemic%20election%E2%80%99s%20massive%20increase%20in%20voting%20by%20mail%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>
May 21 BPC Event: “The Challenges of Counting the Vote in 2020”<https://electionlawblog.org/?p=111488>
Posted on May 19, 2020 12:39 pm<https://electionlawblog.org/?p=111488> by Rick Hasen<https://electionlawblog.org/?author=3>

Details<https://bipartisanpolicy.org/event/the-challenges-of-counting-the-vote-in-2020/>:

Election Day does not end on the first Tuesday after the second Monday in November. Election administrators across the country must count and reconcile vote totals across all methods of voting—early, in-person on Election Day, and absentee. The 2020 presidential election faces unprecedented challenges amid voting during the coronavirus pandemic, which may greatly alter the ways Americans vote. With historic rates of mail ballots expected this year, how will election officials meet the demand, and what policies will they need to help them balance the speed and accuracy required by the public in counting the vote?

Join us for a moderated discussion about the oft-ignored policy and logistical issues involved in counting the vote, featuring state and local election officials that have first-hand experience preparing and executing elections during the COVID-19 crisis.

________________________________

Featured Participants:

Brian Corley<https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.pascovotes.gov%2FYour-Supervisor-of-Elections%2FMeet-the-Supervisor&data=02%7C01%7Cytewahade%40bipartisanpolicy.org%7Cc23e64b9401749e0d71908d7fb63b7e2%7Cded18c87778b4b98962e994cc2278437%7C0%7C0%7C637254278006730940&sdata=LJ6F%2FLNRQYOQf%2BjRo6K323KXTl8ZaF9JF0Pps8P10q0%3D&reserved=0>
Supervisor of Elections, Pasco County, FL
@votepasco<https://twitter.com/votepasco>

Sherry Poland<https://www.eac.gov/sites/default/files/event_document/files/BIO%20Poland.pdf>
Director of Elections, Hamilton County, OH
@PolandSherry<https://twitter.com/polandsherry>

Meagan Wolfe<https://elections.wi.gov/sites/elections.wi.gov/files/2019-05/Summary%20Biography%20of%20Meagan%20Wolfe%20May%202019.pdf>
Administrator, Wisconsin Elections Commission
@WI_Elections<https://twitter.com/WI_Elections>

Moderated by:

Jessica Huseman<https://www.propublica.org/people/jessica-huseman>
Reporter, ProPublica
@JessicaHuseman<https://twitter.com/JessicaHuseman>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111488&title=May%2021%20BPC%20Event%3A%20%E2%80%9CThe%20Challenges%20of%20Counting%20the%20Vote%20in%202020%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>
Second Circuit Unanimously Affirms District Court Order Requiring New York to Conduct a Presidential Primary<https://electionlawblog.org/?p=111484>
Posted on May 19, 2020 7:29 am<https://electionlawblog.org/?p=111484> by Rick Hasen<https://electionlawblog.org/?author=3>

The order is here<https://electionlawblog.org/wp-content/uploads/20-05-19-2CA-Affirmance.pdf>. An opinion to follow is promised. “After reviewing the record, we affirm the order granting the application for preliminary injunction for substantially the reasons given by the District Court in its thorough May 5, 2020 Opinion and Order. See Yang v. Kellner, No. 20-cv-3325 (AT), —F. Supp. 3d—, 2020 WL 2129597, at *1–14 (S.D.N.Y. May 5, 2020).”

Update: New York is not appealing<https://twitter.com/michaelkamon/status/1262762647528890368> the ruling.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D111484&title=Second%20Circuit%20Unanimously%20Affirms%20District%20Court%20Order%20Requiring%20New%20York%20to%20Conduct%20a%20Presidential%20Primary>
Posted in political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>


--
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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