[EL] ELB News and Commentary 5/28/20

Wed May 27 17:30:26 PDT 2020

“Texas Voters Face Malicious Prosecutions After COVID-19 Absentee Ballot Ruling”<https://electionlawblog.org/?p=111719>
Posted on May 27, 2020 5:25 pm<https://electionlawblog.org/?p=111719> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/05/texas-supreme-court-voters-covid-19-absentee-ballot.html> for Slate. It begins:

On Wednesday, Texas Supreme Court issued a ruling that makes a Lone Star-sized mess<http://www.txcourts.gov/supreme/orders-opinions/2020/may/may-27-2020/> of the state’s law on absentee balloting and the question of whether voters who lack immunity to COVID-19 have a valid “excuse” to vote by mail in the upcoming elections. In a nutshell, the court has said that the statute does not allow voters who lack immunity and who fear contracting the virus to vote by mail because the statute only allows voting by mail for those with physical conditions preventing them from voting. But it further says that election officials won’t check the validity of excuses and it will be up to each voter, acting in good faith, to determine whether they have the ability safely vote by mail. This “don’t ask, don’t tell” policy is a recipe for disaster in a state in which Attorney General Ken Paxton has already threatened with criminal prosecution<https://www.vox.com/2020/4/17/21223994/texas-disenfranchise-millions-ken-paxton-physical-condition-democratic-party-debeauvoir> those who advise voters who lack immunity and fear the disease to vote by mail. And it cries for federal court relief….

In other words, the Texas Supreme Court has told voters that they cannot vote by mail if they lack immunity and fear the disease. But if a voter states that she has a disability for whatever reason the clerks will look the other way and let the voter vote by mail.

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud.  Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“The Right-Wing Legal Network Is Now Openly Pushing Conspiracy Theories”<https://electionlawblog.org/?p=111717>
Posted on May 27, 2020 5:09 pm<https://electionlawblog.org/?p=111717> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/05/leonard-leo-federalist-society-voter-fraud.html> at Slate with Dahlia Lithwick. It begins:

The right-wing legal network spawned by the Federalist Society has finally gone full Trumpian. It has morphed from a group of apparently principled conservatives debating high-minded theories of legal interpretation, into a secretly-funded cabal spouting conspiracy theories such as the myth of widespread voter fraud. We’ve certainly seen hints that this was the case and also signals that it was coming. But we have now approached peak-hackery, and that hackery is now being directed at manipulating elections. That part really is new, and it is a dangerous development that threatens the rule of law…

One early sign of the turn away from normal politics and toward dirty tricks occurred when conservative legal activist Ed Whelan<https://www.theatlantic.com/notes/2018/09/kavanaugh-whelan/570982/> advanced an unhinged conspiracy theory that used Zillow pages, Facebook, and yearbook photos to claim that it was not Kavanaugh who committed the attack on Dr. Christine Blasey Ford, but rather his classmate, whom Whelan named outright. Whelan later apologized<https://www.youtube.com/watch?v=wsFQ7Fklydw> and after doing a short period of social media penance is now back at work pushing the Federalist Society agenda. The unsupported claim of a different attacker was taken up by<https://slate.com/news-and-politics/2018/09/brett-kavanaugh-ed-whelan-conspiracy-theory-christine-blasey-ford-zillow.html> commentators and Republican senators who claimed they believed Dr. Ford about being attacked but cast doubt on whether she was correct about the identity of the attacker. The baseless theory injected just enough confusion into the allegations, Kavanaugh was confirmed, and Whelan has paid no price for it.

Now things have taken a turn from court-packing to a side-grift in vote suppression. According to new reporting<https://www.theguardian.com/us-news/2020/may/27/honest-elections-project-conservative-voting-restrictions> from The Guardian and Open Secrets, Leo, Carrie Severino of the Judicial Crisis Network, and their dark-money backers are promoting the Orwellian-named “Honest Elections Project” to pressure elections administrators to limit access to the ballot and to undermine trust in elections. The messaging echoes Trump’s baseless claims that various states’ efforts to let people vote by mail are fraudulent – and turns these lies into policy. “The project announced it was spending $250,000 in advertisements <https://www.nbcnews.com/politics/meet-the-press/blog/meet-press-blog-latest-news-analysis-data-driving-political-discussion-n988541/ncrd1182726#blogHeader> in April, warning against voting by mail and accusing Democrats of cheating<https://www.youtube.com/watch?v=0gFW4sb1lps&feature=youtu.be>,” the Guardian explained.  “It facilitated letters to election officials in Colorado<https://www.honestelections.org/wp-content/uploads/2020/02/Colorado-Pre-litigation-Notice.pdf>, Florida<https://www.honestelections.org/wp-content/uploads/2020/02/Florida-Pre-litigation-Notice.pdf> and Michigan<https://www.honestelections.org/wp-content/uploads/2020/02/Michigan-Pre-litigation-Notice.pdf>, using misleading data<https://www.brennancenter.org/our-work/analysis-opinion/calls-more-purges-rest-shaky-data> to accuse jurisdictions of having bloated voter rolls and threatening legal action. Calling voter suppression a ‘myth<https://www.honestelections.org/the-voter-suppression-myth/>’, it has also been extremely active in the courts, filing briefs in favor of voting restrictions in Nevada<https://www.honestelections.org/the-honest-elections-project-filed-a-brief-in-state-court-defending-nevadas-duly-enacted-election-laws/>, Virginia<https://www.honestelections.org/honest-elections-project-files-brief-in-virginia-on-witness-requirements-for-absentee-ballots/>, Texas<https://www.honestelections.org/honest-elections-project-files-brief-in-texas-on-straight-ticket-voting/>, Wisconsin<https://www.honestelections.org/wp-content/uploads/2020/03/HEP-Amicus-Brief-2020-03-30-17_55_45.pdf> and Minnesota<https://www.honestelections.org/wp-content/uploads/2020/03/50_HEP-Amicus-Br-2020-03-26-19_13_01.pdf>, among other places, at times represented by lawyers from the same firm<https://www.washingtonpost.com/local/legal-issues/coming-to-trumps-defense-an-unconventional-lawyer-for-an-unconventional-president/2019/08/21/f877214a-9382-11e9-aadb-74e6b2b46f6a_story.html> that represents Trump.”…

That the conservative network is suddenly engaged in spouting unsubstantiated claims of voter fraud to support suppressive voting laws and cast doubt on the legitimacy of elections in which Democrats can win is an activity fundamentally at odds with the spirit of honest debate that is supposed to animate the Federalist Society. It is also the kind of fundamental dishonesty in the service of political aims that is the polar opposite of the rule of law values Justice Scalia<https://www.amazon.com/gp/product/B07B51C83D/ref=dbs_a_def_rwt_hsch_vapi_tkin_p1_i8> and others had professed as being at the beating heart of the conservative legal movement’s mission. It takes an immense amount of cynicism to move from debating conservative jurisprudential theories to taking secret money to buy and sell judicial nominations. But the cynicism required to use that once-vaunted perch from which to shut down free elections is still breathtaking, even if it should no longer surprise us at all.

________________________________
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Mobilize Pa. National Guard to secure the June primary | Opinion”<https://electionlawblog.org/?p=111715>
Posted on May 27, 2020 3:19 pm<https://electionlawblog.org/?p=111715> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate Persily and Tom Westphal oped<https://www.inquirer.com/opinion/commentary/pennsylvania-election-law-security-national-guard-2020-votes-20200527.html> in the Philly Inquirer.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Pendleton County mail carrier charged with attempted election fraud”<https://electionlawblog.org/?p=111713>
Posted on May 27, 2020 2:05 pm<https://electionlawblog.org/?p=111713> by Rick Hasen<https://electionlawblog.org/?author=3>

DOJ release<https://www.justice.gov/usao-ndwv/pr/pendleton-county-mail-carrier-charged-attempted-election-fraud>:

Thomas Cooper, a mail carrier in Pendleton County, was charged today in a criminal complaint with attempted election fraud, U.S. Attorney Bill Powell announced.

Cooper, age 47, of Dry Fork, West Virginia, is charged with “Attempt to Defraud the Residents of West Virginia of a Fair Election.” According to the affidavit filed with the complaint, Cooper held a U.S. Postal Service contract to deliver mail in Pendleton County. In April 2020, the Clerk of Pendleton County received “2020 Primary Election COVID-19 Mail-In Absentee Request” forms from eight voters on which the voter’s party-ballot request appeared to have been altered.

The clerk reported the finding to the West Virginia Secretary of State’s office, which began an investigation. The investigation found five ballot requests that had been altered from “Democrat” to “Republican.” On three other requests, the party wasn’t changed, but the request had been altered.

Cooper was responsible for the mail delivery of the three towns from which the tampered requests were mailed: Onego, Riverton, and Franklin, West Virginia. According to the affidavit, Cooper admitted to altering some of the requests, saying it was a joke.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Republicans Open to More Election Funding, but Not on Democrats’ Terms; GOP lawmakers oppose requiring mail-in ballots nationwide, seek flexibility for state and local officials amid coronavirus pandemic”<https://electionlawblog.org/?p=111711>
Posted on May 27, 2020 2:01 pm<https://electionlawblog.org/?p=111711> by Rick Hasen<https://electionlawblog.org/?author=3>

Relatively good news<https://www.wsj.com/articles/republicans-open-to-more-election-funding-but-not-on-democrats-terms-11590596514> from the WSJ.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“10 Voter Fraud Lies Debunked”<https://electionlawblog.org/?p=111709>
Posted on May 27, 2020 1:43 pm<https://electionlawblog.org/?p=111709> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest<https://www.brennancenter.org/our-work/research-reports/10-voter-fraud-lies-debunked> at the Brennan Center.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Cartoon of the Day<https://electionlawblog.org/?p=111704>
Posted on May 27, 2020 12:47 pm<https://electionlawblog.org/?p=111704> by Rick Hasen<https://electionlawblog.org/?author=3>

David Horsey<https://www.seattletimes.com/opinion/mail-in-ballot-mayhem-nonsense/>:
[cid:image002.jpg at 01D6344C.81AFA8A0]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Decision Desk HQ, Which Does Election Calling for Vox and Others, Endorses Media Recommendations from Our “Fair Elections During a Crisis” Report<https://electionlawblog.org/?p=111701>
Posted on May 27, 2020 12:43 pm<https://electionlawblog.org/?p=111701> by Rick Hasen<https://electionlawblog.org/?author=3>

Decision Desk<https://decisiondeskhq.com/covering-and-understanding-elections-in-the-world-of-covid-19/>:

The Covid-19 pandemic has changed how we live our daily lives in so many ways over the last two months. As we’ve seen across the country these changes, great and small, have reached the world of politics and elections.

Recently an ad-hoc committee of scholars and researchers led by professor Rick Hasen of the University of California at Irvine, released a report<http://r20.rs6.net/tn.jsp?f=001r30AbkvCvblPTkq7TISSTwJZP4PTRJgjLNYsBbVYxqPsDrfg0aDL7zveGAS4frSD1KXask0Ye1vkxrFjfNqVNW7I4P5gxWPk-acde8F44DlCjUPlEhd9d4No4ZjrVuuikrWTRYEzTKBm6D7VJH75u2acbJAbrB6L9pyquJnLDQHnZDnBcdBJRC-Xnk8Jd8p8ekNuzh02r5d7GYB-igVC1w==&c=wvsUEy170vt8kUBwJI-Ly7cM2Ojz-2k958M8m3vXv9Ppxdqj_-xBaA==&ch=CNQ7KIfkTKw2298v6RAnFgW-zX2zXSJeoB3BV9rFju1iwSYhX5kRsg==>  addressing the challenges posed by holding an election in the midst of a public health crisis and offered recommendations regarding the execution of the upcoming general election. Many of these recommendations are aimed at government officials overseeing elections, but some are addressed to the media regarding their coverage of the process.

As a leading provider of election night results to national and local media outlets, Decision Desk HQ has been monitoring the rapidly changing conditions under which election have been, and are likely to be, held. I wanted to take this opportunity to address two of the committee’s recommendations as they apply to the work we do at DDHQ.

Recommendation #5 involves educating the public on the timing and process of elections as well as the tabulation of returns. This is something we take seriously and will be doing our best to provide information and context from our perspective throughout the rest of the year. As an organization that services as a bridge between the government officials charged with conducting our elections and the media responsible for informing the public about the conduct and results of elections, we feel we bring a unique and important perspective to this conversation.

We’ll be doing more educational pieces over the course of the next few months starting here.

Recommendation #6 is an excellent place to begin our contribution to the discussion: :

It is especially important for the media to convey to the public the idea that, given an expected increase in absentee ballot voting in the November 2020 elections, 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.

We wholeheartedly agree about the need for expectation-setting and election education in order to dispel rumors and instill confidence in the process….
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Nevada: “Former MedMen marijuana executive alleges manager pressured him into illegal contribution to Sisolak”<https://electionlawblog.org/?p=111699>
Posted on May 27, 2020 12:32 pm<https://electionlawblog.org/?p=111699> by Rick Hasen<https://electionlawblog.org/?author=3>

The Nevada Independent reports<https://thenevadaindependent.com/article/former-medmen-marijuana-executive-alleges-manager-pressured-him-into-illegal-contribution-to-sisolak>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Trump press secretary Kayleigh McEnany has voted by mail 11 times in 10 years; The Tampa native has said it shouldn’t be available to everyone.”<https://electionlawblog.org/?p=111697>
Posted on May 27, 2020 12:21 pm<https://electionlawblog.org/?p=111697> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports<https://www.tampabay.com/florida-politics/buzz/2020/05/27/trump-press-secretary-kayleigh-mcenany-has-voted-by-mail-11-times-in-10-years/>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Mich. ballot initiative hampered by pandemic, lockdown seeks day in court”<https://electionlawblog.org/?p=111695>
Posted on May 27, 2020 12:17 pm<https://electionlawblog.org/?p=111695> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit News reports.<https://www.detroitnews.com/story/news/local/michigan/2020/05/27/mich-ballot-initiative-hampered-pandemic-seeks-day-court/5211524002/>
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Posted in ballot access<https://electionlawblog.org/?cat=46>, direct democracy<https://electionlawblog.org/?cat=62>

Revised Version Available of My Paper on Direct Democracy Rights During a Pandemic, Taking Into Account Awful 6th Circuit Opinion from Tuesday<https://electionlawblog.org/?p=111693>
Posted on May 27, 2020 11:59 am<https://electionlawblog.org/?p=111693> by Rick Hasen<https://electionlawblog.org/?author=3>

Draft here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3608472> (paper is forthcoming in the University of Chicago Law Review Online). 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 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, however, was put on hold by the Sixth Circuit in a stay order that was very dismissive of the rights of direct democracy and that portends bad things to come.

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 ballot access<https://electionlawblog.org/?cat=46>, direct democracy<https://electionlawblog.org/?cat=62>, election administration<https://electionlawblog.org/?cat=18>

New Lawsuit Challenges Kentucky Voting Rules During Pandemic<https://electionlawblog.org/?p=111690>
Posted on May 27, 2020 9:29 am<https://electionlawblog.org/?p=111690> by Rick Hasen<https://electionlawblog.org/?author=3>

Press release<https://www.aclu.org/press-releases/groups-file-federal-lawsuit-challenging-kentucky-requirements-put-voters-harms-way>. Complaint<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUURTROxIEyGquq1smnAPN-2FhrQYnS3CyXQpVgMuM5gB7u3nAeCZE2a9A88jAKsA16hLtUR9SNzuQQVv0oI1IGqy0-3DHcFg_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9WBrKJAemcg1MdKc-2Fqd32GGWlqWwscAgTdqXA-2BCfeG-2BSgV-2FyWtKNQ2UdqPllR-2BzrwJX1mhotqJ-2BgWSn0yIMoGrTeFHfASnM-2B2cy2-2BUGrv17hzTilyGGqpVTtdUsBsd-2Bz1IJ4TI9BfxSy1lquPYOuvFo9K9-2F-2F8EfXuP4H6efhfhbIE7y2ppvCvbMMHPlv9XKSaA-2FDGKKLYtK-2BEIgilemQPfK34a6g5OUccNYj4Em8n6eiziyXi-2B4CTElNMxXYXtOg8o-3D>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>

“Six Scenarios for Confusion in Counting the 2020 Ballots: Not Just Scary Campfire Stories Any More”<https://electionlawblog.org/?p=111688>
Posted on May 27, 2020 9:27 am<https://electionlawblog.org/?p=111688> by Rick Hasen<https://electionlawblog.org/?author=3>

Lou Jacobson<https://cookpolitical.com/analysis/national/national-politics/six-scenarios-confusion-counting-2020-ballots-not-just-scary?fbclid=IwAR1MrYCZXGb_gSnRoSrKiaZ8Nonl8vRrdJakPeMOMu3txYtpbA6Bcqd1lWM> for the Cook Political Report:

Every four years, political obsessives like to scare themselves like kids around a campfire, sharing stories about weird presidential election outcomes — such as a divergence between the popular and the electoral vote (which is now old hat, having happened twice in recent memory), or a 269-269 electoral college tie, which would send the election to the House, with every state, from California to Wyoming, getting one vote for president.

But this year, in an era of hyperpartisanship, norm-breaking, and declining voter trust in institutions, new and even scarier scenarios are bubbling to the surface.

Earlier this month, some 30 political scientists<https://spark.adobe.com/page/K1q5fm2S6W9ki/> met virtually for a public webinar and discussion of outlandish, yet hardly implausible, scenarios of how the 2020 presidential election could devolve into chaos. It was convened by law professors Edward B. Foley and Steven F. Huefner of Ohio State University. (The full video can be accessed here<https://u.osu.edu/electionlaw/events/what-if-the-2020-presidential-election-is-disputed/>.)

The scenarios fell into three time periods.

The period from Election Day to the meeting of the electors in the states. (Procedural nerds will know<https://www.thegreenpapers.com/G20/EC-Meeting.phtml> that the electors meet on the first Monday after the second Wednesday in December, or Dec. 14 this year.)

The period from the electors’ meeting to the day that Congress counts their votes, which is fixed by statute on Jan. 6<https://fas.org/sgp/crs/misc/RL32717.pdf>.

The period between the counting of the electoral votes to the inauguration on Jan. 20

Each of these three periods, the participants agreed, offers its own unique set of legal and constitutional landmines.

The virtual meeting was designed to forge an academic consensus over how some of these scenarios should be handled under existing constitutional and statutory precedent before partisan lenses color any such decision.

“It’s important to have this discussion now, rather than in December,” Richard L. Hasen, a professor of law and political science at the University of California-Irvine, told the group.

That said, the participants displayed enough disagreements of interpretation during the webinar that reaching even an academic consensus looks difficult, to say nothing of getting all politicians and both major parties on board in the less-than-six-month window before November’s election.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>
“2020 Election Sidebar: No Voters Need Apply?”<https://electionlawblog.org/?p=111686>
Posted on May 27, 2020 9:23 am<https://electionlawblog.org/?p=111686> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder column<https://2hljrm13wpep1y93sv1m25vn-wpengine.netdna-ssl.com/wp-content/uploads/2020/05/JerryGoldfederElectionSidebar2_0526.pdf>.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

Forces Behind Conservative Judicial Nominations Network, Including the Federalist Society’s Leonard Leo and Judicial Crisis Network’s Carrie Severino, Join the Fraudulent Fraud Squad with the “Honest Elections Project”<https://electionlawblog.org/?p=111684>
Posted on May 27, 2020 7:08 am<https://electionlawblog.org/?p=111684> by Rick Hasen<https://electionlawblog.org/?author=3>

So much for principled conservatism. New reporting<https://www.theguardian.com/us-news/2020/may/27/honest-elections-project-conservative-voting-restrictions> from The Guardian and Open Secrets:

A powerful new conservative organization fighting to restrict voting in the 2020 presidential election is really just a rebranded group that is part of a dark money network already helping Donald Trump’s unprecedented effort <https://www.theguardian.com/us-news/2020/apr/28/donald-trump-judges-create-new-conservative-america-republicans?CMP=series_embed_box> to remake the US federal judiciary, the Guardian and OpenSecrets reveal.

The organization, which calls itself the Honest Elections Project<https://www.honestelections.org/>, seemed to emerge out of nowhere a few months ago and started stoking fears about voter fraud. Backed by a dark money group funded by rightwing stalwarts like the Koch brothers and Betsy DeVos’ family, the Honest Elections Project is part of the network that pushed the US supreme court picks Brett Kavanaugh and Neil Gorsuch, and is quickly becoming a juggernaut in the escalating fight over voting rights.

The project announced it was spending $250,000 in advertisements <https://www.nbcnews.com/politics/meet-the-press/blog/meet-press-blog-latest-news-analysis-data-driving-political-discussion-n988541/ncrd1182726#blogHeader> in April, warning against voting by mail and accusing Democrats of cheating<https://www.youtube.com/watch?v=0gFW4sb1lps&feature=youtu.be>. It facilitated letters to election officials in Colorado<https://www.honestelections.org/wp-content/uploads/2020/02/Colorado-Pre-litigation-Notice.pdf>, Florida<https://www.honestelections.org/wp-content/uploads/2020/02/Florida-Pre-litigation-Notice.pdf> and Michigan<https://www.honestelections.org/wp-content/uploads/2020/02/Michigan-Pre-litigation-Notice.pdf>, using misleading data<https://www.brennancenter.org/our-work/analysis-opinion/calls-more-purges-rest-shaky-data> to accuse jurisdictions of having bloated voter rolls and threatening legal action.

Calling voter suppression a “myth<https://www.honestelections.org/the-voter-suppression-myth/>”, it has also been extremely active in the courts, filing briefs in favor of voting restrictions in Nevada<https://www.honestelections.org/the-honest-elections-project-filed-a-brief-in-state-court-defending-nevadas-duly-enacted-election-laws/>, Virginia<https://www.honestelections.org/honest-elections-project-files-brief-in-virginia-on-witness-requirements-for-absentee-ballots/>, Texas<https://www.honestelections.org/honest-elections-project-files-brief-in-texas-on-straight-ticket-voting/>, Wisconsin<https://www.honestelections.org/wp-content/uploads/2020/03/HEP-Amicus-Brief-2020-03-30-17_55_45.pdf> and Minnesota<https://www.honestelections.org/wp-content/uploads/2020/03/50_HEP-Amicus-Br-2020-03-26-19_13_01.pdf>, among other places, at times represented by lawyers from the same firm<https://www.washingtonpost.com/local/legal-issues/coming-to-trumps-defense-an-unconventional-lawyer-for-an-unconventional-president/2019/08/21/f877214a-9382-11e9-aadb-74e6b2b46f6a_story.html> that represents Trump. By having a hand in both voting litigation and the judges on the federal bench, this network could create a system where conservative donors have an avenue to both oppose voting rights and appoint judges to back that effort….

Despite appearing to be a free-standing new operation, the Honest Elections Project is just a legal alias for the Judicial Education Project, a well-financed nonprofit connected to a powerful network of dark money conservative groups, according to business records reviewed by the Guardian and OpenSecrets….

For nearly a decade, the organization has been almost entirely funded by DonorsTrust, known as a “dark money ATM”<https://www.motherjones.com/politics/2013/12/donors-trust-franklin-center-alec-mercatus-center-dark-money/> backed by the Koch network and other prominent conservative donors, according to data tracked by OpenSecrets. In 2018, more than 99% of the Judicial Education Project’s funding came from a single $7.8m donation from DonorsTrust.

The Judicial Education Project is also closely linked to Leonard Leo<https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/>, one of the most powerful people in Washington who has shaped Donald Trump’s unprecedented effort to remake<https://www.theguardian.com/us-news/2020/apr/28/donald-trump-judges-create-new-conservative-america-republicans> the federal judiciary with conservative judges….

There is a lot of overlap between the Honest Elections Project and the Judicial Crisis Network. Both groups share personnel, including Carrie Severino, the influential president of the Judicial Crisis Network. Both groups have been funded by The Wellspring Committee, a group Leo raised money for until it shut down in 2018. Both have also paid money to BH Group<https://www.opensecrets.org/news/2018/11/trump-inauguration-money-links-secretive-dark-money/>, an LLC Leo once disclosed as his employer, that made a $1m mystery donation to Trump’s inauguration.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Column: Trump doesn’t like mail-in voting, but it’s not his call”<https://electionlawblog.org/?p=111682>
Posted on May 27, 2020 6:57 am<https://electionlawblog.org/?p=111682> by Rick Hasen<https://electionlawblog.org/?author=3>

Doyle McManus<https://www.latimes.com/politics/story/2020-05-24/column-trump-doesnt-like-mail-in-voting-but-its-not-his-call> LAT column.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

PA Seeing Some Election Administration Problems in Lead-Up to Primary During Pandemic, and Worries About November<https://electionlawblog.org/?p=111680>
Posted on May 27, 2020 6:52 am<https://electionlawblog.org/?p=111680> by Rick Hasen<https://electionlawblog.org/?author=3>

Recent Jonathan Lai reporting:
·         Montgomery County sent 2,000 Pa. voters the wrong ballots for next week’s primary<https://www.inquirer.com/politics/election/montgomery-county-pa-wrong-primary-ballots-20200526.html> (closed primary, Ds received R ballots, Rs received D ballots)
·         Thousands of Pa. voters might not get their mail ballots in time to actually vote<https://www.inquirer.com/politics/election/pa-mail-ballots-deadline-2020-primary-20200526.html> (processing times, mail delivery, and tight deadlines for receipt, not postmark)
·         Montgomery County goes to court to extend the Pa. deadlines for mail ballots<https://www.inquirer.com/politics/election/montgomery-county-pa-court-mail-ballot-deadlines-20200526.html> (they cite mail delivery and a design flaw<https://twitter.com/Elaijuh/status/1265351449053102080> in the online ballot application system)
·         Coronavirus budget cuts are a threat to the November election, Philly elections chief warns<https://www.inquirer.com/politics/election/philly-elections-budget-cut-2020-election-20200526.html>
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Posted in election administration<https://electionlawblog.org/?cat=18>

“U.S. District Court Grants Relief to Initiative Proponents in Arkansas”<https://electionlawblog.org/?p=111678>
Posted on May 27, 2020 6:48 am<https://electionlawblog.org/?p=111678> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN reports.<http://ballot-access.org/2020/05/27/u-s-district-court-grants-relief-to-initiative-proponents-in-arkansas/>
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Posted in ballot access<https://electionlawblog.org/?cat=46>, direct democracy<https://electionlawblog.org/?cat=62>

--
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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