[EL] Law-election Digest, Vol 115, Issue 4
Jerrick Adams
jerrick.adams at ballotpedia.org
Wed Nov 4 12:15:55 PST 2020
I second Andy's comment! ELB has been indispensable this year.
At Ballotpedia, we're tracking all post-election lawsuits:
https://ballotpedia.org/Ballotpedia%27s_2020_Election_Help_Desk:_Post-election_lawsuits,_2020
It's a short list at the moment, but we'll see what the next few days (or
weeks) hold. If any of you become aware of a lawsuit that would merit
inclusion here, please let me know!
*Jerrick T. Adams*
Staff Writer
Office: 608-255-0688
*Ballotpedia <http://ballotpedia.org/>*
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On Wed, Nov 4, 2020 at 3:00 PM <
law-election-request at department-lists.uci.edu> wrote:
> Send Law-election mailing list submissions to
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> than "Re: Contents of Law-election digest..."
>
>
> Today's Topics:
>
> 1. Re: ELB News and Commentary 11/3/20 **ELECTION DAY*** (Rick Hasen)
> 2. Re: ELB News and Commentary 11/3/20 **ELECTION DAY***
> (John McCarthy)
> 3. Re: ELB News and Commentary 11/3/20 **ELECTION DAY*** (Lisa Hill)
> 4. The Failure of PA's Political "Leaders" (Pildes, Rick)
> 5. ELB News and Commentary 11/4/20 (Rick Hasen)
> 6. Trump Falsely and Prematurely Claims Victory in 2:30 AM ET
> Speech (Rick Hasen)
> 7. Re: Trump Falsely and Prematurely Claims Victory in 2:30 AM
> ET Speech (Mark Scarberry)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Tue, 3 Nov 2020 20:01:29 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Andy Kroll <andykroll at gmail.com>
> Cc: Election Law Listserv <law-election at uci.edu>
> Subject: Re: [EL] ELB News and Commentary 11/3/20 **ELECTION DAY***
> Message-ID: <F179F153-77F2-4742-B307-6CAD62A8831E at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> 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
> presidentia
> l 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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> ------------------------------
>
> Message: 2
> Date: Tue, 3 Nov 2020 14:37:48 -0800
> From: John McCarthy <john at verifiedvoting.org>
> To: law-election at department-lists.uci.edu
> Subject: Re: [EL] ELB News and Commentary 11/3/20 **ELECTION DAY***
> Message-ID: <d787ea4a-da04-f43d-98cb-eaa38881dae5 at verifiedvoting.org>
> Content-Type: text/plain; charset="utf-8"; Format="flowed"
>
> +1 and amen!
>
> John McCarthy
> Verified Voting volunteer
>
> On 11/3/2020 11:13 AM, Andy Kroll wrote:
> > 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 inabsentee 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 inelectoral 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 inUncategorized <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 infraudulent 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 inelection 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 inalternative 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 inUncategorized <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 inUncategorized <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 inchicanery <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 inchicanery <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 inUncategorized <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 inUncategorized <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 inBush 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 inabsentee 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://www.law.uci.edu/faculty/full-time/hasen/>
> >
> > http://electionlawblog.org <http://electionlawblog.org/>
> >
> > _______________________________________________
> > Law-election mailing list
> > Law-election at department-lists.uci.edu
> > <mailto:Law-election at department-lists.uci.edu>
> > https://department-lists.uci.edu/mailman/listinfo/law-election
> > <https://department-lists.uci.edu/mailman/listinfo/law-election>
> >
> >
> >
> > _______________________________________________
> > Law-election mailing list
> > Law-election at department-lists.uci.edu
> > https://department-lists.uci.edu/mailman/listinfo/law-election
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> ------------------------------
>
> Message: 3
> Date: Tue, 3 Nov 2020 23:41:14 +0000
> From: Lisa Hill <lisa.hill at adelaide.edu.au>
> To: Rick Hasen <rhasen at law.uci.edu>, Andy Kroll <andykroll at gmail.com>
> Cc: Election Law Listserv <law-election at uci.edu>
> Subject: Re: [EL] ELB News and Commentary 11/3/20 **ELECTION DAY***
> Message-ID:
> <
> MEAP282MB047000F1D810BA5B09DC1E02A7110 at MEAP282MB0470.AUSP282.PROD.OUTLOOK.COM
> >
>
> Content-Type: text/plain; charset="windows-1252"
>
> Same goes from those of us here in Australia Rick. Such an valuable source
> of learned insight. Thank you!
>
> Professor Lisa Hill D.Phil. (Oxon.) FASSA
> Department of Politics and International Relations
> Room 411, Napier Building
> School of Social Sciences
> University of Adelaide
> South Australia 5005
>
>
> ________________________________
> From: Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Rick Hasen <rhasen at law.uci.edu>
> Sent: Wednesday, 4 November 2020 6:31 AM
> To: Andy Kroll <andykroll at gmail.com>
> Cc: Election Law Listserv <law-election at uci.edu>
> Subject: Re: [EL] ELB News and Commentary 11/3/20 **ELECTION DAY***
>
>
> 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
> presidentia
> l 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/>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<mailto:
> Law-election at department-lists.uci.edu>
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
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>
> ------------------------------
>
> Message: 4
> Date: Wed, 4 Nov 2020 05:02:34 +0000
> From: "Pildes, Rick" <rick.pildes at nyu.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] The Failure of PA's Political "Leaders"
> Message-ID: <4c39958732724f7eab820524194af1b6 at nyu.edu>
> Content-Type: text/plain; charset="us-ascii"
>
> With no better outlet for my anger at the unconscionable place PA's
> Democratic Governor and Republican Legislature have put the country, I went
> back and looked at how many times I wrote about the critical need for PA to
> change its law to permit election officials to start processing absentees
> before today. The first piece is March 20th. Last night was the final one.
> I'm trying to avoid using the adjectives that keep coming to mind --
> "Pennsylvania could be a center of chaos this election. It didn't have to
> be this way."<
> https://www.washingtonpost.com/opinions/2020/11/02/pennsylvania-could-be-center-chaos-this-election-it-didnt-have-be-this-way/>
> [Yesterday]
> " PA: A Potentially Explosive Mix of the Worst Election Laws in A
> Potentially Decisive State"
> "If we want results on election night, this is a reform both parties
> should support"<https://electionlawblog.org/?p=116927>
> "Possible Good News in PA<https://electionlawblog.org/?p=116844>" [Trying
> to Support Change]
> "Counties are asking for a change to help them tally votes faster. But as
> election day nears, Pa.'s legislature hasn't acted on a bill to make that
> happen"<https://electionlawblog.org/?p=116596>
> "One Neat Trick that Could Save America from Vote-Counting Chaos"
> PA Quote of the Day: "The General Assembly must give counties additional
> time before Election Day to begin the time consuming manual work" of
> preparing ballots to be counted."
> "WSJ Supports Permitting Election Officials To Start Processing Absentees
> Before Election Day"
> "Karl Rove on "What Could Go Wrong on Election Day"<
> https://electionlawblog.org/?p=114804>
> "States Must Adapt Their Absentee Ballot Process to Avoid What's Happening
> in New York Right Now"
> "Accommodating a Massive Surge in Absentee Voting For the Presidential
> Election"
> "Reducing One Source of a Potential Election Meltdown<
> https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown>"
> (March 20, 2020)
>
>
> Best,
> Rick
>
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 40 Washington Square So.
> NYC, NY 10014
> 347-886-6789
>
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> ------------------------------
>
> Message: 5
> Date: Wed, 4 Nov 2020 06:20:18 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] ELB News and Commentary 11/4/20
> Message-ID: <B65FC4E8-CAFA-477B-AD24-0AD50508D98C at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> Trump Tweets Without Evidence That He is Winning But Democrats Will Try to
> ?STEAL the Election?<https://electionlawblog.org/?p=118154>
> Posted on November 3, 2020 9:52 pm<https://electionlawblog.org/?p=118154>
> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Here?s the tweet<
> https://twitter.com/realDonaldTrump/status/1323863787825438720>:
>
> There is no evidence of anyone stealing the vote, or of votes being cast
> after the polls are closed. (He could be referring to state rules for late
> arriving ballots, but those are not being cast after polls are closed.)
>
> UPDATE: Twitter has now put a warning on this tweet.
> [Share]<
> https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118154&title=Trump%20Tweets%20Without%20Evidence%20That%20He%20is%20Winning%20But%20Democrats%20Will%20Try%20to%20%E2%80%9CSTEAL%20the%20Election%E2%80%9D
> >
> Posted in Uncategorized<https://electionlawblog.org/?cat=1>
>
>
> Lawsuit to Watch If It Comes Down to Pennsylvania<
> https://electionlawblog.org/?p=118150>
> Posted on November 3, 2020 8:41 pm<https://electionlawblog.org/?p=118150>
> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Hamm v. Boockvar<
> https://electionlawblog.org/wp-content/uploads/PA-Hamm-v-Boockvar-Commonw-Ct.pdf>,
> a state court case attacking some PA Secretary of State curing procedures.
> Hearing<https://twitter.com/johnkruzel/status/1323846082208632835> on
> Wednesday.
>
> Keep your eye on this one, and the other suit I wrote about<
> https://slate.com/news-and-politics/2020/11/election-day-2020-gop-lawsuit-pennsylvania-ballot-cures.html>
> earlier today.
> [Share]<
> https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118150&title=Lawsuit%20to%20Watch%20If%20It%20Comes%20Down%20to%20Pennsylvania
> >
> Posted in election administration<https://electionlawblog.org/?cat=18>,
> The Voting Wars<https://electionlawblog.org/?cat=60>
>
>
> ?Nevada Supreme Court rejects Trump campaign emergency request to limit
> mail ballot counting in Clark County?<
> https://electionlawblog.org/?p=118146>
> Posted on November 3, 2020 7:35 pm<https://electionlawblog.org/?p=118146>
> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Nevada Independent:<
> https://thenevadaindependent.com/article/trump-campaign-nv-gop-file-emergency-appeal-to-state-supreme-court-to-limit-mail-ballot-counting-in-clark-county
> >
>
> The Nevada Supreme Court has denied an emergency request by President
> Donald Trump?s re-election campaign and the state Republican Party to
> immediately order Clark County election officials to stop processing mail
> ballots.
>
> The appeal, filed Tuesday in the state Supreme Court, was a last-minute
> request for the state?s highest court to block Clark County?s mail ballot
> process. Carson City District Court Judge James Wilson on Monday issued an
> order flatly rejecting<
> https://thenevadaindependent.com/article/judge-rejects-trump-campaign-effort-to-slow-down-amend-clark-county-mail-ballot-counting-and-processing-system>
> all of the requests to modify the county?s mail ballot processing plan as
> lacking standing to warrant last-minute judicial intervention in the
> state?s election process.
>
> The order, signed by all seven members of the court, stated that the
> appeal failed to demonstrate a ?sufficient likelihood of success to merit a
> stay or injunction? and that the request failed to identify any ?mandatory
> statutory duty? or ?manifest abuse of discretion? that would warrant
> judicial intervention at this point on Election Day.
>
> ?Appellants motion, on its face, does not identify any mandatory statutory
> duty that respondents appear to have ignored,? Justice Kristina Pickering
> wrote in the order. ?Further, appellants fail to address the district
> court?s conclusion that they lack standing to pursue this relief.?
> [Share]<
> https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118146&title=%E2%80%9CNevada%20Supreme%20Court%20rejects%20Trump%20campaign%20emergency%20request%20to%20limit%20mail%20ballot%20counting%20in%20Clark%20County%E2%80%9D
> >
> Posted in election administration<https://electionlawblog.org/?cat=18>
>
>
> Georgia: ?Fulton election results delayed after pipe bursts in room with
> ballots?<https://electionlawblog.org/?p=118144>
> Posted on November 3, 2020 4:39 pm<https://electionlawblog.org/?p=118144>
> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> AJC:<
> https://www.ajc.com/news/atlanta-news/fulton-election-results-delayed-after-pipe-bursts-in-room-with-ballots/4T3KPQV7PBEX3JVAIGJBNBSVJY/
> >
>
> Fulton County?s absentee-by-mail processing operation at State Farm Arena
> was delayed four hours today after a water pipe burst in a room with
> ballots.
>
> No ballots were harmed thanks to the slant of the room, voting officials
> told the elections board Tuesday night. But that likely ruins the hope by
> officials of having a three-quarters count by 10 p.m. to 11 p.m.
>
> ?There was a pipe that burst in the room where we actually had ballots,
> thank goodness that none of those ballots were damaged,? said Dwight
> Brower, with Fulton County elections.ExploreFulton election update:
> Delivery snafu, shorter lines, few tech problems<
> https://www.ajc.com/news/atlanta-news/fulton-election-update-delivery-snafu-shorter-lines-few-tech-problems/JMOMRHHAVZAIHPRXAM7MSV4U2Q/
> >
>
> Board members asked when the public would have results from Georgia?s most
> populated county.
>
> ?It?s going to be later than what we would like it to be,? said Ralph
> Jones, a top Fulton elections manager.
> [Share]<
> https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118144&title=Georgia%3A%20%E2%80%9CFulton%20election%20results%20delayed%20after%20pipe%20bursts%20in%20room%20with%20ballots%E2%80%9D
> >
> Posted in election administration<https://electionlawblog.org/?cat=18>
>
>
> Mercifully, A Relatively Boring Election Day<
> https://electionlawblog.org/?p=118142>
> Posted on November 3, 2020 3:36 pm<https://electionlawblog.org/?p=118142>
> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Me<
> https://slate.com/news-and-politics/2020/11/election-day-2020-live-coverage-joe-biden-donald-trump.html#boring-smooth-vote-so-far>,
> over at the Slate live blog.
> [Share]<
> https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118142&title=Mercifully%2C%20A%20Relatively%20Boring%20Election%20Day
> >
> Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
>
>
> ?In the Messiest Contested Election, One Man Saved the System From Itself?<
> https://electionlawblog.org/?p=118137>
> Posted on November 3, 2020 12:14 pm<https://electionlawblog.org/?p=118137>
> by Rick Hasen<https://electionlawblog.org/?author=3>
>
> Do yourself a favor and read Franita Tolson in the NYT<
> https://www.nytimes.com/2020/11/03/us/samuel-randall-1876-election.html>
> on the 1876 election and Samuel Randall:
>
> In the weeks leading up to Tuesday?s election, scholars and political
> commentators have been busy gaming out doomsday scenarios on the small, but
> unlikely, chance that there is a contested result. Despite the existence of
> laws designed to mediate such disputes, concerns abound because of the
> tremendous uncertainty in the constitutional and statutory framework
> governing federal elections.
>
> More than any other contest, the 1876 election shows us that our laws and
> democratic institutions have not always been up to the task of resolving an
> election crisis. We still face the prospect that consequential decisions
> may fall to a single person ? be it a candidate, a governor, a legislator
> or an election official ? who may have to decide between party and country
> in resolving a contested election.
>
> In 1876, that person was Samuel Randall, who played a key role in avoiding
> dueling inaugurations where the Republican nominee, Rutherford B. Hayes,
> and the Democratic nominee, Samuel J. Tilden, each presented themselves as
> the lawfully elected president of the United States. Decisions that
> Randall, a Democrat, made as the speaker of the House might have
> forestalled the violent conflict ? both inside and outside of the
> congressional chamber ? by supporters on both sides if their candidate was
> not declared the winner.
>
> With its heady mix of voter disenfranchisement, election fraud and extreme
> partisanship, the Hayes-Tilden dispute was a political maelstrom for which
> the U.S. Constitution had no specific remedy. The Constitution leaves
> significant discretion in the hands of officials who are tasked with
> facilitating the selection of the president. This discretion was often
> misused, and the years leading up to 1876 would set the stage for such
> abuse.
> [Share]<
> https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D118137&title=%E2%80%9CIn%20the%20Messiest%20Contested%20Election%2C%20One%20Man%20Saved%20the%20System%20From%20Itself%E2%80%9D
> >
> Posted in electoral college<https://electionlawblog.org/?cat=44>
>
> --
> 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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>
> ------------------------------
>
> Message: 6
> Date: Wed, 4 Nov 2020 07:37:06 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] Trump Falsely and Prematurely Claims Victory in 2:30 AM
> ET Speech
> Message-ID: <668DEC19-B436-4B15-BAE1-2786BD6EB5EE at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> https://twitter.com/rickhasen/status/1323890304529829889
>
> waiting for the transcript
>
> --
> 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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>
> ------------------------------
>
> Message: 7
> Date: Wed, 4 Nov 2020 01:43:07 -0800
> From: Mark Scarberry <mark.scarberry at pepperdine.edu>
> To: Rick Hasen <rhasen at law.uci.edu>
> Cc: Election Law Listserv <law-election at uci.edu>
> Subject: Re: [EL] Trump Falsely and Prematurely Claims Victory in 2:30
> AM ET Speech
> Message-ID:
> <
> CAGN5XUyXsrmB0c2+B8Y9Fux184MGwtC3WSxLHFfqLkSzdomhqQ at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Trump's statement is disgusting whatever the result of any suits might be
> and whether or not he wins the election.
>
> In terms of statutory deadlines, the only votes that are being counted now
> are votes that were cast in person, dropped off, or received by mail by
> election offices on or before Election Day, November 3 (yesterday as I
> write this).
>
> With respect to ballots received on or before Election Day, the only
> arguments that I'm aware of for not counting them are
>
> (1) the equal protection argument made in the suit Rick linked to at the
> end of this Slate article,
>
> https://slate.com/news-and-politics/2020/11/election-day-2020-gop-lawsuit-pennsylvania-ballot-cures.html
> ,
> involving Montgomery county election officials who contacted voters so that
> they could cure defects in their mail-in ballots, allegedly contrary to
> Pennsylvania state law, and
> (2) the argument that the federal district court in South Carolina erred
> in ordering that ballots must be counted without any signature check,
> contrary, allegedly, to state law, as noted in Rick's blog post,
> https://electionlawblog.org/?p=117500.
> (3) deadlines before election day in Louisiana and maybe North Dakota,
> if I'm reading this chart right. See
>
> https://www.ncsl.org/research/elections-and-campaigns/vopp-table-11-receipt-and-postmark-deadlines-for-absentee-ballots.aspx
>
> There does not seem to be any question but what Trump won South Carolina,
> Louisiana, and North Dakota, so arguments (2) and (3) are irrelevant.
>
> Is argument (1) plausible? How many ballots would be affected? Were the
> relevant ballots sequestered?
>
> Are there other arguments?
>
> There is an argument that ballots that are received after the date set by
> statute should not be counted. There still are suits involving ballots that
> will be received after state law deadlines in the critical states of
> Pennsylvania, North Carolina, and Wisconsin, right? It seems that those
> could affect the presidential election. Are there other states in which
> there may be such disputes that could affect the outcome?
>
> Am I missing anything?
>
> It's late, so I hope this email is coherent.
>
> Mark
>
> [image: Pepperdine wordmark]*Caruso School of Law*
>
> *Mark S. Scarberry*
>
> *Professor of Lawmark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
> Personal: mark.scarberry at gmail.com
>
>
>
>
> >
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>
> Subject: Digest Footer
>
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> Law-election at department-lists.uci.edu
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> End of Law-election Digest, Vol 115, Issue 4
> ********************************************
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