[EL] ELB News and Commentary 11/1/20 // #2DaysOut Symposium
Rick Hasen
rhasen at law.uci.edu
Sun Nov 1 15:00:17 PST 2020
#2DaysOut: Full List of Symposium Contributions<https://electionlawblog.org/?p=117982>
Posted on November 1, 2020 2:56 pm<https://electionlawblog.org/?p=117982> by Rick Hasen<https://electionlawblog.org/?author=3>
#2DaysOut: “Reflections from Philadelphia” (Tabatha Abu el-Haj)<https://electionlawblog.org/?p=117939>
#2DaysOut: “Three Things on My Mind” (Guy-Uriel Charles)<https://electionlawblog.org/?p=117959>
#2DaysOut: “How to Draw the Line on a State Legislature’s Electoral Power?” (Ned Foley)<https://electionlawblog.org/?p=117943>
#2DaysOut: “Democracy or Authoritarianism?” (Jim Gardner)<https://electionlawblog.org/?p=117930>
#2Days Out: My New One at Slate: “Trump Can’t Just ‘Declare’ Victory”<https://electionlawblog.org/?p=117986> (Rick Hasen)
#2DaysOut: “So Far” (Sam Issacharoff)<https://electionlawblog.org/?p=117945>
#2DaysOut: “This Election Illustrates a Deeper Problem” (Pam Karlan)<https://electionlawblog.org/?p=117953>
#2DaysOut: “Voters Give Reason to Celebrate an Election That’s Not” (Justin Levitt)<https://electionlawblog.org/?p=117961>
#2DaysOut: “The Vulnerabilities and Indeterminacy of the Presidential Election Process” (Michael Morley)<https://electionlawblog.org/?p=117955>
#2DaysOut: “A Ballot Dispute in the Making?” (Derek Muller)<https://electionlawblog.org/?p=117935>
#2DaysOut My Closing Perspective, in the WSJ, on Voting and the Election (Rick Pildes)<https://electionlawblog.org/?p=117886>
#2DaysOut: “The Textual Problem with the Presidential Version of the Independent State Legislature Argument” (Nick Stephanopoulos)<https://electionlawblog.org/?p=117951>
#2DaysOut: “Ten Things to Watch for on (and after) Election Day” (Dan Tokaji)<https://electionlawblog.org/?p=117928>
#2DaysOut: “Worried About Tuesday’s Election? Not Me.” (Franita Tolson)<https://electionlawblog.org/?p=117980>
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#2Days Out: My New One at Slate: “Trump Can’t Just ‘Declare’ Victory”<https://electionlawblog.org/?p=117986>
Posted on November 1, 2020 2:55 pm<https://electionlawblog.org/?p=117986> by Rick Hasen<https://electionlawblog.org/?author=3>
I have written this piece<https://slate.com/news-and-politics/2020/11/if-trump-declares-victory-election-night-axios-nope.html> for Slate (and part of the #2DaysOut symposium). It begins:
Just count the damn votes.
We are nearing the end of a ridiculous pandemic-laden election season, where we may hit record turnout despite the most blatant attempt to suppress the vote in a generation. More than 90 million people have already voted<https://electproject.github.io/Early-Vote-2020G/index.html>, and we may reach a record turnout<https://www.reuters.com/article/us-usa-election-early-voting/more-than-50-million-americans-have-cast-ballots-in-presidential-election-idUSKBN2781WK> of over 150 million on election day. I am sure we would have exceeded that number by millions more votes if President Donald Trump and Republicans had not fought efforts around the country to make voting during the pandemic a little less onerous.
And with Joe Biden ahead in the polls, the Trump end playbook has become increasingly clear: attack the counting of ballots after election night—even if they’ve arrived by election day—and prematurely declare victory if Trump is ahead—or possibly even close—in the early count. Indeed, Axios reported on Sunday that<https://www.axios.com/trump-claim-election-victory-ballots-97eb12b9-5e35-402f-9ea3-0ccfb47f613f.html> “President Trump has told confidants he’ll declare victory on Tuesday night if it looks like he’s ‘ahead,’ according to three sources familiar with his private comments.” This is largely in line with Republican lawsuits this election season, including a request<https://slate.com/news-and-politics/2020/10/texas-drive-through-voting-throw-out-ballots.html> over the weekend by Texas Republicans for a federal judge to throw out more than 100,000 ballots, which is likely to fail<https://electionlawblog.org/?p=117889>. Any such effort to continue this ploy after election night would be a disgusting attempted coup to try to stop the counting and manipulate public opinion, but the good news is it is also very unlikely to work.
Let’s start with the counting of ballots<https://t.co/DFIj9X6gsE?amp=1>. While there has been some dispute about whether state courts such as Pennsylvania and Minnesota had authority to extend the deadline for receipt of mail ballots that arrive after election day (a practice allowed in a fair number of states), there has never been any basis to claim that a ballot arriving on time cannot be counted if officials cannot finish their count on election night.
Indeed, such a claim is preposterous because no state fully counts their ballots on election night. Returns are unofficial and always contain errors. Many states allow military<https://taskandpurpose.com/analysis/military-mail-in-voting-2020-election> ballots to arrive for days after election day. Counting generally continues for days and weeks after election day and results are not certified until weeks after. When it comes to the president, the presidential electors do not cast their official ballots until December 14 and Congress does not count their votes until January 6. This calendar leaves plenty of time to get the counting done.
That’s what makes the Trump campaign efforts to cast doubts on even the counting of ballots after election day, even of military ballots, so unprecedented. As Slate’s Will Saletan noted<https://twitter.com/saletan/status/1322912856153739266?fbclid=IwAR24gas7FBtQF_fawp4BqSgy_kJU_SGsgyVlTZQo5o9_XRlPrPWa36peWdQ>, Trump adviser Jason Miller, speaking on ABC News’ This Week, signaled a legal battle against ballots not yet counted by Tuesday. “If you speak with many smart Democrats, they believe that President Trump will be ahead on election night,” Miller said. “And then they’re going to try to steal it back after the election.”
Counting legitimate ballots is not stealing of flipping the election, and no amount of spin can make it otherwise. But this is part of a broader strategy of Trump, also signaled to Axios, to prematurely declare victory based upon partial vote totals. The New York Times reported<https://www.nytimes.com/2020/10/31/us/politics/trump-dismisses-virus-coverage-and-biden-dismisses-virus-leadership-this-week-in-the-2020-race.html?smid=tw-share> that “Trump advisers said their best hope was if the president wins Ohio and Florida is too close to call early in the night, depriving Mr. Biden a swift victory and giving Mr. Trump the room to undermine the validity of uncounted mail-in ballots in the days after.”…
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>, chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
#2DaysOut: “Worried About Tuesday’s Election? Not Me.” (Franita Tolson)<https://electionlawblog.org/?p=117980>
Posted on November 1, 2020 2:41 pm<https://electionlawblog.org/?p=117980> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium submission from Franita Tolson<https://gould.usc.edu/faculty/?id=73521> (USC):
For many people, this particular election cycle feels very different than any in our lifetimes. Individuals are voting by mail in large numbers due to the COVID-19 pandemic. Nevertheless, courts have been receptive to arguments that would limit the ability of state and federal courts to make it easier for voters to cast ballots in these unprecedented circumstances. For example, election officials in Pennsylvania<https://local21news.com/news/local/supreme-court-tells-pa-counties-to-segregate-any-ballots-received-after-8pm-on-electi> and Minnesota<https://www.politico.com/news/2020/10/29/court-suggests-minnesota-ballots-tossed-433656> are preparing for inevitable litigation with plans to segregate ballots received after Election Day. A federal district court in Texas will have a Monday hearing on whether to toss out over 127,000 ballots<https://www.texastribune.org/2020/11/01/texas-drive-thru-votes-harris-county/> from voters who used the curbside voting mechanism authorized by Texas law. The endless litigation and high emotion surrounding the election are a perfect recipe for disaster. Towards this end, if we are able to elect a President successfully in these circumstances, many will declare that American democracy has prevailed again.
However, the potential for an election meltdown will always be present<https://balkin.blogspot.com/2020/03/the-default-of-american-politics.html> so long as we continue to elect presidents within our structurally flawed election system without addressing the core problems that make such meltdowns likely. Because a winner has been able to eventually emerge under this flawed system for over two centuries, we forget that many of our elections are marred by disenfranchisement, violence, unrest, uncertainty, incompetence, maladministration, or some combination thereof. Once the choice is made, we turn the page to focus on the next election cycle, ignoring the structural pathologies that threaten the preferences of the majority in the selection of the President. Our democracy exists in a continuous state of chaos, and we live with it only because we somehow manage to elect a President despite the chaos. Yet it is possible that one day our hubris will get the best of us, and we will be faced with an existential crisis that no amount of counting, recounting, or litigation will get us out of.
While this does not mean that 2020 will be the year in which the chickens come home to roost, kicking the can down the road and inviting disaster is still profoundly irresponsible. In reality, the problem is not Tuesday’s election—the stage has already been set and there is little to do but hope for the best— but what happens beyond Tuesday. Once a President is elected, we will still have to grapple with the fact that state authorities have actively tried to make voting harder in a global pandemic. It should not matter whether they will be successful in depressing turnout on Tuesday. In other words, we cannot declare the election a success simply because voters overcome the barriers put before them. What matters is punishing this behavior, independent of success. We should revisit the system that permits these actions as well as the judicial precedents that have facilitated it.
Many of the decisions coming out of the U.S. Supreme Court and lower courts in recent months have been hostile to the right to vote<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> and overly solicitous to the authority of state legislatures. Some of these cases have elevated the prominence<https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf#page=24> of the independent state legislature doctrine, which advances the view that state legislatures set the rules governing federal elections and their authority cannot be constrained by state courts or state constitutions. This doctrine will not disappear when a President is elected or when COVID ends, and scholars will have to grapple with its implications well beyond Tuesday’s election. Moreover, any attempt to limit these state centric precedents to the current COVID pandemic is a pie-in-the-sky pipe dream that will not serve us or this democracy well. Bush v. Gore was also a precedent good for one day only, yet here we are two decades later facing the prospect that the independent state legislature doctrine—a minority view from three justices in that case—may dictate whether the state legislature has largely unconstrained authority to set the rules for congressional and presidential elections moving forward.
Nevertheless, I am not worried about Tuesday. There will be litigation, divisive rhetoric, and legitimacy concerns surrounding this election, but it is still highly likely that, like the last 230 years, a President will emerge from the ashes of this dumpster fire. I am worried about the after. I am worried that in four years, our conversation will be little changed because we have missed yet another opportunity to fix the problems plaguing our system. I am afraid that we will learn to live with unfavorable Supreme Court precedents rather than challenging the very structures that have displaced the voters as the central character in our democracy. I am afraid of Wednesday.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
“Democrats, GOP brace for legal action in Florida election”<https://electionlawblog.org/?p=117978>
Posted on November 1, 2020 2:15 pm<https://electionlawblog.org/?p=117978> by Rick Hasen<https://electionlawblog.org/?author=3>
AP reports.<https://www.thehour.com/news/article/Democrats-GOP-brace-for-legal-action-in-Florida-15691882.php>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“USPS says delivery of mail ballots sent by voters in Detroit, Greater Mich and Central PA (& more) delayed due “COVID-19 and employee unavailability.” Scrambling to fix”<https://electionlawblog.org/?p=117976>
Posted on November 1, 2020 2:12 pm<https://electionlawblog.org/?p=117976> by Rick Hasen<https://electionlawblog.org/?author=3>
John Kruzel <https://twitter.com/johnkruzel/status/1323007225028370434> on the latest USPS filing.
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“We Have Never Had Final Results on Election Day”<https://electionlawblog.org/?p=117974>
Posted on November 1, 2020 2:09 pm<https://electionlawblog.org/?p=117974> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2020/11/01/us/politics/trump-ballot-counting-election.html>
For weeks, President Trump and his allies have been laying groundwork to challenge the results of the election if he loses. Now, in the final days of the campaign, he has settled on a blatantly ahistorical closing argument: that the votes in a fair election should not be counted past election night.
“The Election should end on November 3rd., not weeks later!” he tweeted<https://twitter.com/realDonaldTrump/status/1322294301183782912> on Friday, two days after telling reporters in Nevada, “Hopefully, the few states remaining that want to take a lot of time after Nov. 3 to count ballots, that won’t be allowed by the various courts.”
“You would think you want to have the votes counted, tabulated, finished by the evening of Nov. 3,” he said at a campaign event a week earlier.
In reality, the scenario Mr. Trump is outlining — every vote in a modern election being “counted, tabulated, finished” by midnight — is not possible and never has been. No state ever reports final results on election night, and no state is legally expected to.
Americans are accustomed to knowing who won on election night because news organizations project winners based on partial counts, not because the counting is actually completed that quickly. These race calls mean Candidate A is far enough ahead that, given the number of outstanding ballots and the regions those ballots are coming from, Candidate B would realistically be unable to close the gap.
The difference this year is not the timing of final results — those will come, as always, by the certification deadlines each state has set, ranging from two days after the election in Delaware to more than a month after in California. The difference, rather, is when news organizations are likely to have enough information to make accurate projections.
If, as Mr. Trump suggested, courts were to force states to stop counting after Nov. 3, it would be an extraordinary subversion of the electoral process and would disenfranchise millions of voters who cast valid, on-time ballots.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Philadelphia prepares for ‘avalanche’ of mail-in ballots”<https://electionlawblog.org/?p=117972>
Posted on November 1, 2020 1:57 pm<https://electionlawblog.org/?p=117972> by Rick Hasen<https://electionlawblog.org/?author=3>
ABC News:<https://abcnews.go.com/Politics/philadelphia-prepares-avalanche-mail-ballots/story?id=73935296>
In Philadelphia, officials are estimating they could have to process more than 350,000 returned absentee ballots from the over 425,000 requested by voters.
Beginning at 7 a.m. on Tuesday, officials will begin processing the ballots, organized by precinct, and scanning them for signatures. Signed ballots will go through extraction machines, which have suction cups to open envelopes that allow staff to remove ballots in the inner secrecy envelopes.
Ballots without secrecy envelopes, known as naked ballots, will be discarded, in accordance with a September state Supreme Court ruling. But poll workers can reach out to voters and offer them provisional ballots to fill out at a polling site in-person.
Once removed from the secrecy envelopes and verified, ballots are unfolded by staff and prepared for processing by the city’s 12 high-speed scanners, which can process 32,000 ballots every hour.
The city plans to post the results of the absentee and mail-in ballots scanned on Election Day after polls close on Tuesday night, and the last voting machine results are received, Deeley said.
Updated counts will be posted four times on Nov. 4, and at least twice a day the rest of the week until every vote is counted.
“I feel confident that the overwhelming majority will be counted by Friday, if not before,” Kathy Boockvar, the Pennsylvania secretary of the commonwealth, told reporters on Friday.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“Texas Supreme Court rejects Republican-led effort to throw out nearly 127,000 Harris County votes”<https://electionlawblog.org/?p=117970>
Posted on November 1, 2020 1:52 pm<https://electionlawblog.org/?p=117970> by Rick Hasen<https://electionlawblog.org/?author=3>
Texas Tribune<https://www.texastribune.org/2020/11/01/texas-drive-thru-votes-harris-county/>:
A legal cloud hanging over nearly 127,000votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county.
The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.
The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“‘It may take days.’ Election experts warn voters to be patient with results this year”<https://electionlawblog.org/?p=117968>
Posted on November 1, 2020 12:33 pm<https://electionlawblog.org/?p=117968> by Rick Hasen<https://electionlawblog.org/?author=3>
KC Star reports.<https://www.kansascity.com/news/politics-government/article246807857.html?__twitter_impression=true>
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#2DaysOut: “Voters Give Reason to Celebrate an Election That’s Not” (Justin Levitt)<https://electionlawblog.org/?p=117961>
Posted on November 1, 2020 10:56 am<https://electionlawblog.org/?p=117961> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Justin Levitt<https://www.lls.edu/faculty/facultylistl-r/justinlevitt/> (Loyola L.A.):
With three days left to cast ballots at the end (?) of a white-knuckle electoral process, there’s a remarkable amount to celebrate.
As Michael McDonald chronicles<https://electproject.github.io/Early-Vote-2020G/index.html>, more than 91 million early votes have already been cast. The most eye-popping stats are in states like North Carolina (now showing 91% of 2016 turnout, with only 4% vote by mail in 2016); Georgia (93% of 2016 turnout, with 5% vote by mail in 2016), Tennessee (89% of 2016 turnout, with 3% vote by mail in 2016, and requiring an excuse to vote by mail). And Texas. My lord, Texas. Texas reports more than 107% of 2016 turnout already. Texas requires an excuse to vote by mail (just 7% voted by mail in 2016). This year’s turnout is staggering. Voters are demanding to be heard. There’s (much) more to come.
Much of this is made possible by the extraordinary resilience and creativity of voters, advocates, and election officials. We’ve seen naked celebrities doing PSAs<https://www.youtube.com/watch?v=WprmBtiVUIw> about naked ballots, and 700,000 new pollworker recruits<https://www.npr.org/2020/10/29/928225412/on-poll-workers-many-election-officials-breathe-sigh-of-relief>. Dancing<https://twitter.com/ResistanceRev/status/1320219587171045381> on line at the polls, and NBA arenas<https://www.nba.com/nba-arenas-polling-place-voting-center-2020-election> converted to voting locations. 102<https://twitter.com/QuentinYoumans/status/1318881677259792384>, 103<https://www.fox21news.com/news/election/103-year-old-womans-voting-history-dates-back-to-fdr/>, 104<https://twitter.com/Faith_Salie/status/1320153269205929985>, 105<https://abc11.com/politics/105-year-old-nc-woman-celebrated-after-casting-ballot/6886964/>, and 106<https://www.myarklamiss.com/news/local-news/eudora-woman-becomes-the-oldest-registered-voter-at-106-years-old/>-year-old Americans, in hazmat gear<https://www.cnn.com/2020/10/06/us/102-year-old-teacher-votes-trnd/index.html>, voting despite the pandemic. A 109-year-old<https://dfw.cbslocal.com/2020/10/23/109-year-old-texas-woman-votes-presidential-election/> voter just turned 110 last week. Happy birthday, Earline!
Most Americans have had — or will have — a comparatively smooth experience, even given the disruptions of COVID-19. Most states have expanded the reliable opportunity to vote by mail, which 58 million voters have already used<https://electproject.github.io/Early-Vote-2020G/index.html>. Many local officials scrambled to provide opportunities to vote early. Voters appreciate these avenues, and will demand that they persist beyond the pandemic.
And yet.
This is a success only when measured by artificially depressed standards. Voters and local officials are managing despite the surrounding system, not because of it. We should celebrate the perseverance, with white-hot outrage at the conditions that make that perseverance necessary. And when new legislative sessions begin, the only way we fix the lapses of today is to remember those lapses tomorrow. Whatever the electoral results.
Even when turnout estimates<https://www.theguardian.com/us-news/2020/oct/23/us-2020-election-highest-rate-voter-turnout> amount to 65% of eligible voters, 80 million eligible citizens are shut out from or turned off of participation in representative democracy. Too many of those who do participate will have done so via a fight far harder than any republic with a care for customer service should offer.
We get what we pay for. We poured trillions into pandemic recovery, and a teaspoonful into the democracy that makes it work. Election officials begged for basic-needs cash in May; 28 federal judges later<https://www.uscourts.gov/judges-judgeships/judicial-vacancies/confirmation-listing>, they’re still waiting, requiring private philanthropy to duct-tape a small fraction of the holes.
Jurisdictions without capital for ballot-sorting machines turn to temp labor, and depend on kindness for polling-place staff and space. Budget limitations mean meager voter education in a year of substantial procedural change. The outpouring of volunteerism is heartwarming; heroes abound. But this is the electoral equivalent of underpaid teachers purchasing classroom supplies with personal funds.
The shortages do not fall equally on the electorate. In a story depressingly familiar, those who are already underrepresented end up disproportionately disadvantaged<https://redistricting.lls.edu/other/Levitt%20USCCR%20testimony%2020200708.pdf>. Mail ballot rejections and delivery times, access to polling places, length of lines — the fact that you know the story doesn’t make the story OK.
This year, the masks also came off even more rules purporting to be about electoral process. Local jurisdictions accommodating voters discovered state officials with new and pretextual “integrity” concerns where voters represented a political threat to the incumbents. Lower courts grappling with nuances of administrability and enfranchisement found narrow orders blocked on appeal by gestures to the calendar without meaningful rationale — except, that is, when appellate courts wanted to issue last-minute injunctions of their own<https://electionlawblog.org/?p=117784>. The courts ratified a legislative effort to overrule its own citizens, disenfranchising voters for their inability to repay a fee whose amount is a mystery even to the state<https://www.tampabay.com/news/florida-politics/elections/2020/10/07/florida-ruled-felons-must-pay-to-vote-now-it-doesnt-know-how-many-can/>. The Senate majority’s purported desire to listen to the people<https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/19/914774433/use-my-words-against-me-lindsey-graham-s-shifting-position-on-court-vacancies> before embarking on high-stakes judicial entrenchment simply . . . vanished.
And, of course, the President continues to insist, using the largest megaphone in the land, that the coming election is rigged<https://twitter.com/search?q=rigged%20election%20(from%3Arealdonaldtrump)&src=typed_query>, when those who spend countless hours securing it know otherwise. Social media platforms monetizing quick-fire emotive response have acted too slowly to deprive the fire of oxygen, when they have not actively been feeding it fuel. The claims arrive without evidence, spread without reflection, and land without protest from the party leaders who know better.
These are problems beyond one bad actor. They are systemic problems of norms and laws and incentives and institutions. Despite it all, American voters (not trolls, lawyers, or lawyer trolls<https://www.youtube.com/watch?v=SRvO1tPfqcg>) will end up deciding this election. But once they do, we owe it to that intrepid electorate to ensure that it takes less heroism to decide the next one.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
#2DaysOut: “Three Things on My Mind” (Guy-Uriel Charles)<https://electionlawblog.org/?p=117959>
Posted on November 1, 2020 10:52 am<https://electionlawblog.org/?p=117959> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Guy-Uriel Charles<https://law.duke.edu/fac/charles/> (Duke):
First, if the election is close and it comes down to one or a few states, what are the legal issues that will come up that are not currently on our radar screen. I am reminded of the famous Rumsfeldian quip, uttered by Donald Rumsfeld who was the Secretary of Defense and responding to a question about the Iraq War. Rumsfeld stated, “there are known knowns . . . there are known unknows . . . and there are unknown unknowns.” Rumsfeld could have been talking about election litigation. There are some issues that we know we know. For example, we know that if the election comes down to North Carolina or Pennsylvania the counting of absentee ballots received after election day will certainly be one of the issues litigated. There are also some things we know we do not know. For example, we do not know what role the Supreme Court will play in election litigation disputes or how seriously it will take the argument that only state legislatures have the power to change laws dealing with presidential electors. However, I fear that it is the unknown unknowns, as Rumsfeld went on to say in probably one of the most understated utterances in history “that tends to be the difficult ones.” We can prepare for the known knowns and the known unknows. I am thinking about the unknown unknowns; the first issues that will surprise us and that we wish we had known.
Second, if you make it easy for people to turnout and vote, they will. We are two days away from one of the most, if not the most, consequential elections in my lifetime, taking place within one of the most polarized political context that we have seen in a long time, in the midst of a once-in-a century (if we’re lucky) pandemic, shadowed by the pestilence of systemic racial subordination and yet a significant percentage of the electorate has already voted. According to Michael McDonald’s elect project<https://electproject.github.io/Early-Vote-2020G/index.html>, more than 90 million people have already registered their preferences. More than 34 million have done so in person in states that permit early voting and almost 60 million have mailed-in their ballots. Approximately 138 million people voted in the 2016 presidential election. The second thing on my mind is that notwithstanding the significant potential obstacles, many people have worked really hard to make is possible for people to exercise their right to vote.
Third, I worry whether the losing side, Republicans or Democrats, will accept the results. President Trump has stated<https://thehill.com/homenews/administration/512424-trump-the-only-way-we-are-going-to-lose-this-election-is-if-the> that he can only lose if the Democrats steal the election. This is of course not true. What will the country look like once we have a declared winner? That’s the third thing on my mind.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
“Court Poised to Decide Presidential Election?”<https://electionlawblog.org/?p=117957>
Posted on November 1, 2020 10:50 am<https://electionlawblog.org/?p=117957> by Rick Hasen<https://electionlawblog.org/?author=3>
New Jost on Justice.<http://www.jostonjustice.com/2020/10/kavanaughs-trumpian-mindset-on-voting.html?fbclid=IwAR1QuyUjxQjj8GiPB6Vu4R26Jxb9uckXU4L6B8S75Y6bYo_uih_K-XIKneg>
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
#2DaysOut: “The Vulnerabilities and Indeterminacy of the Presidential Election Process” (Michael Morley)<https://electionlawblog.org/?p=117955>
Posted on November 1, 2020 10:46 am<https://electionlawblog.org/?p=117955> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Michael Morley<https://law.fsu.edu/faculty-staff/michael-morley> (FSU):
The 2020 general election has demonstrated several vulnerabilities of our presidential election process, as well as our electoral system more broadly. First, many states are ill-equipped to deal with a major crisis that impacts an election, such as a hurricane, earthquake, power grid failure, pandemic, or other such tragedy. A robust election system allows for voting through a wide variety of mechanisms, such as in-person voting, absentee voting, curbside voting, and even bipartisan teams of election officials bringing ballots to assisted-living and other similar facilities. If an election emergency causes a particular method of voting to become unavailable, impracticable, or too dangerous, having well-established alternate avenues for voting helps to ameliorate the burden on voting rights.
Different types of disasters can impact the electoral process in different ways. Being prepared to vigorously implement a diverse array of voting options is one way of mitigating systemic risk to our electoral system. For COVID, shifting the focus to absentee voting was an effective response to prevent opportunities for in-person transmission of the virus. Some states restrict absentee voting, however, and many others have election systems designed to deal with very limited numbers of absentee ballots.
More broadly, because it is difficult to anticipate the full range of emergencies that may impact an election, or the precise manner in which such emergencies will hit, state law must grant officials flexibility and discretion to modify certain rules, procedures, or other aspects of the electoral process as necessary to respond effectively and preserve voting rights. As the COVID pandemic painfully demonstrated, many states lack such election emergency statutes. An election emergency law allows legislators to reduce or eliminate questions about the scope of election officials’ authority; specify in advance the types of modifications that officials may, and may not, adopt; and alleviate the need for emergency ad hoc litigation. Effective election emergency laws would have afforded election officials greater guidance and authority in responding to the virus. In the absence of such laws, even anodyne and seemingly nonpartisan reforms such as allowing election officials to begin pre-processing and pre-canvassing absentee ballots substantially before Election Day could not make it through the legislative process in some key swing states.
Second, the wide range of litigation pending in federal and state courts across the nation, as well as the numerous questions that have been raised concerning possible election-contest scenarios, demonstrate how many critical constitutional and legal questions concerning the basic rules governing our elections remain unanswered. The Electoral College, of course, elects the President, and it is ultimately Congress that has sole constitutional responsibility for counting and determining the validity of electoral votes. That process is governed by the Electoral Count Act of 1887. However, the Act fails to clearly address several important issues, leaves important terms undefined, and is written in unnecessarily confusing language that creates ambiguities and leaves room for political disputation. Again, establishing clear, generally accepted procedures for the counting of electoral votes in Congress seems to be the type of nonpartisan reform—particularly if adopted in advance of a presidential election—that can reduce the likelihood of a political crisis.
The constitutional principles governing the underlying process of voting are not much more settled. Most notably, the Court has never addressed how broadly, if at all, Bush v. Gore’s Uniformity Principle applies to voting procedures. Bush held that states may not apply “arbitrary and disparate treatment” to different voters participating in the same election. Bush applied that principle in the narrow, technical context of holding that states must apply consistent, specific rules when recounting ballots cast in an election. Notwithstanding the limiting language in Bush v. Gore, however, several lower courts have applied Bush’s Uniformity Principle across a much broader range of circumstances. Some courts have barred different localities within a state from adopting voting machines with materially different error rates, or applying different sets of electoral rules that would provide various counties’ residents with materially different opportunities to vote.
On its face, the Uniformity Principle appears appealing: Equal Protection requires voters participating in the same election have substantially equivalent opportunities to vote. On the other hand, American elections have historically been conducted in a highly decentralized manner, with local election officials often having broad discretion to tailor the details of electoral rules to the particular needs of each jurisdiction’s citizens. And, in another line of authority dating back to the Civil Rights Era, the Court has held that the Equal Protection Clause generally does not bar states from removing barriers to voting, or providing additional opportunities to vote, even if those opportunities are limited only to certain groups of voters. Thus, courts have generally held that states may limit absentee voting to only certain groups of voters, or allow some jurisdictions within a state to offer longer early voting periods or more numerous early voting locations than others. Rigorous application of the Uniformity Principle would make it difficult for individual counties or localities to materially expand access to voting; reforms substantially expanding opportunities to vote in statewide elections would have to occur on a statewide basis, or not at all. Whatever the proper balance between these competing imperatives, the uncertainty has contributed to many of the disputes concerning absentee voting in the wake of COVID.
Likewise, the core standard the Court uses to assess the constitutionality of election-related laws exacerbates this uncertainty. In Anderson v. Celebrezze and Burdick v. Takushi, the Court held that the constitutionality of most election-related rules, requirements, and procedures depends upon a highly subjective, ad hoc balancing test in which a court weighs the importance of the state’s interests at stake, the extent to which the challenged provision furthers those interests, and the magnitude of the burden on voters. It can be difficult, in many cases, for states to correctly anticipate how judges will weigh these competing factors, especially under materially changed circumstances like COVID, further underscoring the uncertainty permeating the electoral process.
Finally, at least some of the challenges facing our electoral process could be ameliorated by much greater funding. Voting is at the very foundation of democratic government. It is essential to the legitimacy of our government that every eligible voter be given a meaningful opportunity to safely cast a ballot and have it be counted without significant burdens. Greater funding for our electoral system could lead to better technology, more reliable and updated databases, more personnel, more polling places, fewer delays, and shorter lines at polling places. It is especially intolerable when the burdens of voting fall disproportionately on indigent or racial minority groups. (Indeed, it is in this context—preventing tremendous disparities in waiting times among different jurisdictions’ polling places—that Bush’s Uniformity Principle seems especially appealing). The controversy over the 2000 presidential election led to the enactment of the Help America Vote Act, which took the first steps toward helping states modernize their election systems. Perhaps the widespread controversies concerning the 2020 election will induce Members of Congress and state legislators—hopefully, of both parties—to finish the job.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
#2DaysOut: “This Election Illustrates a Deeper Problem” (Pam Karlan)<https://electionlawblog.org/?p=117953>
Posted on November 1, 2020 10:42 am<https://electionlawblog.org/?p=117953> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Pam Karlan <https://law.stanford.edu/directory/pamela-s-karlan/> (Stanford):
There will be plenty of time later to write about the Elections Clause, the Electors Clause, the Purcell Unprinciple, and the mess that is the Electoral Count Act of 1887. But for now, I’ll just mention two people who crystalize for me why I remain a voting rights lawyer, as well as a voting rights scholar, after three decades: Howard Porter, Jr., and Desmond Meade.
Mr. Porter, an elderly Black man, is one of the individual plaintiffs People First of Alabama v. Merrill, 2020 WL 5814455 (N.D. Ala. Sept. 30, 2020). At higher risk for complications or death from COVID-19 because of his asthma and Parkinson’s disease, and having lost both a sister and uncle to the coronavirus, he sought to vote in person curbside, rather than in a polling place. He testified: “I don’t want any vote that I cast to be my last vote. And in Alabama, a person can vote even if they don’t have on a face mask. And that’s just too much for me. . . . [A]s important as the right to vote is, I just can’t endure that. . . . [S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time. And that should not be a requirement . . . .Because voting is the only day that rich, the poor, sick, the healthy, all should be counted as one and just as easy. And any obstacle placed in the way of the opportunity to vote places an effect on the process itself.” Id. at *11. Turns out, we’re not past that time. Judge Abdul Kallon granted an injunction ordering the state to allow curbside voting. The Eleventh Circuit upheld that injunction. People First v. Sec’y of State for Alabama, 2020 WL 6074333 (11th Cir. Oct. 13, 2020). But the U.S. Supreme Court stayed that injunction, 5-3, with no explanation. Merrill v. People First of Alabama, 2020 WL 6156545 (Oct. 21, 2020).
Mr. Meade, with whom I once had the honor of joining on a panel at a circuit conference, spearheaded the passage of Amendment 4 in Florida—an amendment designed to restore voting rights to citizens convicted of a felony. He got to vote in this fall’s general election. https://perma.cc/K5LN-8DSD. But a Republican-dominated state supreme court then defined “completion” of the terms of a sentence to include, among other things, payment of a variety of court costs that actually go to fund general government operations. Not only are many returning citizens too poor to pay these fees, but a federal court found, after a lengthy trial, that Florida’s system for determining the amounts they owe is plagued by intractable administrative problems. A political scientist “with a team of doctoral candidates from a major research university” unsuccessfully spent weeks trying to obtain this information for a randomly selected group of roughly 150 aspiring voters. Jones v. DeSantis, 2020 WL 2618062, at *17 (N.D. Fla. May 24, 2020). At the state’s rate of checking financial obligations (“just 57 registrations per day”), figuring out these obligations for the 1.4 million citizens now potentially eligible to register will take decades: “The projected completion date” for the 85,000 citizens who had begun the process “is early in 2026” and “[w]ith a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s. Id. at*24. The district court declared Florida’s “pay-to-vote system” unconstitutional with respect to court fees and costs under the Twenty-Fourth Amendment, as well as declaring the other parts of pay-to-vote unconstitutional as applied to individuals who are otherwise eligible to vote but are genuinely unable to pay the required amount or whose financial obligations cannot be determined. But the Eleventh Circuit reversed that judgment. Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020), after the Supreme Court refused to lift the court of appeals’ stay of the district court’s injunction. Raysor v. DeSantis, 140 S. Ct. 2600 (2020) (per curiam).
Whatever happens on Tuesday, our election system is sick when it makes it so difficult for so many people to vote. More than a few defective ballots need to be “cured” if we are to promote the general Welfare, and secure the Blessings of Liberty.
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#2DaysOut: “The Textual Problem with the Presidential Version of the Independent State Legislature Argument” (Nick Stephanopoulos)<https://electionlawblog.org/?p=117951>
Posted on November 1, 2020 10:38 am<https://electionlawblog.org/?p=117951> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Nick Stephanapoulos<https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos> (Harvard):
As the independent state legislature (ISL) argument has risen to prominence this past week, courts and commentators alike have assumed that it has the same force under both Article I and Article II. If the argument holds, that is, state legislatures should enjoy the same vast power under both provisions—only with respect to congressional elections under Article I and with respect to presidential elections under Article II. But examining the provisions’ text more carefully, I’m not sure that’s right. Rather, as a textual matter, state legislatures’ Article II authority appears to be significantly more confined than their Article I power over congressional elections. (Again, assuming an ISL doctrine exists in the first place.)
Starting with Article I’s Elections Clause, it authorizes state legislatures to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” The italicized language plainly refers to congressional elections themselves. So if there is such a thing as an ISL doctrine, the Elections Clause empowers state legislatures to regulate all aspects of congressional elections.
Article II’s Electors Clause, however, does not include language like that italicized above. It does not authorize state legislatures to regulate the manner of holding presidential elections. Instead, it empowers state legislatures to “direct” the “Manner” in which “[e]ach State shall appoint . . . a Number of Electors.” Facially, the manner in which electors are appointed is different from the manner in which elections are held. The former phrase refers to the method by which electors are chosen: a winner-take-all election, election by congressional district, selection by the state legislature, and so on. The former phrase—unlike the language of the Elections Clause—does not encompass every aspect of presidential elections.
Thanks to this textual distinction, state legislatures’ Article II authority over presidential elections may be more circumscribed than their Article I power over congressional elections. Under Article I, state legislatures may be able to regulate all facets of congressional elections without interference from other state actors (once more if an ISL doctrine exists). But under Article II, state legislatures may only be able to direct the manner in which electors are appointed without interference from other actors. They may not have the same exclusive authority over any other elements of presidential elections.
The Supreme Court’s limited precedent on the Electors Clause supports this reading. In the 1892 case of McPherson v. Blacker, the Court described state legislatures’ power under the Clause as “plenary authority to direct the manner of appointment.” There was no suggestion that state legislatures possess plenary authority over aspects of presidential elections beyond the “mode of appointment of electors.” Similarly, in his 2015 dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts wrote that the Electors Clause “vests the power to determine the manner of appointment in ‘the Legislature’ of the State.” He, too, didn’t claim that the Clause vests any other power over presidential elections in state legislatures. And still more recently, in this year’s Chiafalo v. Washington case, the Court held that “Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors.” Again, there was no hint of such far-reaching authority over presidential elections’ other attributes.
The important implication of this reading is that several judges may have erred this week when they argued that there were ISL problems when state courts or state agencies (as opposed to state legislatures) regulated aspects of presidential elections. In none of the cases where this issue arose did a non-legislative actor try to change the manner of presidential electors’ appointment. In all of the cases, to the contrary, non-legislative actors addressed facets of presidential elections unrelated to electors’ mode of appointment: specifically, Minnesota’s, North Carolina’s, and Pennsylvania’s deadlines for the receipt of mail-in ballots. Plainly, whether these deadlines shifted or stayed the same, the states’ methods of choosing their electors—winner-take-all popular elections—would not have changed. Arguably, that should have been the end of the Electors Clause analysis (even if there is an ISL doctrine). Based on the constitutional text, there can’t be an ISL violation when a non-legislative actor doesn’t try to alter the state legislature’s chosen manner of appointment.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
1888 Political Scientist: “The most complicated bit of governmental machinery which the modern world has to exhibit is that which is employed in the selection of the chief executive officer and his possible substitute for the United States”<https://electionlawblog.org/?p=117949>
Posted on November 1, 2020 10:35 am<https://electionlawblog.org/?p=117949> by Rick Hasen<https://electionlawblog.org/?author=3>
John W. Burgess, writing<https://www.jstor.org/stable/pdf/2139115.pdf> in the 1888 Political Science Quarterly, recognized that the Electoral Count Act (adopted after the disputed 1876 election) provides unduly complex and contradictory set rules for choosing the president and gave too much power to the states.
So don’t say we aren’t on notice.
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Posted in electoral college<https://electionlawblog.org/?cat=44>
“Conservative Supreme Court justices are threatening a post-election coup”<https://electionlawblog.org/?p=117947>
Posted on November 1, 2020 10:27 am<https://electionlawblog.org/?p=117947> by Rick Hasen<https://electionlawblog.org/?author=3>
Larry Tribe and Steve Mazie Boston Globe oped<https://www.bostonglobe.com/2020/11/01/opinion/conservative-supreme-court-justices-are-threatening-post-election-coup/?outputType=amp&__twitter_impression=true&fbclid=IwAR1nTSIt0iBr59SabNnu80QW8WLF5lRMsei9FMo1O-l7CGZAZ6s6B9KNsGo>.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
#2DaysOut: “So Far” (Sam Issacharoff)<https://electionlawblog.org/?p=117945>
Posted on November 1, 2020 10:18 am<https://electionlawblog.org/?p=117945> by Rick Hasen<https://electionlawblog.org/?author=3>
The following symposium contribution is from Sam Issacharoff<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=23845> (NYU):
It would be easy to despair. A devastating pandemic, a bitterly polarized electorate, foreign interference, a president leading an assault on the foundations of electoral democracy, election-inspired violence, and vicious partisan battles over the ability to vote, even how to vote—these would shake any democracy to its foundations. Instead, however, let me offer two sources of genuine hope before turning to the crises that loom.
First, and foremost, is the commitment of the citizenry to the democratic process. As lawyers and scholars, we focus on court battles over how many days after Election Day an absentee ballot might be received, or how many drop sites might be available in a Texas county. Recent court decisions, particularly by the Supreme Court, have curtailed efforts to expand voting opportunity in response to the pandemic. This is more than worrisome, but too much attention to doctrine might obscure the popular will to vote. Texas may have only one drop site in Harris County, but polling access has actually expanded and more people have already voted in Texas before Election Day than voted in 2016. Here at least, the people have spoken.
Second, despite the shenanigans, the creaky electoral machinery has performed surprisingly well. The lines are long, but voting is occurring, new volunteers are stepping in to replace vulnerable poll workers, ballots are being processed more or less capably across the country, with the Pennsylvania and Wisconsin outliers not being the norm. Even Wisconsin, the first Supreme Court battleground of 2020, managed to process almost a million more absentee ballots than expected in its spring election, and ran a reasonably smooth election under terrible stress.
If, as in most elections, the margin of victory is beyond the margin of contestation, then citizen determination and responsible election administrators will have saved the day. Either way, there is work to do.
1. Partisan polarization has gotten to the point that how one votes, where one votes, whether one wears a mask are all signs of political identity. The machinery of elections is at risk, particularly the delicate assignment to the states of the administration of federal elections under both the Elections Clause of Article I and the Electors Clause of Article II. Assuming congressional capability, the first of these should be addressed through federal election legislation mandating, inter alia, that except to the extent specified by federal law, the normal channels of state elections, including judicial oversight will operate during all federal elections. This is necessary emergency voting through a blinkered reading of the independent role of the state legislature under both of these clauses. It is shocking to see a response like that of New Jersey in 2012 following Hurricane Sandy now be a matter of constitutional challenge.
2. Much attention will be given to the restoration of minority voting rights protections if there is a Democratic Congress and President. In addition, it is time to address untapped powers under the Elections Clause. Reforms, with appropriate funding, could include: congressional elections from districts drawn by independent redistricting authorities; federal elections run under the auspices of independent election authorities that do not include elected officials or partisan designees; federal elections subject to post-election review to produce standard measures of ease of voter access, availability of equipment, average time in line, accessibility of early voting, and other metrics of administrative performance; and post-election audits of reports of voter intimidation, harassment of voters or election officials, and state response to redress those complaints. This would compel an accounting for the most critical failure of the election system in a hyperpolarized era, the use of voting administration as a partisan tool. All could be enacted statutorily under the authority of Congress to regulate the manner of holding federal elections. In turn, this would induce salutary reform for state elections as well.
3. Elections today also expose the contrast between the high democratic ethos of the time and the formal structures of the constitution, adopted in a time of ambivalence toward democracy. The nomination of Justice Barrett by a president elected by a minority of voters, and confirmed by a narrow majority of senators representing a minority of the population, highlights the tension between our constitutional commitments and simple notions of majority-control. I leave to the side sugarplum visions of constitutional reform; the nature of the Article V process takes off the table both meaningful reform of the Electoral College (except perhaps for eliminating the vote dilution effects of winner-take-all elections, a matter not of constitutional mandate) and reform of the Senate. But it does not eliminate statehood for Washington DC, perhaps the single most obvious democratizing reform available legislatively.
4. We will also have to address the bizarre threat that a state legislature might simply override the will of the voters by declaring a presidential election to have “failed” and substituting an alternative slate of electors chosen by the legislature. That is the Dr. Strangelove nuclear option of the end of democracy. The response here lies ultimately in Congress, but immediately in the mobilized voters who stand in long lines across the country.
Nearly 70 years ago, Justice Clark spoke of the limits of public sentiment to sear the conscience of self-interested state legislators. The Supreme Court’s one-person-one-vote rulings helped to allow the electoral will of the majority to overcome such barriers. On many of the points of dysfunction today, we must hope that this time the commitment of Americans to vote will sear the conscience of forces aiming at the heart of our political system. If we survive, the task of reinforcing democracy cannot be forgotten in a moment of collective relief.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
#2DaysOut: “How to Draw the Line on a State Legislature’s Electoral Power?” (Ned Foley)<https://electionlawblog.org/?p=117943>
Posted on November 1, 2020 10:14 am<https://electionlawblog.org/?p=117943> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Ned Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/> (Ohio State):
Here’s the hypo that’s bothering me: a state’s constitution vests the power to determine the “manner” of appointing the state’s presidential electors in the office of the state’s governor, or the state’s supreme court, and not in the state’s legislature.
If a state constitution did that, it seems to me that it would squarely contravene Article II of the federal Constitution, which explicitly vests the power of determining the “manner” of appointing a state’s presidential electors in the state’s “Legislature” and not in the state’s governor or supreme court, or whatever other institution of state government the state’s constitution might choose.
If you accept this point, then it also seems to me that you’ve accepted the basic proposition that is animating the position of the conservative justices on the U.S. Supreme Court, as they contemplate the possibility that the Article II authority of state legislatures to determine the “manner” of appointing the state’s presidential electors may have been contravened by other institutions of state government.
In a much-noted footnote in the Wisconsin case last week, Justice Kavanaugh observed that “under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal [including presidential] elections.” To support this observation, Justice Kavanaugh cited the explicit text of Article II and Chief Justice Rehnquist’s concurrence in Bush v. Gore that invoked this express language in Article II as the basis for condemning the Florida Supreme Court’s decision in that infamous case.
Justice Kavanaugh’s footnote caused something of a panic among various scholars<https://www.nytimes.com/2020/10/28/opinion/supreme-court-elections-state-law.html> and others. But rather than rail against the possibility of the Court going down this road at all, it seems more constructive to me to deliberate about what might be a plausible stopping point. Justice Kavanaugh did not go so far as to say that every conceivable deviation from a state’s election law, as enacted by the state’s legislature, necessarily violates the federal Constitution.
Nor did Chief Justice Roberts take that kind of absolutist position on this topic when he considered it in the context of the Arizona Independent Redistricting Commission case<https://www.oyez.org/cases/2014/13-1314>. There the Chief Justice objected to a state constitutional provision that “totally displaces” the state’s legislature from congressional redistricting. (Article I of the federal Constitution empowers a state’s legislature to enact laws to determine the “manner” of congressional elections, comparable to the Article II power of state legislature regarding the appointment of presidential electors.) Roberts pointedly noted that other ways in which a state’s constitution might constrain a state legislature in its regulation of congressional (or presidential) elections might not present the same problem under the federal Constitution.
Thus, it seems sensible to acknowledge—as Chief Justice Roberts did, and presumably Justice Kavanaugh would—that there is a line-drawing challenge here. A state constitutional provision that “totally displaces” the authority of a state’s legislature to determine the “manner” of appointing the state’s presidential electors would violate Article II, as my opening hypothetical would. On the other hand, it seems easy to envision hypotheticals that should pose no Article II problem. For example, suppose a state constitution provides that for any election in the state there must be a secret ballot. But suppose that a state statute attempts to provide for the appointment of presidential election by means of a popular vote, yet without the protection of a secret ballot. In that situation, the state constitution would not “cut out” the legislature altogether, to invoke some more of the Chief Justice’s opinion in the Arizona case. Presumably, a state court’s enforcement of the secret-ballot requirement in the context of a popular vote for the appointment of presidential electors would be constitutionally permissible under Article II, at least as Chief Justice Roberts (and perhaps also Justice Kavanaugh) see it.
I don’t profess to know now exactly where to draw the line, or how it would apply to cases that might arise in the future. But I think it is necessary to acknowledge that some cases would be difficult, as long as one takes the text of Article II seriously. The Pennsylvania case<https://www.scotusblog.com/election-litigation/pennsylvania-democratic-party-v-boockvar/>, the merits of which the U.S. Supreme Court has managed to avoid so far, is one such case in my view. The problem there, as I see it, is that it is not like my secret-ballot hypo, where the state constitution itself is specific and clear. Instead, the Pennsylvania Supreme Court used a general and vague constitutional clause<https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=00&div=0&chpt=1&sctn=5&subsctn=0> to override an unambiguous state statute. That, in my mind, is uncomfortably close to a state constitutional clause giving the power to determine the manner of appointing the state electors, not to the state’s legislature, but to the state’s judiciary instead.
I can’t say I’m happy with this conclusion as a policy matter. But is it an incorrect interpretation of the federal Constitution?
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
“NRA Victory Fund” Super PAC Reported as Making Illegal $5,000 Contribution to Trump for President<https://electionlawblog.org/?p=117941>
Posted on November 1, 2020 10:09 am<https://electionlawblog.org/?p=117941> by Rick Hasen<https://electionlawblog.org/?author=3>
NRA Victory Fund<https://docquery.fec.gov/cgi-bin/forms/C00741710/1388808/> is a super PAC that does not make campaign contributions. Yet there is now a $5,000 contribution listed <https://docquery.fec.gov/cgi-bin/forms/C00580100/1469634/f65> to Trump for President.
Perhaps this is an error and it came from another fund. We’ll see.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>
#2DaysOut: “Reflections from Philadelphia” (Tabatha Abu el-Haj)<https://electionlawblog.org/?p=117939>
Posted on November 1, 2020 10:04 am<https://electionlawblog.org/?p=117939> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Tabatha Abu el-Haj<https://drexel.edu/law/faculty/fulltime_fac/Tabatha%20Abu%20El-Haj/> (Drexel):
Let us hope that the likelihood that the election will turn on Pennsylvania is indeed low<https://fusion.inquirer.com/politics/election/amy-coney-barrett-pennsylvania-presidential-election-supreme-court-20201027.html>. Reputable state polling has consistently favored Joe Biden by small but significant margins for weeks, and analysts predict votes for him will fall well-outside the so-called margin of litigation. But is Biden’s lead in the polls comfortable enough to forgo the uncertain number of mail-in ballots that are going to be thrown out for errors?
The surge in mail-in voting in Pennsylvania has led to the casting of approximately 2.3 million mail-in ballots<https://electproject.github.io/Early-Vote-2020G/PA.html> as of October 30, with as many as one million more outstanding<https://www.mcall.com/news/elections/mc-nws-election-2020-voting-outstanding-mail-ballots-20201029-c4kba46hp5dyvpu2kmqo37cq2a-story.html>. This creates a variety of opportunities for voter frustration<https://projects.fivethirtyeight.com/non-voters-poll-2020-election/>, Election Day confusion, and inadvertent spoilage.
The U.S. Election Project currently suggests the number rejected mail-in ballots is insignificant<https://electproject.github.io/Early-Vote-2020G/PA.html>. But we know that, in a normal election, 1-2% of mail-in ballots are rejected<https://www.nbcnews.com/politics/elections/more-1-percent-mail-ballots-may-be-rejected-say-experts-n1245017> and that the percentage is often higher in states, like Pennsylvania, with less experience with mail-in voting. Moreover, there is good reason to believe that the official numbers being tracked by the U.S. Election Project underrepresent the problem. Pennsylvania counties are approaching both record-keeping and outreach over defective ballots differently<https://www.inquirer.com/politics/election/pennsylvania-flawed-mail-ballots-cure-20201029.html>, with some refusing to officially reject defective mail-in ballots before Election Day. Second, and relatedly, many Pennsylvania voters who requested mail-in ballots are now planning to vote in person. This process is cumbersome<https://www.inquirer.com/politics/election/live/elections-2020-candidates-updates-news-pennsylvania-20201028.html>. It is a safe bet many will forget to bring their mail-in ballot and its envelope and be forced to wait in long lines to cast provisional ballots with all the additional requirements.
If Pennsylvania is tight and it matters, there will be litigation over the count. And commentators should not concede to Justice Kavanaugh’s characterization of the Pennsylvania Supreme Court’s decision as one which overrides “a clearly expressed intent of the legislature.”
The Pennsylvania Supreme Court’s interpretation of Act 77 is neither antithetical to the text nor unreasonable. The Pennsylvania Supreme Court did not hold that an 8:00 pm deadline on Election Day for the receipt of ballots is per se constitutionally infirm, thereby rewriting the Commonwealth’s election code. Its decision takes up a narrower question: how to address the fact that Act 77 is silent about how to accommodate the deadline in the context of a natural disaster or emergency? The Court turned to its precedents based in the Commonwealth’s Free and Equal Elections Clause to answer that question. To be sure, a textualist might argue Act 77’s silence was a hard-fought compromise, but there is no evidence of that, and it is equally reasonable to argue that the statutory deadline was passed in full knowledge of these equitable decisions.
No doubt the real issue is that Justice Kavanaugh and the others disagree with the Pennsylvania Supreme Court’s lack of “hesitation in concluding that the on-going Covid-19 pandemic equates to a natural disaster.” But that factual judgment is surely neither unreasonable nor a federal question.
I will spare readers a more detailed analysis unless the matter gets back to the Court. In the meanwhile, I will say that I am increasingly of the view that the Supreme Court has actively intervening ex ante to maintain stringent ballot counting rules because, at some level, it recognizes that the political climate has significantly shifted since 2000, and any ex-post decisions that hand President Trump a second term by stopping the count are likely to result in massive civil unrest—unrest fueled by frustrations with the pandemic, massive unemployment, a summer of racial reckoning, and far-right, White Supremacist groups keen to unleash violence<https://www.nytimes.com/2020/10/30/opinion/trump-election-officials.html?smid=em-share>.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>, Election Meltdown<https://electionlawblog.org/?cat=127>
Pildes and Hasen CNN Oped: “Out Biggest Election Day Concern”<https://electionlawblog.org/?p=117937>
Posted on November 1, 2020 10:01 am<https://electionlawblog.org/?p=117937> by Rick Hasen<https://electionlawblog.org/?author=3>
Rick Pildes and I have written this oped <https://www.cnn.com/2020/11/01/opinions/our-biggest-election-day-concern-pildes-hasen/index.html> for CNN Opinion. It begins:
Of all the concerns surrounding Election Day, one of the most important has received almost no attention.
As law professors focused on election law and the law of democracy, we have spent more than 50 years combined following elections and election disputes. We know that no election is perfect, and that some problems will inevitably arise on November 3.
With commentators floating the possibility of a Constitutional crisis, a civil war, breaches in our electronic voting machines and other worst-case scenarios, hyper-vigilant voters and the media must be careful not to undermine our elections by giving excessive play to typical, Election Day problems or hastily spreading viral posts before the facts are verified.In our polarized, frayed-nerves society, there’s a serious possibility that minor issues will be blown out of proportion and cast in sinister terms, especially on social media. Our advice (to both voters and the media) is to slow down, take everything you see or hear with a grain of salt until it is fully vetted, and keep a balanced perspective on the problems that do emerge.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>, Election Meltdown<https://electionlawblog.org/?cat=127>
#2DaysOut: “A Ballot Dispute in the Making?” (Derek Muller)<https://electionlawblog.org/?p=117935>
Posted on November 1, 2020 9:57 am<https://electionlawblog.org/?p=117935> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a symposium contribution from Derek Muller<https://law.uiowa.edu/derek-t-muller> (Iowa):
I’ve been a strong proponent of the view—admittedly, not a view widely shared—that Congress, not courts, ought to be the final place to resolve presidential election disputes. The decision to set aside some disputed ballots in Pennsylvania and Minnesota may yield uncertainty in how Congress might handle disputes that arise.
Congress’s power to determine the elections, returns, and qualifications of its own members is an essential component of institutional control. Congress, and not a court, is the “sole” arbiter of who has won an election.
Courts often assist in litigation surrounding recount contests. In the Supreme Court’s 1972 decision in Roudebush v. Hartke<https://scholar.google.com/scholar_case?case=13290185910537657897&q=roudebush+v+hartke&hl=en&as_sdt=1000006>, a closely-contested Senate election went to a recount. The Court held that state courts could facilitate a recount, as long as they did not prevent the Senate from “independently evaluating the election,” as the Senate “is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.”
Congress often defers to a state’s certified outcome of a contest, like deference to the result of the 2008 election between Norm Coleman and Al Franken<https://scholar.google.com/scholar_case?case=7959772767428596427&q=coleman+franken&hl=en&as_sdt=1000006> that languished in state court for months. But Congress does engage in its own investigation in some elections, like its investigation, and ultimately its dismissal, of a challenge out of a Florida congressional election in 2006<https://www.congress.gov/congressional-report/110th-congress/house-report/528/3?s=1&r=90>. Congress can look at the ballots, the voting equipment, and the evidence of who won=.
In a presidential election, Congress is vested with the power to count the electoral votes, and that power, I think, includes a robust power to decide whether to count votes and which votes to count. (Others admittedly might disagree about this scope.) It hasn’t rejected votes since 1872 in the height of Reconstruction. It hasn’t had to choose among electoral votes since 1960, when Hawaii sent multiple slates of electors to Congress. In recent years, members of Congress have raised objections about electoral votes in Florida in 2000, Ohio in 2004, and myriad states in 2016. No objection made it very far.
When a state sends Congress one set of electoral votes, Congress has the choice of accepting or rejecting those votes. Congress can’t replace those votes or substitute its own slate of electors.
Which brings us to Pennsylvania and Minnesota. Litigation has prompted those states to set aside ballots received after Election Day but before a later deadline prompted by litigation. These ballots will be ripe for challenges after Election Day in a closely-contested election. And two principles are at work here.
First, Congress must be able to discern which candidate received more votes. Consistent with Roudebush—admittedly, a congressional election case—decisions to separate disputed ballots from the rest allow Congress the independent opportunity to determine a winner. A court order commingling these ballots would make it more difficult, if not impossible, for Congress to assess the election results.
Second, in the event there is a non-frivolous case that the election outcome would change if the disputed batch of ballots was counted or excluded, a state may want to ensure it has two slates of electors cast votes so that Congress can choose the right one. It’s not an ideal solution, but it’s the consequence of extensive and late-breaking litigation yielding uncertainty, and a solution that may be necessary.
The state can offer one formal certified total of the popular vote and select the winning slate of electors based on that total. Those electors vote December 14 and send their results to Congress to count January 6. Congress has the power to count—and in counting, it can ignore what courts have done.
If there’s only one slate, and Congress think a court got it wrong, Congress’s only option is to reject that slate of electors. It can’t pick a different winner.
It isn’t terribly different from Bush v. Gore. Congress could reject Florida’s electors, but it had no power to choose a different slate. It’s a weakness in the Electoral Count Act. It incentivizes states in contested elections to submit multiple slates of electors so that Congress can pick among them. And if there is an election contest but only one set of electors, Congress’s only choice is to accept or reject—and in rejecting, effectively deny the state’s voters representation in the Electoral College.
I don’t have easy answers in these scenarios. It might be that the margins will be wide enough, the disputes over these late-arriving ballots won’t materialize, or the disputed ballots won’t change the result. But I’m watching the litigation after Election Day to see whether this particular procedural posture motivates some states to submit multiple slates of electors.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>, electoral college<https://electionlawblog.org/?cat=44>
NBC News Takes Deep Dive Into Leonard Leo (of Federalist Society’s) Connection Between Money Behind Confirming Conservative Judges and Suppressing the Vote<https://electionlawblog.org/?p=117933>
Posted on November 1, 2020 9:52 am<https://electionlawblog.org/?p=117933> by Rick Hasen<https://electionlawblog.org/?author=3>
Dahlia Lithwick and I <https://slate.com/news-and-politics/2020/10/bush-v-gore-but-worse-barrett-scotus.html> went down this road a few weeks ago, but this piece <https://www.nbcnews.com/politics/2020-election/these-attorneys-remade-supreme-court-now-they-re-fighting-limit-n1245469> has some new details on the money and connections between the networks of conservative lawyers stacking the courts with hard conservative judges and justices and new efforts to suppress the vote.
Leo’s network is prepared for whatever follows Election Day.
He began consolidating the existing strands earlier this year. In January, he announced he was leaving the Federalist Society to officially head up a push to spread “big money and expertise across the conservative movement,” as Axois<https://www.axios.com/leonard-leo-crc-advisors-federalist-society-50d4d844-19a3-4eab-af2b-7b74f1617d1c.html> put it.
Leo implied his effort was an answer to dark money groups on the left, which in 2018 outspent<https://www.nbcnews.com/politics/2020-election/democrats-used-rail-against-dark-money-now-they-re-better-n1239830> their conservative groups for the first time.
He surrounded himself with a familiar list of names, essentially making his role official in a network he’d helped create.
Leo became chairman of the newly branded CRC Advisors, Mueller’s public relations firm. Bunch, Leo’s right-hand man at Federalist Society, joined him.
To move the “big money,” they revamped two tax-exempt organizations already in their network, with Gary Marx at the helm.
One became The 85 Fund, the fiscal sponsor of the Honest Elections Project.
“The conservative movement is finally adopting some of the left’s tactics, but the left is still spending far more,” Marx told NBC News in a statement, pointing to the Arabella Advisors network, one of the largest left-leaning dark money networks<https://www.politico.com/news/2019/11/19/dark-money-democrats-midterm-071725>. Like the Honest Elections Project, Arabella has said it is non-partisan<https://www.wsj.com/articles/arabella-advisors-says-it-is-nonpartisan-has-no-agenda-11603044302>.
The Judicial Crisis Network became an entity underneath The Concord Fund. Since forming, it has given more than $2 million to the Republican Attorney Generals Association (RAGA), financial disclosures show. Some of that money has gone to paying consulting and research fees to CRC.
RAGA backed Coney Barrett’s nomination to the Supreme Court. Several Republican attorneys general are also part of Lawyers for Trump, the group marshalling legal power for the election, which also includes Leo and Consovoy, the lawyer for the Honest Elections Project suit in Michigan.
Leo did not respond to an interview request or a detailed list of questions, nor did Consovoy or Torchinsky, the other lawyer on the Michigan suit. The Republican National Committee, for which both Consovoy and Torchinsky have worked, did not respond to an NBC News query.
The Federalist Society, where Leo remains co-chairman of the board, reiterated that it does not “take a position on legislation, litigation, candidates for office or judicial nominees.” The spokesman who sent that response to NBC News is a senior vice president at CRC Advisors.
But the support for conservative AGs could also be a sign of what’s to come.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
#2DaysOut: “Democracy or Authoritarianism?” (Jim Gardner)<https://electionlawblog.org/?p=117930>
Posted on November 1, 2020 9:44 am<https://electionlawblog.org/?p=117930> by Rick Hasen<https://electionlawblog.org/?author=3>
The following symposium contribution is from Jim Gardner<https://www.law.buffalo.edu/faculty/facultyDirectory/GardnerJames.html> (Buffalo):
When I was born, in the waning years of the Eisenhower Administration, racial segregation was the law throughout the South. Women had available to them three occupations – secretary, nurse, and schoolteacher – but only until they got married. Jews were excluded from country clubs and prominent businesses, and were admitted to great universities only under restrictive quotas. Pollution was essentially uncontrolled; city air and rural lakes and rivers were filthy and dangerous. Consumers enjoyed little protection against rapacious manufacturers.
By the time I graduated from high school things were getting better, and today they are dramatically better. I have always assumed, based on my own lived experience, that the United States in which I will die will be a much, much better place than the United States into which I was born. This thought has always brought me great comfort.
No longer. In a development no one could possibly have foreseen, the United States today is poised on a knife edge between democracy and authoritarianism. It may indeed already be too late to avoid an irreversible slide into authoritarianism and a permanent loss of the liberty and prosperity that Americans have long enjoyed. But if it is not yet too late, this election will decide the matter. The country cannot possibly survive, in any recognizable form, another four years of Donald Trump.
I have been for many years now a “professor of election law.” What it can it possibly mean to be such a creature in current circumstances? The very idea of “election law” presupposes both democracy and the rule of law. The survival of either of these institutions, in anything like the forms that have heretofore commended themselves to Americans, is itself in doubt. What, I often ask myself, can it mean to “profess” law in a society whose leader daily treats it with the profoundest contempt, deliberately stokes such contempt in others, and adheres to a caudillo creed in which law is that which one ignores to benefit one’s friends and invokes harshly to punish one’s enemies. Law is a technology for controlling behavior, but it is meaningful only in societies that choose to adopt and respect it. We may no longer be such a society.
Many of my professional colleagues, I believe, suspect this, but deal with their anxiety in a characteristic way – by doubling down on their respect for law by subjecting each new decision of the U.S. Supreme Court to minute scrutiny and analysis. This behavior is understandable, and deeply human, but it is alas little more than a form of repetitive self-soothing, like a toddler’s rocking or thumb-sucking.
The Supreme Court, my dear friends and colleagues, has been captured by an authoritarian party. It is corrupt; it is implicated. It is at this point no different from high courts in Ecuador or Venezuela – or Wisconsin, for that matter – that have first been subjected to partisan capture, and then proceeded reliably to issue any and all decisions necessary to remove legal obstacles to the perpetuation in power of their authoritarian masters.
Right now, the Court is accomplishing this by applying a superficially neutral principle of noninterference in state electoral regulation to a set of facts that is profoundly non-neutral – states controlled by Republicans are trying desperately to suppress voting, and states controlled by Democrats are trying desperately to facilitate it. The Court’s approach is the same one by which it collaborated for a century with autocrats in the Jim Crow South to erect federalism as a shield for the vicious suppression of political opposition.
Law cannot address, much less solve, our current problem. The only thing that can do so is politics, which in turn depends entirely on what the Framers of our Constitution often called the “virtue” of our people. Benjamin Franklin reportedly remarked to a group of citizens that the Constitution would give us “a republic, if you can keep it.” That is precisely the question to be answered on Tuesday.
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Posted in #2DaysOut<https://electionlawblog.org/?cat=131>
#2DaysOut: “Ten Things to Watch for on (and after) Election Day” (Dan Tokaji)<https://electionlawblog.org/?p=117928>
Posted on November 1, 2020 9:31 am<https://electionlawblog.org/?p=117928> by Rick Hasen<https://electionlawblog.org/?author=3>
The following symposium contribution is from Dan Tokaji<https://secure.law.wisc.edu/profiles/tokaji@wisc.edu> (Wisconsin):
It’s been an election year like no other. The COVID-19 pandemic has dramatically altered the way that we register and vote, in ways that will have lasting effects. The United States is also facing up to a long legacy of unjustified official violence toward people of color, especially black men, which continues to this day as exemplified by the recent killing of George Floyd and shooting of Jacob Blake. These events have altered our political discourse in ways that are likely to have lasting effects. All this is taking place in a hyperpolarized environment where not only our policy preferences but also our understanding of basic facts differs dramatically along party lines. There is a palpable feeling of fear, even alarm<https://www.nytimes.com/2020/11/01/upshot/election-democracy-fear-americans.html>, among many voters across the political spectrum. The country feels very much like a tinderbox, in which the tiniest spark might lead to an explosion.
In this fraught environment, it’s especially important that election law experts provide a steady and trustworthy voice, focusing public attention on the facts and the law and trying to avoid the hyperbolic rhetoric that abounds elsewhere. Toward this end, I’ll highlight here the top issues on which we should focus our attention Tuesday, and perhaps in the days and weeks that follow.
1. Disinformation: We’ve seen a surge in false information<https://www.npr.org/2020/10/24/927300432/robocalls-rumors-and-emails-last-minute-election-disinformation-floods-voters> during this election cycle, on everything from the candidates to the election process to voter fraud. The proliferation of inaccurate and misleading information may or may not change the results of this year’s presidential, but it certainly has a corrosive effect on our democracy<https://www.nytimes.com/2020/11/01/us/politics/trump-presidency-dishonesty.html>, which depends upon a shared commitment to truth<https://scholarship.law.slu.edu/lj/vol64/iss4/4/>. Lawyers, legal scholars, and judges should play an especially important role in affirming our commitment to the basic proposition that facts matter. There will be lots of false information circulating on and after Election Day. So it’s important that we be wary and make sure that anything we read is reliable before passing it along to others.
2. Registration Problems: Many of the usual ways in which people register and update their registration have been unavailable this year due to the pandemic<https://lawreviewblog.uchicago.edu/2020/06/26/pandemic-tokaji/>. That includes face-to-face interactions at motor vehicle offices and in registration drives. Our election system usually depends on these in-person registration efforts, not only to bring new voters into the system but also to allow existing voters to update their information. New registrations have been down in some states<https://healthyelections.org/sites/default/files/2020-10/voter_registration_summary_by_state.pdf>, although the expansion of online voter registration, now available in 40 states<https://www.ncsl.org/research/elections-and-campaigns/electronic-or-online-voter-registration.aspx>, has helped pick up the slack. But there are still would-be voters who haven’t registered or updated their registration. In states that have election day registration – including Wisconsin, a swing state and my new home – it’s easy for eligible citizens to vote, even if they haven’t registered or updated their information in advance. In other states, we can expect to see more provisional ballots, particularly from those who have moved or been removed from the rolls. Those provisional ballots can wind up being the subject of litigation if an election is close (see #6).
3. Last-Minute Directives: This is something that I really hope we don’t see between now and Tuesday. During the primary season, some state executive-branch officials postponed or cancelled in-person voting<https://www.nytimes.com/article/2020-campaign-primary-calendar-coronavirus.html> in their primary elections. These orders were issued very shortly before Election Day, sometimes with dubious legal authority, by both Democratic and Republican officials. Postponement isn’t a viable option in a presidential general election, but we could see state or local officials try to alter the voting process very close to an election, especially in places where COVID-19 cases are spiking. That would be disruptive for voters and poll workers. It also raises difficult rule-of-law questions, particularly when emergency orders are issued without clear legal authority.
4. Conflict at the Polls: In every recent election cycle, there have been concerns that some citizens will be threatened or intimidated when they try to go vote. These worries are amplified in this election cycle, given the hyperpolarized environment in which we find ourselves. Of particular concern is the possible presence of private individuals with firearms at or near polling places<https://www.wsj.com/articles/states-prepare-to-guard-against-potential-voter-intimidation-and-violence-around-election-day-11603973548>. In elections past, reports of intimidating behavior at the polls have sometimes been exaggerated, turning out to be less dramatic or widespread than was apparent at first glance. This is one area where reporters and experts should be especially cautious since apocryphal stories have the potential to scare people away from voting. Federal and state laws prohibit voter intimidation<https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2020/10/Voter-Intimidation-Fact-Sheet.pdf>. Voting rights lawyers should be prepared to go to court, if threats or violence toward voters materialize on Election Day.
5. Poll Workers: Our election system depends on the hundreds of thousands of people who sign up to serve as poll workers. In an ordinary election year, many of our poll workers are retirees. This year, many of the usual poll workers – including people who are older or otherwise at greater risk from COVID-19 – are reluctant to serve. Fortunately, it appears that well-organized efforts to recruit other poll workers have largely succeeded<https://www.npr.org/2020/10/29/928225412/on-poll-workers-many-election-officials-breathe-sigh-of-relief>. Moreover, the fact that so many more people have voted early this cycle<https://electproject.github.io/Early-Vote-2020G/index.html> should relieve some of the Election Day pressure on the polls, thus lessening in the impact of poll workers shortages that are sure to exist in some locations. As in every election cycle, we can expect to see some problems on Election Day, including scattered polling places opening late, voting machine problems, and lines at some locations. And this year, some voters won’t observe the precautions – like wearing a mask and maintaining social distancing – that they should (more on that in #10). But here too, we must be careful not to exaggerate, as breathless accounts of polling place glitches have the potential to discourage people from voting.
6. Counting Absentee Ballots: The biggest change we’ve seen this year is the dramatic increase in the number of people voting early. As of this morning, Michael McDonald calculates<https://electproject.github.io/Early-Vote-2020G/index.html> over 93 million early votes, over 34 million of which have been cast in person and 59 million returned by mail. Together, these early votes are more than two-thirds of all the votes counted in the 2016 general election. Every state has its own rules for processing absentee ballots, some of which have changed in this election cycle. The National Council of State Legislatures has helpfully compiled all the states’ policies here<https://www.ncsl.org/research/elections-and-campaigns/absentee-and-mail-voting-policies-in-effect-for-the-2020-election.aspx>, and 538 has this nifty graphic<https://projects.fivethirtyeight.com/election-results-timing/> on how much of the vote is expected to be counted on Election Night. The counting of absentee ballots is one of the two big things (along with the counting of provisional ballots) that parties and candidates are likely to fight over, in the event of a close election. So the larger number of absentee and provisional ballots in this cycle can be expected to expand the margin of uncertainty and the margin of litigation<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=698201>.
7. Canvassing and Recounts: Often as it’s been said, it still bears repeating: election results aren’t final<https://www.nytimes.com/2020/11/01/us/politics/trump-ballot-counting-election.html> on Election Night, even when there’s no doubt as to who will win. All the states have their own process and timeframe for canvassing<https://www.nass.org/sites/default/files/surveys/2020-10/summary-canvass-recount-laws-october2020.pdf> election results, conducting recounts<https://www.ncsl.org/research/elections-and-campaigns/automatic-recount-thresholds.aspx>, and certifying the winner. The process may be more challenging this year – not only for the presidential election but also for all the other federal, state, and local races on the ballot – due to the larger number of absentee and possibly provisional ballots. And as always, we can expect to see litigation over close races, in state court and possibly federal court.
8. U.S. Supreme Court Intervention: Twenty years ago, the U.S. Supreme Court effectively decided the winner of a presidential election with its opinion in Bush v. Gore. Although it’s not likely that this scenario will repeat itself this year, the possibility has materially increased over the past couple weeks. The main question that’s teed up for review is whether state courts may rely on state constitutional law – including protections for the right to vote – in cases involving federal elections. As Rick Hasen notes<https://electionlawblog.org/?p=117673>, there appear to be four justices who think that state courts’ reliance on state constitutional law instead of a state statute violates Article I or Article II of the U.S. Constitution. Such a ruling would be disastrously disruptive to our election system, effectively requiring that every state have two sets of election rules – one for state and local elections governed by the state constitutions and statutes, and the other for federal elections governed only by state statutes. The Court is likely to address this issue at some point, and all eyes will be on new Supreme Court Justice Amy Coney Barrett who likely holds the deciding vote. Let’s hope this isn’t how this year’s presidential election is decided.
9. Accepting the Results: At some point, the dust will clear. There’s a small possibility that the presidential election could get resolved by the Supreme Court. It’s also possible, but also unlikely, that state legislatures or Congress<https://www.politico.com/news/2020/10/30/trump-biden-election-scenarios-433663> could get into the mix. But whether it’s on Election Night or weeks later, there will be a winner. And when that happens, there’s a real question – more so now than in any election in my lifetime – whether the losing side will accept defeat. We’ve seen claims of stolen elections on both sides in past election year. But with mutual distrust among Democrats and Republicans at such historically high levels, those concerns are elevated this year. I believe that our institutions are still strong enough to allow an effective (if not entirely smooth) transition of power, even if one side refuses to accept the results. But that would be a major test of our system.
10. Post-Election Pandemic Spikes: Though I’ve mostly tried to refrain from making predictions about what will happen, I’ll end with this one: COVID-19 cases will spike in some communities after the election. To be clear, elections can be conducted safely during this pandemic if appropriate precautions (especially face coverings and physical distancing) are observed. In fact, there’s evidence that this year’s primary elections didn’t worsen the pandemic<https://fivethirtyeight.com/features/voting-in-primaries-didnt-worsen-the-covid-19-pandemic/>. The problem is that mask-wearing has become ideological. Some people will refuse to wear masks when they go vote, and poll workers may be unable or unwilling to enforce compliance. We’re already seeing an increase in COVID cases<https://covid.cdc.gov/covid-data-tracker/#cases_casesinlast7days> in many states, including some swing states where turnout is likely to be high. Though I really hope to be proven wrong, I expect compliance to be low in some places, causing new cases to spike after the election. That doesn’t mean you should stay home on Election Day. It does mean you should be careful, especially if others aren’t.
So go vote!
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#2DaysOut: Perspectives on Election 2020<https://electionlawblog.org/?p=117926>
Posted on November 1, 2020 9:26 am<https://electionlawblog.org/?p=117926> by Rick Hasen<https://electionlawblog.org/?author=3>
I have asked a number of leading election law scholars to weigh in with thoughts on where we stand with the election and election law with two days left before Election Day. The prompt is broad, and the perspectives are diverse. I’ll be posting these throughout the day.
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#2DaysOut My Closing Perspective, in the WSJ, on Voting and the Election (Rick Pildes)<https://electionlawblog.org/?p=117886>
Posted on November 1, 2020 2:31 am<https://electionlawblog.org/?p=117886> by Richard Pildes<https://electionlawblog.org/?author=7>
I’ve published<https://www.wsj.com/articles/early-and-mail-in-voting-for-2020-election-expands-dramatically-despite-legal-fights-11604052000> closing reflections on where we are now, compared to the enormous concerns we had over the spring and summer, with running an election amidst the virus. The essay, entitled Amid Voting Fights, a Huge Expansion, is the WSJ’s Weekend Review section. Here are some excerpts:
Many Americans are worried that their votes won’t be counted in this election. . . . Nearly every day another 11th-hour decision comes down, including from the Supreme Court.
What’s missing in this focus on court rulings is the bigger picture of how dramatically the voting system has changed for 2020. These changes, mostly made by state governments rather than the courts, have enabled widespread access to political participation, even amid the exceptional stresses of the pandemic.
Despite all the election-related anxieties of spring and summer, we are likely to see the highest turnout in more than a century—65% of eligible voters, meaning 150 million votes—according to the latest forecast from the U.S. Elections Project at the University of Florida. A week before Election Day, early voting had already surpassed its 2016 level. The reason is that highly mobilized voters have been able to take advantage of several major policy changes.
Once the pandemic hit, the most important issue was whether voters would have the option of easily voting by mail. In particular, would states that normally permit absentee voting only for a narrow set of reasons, such as being away, relax those restrictions? Several months ago, it appeared this might be a vigorously contested question, but it hasn’t turned out that way in most state legislatures….
The breadth of this shift has been obscured by attacks on “universal” mail-in voting, particularly from the White House. But that option was never a major factor in what states contemplated for this fall. Absentee voting requires a voter to ask for a ballot to be sent to their address. With universal mail-in voting, the state sends out ballots to everyone on the voter rolls. That system takes longer to implement smoothly, largely because of the need to update voter rolls to avoid widespread mistakes. Only four states—California, Nevada, New Jersey and Vermont—adopted universal vote-by-mail for this election, along with most counties in Montana….
A second major change has been the expansion of early in-person voting, which avoids several pitfalls of absentee ballots, such as higher rejection rates, postal delays and the possibility of drawn-out counting for late-arriving votes. Because some voters only trust voting in person, fear of the virus might have been a major deterrent to in-person voting if Election Day were the only opportunity to go directly to the polls.
But this fall, 42 states are providing significant periods of early voting, including several states that expanded their early-voting options. Texas, one of the states that does not permit no-excuse absentee voting, is a particularly interesting example. It has featured in many of this year’s courtroom dramas, with voting-rights plaintiffs losing most of those cases. Less noticed was Republican Gov. Greg Abbott’s executive order to expand early voting by nearly a week, over the objections (and unsuccessful litigation) of the state GOP. Texans now have 2½ weeks of early voting, and they are making massive use of this option. Five days before Election Day, turnout in Texas had already surpassed 95% of total 2016 turnout. Nearly 90% of those votes came from early in-person voting, according to the U.S. Elections Project….
Yet another worry was the prospect of polling place closures. With cases of Covid-19 spiking again, that could still turn into a last-minute issue. But just toting up the number of available polling places can be misleading. In some places, smaller sites have been replaced with much larger, more efficient vote centers that enable social distancing and require fewer poll workers per voter. In Kentucky’s June primary, for example, the city of Louisville (pop. 625,000) had only one polling site. But that site was the enormous Expo Center, and turnout reached record levels.
None of this means that problems won’t arise on Election Day. If the vote is close, especially in a potentially decisive state such as Pennsylvania, we may enter into one of the most contentious periods in our history. But despite concerns since March over running an election during a pandemic and despite all the issues that have consumed courts these past few months, one fact is already clear about the 2020 vote: Political participation will be sky high.
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--
Rick Hasen
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UC Irvine School of Law
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