[EL] ELB News and Commentary 10/5/20

[Rick Hasen]

“Russians ‘Have Committed’ to Not Interfering in Elections, Trump Aide Insists”<https://electionlawblog.org/?p=116208>
Posted on October 5, 2020 7:38 am<https://electionlawblog.org/?p=116208> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/04/us/politics/russia-election-interference.html>

President Trump’s national security adviser said on Sunday that he had warned his Russian counterpart last week that “there would be absolutely no tolerance for any interference” in the November election, but did not mention that American intelligence officials and a range of private firms had said they already saw evidence of Russian influence operations.

The adviser, Robert C. O’Brien, said on CBS’s “Face the Nation” that he had delivered the warning during a meeting in Geneva on Friday with Nikolai Patrushev, the secretary of Russia’s Security Council. Mr. O’Brien did not disclose what else was discussed, but the meeting comes as the administration is racing a deadline to decide whether to extend the New START nuclear arms control treaty and as it faces pressure to act against Moscow after the poisoning of Aleksei Navalny<https://www.nytimes.com/2020/10/01/world/europe/navalny-poisoning-putin.html>, the Russian opposition leader.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“College students upended by the pandemic wrestle with yet another challenge: How to vote this fall?”<https://electionlawblog.org/?p=116206>
Posted on October 5, 2020 7:36 am<https://electionlawblog.org/?p=116206> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/college-student-vote-coronavirus/2020/10/05/e725a744-fde5-11ea-8d05-9beaaa91c71f_story.html>

There are signs that younger Americans, who have historically turned out at the polls at lower rates than older voters, are more energized about voting this November than they have been in decades. Yet the pandemic has created thorny challenges for college students trying to cast their ballots this year — and their predicaments are growing more dire as state voter registration deadlines loom.

Some schools that initially reopened this fall have already sent students home after struggling to contain soaring infection rates, creating complications for those who were planning to vote at or near campus. Other schools may follow suit at any given point this fall, leaving students unsure about the best address to use to register to vote.

Many colleges and universities that are still open canceled their fall breaks in an effort to send students home by Thanksgiving, which means some students who had planned on voting early at home in October no longer will have time off to do so.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump has put Philly on the front lines of his attack on voting”<https://electionlawblog.org/?p=116204>
Posted on October 5, 2020 7:33 am<https://electionlawblog.org/?p=116204> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer:<https://www.inquirer.com/politics/election/trump-philadelphia-pennsylvania-voting-20201003.html#loaded>

The first line of the Republican lawsuit makes clear its motivations: “Bad things are happening in Philadelphia.” That’s not a legal argument, and it’s unlikely to sway a judge in Philadelphia’s Court of Common Pleas.

But that’s not the point.

The lawsuit filed late Thursday<https://www.inquirer.com/politics/election/trump-philadelphia-mail-in-ballots-offices-lawsuit-20201001.html> on behalf of President Donald Trump’s reelection campaign, with language echoing his dig at Philadelphia during Tuesday’s debate<https://www.inquirer.com/politics/election/trump-poll-watchers-philadelphia-early-voting-20200929.html>, is the latest effort in a political operation to shape a false narrative that the results of the Nov. 3 election can’t be trusted. Especially if they hinge on Pennsylvania, a critical swing state<https://www.inquirer.com/politics/election/pennsylvania-2020-presidential-election-trump-biden-20200908.html> that could determine the outcome<https://fivethirtyeight.com/features/why-pennsylvania-could-decide-the-2020-election/>.

Trump’s attacks on the election in Philadelphia and Pennsylvania now encompass all methods of voting — and how those votes are counted.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“What Happens If A Presidential Candidate Dies Near The Election? The Supreme Court Predicted “Turmoil” And Had No Answers.”<https://electionlawblog.org/?p=116202>
Posted on October 5, 2020 7:27 am<https://electionlawblog.org/?p=116202> by Rick Hasen<https://electionlawblog.org/?author=3>

Zoe Tillman<https://www.buzzfeednews.com/article/zoetillman/what-happens-if-candidate-dies-election-trump-hospital> for Buzzfeed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Will the Popular Vote Decide the Electoral College in 2024?”<https://electionlawblog.org/?p=116200>
Posted on October 5, 2020 7:19 am<https://electionlawblog.org/?p=116200> by Rick Hasen<https://electionlawblog.org/?author=3>

John Koza on the Open Mind podcast.<https://open.spotify.com/episode/6es9xrRVl2GWSyolh7Ve9L>
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Pennsylvania’s voter services website went down over the weekend as deadlines for mail ballots loom”<https://electionlawblog.org/?p=116198>
Posted on October 4, 2020 9:04 pm<https://electionlawblog.org/?p=116198> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer<https://www.inquirer.com/politics/election/pennsylvania-voter-services-website-down-outage-mail-in-ballot-november-2020-election-20201004.html>:

Pennsylvania’s online system for registering to vote and applying for and tracking mail ballots crashed over the weekend, triggering an outage that stretched for more than 24 hours and prompted frustration from voters weeks before critical election deadlines.

As of Sunday night, the state’s voter services website, pavoterservices.pa.gov<http://pavoterservices.pa.gov/>, was still down. State officials said they were working to resolve the issue, which they blamed on an equipment failure at a data center run by an outside contractor. They did not believe any data had been lost or that malicious physical or cyber activity was behind the outage.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“How Likely is Election Doomsday? Election law experts have some reassuring, and not so reassuring, assessments for us: ‘It’s reasonable to worry about low-probability, high-loss events.'”<https://electionlawblog.org/?p=116196>
Posted on October 4, 2020 8:58 pm<https://electionlawblog.org/?p=116196> by Rick Hasen<https://electionlawblog.org/?author=3>

Lisa Lerer<https://www.nytimes.com/2020/10/01/us/politics/election-doomsday-scenarios.html?searchResultPosition=3> for the NYT.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Funding for and Against Graduated State-Income Tax in IL<https://electionlawblog.org/?p=116192>
Posted on October 4, 2020 4:19 pm<https://electionlawblog.org/?p=116192> by Richard Pildes<https://electionlawblog.org/?author=7>

Governor Pritzker of Illinois has been pushing a ballot measure that would change the state from a flat-rate income tax to a graduated one. The Governor, heir to the Hyatt Hotel fortune, has contributed an eye-opening $56.5 million to the Yes campaign. Not to be outdone, Ken Griffin, founder of Chicago-based Citadel hedge fund, has contributed $46.75 million to the No campaign. Today’s form of political equality.

The Chicago Tribune has the details.<https://www.chicagotribune.com/politics/ct-illinois-graduated-income-tax-amendment-ken-griffin-20201003-2ceosgmgxncljavbi2ylvjcofq-story.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Cybersecurity 202: A fight over how Georgia votes comes to a head just weeks before Election Day”<https://electionlawblog.org/?p=116193>
Posted on October 4, 2020 4:13 pm<https://electionlawblog.org/?p=116193> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2020/10/02/cybersecurity-202-fight-over-how-georgia-votes-comes-head-just-weeks-before-election-day/>

A federal judge could rule as early as today in a legal fight that might upend how Georgia runs November’s election.

The dispute centers on a last-minute software update that Georgia officials ordered on voting machines across the state. The update was prompted by a technical glitch that in some cases hid the names of some candidates in a 21-candidate special election for the U.S. Senate.

Plaintiffs in a long-running legal case say the last-minute change could create new hacking vulnerabilities – and argue there’s not enough time to test for other bugs that will make the machines malfunction during voting. They’re asking a judge to order the state to replace the machines with hand-marked paper ballots, which experts say are the most secure option and dramatically lower the chance of technical foul-ups.

The pressure’s on with less than two weeks before early in-person voting begins in Georgia and just over a month until Election Day. “Having an election that, at the end of the day, everyone can say this was the safest, most reliable option — that should be what we all want,” David Cross, an attorney with Morrison & Foerster who’s representing the Georgia voters who brought the case, told me. “Not going into an election with entirely new software that was written over a weekend.”

Marilyn Marks thread starts here:<https://twitter.com/MarilynRMarks1/status/1312486069506469890>
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“7 high-ranking whistleblowers allege criminal violations against Texas Attorney General Ken Paxton”<https://electionlawblog.org/?p=116190>
Posted on October 4, 2020 3:54 pm<https://electionlawblog.org/?p=116190> by Rick Hasen<https://electionlawblog.org/?author=3>

KVUE<https://www.kvue.com/article/news/politics/texas-attorney-general-ken-paxton-federal-complaint-alleged-bribery-abuse-of-office/269-e5c1d64c-f1af-45ee-87ad-cd2b16f43a4f>:

A group of top aides for Texas Attorney General Ken Paxton <https://www.texasattorneygeneral.gov/about-office> is asking federal law enforcement to investigate their boss, the state’s top lawyer, for possible crimes that include bribery and abuse of office, KVUE News and the Austin American-Statesman <https://www.statesman.com/> have learned.

A letter sent to the agency’s human resources director said the executives have provided statements to law enforcement about actions they believe Paxton committed “in his official capacity as the current Attorney General of Texas.”

This is the same AG who has been working as hard as he can to make it hard for people who lack immunity from a deadly pandemic to be able to vote by mail.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“What if Trump Can’t Run? Many Steps Are Clear, but Some Are Not”<https://electionlawblog.org/?p=116188>
Posted on October 4, 2020 3:36 pm<https://electionlawblog.org/?p=116188> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/10/02/us/politics/trump-succession-constitution.html?searchResultPosition=2>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“What happens if a president or nominee dies or is incapacitated? Around elections, it gets thorny”<https://electionlawblog.org/?p=116186>
Posted on October 4, 2020 3:28 pm<https://electionlawblog.org/?p=116186> by Rick Hasen<https://electionlawblog.org/?author=3>

Politifact reports.<https://www.politifact.com/article/2020/oct/02/what-happens-if-president-or-nominee-dies-or-incap/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Supreme Court begins 2020 term as a key election issue: Will it decide the election, too?”<https://electionlawblog.org/?p=116184>
Posted on October 4, 2020 3:26 pm<https://electionlawblog.org/?p=116184> by Rick Hasen<https://electionlawblog.org/?author=3>

Richard Wolf<https://www.usatoday.com/story/news/politics/2020/10/04/after-ginsburg-supreme-court-begins-2020-term-conservative-shift/3566539001/> for USA Today.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Case preview: Justices to consider Delaware rules on bipartisanship in judiciary”<https://electionlawblog.org/?p=116182>
Posted on October 4, 2020 3:22 pm<https://electionlawblog.org/?p=116182> by Rick Hasen<https://electionlawblog.org/?author=3>

Amy Howe<https://www.scotusblog.com/2020/10/case-preview-justices-to-consider-delaware-rules-on-bipartisanship-in-judiciary/> for SCOTUSBlog:

The justices start their new term on Monday, at a time when the Supreme Court is at the center of a bitter battle over President Donald Trump’s nominee to succeed Justice Ruth Bader Ginsburg, who died last month at the age of 87. If Judge Amy Coney Barrett is confirmed, it could cement a decisive conservative majority on the court for decades to come. With the ideological balance on the Supreme Court very much at the forefront of many people’s minds, it is perhaps fitting that in their first oral argument of the term the justices will consider whether a provision in the Delaware constitution that seeks to ensure bipartisanship in the state’s courts violates the U.S. Constitution.

Under the Delaware constitution, judges are appointed by the governor for 12-year terms and must be confirmed by a majority of the state senate. The state’s constitution also imposes additional limitations on the governor’s appointments. One section, known as the “bare majority” provision, directs that no more than a bare majority of the judges on the state’s five main courts can be affiliated with any one political party. Another section, known as the “major party” provision, applies to the three courts known as the “business” courts: the Delaware Supreme Court, the Court of Chancery and the Superior Court. It divides the seats on those courts between the two major political parties – currently the Democratic Party and the Republican Party.

The case before the U.S. Supreme Court on Monday, Carney v. Adams<https://www.scotusblog.com/case-files/cases/carney-v-adams/>, was filed by John Adams, who became a lawyer in 2000. A registered Democrat, Adams worked as a family-law lawyer in the Delaware Department of Justice from 2003 to 20015. Adams changed his party affiliation in 2017 to Independent and decided that he wanted to serve as a judge, but he believed that he would not be able to apply for any future vacancies on the business courts because he wasn’t a Democrat or a Republican. Adams went to federal court in Delaware, where he argued that the “bare majority” and “major party” provisions violate the First Amendment to the U.S. Constitution by limiting a judicial candidate’s freedom to associate with the political party of his choice.
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Posted in judicial elections<https://electionlawblog.org/?cat=19>, Supreme Court<https://electionlawblog.org/?cat=29>


“Op-Ed: Why Judge Barrett’s legal philosophy is deeply antidemocratic”<https://electionlawblog.org/?p=116180>
Posted on October 4, 2020 3:16 pm<https://electionlawblog.org/?p=116180> by Rick Hasen<https://electionlawblog.org/?author=3>

Victoria Nourse LAT oped<https://www.latimes.com/opinion/story/2020-10-04/amy-coney-barrett-supreme-court-textualism> hits the nail on the head about textualism:

Many think that the appointment of Judge Amy Coney Barrett to the Supreme Court will jeopardize the Affordable Care Act and abortion rights. But the reach of her antidemocratic judicial philosophy will go beyond those issues to put every federal law that conservatives oppose in danger.

Barrett, who has been on the federal bench for less than three years, is a conservative star because of her writings supporting the theory advocated by the late Justice Antonin Scalia known as “textualism.” This judicial philosophy is fundamentally at war with democracy. It would allow the court to rip apart laws that voters need and want.
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Posted in statutory interpretation<https://electionlawblog.org/?cat=21>, Supreme Court<https://electionlawblog.org/?cat=29>


“AP EXPLAINS: What happens if a candidate for president dies?”<https://electionlawblog.org/?p=116178>
Posted on October 4, 2020 3:04 pm<https://electionlawblog.org/?p=116178> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports<https://apnews.com/article/election-2020-donald-trump-constitutions-elections-us-supreme-court-91ce484b8046e6a555e172f42c4441f9>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Column: Trump’s war on election integrity follows a racist playbook used in 1980s Orange County”<https://electionlawblog.org/?p=116176>
Posted on October 4, 2020 2:56 pm<https://electionlawblog.org/?p=116176> by Rick Hasen<https://electionlawblog.org/?author=3>

Gustavo Arellano<https://www.latimes.com/california/story/2020-10-01/donald-trump-poll-watchers-curt-pringle-poll-guards> LA Times column.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


North Carolina: “Federal judge temporarily blocks Board of Elections settlement decided Friday”<https://electionlawblog.org/?p=116173>
Posted on October 4, 2020 10:50 am<https://electionlawblog.org/?p=116173> by Rick Hasen<https://electionlawblog.org/?author=3>

News and Observer:<https://www.newsobserver.com/article246197280.html>

A federal judge placed a temporary restraining order Saturday on the NC Board of Elections settlement that came out of Wake County Superior Court Friday and changed state election laws ahead of the Nov. 3 election.

Attorneys representing House Speaker Tim Moore and Senate President Pro-Tem Phil Berger, North Carolina’s top Republicans, argued to Judge James Dever Friday night that the settlement violated the Elections Clause of the U.S. Constitution, which gives state legislatures the authority to set election rules. They added that the settlement is inconsistent with state law.

Wake County Superior Court Judge Bryan Collins ruled Friday afternoon that a settlement between the Board of Elections and a political group of retirees was fair and not a product of collusion between Democratic board members and the plaintiffs.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Pete Buttigieg Recommends “Election Meltdown” in Interview with the Guardian<https://electionlawblog.org/?p=116170>
Posted on October 4, 2020 10:45 am<https://electionlawblog.org/?p=116170> by Rick Hasen<https://electionlawblog.org/?author=3>

A Guardian piece on Mayor Pete’s own writings asks him what he’s reading. He says this<https://www.theguardian.com/us-news/2020/oct/04/pete-buttigieg-writing-books-trust-america>:

Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199> – Rick Hasen

“Rick Hasen’s book is extremely timely, because we have a lot of concerns about what’s going to happen in this election. There are a lot of specific problems and I think he’s got a handle on what those issues are and how to stay ahead of them.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Justice Department must release redacted portions of Mueller report dealing with criminal charges before Election Day, judge rules”<https://electionlawblog.org/?p=116168>
Posted on October 4, 2020 10:39 am<https://electionlawblog.org/?p=116168> by Rick Hasen<https://electionlawblog.org/?author=3>

Business Insider:<https://www.yahoo.com/news/justice-department-must-release-redacted-065514501.html>

The US Department of Justice improperly censored portions of the Mueller report dealing with potential criminal charges and Russia’s hacking of the Democratic National Committee, a federal judge ruled Wednesday.

In response to a complaint brought by BuzzFeed reporter Jason Leopold<https://www.buzzfeednews.com/article/jasonleopold/judge-orders-more-mueller-report-unredacted?bftwnews&utm_term=4ldqpgc#4ldqpgcqpgc>, US District Judge Reggie Walton ruled that Attorney General William Barr’s department must release the redacted segments — including portions related to the 2016 Trump campaign’s interest in DNC emails stolen by Russia — by November 2, a day before the US election.

According to BuzzFeed, the ruling means the Justice Department “will be obliged to unveil at least 15 previously blacked-out pages from volume one of special counsel Robert Mueller’s 448-page report” on Russian electoral interference.

In March 2020, the same judge, appointed to the bench by former President George W. Bush, chastised Attorney General Barr<https://www.nytimes.com/2020/03/05/us/politics/mueller-report-barr-judge-walton.html> for having issued a “distorted” and “misleading” summary of the Mueller report.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Running out of time’: Efforts to speed up counting mail ballots stall in battleground states”<https://electionlawblog.org/?p=116166>
Posted on October 4, 2020 10:25 am<https://electionlawblog.org/?p=116166> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today:<https://www.jsonline.com/story/news/politics/elections/2020/10/04/mail-ballots-efforts-stall-speed-up-counting-battleground-states/5879074002/>

Battleground states that could decide the presidential election face a shrinking window to take action to allow the processing of absentee ballots before Election Day to cut down on the days or even weeks it could take to have final results.

But in Wisconsin and Pennsylvania, two key swing states, efforts have stalled in Republican-controlled state legislatures. And in a third crucial state, Michigan, a push to begin the counting process several days before the election is dead. Lawmakers there instead chose to give election officials just a 10-hour head-start.

It means that outcomes in the three Rust Belt states could remain in doubt long after polls close Nov. 3, the result of a unprecedented high volume of mail-in ballots expected amid the coronavirus.

And because of the critical importance of these three states – President Donald Trump narrowly won each in 2016, but polling shows Democratic Joe Biden ahead in all three – the outcome of the entire presidential election is likely to be on hold as well.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“Wisconsin Supreme Court to weigh in on ruling affecting absentee ballot case”<https://electionlawblog.org/?p=116164>
Posted on October 4, 2020 10:23 am<https://electionlawblog.org/?p=116164> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/10/02/voting-mail-wisconsin-gop-appeals-supreme-court-ballots-case/5894495002/>

The Wisconsin Supreme Court agreed to clarify one of its rulings late Friday as federal appeals judges weigh how to handle absentee ballots this fall.

The development improved fortunes for Republican lawmakers after a series of recent legal setbacks. They are eager to hear from the state’s conservative-led high court after losses before the three federal judges, all of whom were nominated by Republican presidents.

The state’s high court will have to act quickly because of the fast-approaching Nov. 3 election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Turns Out There Were No Ballots in the Mail Found in a Ditch in Wisconsin<https://electionlawblog.org/?p=116162>
Posted on October 4, 2020 10:21 am<https://electionlawblog.org/?p=116162> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal Sentinel.<https://www.jsonline.com/story/news/politics/elections/2020/10/01/mail-found-greenville-ditch-did-not-include-any-wisconsin-ballots/5883960002/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Arizona: “Groups ask court to extend voter registration deadline”<https://electionlawblog.org/?p=116160>
Posted on October 4, 2020 10:19 am<https://electionlawblog.org/?p=116160> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona Capitol Times:<https://azcapitoltimes.com/news/2020/10/01/groups-ask-court-to-extend-voter-registration-deadline/>

Saying the pandemic interfered with the process, two groups want more time to sign up voters for this election.

Legal papers filed in U.S. District Court in Phoenix claim the current deadline of October 5 to register does not work this year. That complies with the requirement in Arizona law to close the process 29 days before the general election.

So Mi Familia Vota and the Arizona Coalition for Change are asking U.S. District Court Judge Steven Logan to set the registration deadline no later than October 27. That is just a week ahead of the vote.

The move could draw opposition from Secretary of State Katie Hobbs, if for no other reason than the idea of making major changes in the system so close to the election.

Attorney Zoe Salzman said her clients recognize that. But she said there is ample evidence that the unique conditions this year have put a damper on getting people registered to vote.
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Posted in voter registration<https://electionlawblog.org/?cat=37>


I Was on Slate’s Amicus Podcast with Prof. Carol Anderson Talking to Dahlia Lithwick About Trump’s Covid Diagnosis, and Trump’s Disturbing Debate Comments About Election Integrity<https://electionlawblog.org/?p=116158>
Posted on October 4, 2020 10:05 am<https://electionlawblog.org/?p=116158> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here<https://podcasts.apple.com/us/podcast/testing-the-election/id928790786?i=1000493456813>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116158&title=I%20Was%20on%20Slate%E2%80%99s%20Amicus%20Podcast%20with%20Prof.%20Carol%20Anderson%20Talking%20to%20Dahlia%20Lithwick%20About%20Trump%E2%80%99s%20Covid%20Diagnosis%2C%20and%20Trump%E2%80%99s%20Disturbing%20Debate%20Comments%20About%20Election%20Integrity>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Appeals court says it’s up to Ohio Secretary of State Frank LaRose whether counties can have multiple ballot drop boxes”<https://electionlawblog.org/?p=116156>
Posted on October 4, 2020 9:50 am<https://electionlawblog.org/?p=116156> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com:<https://www.cleveland.com/open/2020/10/appeals-court-says-its-up-to-ohio-secretary-of-state-frank-larose-whether-counties-can-have-multiple-ballot-drop-boxes.html>

Ohio Secretary of State Frank LaRose can legally require counties to offer multiple drop boxes per county for completed absentee ballots, a panel of state appeals judges ruled on Friday.

The trio of judges on the Ohio 10th District Court of Appeals disagreed somewhat on the particulars — but a majority said it was within LaRose’s discretion to allow multiple drop boxes, while overturning a lower court decision from a Franklin County judge that said LaRose was legally required to do so.

Officials in large counties had asked LaRose to allow multiple drop boxes throughout the county to accommodate expected record levels of completed absentee ballots. LaRose, a Republican, had said it was a gray area, and decided to order county elections boards to only offer one drop box outside their office, even though he said he would support a law change allowing multiple drop boxes.

There’s a separate federal case where LaRose might be required to allow counties to use additional drop boxes. Stay tuned.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Sen. Murphy Alleges Trump Administration Cover-up of Pro-Trump Russian Interference in 2020 Election<https://electionlawblog.org/?p=116148>
Posted on October 3, 2020 11:21 am<https://electionlawblog.org/?p=116148> by Richard Pildes<https://electionlawblog.org/?author=7>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In a new ruling, judge says census count must continue through October”<https://electionlawblog.org/?p=116142>
Posted on October 2, 2020 3:32 pm<https://electionlawblog.org/?p=116142> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/social-issues/in-a-new-ruling-judge-says-census-count-must-continue-through-october/2020/10/02/ecd195aa-04bf-11eb-897d-3a6201d6643f_story.html>

A federal judge has ordered that the 2020 Census count continue until Oct. 31, blocking for now the government’s efforts to complete the survey in time to deliver apportionment data to the president by the end of the year.

The ruling late Thursday night by U.S. District Judge Lucy Koh of the Northern District of California follows a tense week in which the government appeared to try to circumvent a preliminary injunction<https://www.washingtonpost.com/local/social-issues/federal-judge-blocks-trump-administration-attempt-to-end-2020-census-early/2020/09/25/775555fc-feaf-11ea-9ceb-061d646d9c67_story.html?itid=lk_inline_manual_4> against ending the count early.

After a surprise announcement Monday that the bureau was moving the end date by just five days, from Sept. 30 to Oct. 5, plaintiffs in the case asked Koh to provide clarification of her earlier order and other sanctions.

Rejecting the government’s argument that the request was “an attempt to radically modify the preliminary injunction,” Koh’s new ruling clarified that the end date for collection must revert to Oct. 31, as the bureau had originally planned.

It also ordered that on Friday, the government must send text messages to all Census Bureau employees notifying them of the Oct. 31 end date, and that Director Steven Dillingham must file a declaration by Monday that “unequivocally confirms Defendants’ ongoing compliance with the Injunction Order and details the steps Defendants have taken to prevent future violations of the Injunction Order.”
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Posted in census litigation<https://electionlawblog.org/?cat=125>


7th Circuit, Which Had Rejected Wisconsin Legislators’ Challenge to Extension of Absentee Postmark Deadline, Now Asks State Supreme Court to Weigh in On the Question<https://electionlawblog.org/?p=116140>
Posted on October 2, 2020 3:02 pm<https://electionlawblog.org/?p=116140> by Rick Hasen<https://electionlawblog.org/?author=3>

ORDER: Having received a petition for reconsideration filed by the State Legislature, the court has decided that it would be appropriate to certify a question of state law to the Supreme Court of Wisconsin under Wis. Stat. §821.01 and Seventh Circuit Rule 52. The court respectfully requests the Supreme Court of Wisconsin to decide whether, under Wis. Stat. §803.09(2m), the State Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws. The court will transmit to the Supreme Court of Wisconsin a copy of the opinion filed on September 29, 2020, which shows how the answer to this question may affect the outcome of the State Legislature’s motion for reconsideration and a stay. Because time is pressing, we anticipate that the litigants will provide the state court with any other necessary documents (beyond those it already has in connection with the State Legislature’s request for an original writ). This court will keep the petition for reconsideration under advisement in the interim, but no later than next Wednesday (October 7). The State Legislature’s request for an administrative stay of the district court’s decision is denied. None of the district court’s orders requires substantive action before October 15, and a final decision in this court will be made at least a week before then.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Eleventh Circuit, on 2-1 Vote, Reverses District Court Order That Would Have Extended Time for Receipt of Absentee Ballots<https://electionlawblog.org/?p=116138>
Posted on October 2, 2020 2:56 pm<https://electionlawblog.org/?p=116138> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find a majority, concurring, and dissenting opinion here.<https://assets.documentcloud.org/documents/7221569/10-2-20-New-Georgia-Project-v-Raffensperger.pdf> The judges broke along the party lines of the president that appointed them.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, court decisions<https://electionlawblog.org/?cat=129>


“Justice Dept., FBI planning for the possibility of Election Day violence, voting disruptions”<https://electionlawblog.org/?p=116136>
Posted on October 2, 2020 1:33 pm<https://electionlawblog.org/?p=116136> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/national-security/fbi-election-poll-watchers/2020/10/02/6d482f48-0414-11eb-a2db-417cddf4816a_story.html?wpmk=1&wpisrc=al_news__alert-politics--alert-national&utm_source=alert&utm_medium=email&utm_campaign=wp_news_alert_revere&location=alert&pwapi_token=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.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.N2tO2RK6DeUuXm3X5JfNYHOHyigpj_hCNLh45NHJCpI>:

Bracing for possible civil unrest on Election Day, the Justice Department is planning to station officials in a command center at FBI headquarters to coordinate the federal response to any disturbances or other problems with voting that may arise across the country, officials familiar with the matter said.

Though the Justice Department monitors elections every year to ensure voters can cast their ballots, officials’ concerns are more acute this year that toxic politics, combined with the potential uncertainty surrounding vote tallies, could lead to violent demonstrations or clashes between opposing factions, those familiar with the matter said.

Preparations have been underway in recent weeks to deal with a wide range of possible problems, the officials said. Like others, they spoke on the condition of anonymity to describe internal discussions.

President Trump has declined to say that he will accept the election results, while making exaggerated claims about voter fraud and urging his supporters to “go into the polls and watch very carefully.” The summer was marked by sometimes violent unrest — with people at protests for racial justice periodically clashing with far-right groups — and officials fear the election could spark new rounds of demonstrations.

“The Department of Justice takes election security and integrity seriously, and this year is no exception,” said Kerri Kupec, a Justice Department spokeswoman.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, Election Meltdown<https://electionlawblog.org/?cat=127>


David Gans on the Purcell Principle in Slate<https://electionlawblog.org/?p=116134>
Posted on October 2, 2020 1:29 pm<https://electionlawblog.org/?p=116134> by Rick Hasen<https://electionlawblog.org/?author=3>

David:<https://slate.com/news-and-politics/2020/10/how-john-roberts-made-it-harder-to-vote.html>

In a string of unsigned, unexplained orders this summer, the Supreme Court has repeatedly shown that it will not protect the right to vote during an election year. The court has considered emergency motions in cases challenging voting or ballot access restrictions in Alabama<https://www.supremecourt.gov/orders/courtorders/070220zr_n7io.pdf>, Florida<https://www.supremecourt.gov/opinions/19pdf/19a1071_4h25.pdf>, Idaho<https://www.supremecourt.gov/opinions/19pdf/20a18_f2qg.pdf>, Oregon<https://www.supremecourt.gov/orders/courtorders/081120zr_10n2.pdf>, and Texas<https://www.supremecourt.gov/opinions/19pdf/19a1055_32q3.pdf>. In each case, the court sided with the state, prompting Justice Sonia Sotomayor<https://slate.com/news-and-politics/2020/07/supreme-court-florida-felons-poll-tax.html> to take the court to task for its pattern of repeatedly “condoning disenfranchisement” and “forbid[ding] courts [from] mak[ing] voting safer during a pandemic.” The exception that proves the rule was a case from Rhode Island in which the court refused to disturb a settlement<https://www.supremecourt.gov/orders/courtorders/081320zr_8mjp.pdf> in which the state agreed not to enforce the restriction in question. The upshot is that Purcell has become an inflexible rule that sanctions voter suppression and prevents courts from playing their historic role in protecting constitutional rights.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Ahead of U.S. election, malicious email campaign mimics Democratic pitches for volunteers”<https://electionlawblog.org/?p=116132>
Posted on October 2, 2020 1:22 pm<https://electionlawblog.org/?p=116132> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/idUSKBN26N03J>

Tens of thousands of emails sent on Thursday that asked recipients to volunteer for the Democratic Party ahead of the November U.S. election actually came from email scammers and carry malicious software, according to researchers at cybersecurity firm Proofpoint.

The emails borrow language from the website of the Democratic National Committee and seek to leverage interest in the U.S. presidential election following the first televised debate Tuesday between Republican President Donald Trump and Democratic contender Joe Biden, said Sherrod DeGrippo, senior director of threat research at Proofpoint.

The Word document attached to the spam contains miniature programs known as macros that, if enabled by the recipient, install a password-stealing program known as Emotet, DeGrippo said.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters”<https://electionlawblog.org/?p=116130>
Posted on October 2, 2020 1:20 pm<https://electionlawblog.org/?p=116130> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to reading this new book <https://press.uchicago.edu/ucp/books/book/chicago/C/bo51203857.html> from David Primo and Jeff Milyo.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116130&title=%E2%80%9CCampaign%20Finance%20and%20American%20Democracy%3A%20What%20The%20Public%20Really%20Thinks%20and%20Why%20It%20Matters%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>


“West Virginia mail carrier guilty of election fraud after altering ballot requests to Republican”<https://electionlawblog.org/?p=116128>
Posted on October 2, 2020 1:04 pm<https://electionlawblog.org/?p=116128> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today reports.<https://www.yahoo.com/news/west-virginia-mail-carrier-guilty-104244819.html>
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Andrew Yang, Bill Weld: Why ranked choice voting will improve America’s elections”<https://electionlawblog.org/?p=116126>
Posted on October 2, 2020 12:53 pm<https://electionlawblog.org/?p=116126> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today oped.<https://www.usatoday.com/story/opinion/2020/10/02/why-ranked-choice-voting-improve-american-elections-yang-weld-column/5877731002/>
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


“Electoral Chaos Might Ensue if Biden or Trump Were Forced Out of the Race”<https://electionlawblog.org/?p=116124>
Posted on October 2, 2020 10:28 am<https://electionlawblog.org/?p=116124> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/10/trump-positive-what-happens-if-candidate-incapacitated-or-dies.html> 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<https://www.washingtonpost.com/politics/2020/10/02/were-final-stages-presidential-election-what-happens-if-candidate-withdraws-or-dies/> 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<https://www.politico.com/news/2020/09/27/pelosi-mobilizes-democrats-house-decision-on-presidency-422359> 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.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


--
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>
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