[EL] ELB News and Commentary 5/21/20

[Rick Hasen]

“Trump escalates campaign to discredit mail balloting, threatening federal funds to two battleground states”<https://electionlawblog.org/?p=111556>
Posted on May 21, 2020 6:57 am<https://electionlawblog.org/?p=111556> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/trump-threatens-funding-for-michigan-nevada-over-absentee-mail-in-voting-plans/2020/05/20/2f86d078-9aa2-11ea-ac72-3841fcc9b35f_story.html>:

President Trump on Wednesday escalated his campaign to discredit the integrity of mail balloting, threatening to “hold up” federal funding to Michigan and Nevada in response to the states’ plans to increase voting by mail to reduce the public’s exposure to the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?tid=lk_inline_manual_1&itid=lk_inline_manual_1>.

Without evidence, Trump called the two states’ plans “illegal,” and he incorrectly claimed that Michigan’s “rogue” secretary of state is planning to mail ballots to all voters. The state is planning to send applications for mail-in ballots to all voters — not ballots themselves.

“This was done illegally and without authorization by a rogue Secretary of State,” Trump tweeted about Michigan. “I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!”

Trump later corrected the error and suggested he would not need to withhold federal money, but he did not retreat from his claim that both states are taking steps that will encourage voter fraud. A spokesman for the Trump campaign asserted that the Michigan secretary of state did not have legal authority to send ballot applications to all voters, a claim that she disputed.Ohio Gov. says it’s ‘too early’ to make a decision on how voters will cast their ballots in Nov.

Speaking to reporters later at the White House, the president claimed without proof that mail-in ballots lead to “forgeries” and “thousands and thousands of fake ballots.”

“I think just common sense would tell you that massive manipulation can take place,” he said. “And you do have cases of fraudulent ballots where they actually print them and they give them to people to sign, maybe the same person signs them with different writing, different pens. I don’t know. It’s a lot of things can happen.”…

The Trump campaign itself is encouraging supporters to request absentee ballots, such as in an email sent to Pennsylvania voters Wednesday that urged them to “request your ballot and cast your vote from your own home.”

Spokesman Tim Murtaugh said that the campaign is against mailing all voters ballots because it could lead to fraud, but “it is responsible to advise our voters of what the laws are in their states.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Who’s Requesting Mail Ballots in Georgia’s Upcoming Primary? Analyzing absentee ballot request data reveals significant racial, age, and party disparities.”<https://electionlawblog.org/?p=111554>
Posted on May 21, 2020 6:53 am<https://electionlawblog.org/?p=111554> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center analysis<https://www.brennancenter.org/our-work/research-reports/whos-requesting-mail-ballots-georgias-upcoming-primary>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Michigan: “Petition signatures ruling revives hopes for 2 candidates”<https://electionlawblog.org/?p=111552>
Posted on May 21, 2020 6:49 am<https://electionlawblog.org/?p=111552> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/local/michigan/2020/05/20/michigan-petition-signatures-ruling-revives-hopes-2-candidates/5232226002/>

At least two judicial candidates who felt they were destined to be left off Michigan ballots this August for not meeting state requirements for collecting petition signatures got new life Wednesday, thanks to a U.S. District Court order.

In a 16-page opinion, U.S. District Judge Terrence E. Berg granted an injunction against Michigan’s State Elections Office for excluding Shakira Hawkins, a Wayne Circuit Court candidate, and Lynn Maison, who is running for a Macomb County Probate Court seat.

Both candidates had intervened in a federal lawsuit against the state filed by attorney Eric Esshaki, a Republican congressional hopeful from Birmingham. Esshaki and others had argued that COVID-19 pandemic and specifically Gov. Gretchen Whitmer’s Stay-At-Home orders prevented them from collecting the statutory signatures needed to appear on the ballot.

Esshaki’s issues had been cleared up April 20, with the state establishing that 50% of the required signatures<https://www.detroitnews.com/story/news/politics/2020/05/08/michigan-lowers-signature-threshold-make-ballot-50-percent-5-pm-friday/3095038001/> needed to have been collected by an earlier date.

But Hawkins and Maison feared they were shut out from their respective races because of other election technicalities, according to Hawkins’s attorney, Saura Sahu. Berg permitted them to be covered by the earlier ruling and expanded the deadline for signatures to be submitted until this Friday, May 22.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, campaigns<https://electionlawblog.org/?cat=59>


“Federal judge orders Ohio to allow state issue campaigns to collect electronic petition signatures”<https://electionlawblog.org/?p=111550>
Posted on May 21, 2020 6:45 am<https://electionlawblog.org/?p=111550> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com:<https://www.cleveland.com/open/2020/05/federal-judge-orders-ohio-to-allow-state-issue-campaigns-to-collect-electronic-petition-signatures.html>

A federal judge in Cincinnati has ordered<https://www.documentcloud.org/documents/6895593-Sargus-Order.html#document/p1> Ohio officials to allow state issue campaigns to collect the signatures needed to make the ballot electronically, granting a request from backers of two campaigns targeting the November election.

Ohioans for Raising the Wage, which wants to raise Ohio’s minimum wage to $13 an hour, and Ohioans for Secure and Fair Elections, backers of an effort to expand Ohio’s voting access laws, had laid out a plan for gathering electronic signatures. The campaigns proposed using the company DocuSign, which commonly is used to collect electronic signatures for mortgages and other documents, and collecting the last four digits of each voters’ social security number for verification.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, election administration<https://electionlawblog.org/?cat=18>


“Ohio Readies for the Covid-Russia-Trump Election”<https://electionlawblog.org/?p=111548>
Posted on May 21, 2020 6:39 am<https://electionlawblog.org/?p=111548> by Rick Hasen<https://electionlawblog.org/?author=3>

Frank Wilkinson<https://www.bloomberg.com/opinion/articles/2020-05-21/ohio-readies-for-the-covid-russia-trump-election?srnd=premium&sref=MsfQQ8WD> for Bloomberg View:

The state’s 88 county boards of election are all bipartisan, consisting of two Republicans and two Democrats, limiting the scope of partisan temptation. Its chief election officer is Republican Secretary of State Frank LaRose, an ex-Green Beret and former state legislator with a reputation for competence and fairness.

LaRose has declined to endorse partisan propaganda about voter fraud, which he has acknowledged is minimal. When his office last year put together a list of voters to be purged, as required by an aggressive state law purporting to target the mythical fraud, he first released the list to advocacy groups. They found it to be riddled with errors and likely to disenfranchise at least 40,000 legitimate voters. LaRose prevented some purges, and the advocacy groups helped others avoid being dropped.

While Republicans such as Texas attorney general Ken Paxton have gained notoriety<https://www.houstonchronicle.com/politics/texas/article/vote-by-mail-complaint-crime-ken-paxton-ag-dallas-15261586.php> by dismissing calls to make voting more convenient in a pandemic, LaRose is among the Republican office holders “doing the right thing to make sure voters can vote safely and fairly in November,” said University of California at Irvine law professor Richard Hasen, an expert in election law.

LaRose, however, needs speedy authorization from the state legislature to enact his plan<https://www.ohiosos.gov/readyfornovember/>. So far, the legislature hasn’t moved to accommodate him.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“The Anti-Carolene Court”<https://electionlawblog.org/?p=111546>
Posted on May 21, 2020 6:10 am<https://electionlawblog.org/?p=111546> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

My article on Rucho and the Roberts Court is now up on the Supreme Court Review website<https://www.journals.uchicago.edu/doi/pdfplus/10.1086/707592> (and available without subscription here<https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3606508_code636048.pdf?abstractid=3606508&mirid=1>).

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable.

Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Emergency Motion to Stop Internet Voting in NJ”<https://electionlawblog.org/?p=111544>
Posted on May 20, 2020 4:15 pm<https://electionlawblog.org/?p=111544> by Rick Hasen<https://electionlawblog.org/?author=3>

Freedom to Tinker:<https://freedom-to-tinker.com/2020/05/20/emergency-motion-to-stop-internet-voting-in-nj/>

On May 4th, 2020 a press release from mobilevoting.org<https://mobilevoting.org/2020/05/new-jersey-announces-accessible-voting-is-coming-to-may-elections/> announced that New Jersey would allow online voting in a dozen school-board elections scheduled for May 12th. On May 11, the Rutgers International Human Rights Clinic<https://law.rutgers.edu/international-human-rights-clinic> filed an emergency motion to stop internet voting in New Jersey. During a conference on May 18 with Superior Court Judge Mary Jacobson, the State notified the court that it had abandoned its plans to use internet voting for the upcoming July 7 primary election.

The Clinic, led by Rutgers Law School professor Penny Venetis, argued that the Democracy Live online voting system (that New Jersey planned to use) violated a broad court order issued in March 2010 by Judge Linda Feinberg.  That order was issued in the Clinic’s case Gusciora v. Corzine, which challenged paperless voting machines as unconstitutional.
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Posted in internet voting<https://electionlawblog.org/?cat=49>


“Close Results In Paterson Vote Plagued By Fraud Claims; Over 3K Ballots Seemingly Set Aside”–One Race Has a Candidate Leading by 8 Votes<https://electionlawblog.org/?p=111542>
Posted on May 20, 2020 2:38 pm<https://electionlawblog.org/?p=111542> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest<https://www.nbcnewyork.com/news/local/close-results-in-paterson-vote-plagued-by-fraud-claims-over-3k-ballots-seemingly-set-aside/2425813/> from NBC New York.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


--
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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