[EL] ELB News and Commentary 11/3/20 ELECTION DAY*

Tue Nov 3 12:01:29 PST 2020

That’s very kind, Andy. It is a labor of love (though I hope to take a nice hiatus if this election ever ends)

From: Andy Kroll <andykroll at gmail.com>
Date: Tuesday, November 3, 2020 at 11:14 AM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] ELB News and Commentary 11/3/20 **ELECTION DAY***

Just want to say, on this election day, how invaluable ELB and this listserv have been, Rick. Much gratitude for all the time and energy you put into these resources...

Andy Kroll
Rolling Stone

On Tue, Nov 3, 2020 at 2:05 PM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
“New Lawsuit to Halt Ballot Cures in Pennsylvania Could Preview Trump’s Postelection Strategy”<https://electionlawblog.org/?p=118135>
Posted on November 3, 2020 10:53 am<https://electionlawblog.org/?p=118135> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://slate.com/news-and-politics/2020/11/election-day-2020-gop-lawsuit-pennsylvania-ballot-cures.html> for Slate. It begins:

Republicans filed a new lawsuit in Pennsylvania on Tuesday, and it is a window into the kind of post-election maneuvering that we could see both legally and politically should the election come down to the Keystone State.

The big Pennsylvania litigation before today involved a decision of the state Supreme Court, relying on the state constitution, to extend the date for receipt of mailed ballots for three days given the pandemic, until Nov. 6. That lawsuit could still be revived<https://electionlawblog.org/?p=117694> after the election, and there could be a fight over whether those ballots should be counted. (There’s a very strong argument<https://electionlawblog.org/?p=117640> those ballots should be counted, but the votes have been cabined and some of the U.S. Supreme Court’s conservatives have signaled antipathy to the state court’s decision.) This is one of only a number of lawsuits that could pop up in a kind of trench warfare should the election be razor-thin in Pennsylvania. People often forget that there were over 20 lawsuits in Florida and not just Bush v. Gore<https://supreme.justia.com/cases/federal/us/531/98/> back in 2000.

This latest lawsuit<https://assets.documentcloud.org/documents/7281321/11-3-20-Barnett-v-Lawrence-Complaint.pdf> alleges that Montgomery County, Pennsylvania has been contacting voters who have voted by mail and whose ballots have a defect (like a missing signature) to give the voters a chance to fix (or “cure”) the problem. Not all the counties are doing so, and a Republican candidate whose district includes Montgomery argues that, under the Supreme Court’s Bush v. Gore decision, it is a federal equal protection violation for some voters to be notified about curing their ballots and others not. They want the practice to stop and for ballots that were cured to not be counted.

The federal claim is really weak for three reasons…
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118135&title=%E2%80%9CNew%20Lawsuit%20to%20Halt%20Ballot%20Cures%20in%20Pennsylvania%20Could%20Preview%20Trump%E2%80%99s%20Postelection%20Strategy%E2%80%9D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Failed Elections and the Legislative Selection of Presidential Electors”<https://electionlawblog.org/?p=118133>
Posted on November 3, 2020 10:42 am<https://electionlawblog.org/?p=118133> by Rick Hasen<https://electionlawblog.org/?author=3>

Can’t wait to read this (hopefully not timely) one<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3714294> from Justin Levitt (forthcoming NYU L. Rev.). Here is the abstract:

Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote.

An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision — the portion of Article II allowing states to appoint electors in the manner the legislature directs — has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece appears to represent the first exploration of that federal statute as an ostensible basis for legislative appointment of electors in the aftermath of an election, when that election has “failed to make a choice.” After reviewing the constitutional controversy, the essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but the constitutional predicate, in the event of a disputed presidential election.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118133&title=%E2%80%9CFailed%20Elections%20and%20the%20Legislative%20Selection%20of%20Presidential%20Electors%E2%80%9D>
Posted in electoral college<https://electionlawblog.org/?cat=44>

Federal Court Orders Immediate Sweep of USPS Facilities in Certain Areas Experiencing Mail Delays to Look for Mail Ballots<https://electionlawblog.org/?p=118131>
Posted on November 3, 2020 10:02 am<https://electionlawblog.org/?p=118131> by Rick Hasen<https://electionlawblog.org/?author=3>

Order<https://twitter.com/johnkruzel/status/1323682172969062400?s=20>:
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118131&title=Federal%20Court%20Orders%20Immediate%20Sweep%20of%20USPS%20Facilities%20in%20Certain%20Areas%20Experiencing%20Mail%20Delays%20%20to%20Look%20for%20Mail%20Ballots>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Philadelphia District Attorney’s Office Calls “Deliberately Deceptive” Mike Roman’s Tweet That “Bad things are happening in Philly” (Roman Is Key Trump Campaign Person)<https://electionlawblog.org/?p=118129>
Posted on November 3, 2020 9:28 am<https://electionlawblog.org/?p=118129> by Rick Hasen<https://electionlawblog.org/?author=3>

Tweet<https://twitter.com/philadao/status/1323644899967881219>:
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118129&title=Philadelphia%20District%20Attorney%E2%80%99s%20Office%20Calls%20%E2%80%9CDeliberately%20Deceptive%E2%80%9D%20Mike%20Roman%E2%80%99s%20Tweet%20That%20%E2%80%9CBad%20things%20are%20happening%20in%20Philly%E2%80%9D%20(Roman%20Is%20Key%20Trump%20Campaign%20Person)>
Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

So Far, Only Minor Hiccups Reported with Election Day Voting Across U.S.<https://electionlawblog.org/?p=118127>
Posted on November 3, 2020 9:08 am<https://electionlawblog.org/?p=118127> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News rounds up<https://www.nbcnews.com/politics/2020-election/election-day-2020-voters-battle-lines-malfunctioning-machines-misinformation-some-n1245963> the reports.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118127&title=So%20Far%2C%20Only%20Minor%20Hiccups%20Reported%20with%20Election%20Day%20Voting%20Across%20U.S.>
Posted in election administration<https://electionlawblog.org/?cat=18>

“Greater use of ranked choice voting backed by 5 Nobel Laureates, More”<https://electionlawblog.org/?p=118125>
Posted on November 3, 2020 9:06 am<https://electionlawblog.org/?p=118125> by Rick Hasen<https://electionlawblog.org/?author=3>

FairVote blog<https://www.fairvote.org/greater_use_of_ranked_choice_voting_backed_by_5_nobel_laureates_more>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118125&title=%E2%80%9CGreater%20use%20of%20ranked%20choice%20voting%20backed%20by%205%20Nobel%20Laureates%2C%20More%E2%80%9D>
Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

“Republicans publicly silent, privately disgusted by Trump’s election threats”<https://electionlawblog.org/?p=118123>
Posted on November 3, 2020 8:56 am<https://electionlawblog.org/?p=118123> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/03/republicans-trump-election-threats-433910>

Democrats have been clear in their condemnations of the president’s comments, which they consider the most worrisome of Trump’s four years in office, which were often marked by anti-democratic rhetoric.

“When Donald Trump says, ‘I think I deserve a third term, or I think the election should end on election night, that’s the way it’s always been,’ I don’t think he’s joking. I think we should take him deadly seriously,” said Democratic senator and top Joe Biden surrogate Chris Coons. He compared Trump’s statements to aspiring autocrats in young democracies that he dealt with when he was chairman of the Senate Foreign Relations Committee’s Subcommittee on African Affairs. “We would rally the international community and say, ‘No, you should not do that. It’s not a good idea. That violates the norms of democracy.’”

But most Republicans, from critics to allies of Trump, have remained publicly silent. It’s not new for Trump’s party brethren to duck and cover when he says something troubling. But after five years of perfecting the art of explaining how they “didn’t see the tweet” — the much parodied talking point to which Republicans on Capitol Hill often resort — it is shocking but not surprising that they aren’t speaking up now, even when the integrity of America’s electoral system is under attack by their party’s leader….

Sen. Ben Sasse didn’t respond to a DM. Chris Christie didn’t return a text. A message to the spokesman for Sen. Josh Hawley, an up-and-comer in the party, went unanswered. Sen. Lindsey Graham didn’t return a call after POLITICO left a voicemail for him. (Graham’s outgoing message offered the option of sending a fax but a reporter did not avail himself of that method of communication.)

White House spokeswoman Alyssa Farah promised to call back but never did. Rudy Giuliani went silent, even though a reporter sweetened the deal by agreeing to hear him out on the Hunter Biden intrigue, a current Giuliani obsession. Karl Rove was kind enough to respond, but he was too busy to discuss the president’s comments sowing doubt and mistrust about the sanctity of the election process, because, he said, his “flight is getting ready to shut the door and pull away from the gate.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118123&title=%E2%80%9CRepublicans%20publicly%20silent%2C%20privately%20disgusted%20by%20Trump%E2%80%99s%20election%20threats%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Scoop: Generals privately brief news anchors, promise no military role in election”<https://electionlawblog.org/?p=118121>
Posted on November 3, 2020 8:53 am<https://electionlawblog.org/?p=118121> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/milley-tv-anchors-call-military-no-election-role-1570714a-3532-4102-8f24-69fbd2d375e2.html?stream=top&utm_source=alert&utm_medium=email&utm_campaign=alerts_all>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118121&title=%E2%80%9CScoop%3A%20Generals%20privately%20brief%20news%20anchors%2C%20promise%20no%20military%20role%20in%20election%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Suspicious robocall campaign warning people to ‘stay home’ spooks voters nationwide”<https://electionlawblog.org/?p=118119>
Posted on November 3, 2020 8:51 am<https://electionlawblog.org/?p=118119> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2020/11/03/robocall-election-day/>

An unidentified robocaller has placed an estimated 10 million calls in the past several weeks warning people to “stay safe and stay home,” spooking some Americans who said they saw it as an attempt to scare them away from the polls on Election Day.

The barrage of calls all feature the same short, recorded message: A computerized female voice says the message is a “test call” before twice encouraging people to remain inside. The robocalls, which have come from a slew of fake or unknown numbers, began over the summer and intensified in October, and now appear to have affected nearly every Zip code in the United States.

The reach and timing of the calls recently caught the attention<https://directory.youmail.com/directory/phone/3024656014> of YouMail, a tech company that offers a robocall-blocking app for smartphones, as well as some of the country’s top telecom carriers, which determined from an investigation that the calls may be foreign in origin and sophisticated in their tactics. Data from YouMail shows that the calls have reached 280 of the country’s 317 area codes since the campaign began in the summer.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118119&title=%E2%80%9CSuspicious%20robocall%20campaign%20warning%20people%20to%20%E2%80%98stay%20home%E2%80%99%20spooks%20voters%20nationwide%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>

Must-read from Ned Foley: “Closing Argument: All the President’s Bedlam”<https://electionlawblog.org/?p=118116>
Posted on November 3, 2020 8:32 am<https://electionlawblog.org/?p=118116> by Rick Hasen<https://electionlawblog.org/?author=3>

You really need to read the whole thing:<https://thefulcrum.us/election-dissection/trump-election>

President Trump is talking about “bedlam”<https://www.washingtonpost.com/video/politics/trump-predicts-bedlam-after-election-slamming-supreme-court-decision/2020/10/31/690b1662-5c95-417e-8dc1-7140ded2437f_video.html> — and even “violence in the streets”<https://twitter.com/realDonaldTrump/status/1323430341512622080> — if results aren’t known on election night. In fact, he is trying to create bedlam where none exists. He’s seeking to precipitate enough discord and doubt to cause citizens to disbelieve in the vote-counting process.

There should be no bedlam in the counting of ballots. It’s a rather boring process, but it works very well.

For absentee and mailed ballots, election officials make sure that each ballot comes from an eligible and registered voter. That verification is a good thing; it assures the integrity of the election. That’s something Trump and his fellow Republicans who are concerned about fraud should be supporting, not bemoaning.

The process will naturally take time, even days<https://www.foxnews.com/politics/pennsylvania-days-to-count-overwhelming-majority-of-votes>, because of the large number of mailed ballots this year as a result of the pandemic. There is nothing wrong about this. Waiting for official results is a feature of the system, not a bug….

It sounds as if Trump wants to derail the counting of ballots so that an accurate result can’t be reached. That’s the vote-counting version of Trump supporters trying to force a Biden campaign bus off the road. Never before has a sitting president openly called for a subversion of procedures in place for an orderly counting of ballots that citizens have a lawful right to cast.

Let’s be clear about the cause of concern. I’m not especially worried when the president says “as soon as [the] election is over, we are going in with our lawyers.” His lawyers must present evidence that will be evaluated on their merits according to the rule of law. That’s how it should be….

What worries me more is the bedlam that Trump himself may cause outside the courts. The so-called “Brooks Brothers riot” in 2000 shut down the recount in Miami-Dade County. While I don’t think it will be so easy to shut down the basic counting of ballots under state law, enough mischief could cause the process to run out of time. All state electors must cast their official votes for president on Monday, Dec. 14.

Apart from this risk, the gravest danger<https://www.nytimes.com/2020/10/28/opinion/trump-biden-election-scenarios.html> is throwing so much mud that the public gives up hope of knowing a fair and accurate result. Then a state legislature might try to repudiate the count of voters’ ballots and appoint its own electors.

I offered some similar thoughts yesterday in a post, Still Not Normal and Deeply Disturbing: President Trump Falsely States That Supreme Court Ruling on Pennsylvania Ballots Will Lead to Cheating and “will also induce violence in the streets”<https://electionlawblog.org/?p=118099>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118116&title=Must-read%20from%20Ned%20Foley%3A%20%E2%80%9CClosing%20Argument%3A%20All%20the%20President%E2%80%99s%20Bedlam%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>

Some Voters Will Be Disenfranchised Because Their Ballots Will Arrive Late; While That Happens Every Year, It Is Worse Now Because of USPS Delays<https://electionlawblog.org/?p=118114>
Posted on November 3, 2020 8:14 am<https://electionlawblog.org/?p=118114> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest:<https://twitter.com/johnkruzel/status/1323643248263503874>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118114&title=Some%20Voters%20Will%20Be%20Disenfranchised%20Because%20Their%20Ballots%20Will%20Arrive%20Late%3B%20While%20That%20Happens%20Every%20Year%2C%20It%20Is%20Worse%20Now%20Because%20of%20USPS%20Delays>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Here are the voting lawsuits that could lead to post-election fights over ballots”<https://electionlawblog.org/?p=118112>
Posted on November 3, 2020 8:10 am<https://electionlawblog.org/?p=118112> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/politics/2020/11/03/voting-lawsuits-ballot-counting/>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118112&title=%E2%80%9CHere%20are%20the%20voting%20lawsuits%20that%20could%20lead%20to%20post-election%20fights%20over%20ballots%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Why Bush v. Gore Still Matters in 2020”<https://electionlawblog.org/?p=118109>
Posted on November 3, 2020 7:36 am<https://electionlawblog.org/?p=118109> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica reports<https://www.propublica.org/article/why-bush-v-gore-still-matters>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118109&title=%E2%80%9CWhy%20Bush%20v.%20Gore%20Still%20Matters%20in%202020%E2%80%9D>
Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, Supreme Court<https://electionlawblog.org/?cat=29>

Plaintiffs in Texas Voting Case File 5th Circuit Motion for an Emergency Injunction, Asking (for Now) Only for a Ban on the Practice on Election Day [Updated with 5th Circuit Denial But 9 of 10 Drive Thru Locations Closed]<https://electionlawblog.org/?p=118101>
Posted on November 2, 2020 8:04 pm<https://electionlawblog.org/?p=118101> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the brief<https://drive.google.com/file/d/1CJhsGutHkyXKB5HAdUirGAXZcaNKuvPy/view>, asking for relief tonight, before Election Day, but limited: “Plaintiffs respectfully requests that this Court reverse the order below which found a lack of standing by Plaintiffs to challenge drive-thru voting on Election Day, and to issue a preliminary injunction banning drive-thru voting on Election Day, November 3, 2020.”

My earlier coverage is here.<https://electionlawblog.org/?p=118097>

Update: Here is the opposition<https://electionlawblog.org/wp-content/uploads/hotze-5th-opposition.pdf>.

And Harris County Clerk is closing<https://twitter.com/ElizLanders/status/1323477782429634560> 9 of 10 drive-thru locations given this new uncertainty.

Final update: Late last night the Fifth Circuit denied <https://twitter.com/johnkruzel/status/1323497904238219265/photo/1> the emergency request without comment.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118101&title=Plaintiffs%20in%20Texas%20Voting%20Case%20File%205th%20Circuit%20Motion%20for%20an%20Emergency%20Injunction%2C%20Asking%20(for%20Now)%20Only%20for%20a%20Ban%20on%20the%20Practice%20on%20Election%20Day%20%5BUpdated%20with%205th%20Circuit%20Denial%20But%209%20of%2010%20Drive%20Thru%20Locations%20Closed%5D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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