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

[Rick Hasen]

“Direct Democracy Denied: The Right to Initiative in a Pandemic”<https://electionlawblog.org/?p=111615>
Posted on May 22, 2020 5:47 pm<https://electionlawblog.org/?p=111615> by Rick Hasen<https://electionlawblog.org/?author=3>

I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3608472> on SSRN (forthcoming, University of Chicago Law Review Online). Here is the abstract:

Putting aside the Supreme Court’s controversial decision in Republican National Committee v. Democratic National Committee, the case over extending the date for receipt of absentee ballots in the April 2020 Wisconsin primary, courts so far have done a fairly good job protecting voting rights during the COVID-19 pandemic. From easing candidate and party signature requirements for ballot access, to temporarily eliminating witness or notarization requirements for casting an absentee ballot, to interpreting the excuse provisions in for-cause absentee ballot laws to cover voters without coronavirus immunity who fear voting in person, courts have recognized that election laws that ordinarily do not burden voters can become burdensome in a pandemic. Courts have interpreted such laws to avoid disenfranchisement, and sometimes temporarily suspended or altered them.

That welcome thumb on the scale favoring voters, however, has not extended uniformly to claims for the easing of signature gathering rules by ballot measure proponents. In three of four cases I examine, courts have rejected the demands of initiative proponents to ease requirements to qualify a measure for the ballot, such as allowing electronic instead of “wet” (in person) signatures, and easing witness requirements, total number of signatures required, or geographic requirements for signature collection. In just one case, Thompson v. DeWine, a federal district court ordered Ohio to alter its procedures for qualifying proposed measures for the ballot, including allowing the acceptance of electronic signatures. The decision may or may not survive an appeal in the Sixth Circuit.

In this short analysis, I argue that some of the reasons courts and states have offered against easing ballot measure qualification requirements during a pandemic are weak, and that the district court in Thompson was right to see that normal ballot qualification rules can impose a severe First Amendment burden on direct democracy proponents under pandemic conditions. The problem, as illustrated by the Thompson case, is fashioning appropriate relief consistent with principles of federalism and separation of powers. It is difficult to craft a remedy would put the plaintiffs in the position they would have been in had there been no pandemic and that does not usurp the state’s general role in enforcing its election rules or undermine sound principles of election administration and fairness.
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Posted in direct democracy<https://electionlawblog.org/?cat=62>, election administration<https://electionlawblog.org/?cat=18>


Montana State Court Issues Preliminary Injunction Barring the Enforcement of Montana Law Limiting Third Party Collection of Absentee Ballots and Requiring Mail Ballots Be Received by Election Day<https://electionlawblog.org/?p=111613>
Posted on May 22, 2020 5:34 pm<https://electionlawblog.org/?p=111613> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 17-page opinion here<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/05/20-408-Order-Re-Prel.-Injunction.pdf>. Among other things the court found that the limit on third party collection of ballots would suppress voter turnout of Native Americans.

This is one of the Marc Elias lawsuits (press release here<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/05/PressRelease_Four-Pillars-Victory-in-Montana.pdf>). I don’t know enough about Montana state courts to know if this ruling is likely to survive appeal. But to the extent it is based upon interpreting the state constitution, this is not a case likely to end up before U.S. Supreme Court review.

While I believe Elias is bringing a lot of important litigation, in this piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668> I am skeptical of some of the lawsuits raising claims like the one in the Montana case—except to the extent, as perhaps here, of showing racially discriminatory impact.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Elections During a Crisis: Vote-By-Mail Is One Of Several Solutions”<https://electionlawblog.org/?p=111611>
Posted on May 22, 2020 5:22 pm<https://electionlawblog.org/?p=111611> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://talkingpointsmemo.com/cafe/cafe-elections-covid-vote-by-mail-several-solutions> for TPM on the Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> committee report. Ciara was a member of the committee.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


New Jersey: “Long-Time Paterson Council Member Files for Recount After Defeat in Election Plagued By Fraud Claims”<https://electionlawblog.org/?p=111609>
Posted on May 22, 2020 1:58 pm<https://electionlawblog.org/?p=111609> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC<https://www.nbcnewyork.com/news/local/long-time-paterson-council-member-files-for-recount-after-defeat-in-election-plagued-by-fraud-claims/2429188/>:

The first formal request of a recount in Paterson was issued Friday for a city council election plagued by allegations of fraud.

Long-time council member William McKoy filed the recount request after losing his reelection bid by 245 votes to challenger Alex Mendez. 25 percent of the vote in McKoy’s ward was thrown out due to vote stealing and ballot fraud allegations.

In the recount petition, McKoy and his lawyer argue that a number of voters in the ward received incorrect ballots, some people were recorded as voting but claim they never received a ballot in the mail as well as the discovery of hundreds of ballots allegedly being improperly bundled.

A second race within the council was apparently decided by just eight votes with newcomer Mohammed Akhtaruzzaman defeating incumbent Shahin Khalique.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Scheduled to Be on Smerconish on CNN, 9 am Eastern Saturday<https://electionlawblog.org/?p=111607>
Posted on May 22, 2020 12:16 pm<https://electionlawblog.org/?p=111607> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ll be talking about the fairness and legitimacy of the 2020 elections, and our Fair Elections During a Crisis <https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> report, in light of recent comments of the President about voter fraud.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Expand vote-by-mail for 2020, says a bipartisan group of NC lawmakers”<https://electionlawblog.org/?p=111605>
Posted on May 22, 2020 12:14 pm<https://electionlawblog.org/?p=111605> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer<https://www.newsobserver.com/news/coronavirus/article242924676.html>:

With uncertainty looming over how serious coronavirus will be this fall, a bipartisan push at the state legislature would make it easier for North Carolinians to vote by mail this year.

State officials are expecting a massive increase in people wanting to vote by mail in November. The legislature wants to make sure that goes smoothly, said Rep. Pricey Harrison, who has co-sponsored a new elections bill along with one fellow Democrat and two Republicans.

Usually, Harrison said, fewer than 5% of North Carolina voters choose to vote by mail — but for 2020, “they’re expecting a surge of up to 40%.”

Republican Rep. Holly Grange, the lead sponsor of House Bill 1169<https://www.ncleg.gov/BillLookUp/2019/H1169>, said they wanted to give both state and local elections officials “the flexibility and resources needed to accommodate the expected increase in absentee ballot requests due to the pandemic.”

People who vote by mail now have to find two people to serve as witnesses while they vote. But the bill filed Friday would drop that requirement to just one witness.

Voters are currently not allowed to request absentee ballots by email or fax, but this bill would lift those restrictions.

It would also create a new tracking system, akin to what some retailers or pizza delivery companies have, to let voters ensure that their ballots make it through the mail and to the board of elections. And if there are problems with a ballot, the bill would create a new requirement for the state to notify the voter and let them fix it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Dark money’ networks hide political agendas behind fake news sites”<https://electionlawblog.org/?p=111603>
Posted on May 22, 2020 12:11 pm<https://electionlawblog.org/?p=111603> by Rick Hasen<https://electionlawblog.org/?author=3>

Open Secrets<https://www.opensecrets.org/news/2020/05/dark-money-networks-fake-news-sites/#utm_source=twitter&utm_medium=social&utm_campaign=twitt_dkmfn-052220>:

At a time when trustworthy journalism is more important than ever, political operations are pouring millions of “dark money” dollars into ads and digital content masquerading as news coverage to influence the 2020 election.

One newer group heralding the new era of pseudo-news outlets is Acronym<https://www.opensecrets.org/outsidespending/detail.php?cmte=C90017468&cycle=2018>, a liberal dark money group with an affiliated super PAC<https://www.opensecrets.org/news/2020/03/super-pacs-target-trump-with-coronavirus-ad/> called Pacronym<https://www.opensecrets.org/outsidespending/detail.php?cmte=C00646877&cycle=2018>. The nonprofit also is an investor in a for-profit digital consulting firm that gained notoriety for its role in launching Shadow Inc., the secretive vendor behind a vote tabulation app at the center of the pandemonium at the Iowa Democratic caucuses.

Acronym<https://www.opensecrets.org/news/2019/09/political-ad-spending-on-snapchat/> is behind Courier Newsroom, a network of websites emulating local news outlets. Courier has faced scrutiny for exploiting the collapse of local journalism to spread “hyperlocal partisan propaganda<https://www.washingtonpost.com/opinions/2020/02/06/is-it-local-journalism-or-just-local-propaganda/>.” It claims<https://couriernewsroom.com/about-us/> to operate “independent from” Acronym and says ownership is shared with “other investors.” But a new tax return<https://www.documentcloud.org/documents/6821442-Acronym-2018-990.html> obtained by OpenSecrets lists Acronym as the full owner of Courier as of Dec. 31, 2018, the most recent date on record.

Websites affiliated with Courier Newsroom that appear to be free-standing local news outlets are actually part of a coordinated effort with deep ties to Democractic political operatives. OpenSecrets first revealed<https://docs.google.com/presentation/d/1LiIvvN2mqy8KiI0ohBQVGw3l9KxlhZkYJhCwbeo-AQY/edit#slide=id.g7ef774242e_3_0> the network’s digital ad spending at the Investigative Reporters and Editors NICAR conference in March.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Franita & Foley Podcast Talks to Derek Muller About the Faithless Electors Lawsuit<https://electionlawblog.org/?p=111601>
Posted on May 22, 2020 12:04 pm<https://electionlawblog.org/?p=111601> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen.<https://urldefense.com/v3/__https:/soundcloud.com/freeandfair/does-faithfulness-to-the-constitution-require-faithless-electors__;!!KGKeukY!mlJOilcBxfgHAhBigXZ0pqhM3nzDfGu_U1oPmDUUdCnMt506-9N29bhQhCY_6GN8_g$>
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>


“The Decade of Democracy’s Demise”<https://electionlawblog.org/?p=111599>
Posted on May 22, 2020 7:52 am<https://electionlawblog.org/?p=111599> by Rick Hasen<https://electionlawblog.org/?author=3>

James Sample has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3606718> on SSRN (forthcoming, American U. L. Rev.). Here is the abstract:

In the decade since Citizens United v. FEC, which, while consequential in its own right, is also not responsible for all the ills attributed to it by its detractors, the Supreme Court has decided a stunning number of what this Article terms to be democracy cases. Each respective case is the subject of substantial scholarship within its sphere — voting rights, contribution limits, public financing, partisan gerrymandering, federal bribery law, and sub-variations of each area — Decade of Democracy’s Demise seeks to remove that scholarship from the respective topical silos, and to develop and analyze a heretofore scarcely considered composite.

This Article contends that in democracy cases, the judicial minimalists on the Court have actually engaged, during the decade, in extensive judicial fact-finding in order to justify their legal conclusions. In several of these cases the Court has shown a willingness to ignore the legislative fact-findings of Congress (reflected in the McCain-Feingold legislation struck down in both Citizens United and McCutcheon v. FEC and in the re-authorization of the Voting Rights Act in Shelby County); and of state courts and legislatures (reflected in American Tradition Partnership v. Bullock and Arizona Free Enterprise v. Bennett). Indeed, within the democracy arena, the Court has deferred to legislative fact-finding basically only when the fact-finding body was itself hostile to participatory democracy, and actually acted upon that hostility. Examples of this anti-participatory deference include the Husted voter purge, the Crawford v. Indiana decision in 2008 that, while technically outside the defined decade, spawned numerous carbon copy voter ID laws in states around the nation, and the deference to legislative redistricting measures that, in the instances of Maryland and North Carolina, are not only inconsistent with one-person, one-vote norms, but are openly and transparently acknowledged by their progenitors to be so.

The Decade of Democracy’s Demise asserts that while the short-term impact of the Court’s decisions in the last decade, skews in a favorable direction for conservatives, the long-term impact is not necessarily favorable to either political party, so much as it favors politically and financially empowered interests who seek to employ that empowerment so as to exacerbate their anti-democratic advantages. While this dynamic is temporarily good news for conservative partisans, it may, at some future juncture be good news for liberal partisans (although historically, at least since the Civil Rights era, they are less inclined towards anti-participatory measures), but more importantly than any partisan valence, this Article asserts that the broader consequences for American democracy are grim indeed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What are Presidential Electors? Marbury v. Madison and McCulloch v. Maryland could help decide the Faithless Electors Cases”<https://electionlawblog.org/?p=111597>
Posted on May 22, 2020 7:46 am<https://electionlawblog.org/?p=111597> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Blackman and Seth Barrett Tillman blog<https://reason.com/2020/05/21/what-are-presidential-electors/>.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Voter Purges in an Increasingly Vote-by-Mail World”<https://electionlawblog.org/?p=111595>
Posted on May 22, 2020 7:44 am<https://electionlawblog.org/?p=111595> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center resource<https://www.brennancenter.org/our-work/research-reports/voter-purges-increasingly-vote-mail-world>.
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Posted in NVRA (motor voter)<https://electionlawblog.org/?cat=33>


--
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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