[EL] ELB News and Commentary 10/2/20

[Rick Hasen]

“Electoral Chaos Might Ensue if Biden or Trump Were Forced Out of the Race”
Posted on October 2, 2020 10:28 am by Rick Hasen

I have written this piece for Slate. It begins:

President Donald Trump and First Lady Melania Trump have the coronavirus and the White House reported on Friday that the president is suffering from mild symptoms. With the president having just attended the debate earlier this week with Democratic presidential nominee Joe Biden, there could be concerns about Biden’s health as well. While Biden tested negative for COVID-19 on Friday, the lengthy incubation period means he’s still at risk.

Beyond wishing the president, first lady, and everyone who has contracted this terrible disease a full and speedy recovery, we need to ask as a matter of national importance what would happen if one of the presidential candidates died or became incapacitated before election day. Unfortunately, thanks once again to our Rube Goldberg machine for choosing the president, the answer to this question is somewhat murky and differs from state to state.

It concludes:

In a Friday update to his story, Pildes offered the following additional wrinkle: “If the RNC were deeply divided, and Republican electors then did not coalesce around a single replacement candidate, there might not be a majority winner in the electoral college. In that case, the House would choose the president from among the top three vote getters in the electoral college. In that process, each state delegation gets one vote.” In that case, one or two faithless electors deciding to support, say, Sen. Mitt Romney and allowing him to enter the top-three could potentially give us a candidate the people didn’t even see on the ballot. And because it could come down to the votes of House delegations, with each state getting one vote, we are going to see even more jockeying in places like Florida to see if Democrats can take over a majority of more House delegations.

In short, there would be a ton of uncertainty if we faced such a tragedy as a presidential candidate dying or becoming incapacitated during this period.

Posted in Election Meltdown

 

 
LULAC and League of Women Voters File Lawsuit Against Texas Governor Abbott’s Last-Minute Elimination of Most Drop Boxes for Absentee Ballots
Posted on October 2, 2020 9:51 am by Rick Hasen

Complaint:

On June 29, 2020, Defendant Governor Greg Abbott argued in federal court that“precipitous changes to the [election] rules can cause ‘confusion’ and even undermine public confidence in the outcome of the election itself.”  Three months later, with voting underway in Texas, Governor Abbott made exactly the type of “precipitous change” that he had cautioned against. On October 1, 2020, Governor Abbott issued an order forcing county election officials to offer their absentee voters no more than one physical drop-off location at which to return their ballot. In the State’s largest counties, including Harris and Travis counties, the October 1 order meant that the number of drop off location would respectively be reduced from 11 and 4 locations. 

Posted in Uncategorized

 

 
“Lax security measures discovered at Philly election warehouse where materials were stolen”
Posted on October 2, 2020 9:44 am by Rick Hasen

WHYY:

A contractor’s laptop and several encrypted USB devices were stolen from Philadelphia’s election warehouse in the East Falls neighborhood sometime this week, the Inquirer reported Wednesday. Police are investigating, and election officials assure voters that voting integrity is in no way compromised by the theft. New machines implemented earlier this year all include a paper trail as an added security measure.

But a Thursday morning visit to the warehouse where the machines are stored revealed lax security measures.

This reporter was able to walk into the building and roam around unattended for several minutes before being asked to leave. He strolled past hundreds of voting machines, various boxes, and other unidentified equipment without seeing other people.

Posted in Uncategorized

 

 
“Federal judge strikes down change to NC absentee ballot witness requirement”
Posted on October 2, 2020 9:38 am by Rick Hasen

WRAL:

A federal judge on Wednesday warned the State Board of Elections that recent changes to requirements for absentee mail-in voting in North Carolina do not have his approval.

Those changes, outlined in a Sept. 22 memo from the state board to county elections directors and confirmed again Monday in an email from the state board’s attorney to county boards, were represented as being responsive to changes required by U.S. District Judge William Osteen’s ruling in a lawsuit brought by Democracy North Carolina.

Osteen pushed back on that representation Wednesday, however, taking sharp exception to the board’s changes on witness requirements for absentee ballots.

A witness must certify that a specific voter completed an absentee ballot. When the witness information is missing from the ballot envelope, local election officials usually try to contact the voter so he or she can cast a new ballot that meets the requirement. If the problem can’t be rectified, the ballot isn’t counted.

But the state board told county officials voters could simply sign an affidavit attesting that they had mailed the ballot, forgoing the witness requirement altogether.ADVERTISING

“Nothing about this court’s preliminary injunction order can or should be construed as finding that the failure of a witness to sign the application and certificate as a witness is a deficiency which may be cured with a certification after the ballot has been returned,” Osteen wrote in his order Wednesday.

The judge said he wants to meet with state elections officials about his “concern that alleged compliance with this court’s order is resulting in elimination of a duly-enacted statute requiring a witness to an absentee ballot.”

And now Republican legislative leaders have moved to block the settlement.

Posted in absentee ballots, The Voting Wars

 

 
“Get Ready for Election Month 2020”
Posted on October 2, 2020 9:32 am by Rick Hasen

Joan Walsh in The Nation.

Posted in Uncategorized

 

 
“Democracy in the Time of COVID-19”
Posted on October 2, 2020 8:57 am by Rick Hasen

New article in Valley Lawyer by Brad Hertz (starts on p. 28).

Posted in election administration

 

 
“Michigan attorney general charges right-wing provocateurs with election felonies”
Posted on October 2, 2020 8:53 am by Rick Hasen

Detroit Free Press:

Michigan Attorney General Dana Nessel is charging two well-known election provocateurs with felonies related to a racist robocall in metro Detroit that spread false information about the upcoming general election. 

Jacob Wohl and Jack Burkman are accused of orchestrating calls that went to thousands of voters in Detroit and other cities. The calls reportedly targeted Black voters and spread misinformation about voting by mail. 

“Any effort to interfere with, intimidate or intentionally mislead Michigan voters will be met with swift and severe consequences,” Nessel said in a news release….

The call falsely claimed that voters who apply for and use absentee ballots are providing personal information that may be used by police to carry out warrants, by credit card companies to attempt to collect debts and the CDC to “track people for mandatory vaccines.” 

None of this is true. 

“Don’t be (inaudible) into giving your private information to the man. Stay safe, and beware of vote by mail,” the robocall states, according to a copy of the recording previously provided by the Office of Michigan Secretary of State Jocelyn Benson.

Posted in chicanery

 

 
Breaking: As Expected, The Supreme Court Will Hear Arizona “Ballot Harvesting” Case (After the Election)
Posted on October 2, 2020 7:01 am by Rick Hasen

News from today’s order list is no surprise. Here’s what I wrote back in January: “I strongly suspect that the Supreme Court will take this case, which reversed a lower court and a three-judge Ninth Circuit panel. A finding of intentional discrimination is especially important because it provides a basis for someone to ask Arizona to face preclearance for voting changes under the bail-in provisions of Section 3 of the Voting Rights Act.”

The Ninth Circuit had stayed its own order, so this changes nothing on the ground for this election. The Supreme Court will likely hear argument in this case early next year, with a decision expected by June.

Posted in Supreme Court

 

 
“We’re in the final stages of the presidential election. What happens if a candidate withdraws or dies?”
Posted on October 2, 2020 6:11 am by Richard Pildes

I have published a new piece on this question with the Washington Post, which updates the two–part series I did in August on these issues. Here is a brief excerpt:

We do not know at this moment whether President Trump will have a mild or more serious case of covid-19. But without being alarmist, there is a public need to know what the procedures would be were the president to become incapacitated in two situations: before the election or if he wins and becomes incapacitated before Inauguration Day.

The national organization for the Republican Party is known as the Republican National Committee (RNC). In the first scenario, the RNC would have the power to replace the party’s nominee for president.

The RNC has 168 members — three from each state, plus three from six territories. The RNC’s rules provide that the three members from each state cast the same number of votes that their state or territory is entitled to at the party’s nominating convention.

In some sense, that’s the easy part, given how late in the election process we are now. If there were enough time, the party would seek to put the name of its new candidate on the ballot in each state. There almost certainly would not be time to do this, particularly if the issue only arises two to three weeks from now. The states have various deadlines for when the parties must certify their candidates for the ballot. Those dates have passed. In theory, the RNC could go to court to seek an order permitting it to change the name of its candidate. But there simply would not be enough time to reprint ballots at that point. President Trump will almost certainly remain on the ballot, no matter what happens.

That makes the second scenario the more critical one. Suppose Trump wins the election, even if incapacitated, or becomes incapacitated after the election but before Inauguration Day. This situation is more complex. . . .

The bottom line is that the RNC would determine who the replacement candidate would be, should it come to that unfortunate situation. And Republican slates of electors in states the president won, because he remains on the ballot, would very likely follow the RNC’s recommendation.

But one last possibility to ponder: If the RNC were deeply divided, and Republican electors then did not coalesce around a single replacement candidate, there might not be a majority winner in the electoral college. In that case, the House would choose the president from among the top three vote getters in the electoral college. In that process, each state delegation gets one vote.

These scenarios remain highly remote possibilities at this point, of course. But these and related questions may dominate public discussion for some time.

Posted in Uncategorized

 

 
With News That the President Has Tested Positive for Coronavirus (and He Was in Contact with Joe Biden at the Debate Earlier in the Week), What Happens If a Presidential Candidate Dies or is Incapacitated Before Election Day? A Mess
Posted on October 1, 2020 10:34 pm by Rick Hasen

The President and First Lady reportedly tested positive for the coronavirus. As the New York Times notes, “Mr. Trump’s positive test result could pose immediate difficulties for the future of his campaign against former Vice President Joseph R. Biden Jr., his Democratic challenger, with just 33 days before the election on Nov. 3. Even if Mr. Trump, 74, remains asymptomatic, he will have to withdraw from the campaign trail and stay isolated in the White House for an unknown period of time. If he becomes sick, it could raise questions about whether he should remain on the ballot at all.”

And of course with the President having just attended the debate earlier this week with Joe Biden, there could be concerns about Biden’s health as well.

I wish everyone who has contracted this terrible disease a full and speedy recovery.

But as a matter of national importance we need to ask what would happen if one of the presidential candidates died or became incapacitated before election day. Rick Pildes and Joshua Tucker did a two part series on the different permutations of what could happen, but this seems to fall within the cracks. Here’s the most relevant part of that discussion:

Joshua Tucker: What happens if the party’s nominee dies or withdraws after having been officially nominated but before the November election?

Richard Pildes: This puts the ball in the hands of the “national political parties,” which for this purpose means the legal entities known as the Democratic and Republican national committees.

The Democratic National Committee has a clear rule for this situation. The 447 members of the Democratic National Committee, the entity that formally hosts the convention, would choose the new nominee. The DNC chair, currently Tom Perez, is required to consult with the Democratic leadership in Congress and with the Democratic Governors Association. After the consultation, the chair provides a report to the DNC members, who then make the choice.

The Republican National Committee’s rules are similar. The RNC has 168 members — three from each state, plus three from six territories. The RNC’s rules provide that the three members from each state cast the same number of votes that their state or territory is entitled to at the convention. So Alaska’s three members get to cast a total of 28 votes, for example. If those three members disagree, they each get to cast one-third of those votes.

Second, the parties would now have to replace the name of their dead candidate on each state’s ballot with that of the new candidate. Depending on when this happens, that might not be simple. Different states have different deadlines for when the parties must certify their candidates for the ballot. In 2016, most were in August and September. If states do not have laws that permit changing the candidate’s name after that date, courts would probably have to be brought in. It’s hard to imagine courts refusing to permit one of the two major parties to replace a deceased candidate’s name with that of a validly chosen replacement.

The problem here is that ballots are already out and millions of people have already voted. At this point it seems impossible for candidates to come up with a new name to replace a name on the ballot without starting the whole election process over, which is not possible in the 30+ days before election day. Congress could pass a bill delaying the election but I find it hard to believe it would do so.

While things are not certain, what’s most likely that the election would take place on time with the deceased or incapacitated candidate’s name on the ballot, and then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate. Only some state laws provide for this eventuality. (Update: Some states provide that the votes for a named replacement are counted.) Or perhaps the legislatures would seek to appoint electors directly. This could lead to a whole lot of mischief if, say, the Pennsylvania Republican legislature tried, over the Democratic governor’s objection, to appoint electors to vote for Pence (if it were Trump who could no longer be a candidate) despite a vote for the people of Pennsylania for Biden over Trump.

See this exchange between Tucker and Pildes on a closely analogous issue:

J.T.: What if the winner of the November election dies or withdraws before the electoral college meets in December?

R.P.: This is the messiest situation and could unleash a lot of different maneuvers and disputes.

The issue is how an elector should or can cast their vote if the candidate their state has voted for dies after the election.

The initial questions are both constitutional and state-law based. Indeed, in cases argued on Wednesday, May 13, before the Supreme Court, Chiafalo v. Washington and Colorado Department of State v. Baca, the court will decide whether it is constitutional for states to “bind” their electors to vote for the candidate who won the popular vote in that state.

If the court holds that states can constitutionally bind their electors, then in a state that has done so, those laws do not specify whether an elector must still vote for a now-dead candidate and, if not, who they must or can vote for instead. When these laws were written, state legislatures were not thinking about this remote possibility. This is a glitch: States that bind electors should amend these laws to specify what an elector can or must do in this circumstance.

As a practical matter, if the parties have been vigilant, the electors should be extremely loyal to their political party. Even if the electors are formally bound by state law to vote for the dead candidate, I would expect them to cast their presidential vote for the vice-presidential nominee of that party.

But I can conjure up more complex scenarios. Remember, Congress ultimately “counts” the electors’ votes. Say Candidate A wins in State X, and then dies — but State X’s legislature strongly opposes Candidate A’s vice-presidential choice. One could imagine that state legislature appointing a new slate of electors committed to voting for a different candidate for president. It is unclear if states can constitutionally do this. We also don’t know if courts would get involved to decide that issue. Moreover, since Congress ultimately decides which electors’ votes to count, Congress might become a central player and decide what counts as a valid electoral vote in the various circumstances this scenario might unleash.

Since Pildes made these remarks, the Supreme Court decided Chaifalo (holding that states could bind electors to vote the way that the popular vote of the state goes), and Justice Kagan’s majority opinion actually discussed the issue in a footnote:

8 The Electors contend that elector discretion is needed to deal with the
possibility that a future presidential candidate will die between Election
Day and the Electoral College vote. See Reply Brief 20–22. We do not
dismiss how much turmoil such an event could cause. In recognition of
that fact, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. See, e.g., Cal. Elec. Code
Ann. §6906; Ind. Code §3–10–4–1.7. And we suspect that in such a case,
States without a specific provision would also release electors from their
pledge. Still, we note that because the situation is not before us, nothing
in this opinion should be taken to permit the States to bind electors to a
deceased candidate.

In short, there would be a ton of uncertainty if we faced such a tragedy as a presidential candidate dying during this period. As if 2020 could not get more complicated and crazy…

Posted in electoral college

 

 
“The start of early voting in Philly was riddled with technical issues”
Posted on October 1, 2020 3:22 pm by Rick Hasen

Philadelphia Inquirer:

The much-anticipated debut of early voting got off to a rocky start in Philadelphia on Tuesday, as technical issues left voters frustrated and confused while they waited in line, unable to cast their ballots.

Philadelphia opened the first seven of 15 satellite elections offices, where voters can request, receive, fill out, and submit a mail ballot in one stop….

Nick Custodio, a deputy commissioner under Deeley, said the delay was caused by the state’s voter database going down, which meant workers were unable to look up voters, process and approve mail ballot applications, and print ballot materials….

County elections officials across Pennsylvania said the state’s voter database, known as SURE, was down throughout the morning. They regularly complain that the system, put in place in the early 2000s and run by the Pennsylvania Department of State, often goes offline or slows down, especially under heavy traffic.

Posted in election administration

 

 
“Why is Florida screaming about the pay-to-vote system it created?”
Posted on October 1, 2020 3:16 pm by Rick Hasen

Ciara Torres-Spelliscy for The Hill.

Posted in felon voting

 

 
“Trump is winning the voter registration battle against Biden in key states”
Posted on October 1, 2020 2:39 pm by Rick Hasen

David Wasserman:

In the last few weeks, Joe Biden has led President Donald Trump by a fairly consistent 8-point average in national polls and has maintained leads in more than enough battleground states to win the Electoral College, including Arizona, Michigan, Pennsylvania and Wisconsin — all states Trump won in 2016.

But there are signs Trump’s ground operation is paying off when it comes to registering new voters in key states, an advantage that could become important if the race tightens before Nov. 3.

The Trump campaign has boasted that it knocks on more than a million doors a week, a claim that’s impossible to independently verify. In sharp contrast, the Biden campaign had ditched a ground game for virtual outreach, citing Covid-19 concerns — even though academic research has routinely concluded door-to-door canvassing is the “most consistently effective and efficient method of voter mobilization.” Only just now has the Biden campaign decided to restart its in-person voter contacts in some battleground states.

As deadlines approach, new data from the past few months shows Republicans have swamped Democrats in adding new voters to the rolls, a dramatic GOP improvement over 2016, even if new registrations have lagged 2016 rates across the board. It’s a sign that in a pandemic, Democrats are struggling to seize traditional opportunities to pad their margins, such as the return of students to college campuses.

Of the six states Trump won by less than 5 points in 2016, four — Arizona, Florida, North Carolina and Pennsylvania — permit voters to register by party. In all four states, voter registration trends are more robust for the GOP than four years ago.

In Florida, Republicans added a net 195,652 registered voters between this March’s presidential primary and the end of August, while Democrats added 98,362 and other voters increased 69,848. During the same period in 2016, Republicans added a net 182,983 registrants, Democrats 163,571 and others 71,982. In 2016, Trump prevailed in Florida by just 112,911 votes.

Posted in voter registration

 

 
“Elections experts, law professors, former President of National Association of Secretaries of State urge Congress to pass state vote counting deadline extension to avoid crisis”
Posted on October 1, 2020 1:07 pm by Rick Hasen

Release:

With just a month to go before the November 3rd election, a group of 40  experts on elections and democracy are imploring Congress to support a bill that would give  states more time to tally election results.  

A letter the group sent to Senate and House members expresses concern that delays due to  close races, legal disputes, and the unprecedented number of mail-in ballots expected during  the Covid-19 pandemic could prevent states from being able to fully and accurately count votes  by current deadlines, resulting in a constitutional crisis.  

“In the event of one or more protracted disputes at the state level, the addition of 24 days to the  deadline for determining electors could spare the country a debilitating national political crisis,”  the letter notes. “Otherwise, it may fall to the new Congress (on January 6) to determine the  winner of the electoral votes of one or more states, under the troublingly ambiguous provisions  of the Electoral Count Act of 1887. This could produce a grave national controversy just two  weeks before the inauguration.” 

The group, which includes research, legal, and policy expertise on election administration  across a wide range of institutional affiliations, is specifically asking Congress to back a bill  Senator Marco Rubio introduced on August 6th, which would extend the federal safe harbor  deadline from December 8, 2020 to January 1, 2021, and the Electoral College vote from  December 14 to January 2. 

The experts hope their letter can help generate newfound bipartisan support for the measure,  noting, “the extension of these deadlines would not favor or prejudice either political party,” and  that “as experts who study the election process, the resolution of disputed elections, and similar  matters, we believe Senator Rubio’s bill is good insurance for the integrity of the election and  ought to be adopted.” 

If the letter is successful in spurring enactment of the measure, states would gain valuable time  to resolve any election disputes prior to Inauguration Day.  

The full letter is attached below.  

I broke my usual rule not to sign mass letters for this one. It’s that important.

Posted in electoral college

 

 
“To Get Out the Youth Vote, Start with a Stamp”
Posted on October 1, 2020 1:02 pm by Rick Hasen

The following is a guest post from Charlotte Blatt and Kate Hamilton, J.D. candidates at Yale Law School:

Young voters get a bad rap. In 2018, voters ages 18-29 made up just 13% of the electorate despite comprising 22% of the voting-age population – a poor turnout but an improvement upon prior elections. Yet young people are excited to participate this November. An August NextGen America/Global Strategy Group poll found that 77% of 18 to 35-year-olds from battleground states “definitely will vote” in the election, up from 70% just a month earlier. However, among other challenges sparked by the COVID-19 pandemic, barriers to young voter participation have reached new heights, particularly regarding the increasing reliance on vote-by-mail.

In response to the COVID-19 pandemic, civic participation groups have urged widespread expansion of vote-by-mail, and many states have heeded the call. While vote-by-mail is certainly attractive from a public health perspective, it is no panacea for democracy. Indeed, civil rights groups have warned that overreliance on vote-by-mail could have the effect of “inadvertently disenfranchis[ing]” Black, disabled, elderly and Native American voters. In addition to these recognized possibilities, the unprecedented use of mail ballots also runs the risk of further disenfranchising youth voters by multiplying the impediments young people must overcome to cast a ballot, increasing their chances of casting a “lost” or uncounted ballot.

            Youth voters face significant barriers to voting by mail. Recent polling found that “more than half of voters under the age of 35 say they don’t have the resources or knowledge they need to vote by mail in November,” and there is reason to believe that this resource deficit is unevenly distributed across race, educational attainment, and income. In 2016, young people without college experience were least likely to vote-by-mail, and youth of color without college experience were even less likely to vote-by-mail than their white counterparts. These historical disparities suggest that heavy reliance on mail voting this November will require addressing the hurdles facing young people, particularly young people of color.

Continue reading →

Posted in Uncategorized

 

 

Rick Hasen 

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