[EL] ELB News and Commentary 5/26/20

[Rick Hasen]

“Coronavirus stay-at-home orders crater voter registration efforts”<https://electionlawblog.org/?p=111647>
Posted on May 25, 2020 7:27 pm<https://electionlawblog.org/?p=111647> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/coronavirus-social-distancing-craters-voter-registration-3b6ae102-cddc-470d-8761-796ea910b021.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


In Detailed and Thoughtful Opinion, Federal Court Holds Florida Law Requiring Ex-Felons to Repay Fines Before Restoration of Voting Rights Unconstitutional for Those Who Cannot Afford to Pay and Those Who Cannot Know How Much They Owe<https://electionlawblog.org/?p=111644>
Posted on May 25, 2020 4:24 pm<https://electionlawblog.org/?p=111644> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 125-page opinion at this link<https://assets.documentcloud.org/documents/6923602/Amendment4ruling.pdf>. Howard rounds up<https://howappealing.abovethelaw.com/2020/05/24/#121211> the news stories.

Among other things the court held that if the state of Florida cannot even tell former felons how much they owe to have their voting rights restored, it cannot condition voting on payment of an unknown amount.

From the introduction of the opinion:

The State of Florida has adopted a system under which nearly a million
otherwise-eligible citizens will be allowed to vote only if they pay an amount of money. Most of the citizens lack the financial resources to make the required payment. Many do not know, and some will not be able to find out, how much they must pay. For most, the required payment will consist only of charges the State imposed to fund government operations—taxes in substance though not in name.

The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote. In the meantime, year after year, federal and state elections will pass. The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.

This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense. A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects.

The United States Court of Appeals for the Eleventh Circuit has already
ruled, in affirming a preliminary injunction in this very case, that the State cannot condition voting on payment of an amount a person is genuinely unable to pay. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). Now, after a full trial on the merits, the plaintiffs’ evidence has grown stronger. This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs. This order puts in place administrative procedures that comport with the Constitution and are less burdensome, on both the State and the citizens, than those the State is currently using to administer the unconstitutional pay-to-vote system.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


My Appearance on CNN’s Smerconish Show: Why is Trump Against Mail-in Ballots<https://electionlawblog.org/?p=111641>
Posted on May 25, 2020 3:53 pm<https://electionlawblog.org/?p=111641> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch at this link.<https://www.cnn.com/videos/tv/2020/05/23/why-is-trump-against-mail-in-ballots.cnn>

We discussed the new report, Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Uncategorized<https://electionlawblog.org/?cat=1>


“AP FACT CHECK: Faulty Trump Claims on Virus Drug, Vote Fraud”<https://electionlawblog.org/?p=111639>
Posted on May 25, 2020 3:48 pm<https://electionlawblog.org/?p=111639> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.nytimes.com/aponline/2020/05/25/us/politics/ap-us-fact-check-week.html>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Republican National Committee sues California to halt vote-by-mail for November general election”<https://electionlawblog.org/?p=111636>
Posted on May 25, 2020 3:44 pm<https://electionlawblog.org/?p=111636> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/05/24/politics/republican-national-committee-california-vote-by-mail-lawsuit/index.html>:

The Republican National Committee and other Republican groups have filed a lawsuit against California to stop the state from mailing absentee ballots to all voters ahead of the 2020 general election, a move that was made in response to the coronavirus pandemic.<https://www.cnn.com/2020/05/08/politics/california-mail-in-voting/index.html>

The suit comes after California Gov. Gavin Newsom, a Democrat, announced this month that the state would move to encourage all voters to cast their ballots by mail<https://www.cnn.com/2020/05/08/politics/california-mail-in-voting/index.html> in November — the most widespread expansion of vote-by-mail that has been announced as a result of the pandemic and in the nation’s most populous state.The RNC’s lawsuit challenges that step, marking a significant escalation in the legal battles between Republicans and Democrats that are currently being waged in more than a dozen states.”

Democrats continue to use this pandemic as a ploy to implement their partisan election agenda, and Governor Newsom’s executive order is the latest direct assault on the integrity of our elections,” said RNC Chairwoman Ronna McDaniel in a statement.”Newsom’s illegal power grab is a recipe for disaster that would destroy the confidence Californians deserve to have in the security of their vote.”…

Sunday’s suit — filed on behalf of the RNC, the National Republican Congressional Committee and the California Republican Party — seeks to halt Newsom’s order, arguing that it “violates eligible citizens’ right to vote.”

The groups argue that Newsom’s order will lead to fraud because the state plans to mail ballots to inactive voters automatically, which “invites fraud, coercion, theft, and otherwise illegitimate voting.”

Studies have found no evidence of widespread voter fraud <https://www.cnn.com/2020/04/10/politics/fact-check-trump-lying-voter-fraud/index.html> as a result of in-person or mail-in voting.California Democrats have said that the move is necessary to ensure that voters have safe and secure access to the polls during the pandemic.

Read the complaint<https://electionlawblog.org/wp-content/uploads/1_Complaint_1590362477.pdf>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, The Voting Wars<https://electionlawblog.org/?cat=60>


Federal District Court in South Carolina Holds It Unconstitutional to Apply Witness Requirement to Absentee Ballots for June Primary in Light of COVID; Rejects Motion to Extend Deadline for Receipt of Absentee Ballots Postmarked by Election Day<https://electionlawblog.org/?p=111627>
Posted on May 25, 2020 3:31 pm<https://electionlawblog.org/?p=111627> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the district court’s opinion at this link.<https://electionlawblog.org/wp-content/uploads/SC-Order.pdf> On the witness requirement, the district court found that South Carolina does not use the witness requirement to ferret out voter fraud and in any case there is virtually nothing in the record demonstrating a problem with voter fraud in the state.

In rejecting an argument for extending the deadline for receipt of completed absentee ballots, the court noted the large window of time for plaintiffs to request absentee ballots, suggesting that any voter waiting until the last day allowed by the statute were being dilatory.

This opinion is the latest in which courts have used Anderson-Burdick balancing in the context of the pandemic to rule that ordinary burdens on voters like the witness requirement can become severe in the context of the pandemic. I write about this development in Part II of my current draft, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“Trump Sows Doubt on Voting. It Keeps Some People Up at Night. A group of worst-case scenario planners — mostly Democrats, but also some anti-Trump Republicans — have been gaming out how to respond to various doomsday options for the 2020 presidential election.”<https://electionlawblog.org/?p=111624>
Posted on May 25, 2020 3:03 pm<https://electionlawblog.org/?p=111624> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/05/24/us/politics/trump-2020-election-voting-rights.html?smid=em-share>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“With Trump threatening Michigan, lawsuit filed to expand rights of absentee voters”<https://electionlawblog.org/?p=111622>
Posted on May 25, 2020 3:00 pm<https://electionlawblog.org/?p=111622> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press<https://www.freep.com/story/news/politics/elections/2020/05/22/michigan-absentee-voting-lawsuit-donald-trump/5244248002/>:

Michigan’s statutory requirement that all absentee ballots be returned by 8 p.m. on Election Day in order to be counted is being challenged in court.

The League of Women Voters, represented by the American Civil Liberties Union and former state Democratic Party Chairman Mark Brewer, filed the lawsuit Friday in the Court of Appeals against Secretary of State Jocelyn Benson in her official capacity as Michigan’s top elections official.

It claims that a law in place since at least 1929 in Michigan that requires absentee ballots be received by a local clerk’s office by 8 p.m. on Election Day to be counted runs counter to what the lawsuit says is an “unqualified, unconditional state constitutional right for registered voters to vote in all elections by absentee ballot.”

In 2018, no-reason absentee voting passed by state referendum, giving voters the right to cast absentee ballots by mail or in person beginning 40 days before an election. Since regular mail can often take days, the lawsuit says the old rule conflicts with the intention of the state referendum to expand absentee voting.

Complaint.<https://www.aclu.org/legal-document/complaint-league-women-voters-michigan-v-benson>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Lawsuit demands easier vote-by-mail process in NC”<https://electionlawblog.org/?p=111620>
Posted on May 25, 2020 2:55 pm<https://electionlawblog.org/?p=111620> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer<https://www.newsobserver.com/news/politics-government/election/article242482266.html>:

A group of voters backed by Democratic legal groups sued North Carolina on Monday seeking to loosen rules around absentee mail-in ballots amid predictions that the coronavirus pandemic will make voting by mail a widespread practice.

They want the state to provide prepaid postage on all absentee ballots, change a requirement for two witnesses to sign a ballot, extend the deadline for receipt of ballots until nine days after Election Day and give voters a chance to fix signature discrepancies before election officials reject those ballots.

North Carolina’s state board of elections endorsed the first two provisions in a proposed list of election changes released in March.<https://bladenonline.com/wp-content/uploads/2020/03/North-Carolina-State-Board-of-Elections-Legislative-Recommendations-COVID-19.pdf>

Complaint.<https://www.documentcloud.org/documents/6881792-Absentee-mail-in-ballot-complaint-April-2020.html#document/p1>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“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>


--
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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