[EL] ELB News and Commentary 5/22/20

Fri May 22 07:00:14 PDT 2020

“The Cybersecurity 202: Trump is trying to make mail voting a partisan issue. It’s not in many states.”<https://electionlawblog.org/?p=111593>
Posted on May 22, 2020 6:43 am<https://electionlawblog.org/?p=111593> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2020/05/22/the-cybersecurity-202-trump-is-trying-to-make-mail-voting-a-partisan-issue-it-s-not-in-many-states/5ec6aa1588e0fa6727002729/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Want to know who won the presidential race on election night? Get ready to wait.”<https://electionlawblog.org/?p=111591>
Posted on May 22, 2020 6:38 am<https://electionlawblog.org/?p=111591> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Lai <https://www.inquirer.com/politics/election/coronavirus-pa-mail-ballots-2020-election-results-20200522.html> for Philly Inquirer:

It’s a familiar election night routine: Polls close, and everyone wants to know who won — immediately. Every minute matters for Americans anxiously awaiting the results. News organizations race to meet the demand by using complex statistical models to “call” the winner long before all the votes are counted.

But get comfortable waiting: Instant electoral gratification is about to become a thing of the past.

A new Pennsylvania law that allows any voter to cast a ballot by mail, along with a surge in requests for mail-in ballots driven by fears of voting in person during the coronavirus pandemic<https://www.inquirer.com/health/coronavirus/>, has set up a 2020 election in which everyone could be left waiting for days before results are known.

That might not bother the public much when it comes to the June 2 primary, with a Democratic presidential contest that has already been effectively decided. But when President Donald Trump and former Vice President Joe Biden face off in the fall, and all eyes turn to the critical swing state of Pennsylvania<https://www.inquirer.com/news/trump-win-lose-pennsylvania-presidential-election-2020-swing-state-battleground-politics-biden-20190620.html>, delays could effectively leave the race for the White House in limbo for days.

“If nothing changes before November, I would bet my house there would be no way anybody could responsibly call the presidential race [on election night],” said Forrest Lehman, elections director for Lycoming County, in central Pennsylvania.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Republicans Have a New Plan to Thwart the Will of the People; A Missouri initiative would undo voters’ preference for nonpartisan legislative districts — and perhaps shift representation itself.”<https://electionlawblog.org/?p=111588>
Posted on May 21, 2020 8:52 pm<https://electionlawblog.org/?p=111588> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT oped<https://www.nytimes.com/2020/05/21/opinion/missouri-republicans-gerrymander.html> by David Daley.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

Two New Reports: “Is there a Partisan Divide over Voting by Mail in California’s November 2020 Election?”; “How Do Californians Want to Cast their Ballots During the COVID-19 Crisis?”<https://electionlawblog.org/?p=111586>
Posted on May 21, 2020 5:55 pm<https://electionlawblog.org/?p=111586> by Rick Hasen<https://electionlawblog.org/?author=3>

New report <https://drive.google.com/file/d/109kIi_p84fcrmpyKugy7aapemfubz9at/view> from Thad Kousser, University of California, San Diego; Mindy Romero, California Civic Engagement Project at University of Southern California;Mackenzie Lockhart, University of California, San Diego; Seth Hill, University of California, San Diego; Jennifer Merolla, University of California, Riverside

Key findings:

• When we asked eligible voters how they wanted to cast their ballots this November, we found no significant divide between the parties. More than half of eligible voters in both parties prefer to cast a ballot by mail, with nearly another two in ten voters preferring to drop off a ballot that has been automatically sent to them in the mail.
• A move to conducting elections entirely through mail ballot voting in California would be unlikely to tilt the balance in favor of either major party, with nearly identical percentages of Democrats (2.8%) and Republicans (2.7%) saying that they would not participate in this type of election.
• Gaps of eight to twelve percentage points emerge between the parties over support for policies that move toward voting by mail, though there is still a strong consensus supporting these changes among all partisan groups.

Second report<https://drive.google.com/file/d/10EmINSJaqKwc48qEKpyxexrGF8R6TnUX/view>:

Just over half (52%) of California eligible voters prefer to mail in their ballot in the upcoming election, while another 18% prefer to use a mail ballot but drop it off at a vote center or drop box. As a whole, California’s eligible voters plan to vote by mail more than ever before in November 2020. Voting by mail is the method that gives them the most confidence in the integrity of election results, and they are strongly supportive of policies that expand access to voting by mail.

The level of support for voting by mail differs across California’s diverse racial and ethnic groups. Consistent with past studies, our survey found that Latino and African-American eligible voters are generally less likely to prefer this method of voting than non-Latino whites and Asian Americans. It will be important to consider the potentially disparate impacts that any election administration changes could bring and to conduct broad outreach efforts.

When presented with scientific projections predicting a fall peak in the impact of COVID-19, eligible voters were even more likely to prefer voting by mail and to express concerns about waiting in line or working at a polling place that did not adhere to social distancing protocols. Specifying a set of social distancing guidelines for in-person voting resolved these concerns for many eligible voters of all types.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Must-Read from Marc Caputo: Trump’s Florida 2018 Vote Conspiracy Collapses<https://electionlawblog.org/?p=111584>
Posted on May 21, 2020 4:39 pm<https://electionlawblog.org/?p=111584> by Rick Hasen<https://electionlawblog.org/?author=3>

Marc Caputo<https://www.politico.com/states/florida/story/2020/05/21/a-trump-election-conspiracy-collapses-1285442> in Politico:

A Trump election conspiracy theory fell apart Wednesday when Florida’s law enforcement agency said it had found no widespread voter fraud in the 2018 races for Senate and governor.

President Donald Trump had complained repeatedly about election “fraud” and theft in heavily populated, Democrat-rich Broward and Palm Beach counties, which had slowly but erratically updated their vote totals after polls closed on Election Day.

With each updated tally, Republican candidates Rick Scott<https://cd.politicopro.com/member/175586>, who was running for U.S. Senate, and Ron DeSantis, in a bid for the governor’s mansion, saw their margins of victory narrow. Both races ultimately went to recounts.

It’s common for election margins to change as more ballots are counted, but Scott, who was governor at the time, claimed without evidence thatthe counts reeked of Democratic fraud, a conspiracy theory Trump amplified on Twitter. Scott called for an investigation. Trump backed him up.

“Law Enforcement is looking into another big corruption scandal having to do with Election Fraud in #Broward and Palm Beach. Florida voted for Rick Scott!” wrote Trump on Nov. 8, 2018<https://twitter.com/realDonaldTrump/status/106072324119348428>.

In a tweet the next day, the president falsely accused Democrats<https://twitter.com/realDonaldTrump/status/1060938144336367616> of sending “their best Election stealing lawyer, Marc Elias, to Broward County they miraculously started finding Democrat votes. Don’t worry, Florida – I am sending much better lawyers to expose the FRAUD!”

But neither Trump’s unnamed “lawyers” nor the Florida Department of Law Enforcement found evidence of a “big corruption scandal.” The state took more than 17 months to wrap up its investigation<https://www.politico.com/states/florida/story/2020/05/20/long-running-probe-into-florida-voter-fraud-ends-with-no-charges-1284958> Wednesday, and found none of the wrongdoing alleged by Trump and Scott….

Election officials and experts expect high voter turnout in November and an increased number of people casting ballots by mail, many for the first time in states that have little experience managing mail-in programs or high volumes of mailed ballots. That’s a recipe for longer and slower vote counting and, if the election is close in battlegrounds like Florida, more potential for fraud claims as vote totals change after the polls close, especially in urban southeast Florida.

“Late-arriving ballots tend to break toward Democrats,” said Michael McDonald, a University of Florida political science professor who specializes in voting by mail.

“It’s not an iron-clad law, but the phenomenon is so prevalent it has a name: the blue shift,” said McDonald. “It happened in California as well in 2018. But perception has built that there’s something nefarious going on here with these ballots being counted late, or after Election Day, but I don’t want to imply there’s anything or illegal or wrong going on.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

New York’s Highest Court, Over Two Strong Dissents, Won’t Relax Candidate Filing Defects in Light of COVID-19<https://electionlawblog.org/?p=111582>
Posted on May 21, 2020 3:48 pm<https://electionlawblog.org/?p=111582> by Rick Hasen<https://electionlawblog.org/?author=3>

Seawright v. Board of Elections<https://www.nycourts.gov/ctapps/Decisions/2020/May20/56-58opn20-Decision.pdf>.
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Posted in ballot access<https://electionlawblog.org/?cat=46>

“As Trump Rails Against Voting by Mail, States Open the Door for It”<https://electionlawblog.org/?p=111580>
Posted on May 21, 2020 3:40 pm<https://electionlawblog.org/?p=111580> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/05/21/us/vote-by-mail-trump.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“South Philly judge of elections admits he took bribes to stuff the ballot box for Democratic candidates”<https://electionlawblog.org/?p=111578>
Posted on May 21, 2020 3:38 pm<https://electionlawblog.org/?p=111578> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer:<https://www.inquirer.com/news/voter-fraud-philadelphia-ward-leader-judge-of-elections-domenick-demuro-guilty-plea-20200521.html>

A former judge of elections and Democratic committeeperson from South Philadelphia has pleaded guilty to accepting $2,500 in bribes to inflate the vote totals for three Democratic candidates for Common Pleas Court judge in 2015 and also accepted money to add votes for other candidates, U.S. Attorney William M. McSwain announced Thursday.

Domenick J. DeMuro, 73, pleaded guilty to conspiracy to deprive Philadelphia voters of their civil rights by fraudulently stuffing the ballot boxes for the judicial candidates and for other candidates seeking office in the 2014 and 2016 primary elections. And he admitted violating the Travel Act, which forbids the use of a cell phone to promote illegal activity, McSwain’s office said.

DOJ Release.<https://www.justice.gov/usao-edpa/pr/us-attorney-william-m-mcswain-announces-charges-and-guilty-plea-former-philadelphia>
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Posted in bribery<https://electionlawblog.org/?cat=54>, chicanery<https://electionlawblog.org/?cat=12>

“RELEASE: NEW ISSUE BRIEF: Speech and Its Relationship to Equality: Constitutional Values in the Digital Age”<https://electionlawblog.org/?p=111576>
Posted on May 21, 2020 3:33 pm<https://electionlawblog.org/?p=111576> by Rick Hasen<https://electionlawblog.org/?author=3>

New<https://www.theusconstitution.org/news/release-new-issue-brief-speech-and-its-relationship-to-equality-constitutional-values-in-the-digital-age/> from David Gans and CAC.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Trailer: The mail voting debate gets more confounding”<https://electionlawblog.org/?p=111574>
Posted on May 21, 2020 3:31 pm<https://electionlawblog.org/?p=111574> by Rick Hasen<https://electionlawblog.org/?author=3>

Weigel<https://www.washingtonpost.com/politics/paloma/the-trailer/2020/05/21/the-trailer-the-mail-voting-debate-gets-more-confounding/5ec573fe88e0fa67270015e4/>:

Since the start of the pandemic, vote-by-mail has been expanded in multiple states. The debate over that expansion has grown increasingly surreal and politically contradictory. As they ramp up their own absentee ballot programs, aimed at their base, state and national Republican committees have sued to stop states from making vote-by-mail easier, conducted polling to suggest that voters want limits on the process, and highlighted stories about the difficulty of quickly implementing all-mail elections….

With the Republican-run Senate rejecting Democrats’ vote-by-mail funding proposals — and vehemently ruling out<https://www.warren.senate.gov/newsroom/press-releases/senator-warren-publishes-medium-post-on-protecting-our-elections-during-coronavirus-pandemic> their ambitious election reform plans — the biggest election problem facing states is the cost and timing of mass ballot production. The political controversies have had more muted effects, because most of the states that previously threw up hurdles for absentee ballot voters have been quietly taking them down….

These new voting wars have played out even as Republicans, who enjoy a massive fundraising advantage over Joe Biden and the Democratic National Committee, have stepped up their efforts to get their voters to request absentee ballots. A piece of mail for South Carolina Republicans, shared on Twitter by the Daily Beast’s Sam Stein, begins<https://twitter.com/samstein/status/1263165182580330496/photo/1> with a declaration — “I will NEVER support universal vote-by-mail” — and then explains how recipients can request and mail back their ballots. (“Sometimes conservatives have legitimate reasons to vote absentee.”) …

Still, while the president’s jeremiads go further than most Republicans are willing to, raising questions about universal vote-by-mail has slowed the momentum for Democrats’ preferred fix to the problem of holding safe elections during a pandemic. On Thursday, former Michigan governor Jennifer Granholm, a Democrat, and former Pennsylvania governor Tom Ridge, a Republican, announced<https://votesafe.us/press/> the formation of “VoteSafe,” a group that included both Michigan’s Democratic current secretary of state (whom Trump had picked a fight with) and Georgia’s Republican secretary of state (who Trump decidedly hadn’t). There was no talk of “universal” voting systems, just of “expanding absentee ballot options” with as little blue-on-red violence as possible.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, The Voting Wars<https://electionlawblog.org/?cat=60>

“How You Have an Election in a Crisis”<https://electionlawblog.org/?p=111572>
Posted on May 21, 2020 3:27 pm<https://electionlawblog.org/?p=111572> by Rick Hasen<https://electionlawblog.org/?author=3>

I was a guest on the McGeorge Cap Center podcast. Listen<https://twitter.com/McGeorgeCapCtr/status/1263586616112750592>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Trusted Elections Network Resource Guide”<https://electionlawblog.org/?p=111570>
Posted on May 21, 2020 3:17 pm<https://electionlawblog.org/?p=111570> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.americanpressinstitute.org/trusted-elections-network/resource-guide/> is a very useful guide for journalists covering the 2020 elections, and includes links to relevant recommendations of our Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> report.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Election in a pandemic: Bipartisan election bill promised as others fight over NC’s ballot rules”<https://electionlawblog.org/?p=111568>
Posted on May 21, 2020 3:07 pm<https://electionlawblog.org/?p=111568> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL<https://www.wral.com/coronavirus/election-in-a-pandemic-bipartisan-election-bill-promised-as-others-fight-over-nc-s-ballot-rules/19108735/>:

House leaders are close to filing a bill, with bipartisan support, changing state election rules because of the pandemic.

The measure has most of what the State Board of Elections asked for two months ago<https://www.wral.com/coronavirus/nc-elections-board-wants-to-make-election-day-a-holiday-because-of-virus/19030785/> when it rolled out a laundry list of requests, Rep. David Lewis<http://wral.com/14549734/?ncga_id=36>, R-Harnett, said Thursday.

There are key exceptions though: The bill won’t make Election Day a holiday, and it won’t cover postage costs on absentee ballots, both state board requests.

The bill would forbid the board from going to an all-mail-ballot election in November, something the State Board of Elections has not requested but has been a concern for conspiracy theorists nonetheless. Mail-in ballots are already available in North Carolina to any voter who requests one, and they would remain so.

Lewis, a top House Republican on election issues, confirmed some details of the bill Thursday and said it will likely be ready Friday after weeks of conversation. He said the bill would also include “a significant amount of money” for local boards of elections<https://www.wral.com/coronavirus/the-pandemic-will-drive-up-election-costs-and-so-far-nc-isn-t-ready/19093559/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Professor Explores Ways To Have A Fair Election In November”<https://electionlawblog.org/?p=111566>
Posted on May 21, 2020 3:05 pm<https://electionlawblog.org/?p=111566> by Rick Hasen<https://electionlawblog.org/?author=3>

I talked<https://kjzz.org/content/1579866/professor-explores-ways-have-fair-election-november> to KJZZ about our Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> report.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>

District Court in Census Case Sanctions DOJ For Failing to Produce Relevant Documents as to Reason for Adding Citizenship Question; Declines Sanctions for Possible DOJ Officials’ Lying, Because Plaintiffs Got All the Relief They Wanted at Supreme Court<https://electionlawblog.org/?p=111562>
Posted on May 21, 2020 8:37 am<https://electionlawblog.org/?p=111562> by Rick Hasen<https://electionlawblog.org/?author=3>

You can read the 23-page ruling here<https://www.usatoday.com/documents/6921991-Memorandum-Opinion/>.

Two snippets:

“In other words, Defendants’ failure to produce the documents was caused by a lapse that would make a first-year litigation associate wince.”..

At the end of the day, the NGO Plaintiffs’ allegations of misconduct merely reinforce their overall theory of this case: that Secretary Ross’s decision to add a citizenship question to the 2020 decennial census questionnaire was not made for the reasons he gave. With newly-discovered evidence in hand, the NGO Plaintiffs now argue that Secretary Ross’s decision was even more pretextual than they had been able to show in the first instance. But even if these allegations are true, and even if Defendants’ misconduct would otherwise have been sanctionable, this is a case in which, for the most part, “the proper remedy is exactly what happened at trial.” Ideal Steel Supply Corp. v. Anza, No. 02-CV-4788 (RMB), 2013 WL6912681, at *4 (S.D.N.Y. Dec. 23, 2013) (citation and internal quotation marks omitted).

Plaintiffs tested the credibility of Defendants’ explanations, including the testimony of Defendants’ witnesses; persuaded the Court that Defendants’ official story concealed their true reasons for acting; and — on that basis — ultimately prevailed. See, e.g., New York, 351 F.Supp. 3d at 565 (finding the testimony of one witness “materially misleading”); id. at 556 (noting Gore’s admission that he did not believe adding the citizenship question was necessary to improve Voting Rights Act enforcement efforts, the stated rationale for doing so). Indeed, evidence that apportionment effects might have been a reason for Secretary Ross’s decision supported the Court’s conclusion that improving Voting Rights Act enforcement was not his actual reason. See id. at 568, ¶ 170. Thus, not only did the NGO Plaintiffs ultimately “obtain[] all the relief they sought when they brought this case,” but they did so in part for the same reasons they now seek further sanctions against Defendants. In the final analysis, although the NGO Plaintiffs’ allegations are troubling, so too were the facts that won them a victory at trial and in the Supreme Court. Plaintiffs’ theory of the case could hardly need more judicial vindication than that.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“Here’s the problem with mail-in ballots: They might not be counted. That’s especially true for younger, minority and first-time voters.”<https://electionlawblog.org/?p=111560>
Posted on May 21, 2020 8:13 am<https://electionlawblog.org/?p=111560> by Rick Hasen<https://electionlawblog.org/?author=3>

 Enrijeta Shino, Mara Suttmann-Lea and Daniel A. Smith for the Monkey Cage.<https://www.washingtonpost.com/politics/2020/05/21/heres-problem-with-mail-in-ballots-they-might-not-be-counted/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

May 29 OSU Event: “A Bipartisan Take on Preparing for the November Elections”<https://electionlawblog.org/?p=111558>
Posted on May 21, 2020 8:05 am<https://electionlawblog.org/?p=111558> by Rick Hasen<https://electionlawblog.org/?author=3>

Zoom registration<https://osu.zoom.us/webinar/register/WN_NqYRV1Y9T5iocwEHsusQ8A>:

At a time when concerns about the health and safety of our populace and our electoral processes have intensified, we are honored to welcome Michigan Secretary of State Jocelyn Benson and Ohio Secretary of State Frank LaRose for a discussion about preparing for the elections in November. As their state’s chief elections officers, Secretaries Benson and LaRose are focused on ensuring their state elections are secure and accessible. While they represent different political parties (and states with some longstanding rivalries), their approaches to running fair and safe elections may have more similarities than differences.

We hope this conversation can help demonstrate and foster bipartisan cooperation.

MODERATED BY: Professors Edward B. (‘Ned’) Foley and Steven Huefner of the Election Law @ Moritz program.
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Rick Hasen
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UC Irvine School of Law
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