[EL] more news and commentary 10/5/20

[Rick Hasen]

“This Will Be a Critical Week for Pandemic Voting Cases at the Supreme Court”<https://electionlawblog.org/?p=116231>
Posted on October 5, 2020 1:05 pm<https://electionlawblog.org/?p=116231> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html> for Slate. It begins:

While the nation’s attention has been focused on the president’s COVID-19 diagnosis and the ensuing questions surrounding that, it’s important to remember there will still be an election in one month. As we reach the four-week mark, the country is closing in on 350 lawsuits<https://healthyelections-case-tracker.stanford.edu/cases> filed related to the 2020 elections and COVID. This is very likely to be the most important week so far for those suits. The Supreme Court is expected to weigh in on cases from Pennsylvania<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\20a53.html> and South Carolina<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a55.html>, and the justices may set limits on what state and federal courts can do to accommodate voters during the pandemic as well as preemptively resolve one key issue should the 2020 elections go into overtime. I’m not optimistic.

The Trump campaign, the Republican Party, and Republican government officials, however, have so far failed<https://www.courtlistener.com/recap/gov.uscourts.nvd.144953/gov.uscourts.nvd.144953.47.0.pdf> in blocking government expansion of voting by mail in places like Nevada. Courts have rejected their evidence-free arguments that such expansion will “dilute” the votes of legitimate voters by injecting fraudulent ballots into the process.

Generally, though, the Republican side may be far more successful in blocking lower court orders sought by Democrats and voting rights groups seeking to expand voting by mail. Although Democrats in particular have crowed about some of their (sometimes partial) victories, things are far from over.

The biggest cases in play this week are already before the Supreme Court on an emergency basis. These Pennsylvania and South Carolina cases illustrate the state of play and the kinds of arguments Republicans are making throughout the country to try to make voting by mail harder and thereby shrink turnout in an apparent attempt to benefit Republicans.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Ohio counties can offer expanded ballot collection options, but only at a single site, Secretary of State Frank LaRose says”<https://electionlawblog.org/?p=116229>
Posted on October 5, 2020 11:13 am<https://electionlawblog.org/?p=116229> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com <https://www.cleveland.com/open/2020/10/ohio-counties-can-set-up-multiple-ballot-drop-off-sites-secretary-of-state-frank-larose-says.html> on LaRose splitting the baby:

Ohio counties will be allowed to offer extra options to collect completed absentee ballots, but still only at a single site per county, Ohio Secretary of State Frank LaRose said Monday.

LaRose said counties can set up additional drop boxes for completed ballots, as well as drive-through drop-off stations staffed by bipartisan teams of elections workers. But these additional options must be at or outside the county board of elections office, LaRose said in a directive to local elections officials on Monday<https://www.ohiosos.gov/globalassets/elections/directives/2020/dir2020-22.pdf>.

LaRose’s extra guidance comes shortly before a 12 p.m. deadline set by a federal judge overseeing a federal lawsuit over ballot drop boxes<https://www.cleveland.com/politics/2020/10/federal-judge-wants-ohio-secretary-of-state-frank-larose-to-explain-why-he-allowed-just-one-extra-collection-site-in-cuyahoga-county.html>. U.S. District Judge Dan Polster had given LaRose until then to explain why he wouldn’t permit Cuyahoga County elections officials to move forward with a plan that sought to sidestep an Aug. 11 order from LaRose that set a limit of one ballot drop box per county. LaRose, a Republican, is the state’s top elections official.

It’s possible LaRose’s order, issued as a directive to county elections offices on Monday, isn’t the final word on the issue, since lawsuits over drop boxes are ongoing. Voting-rights activists, the lawsuit Polster is overseeing, are seeking to force LaRose to allow counties to set up additional secure drop boxes for completed absentee ballots at additional off-site locations.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


FEC Chair Trey Trainor Spews Conspiracy Theories About Vote by Mail in National Review Article<https://electionlawblog.org/?p=116227>
Posted on October 5, 2020 11:03 am<https://electionlawblog.org/?p=116227> by Rick Hasen<https://electionlawblog.org/?author=3>

He’s off <https://www.nationalreview.com/2020/10/vote-by-mail-the-unintended-consequences/> to a terrible start.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s New Supreme Court Is Coming for the Next Dozen Elections”<https://electionlawblog.org/?p=116225>
Posted on October 5, 2020 10:54 am<https://electionlawblog.org/?p=116225> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html> for New York. It begins:

When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats<https://nymag.com/intelligencer/2020/09/how-democrats-should-handle-amy-coney-barretts-hearings.html> will pepper her with questions about whether she would recuse herself<https://www.politico.com/news/2020/09/29/amy-coney-barrett-recuse-election-cases-423248?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318> in any Trump v. Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it wouldmean in the long run for voting and election cases to have a sixth conservative justiceon the Supreme Court.

In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said<https://www.cnn.com/2020/10/02/politics/arizona-voting-rights-law-supreme-court/index.html> on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans….

We don’t know much yet about Barrett’s views in voting cases since she joined the bench in 2017. Her writings in this area are scant. She wrote an unremarkable opinion<https://law.justia.com/cases/federal/appellate-courts/ca7/18-2979/18-2979-2019-06-05.html> in a ballot-access case (joined by a Democratic colleague) rejecting<http://ballot-access.org/2020/09/26/judge-amy-coney-barrett-ruled-unfavorably-in-ballot-access-case/> a minor-party candidate’s attempt to get on the ballot. She has not weighed in<https://www.ifs.org/blog/cases-judge-coney-barrett-expand-free-speech-protections/> as a judge in a campaign-finance case. In a law-review article<https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4734&context=ndlr>, she pointed to Justice Scalia’s willingness to abide by some precedent he thought was wrong giving Congress stronger power to combat racial discrimination in the Voting Rights Act. By all indications, Barrett is a judge who would approach such questions openly and honestly. But she’s also a deeply conservative judge<https://nymag.com/intelligencer/2020/09/amy-coney-barrett-antonin-scalia.html> who is, like Scalia, committed to principles of originalism and textualism, so she’s likely to side with other conservatives as these issues come to the Court — on everything from gerrymandering to restrictive voting laws to money in politics. I made the same point about Justices Gorsuch<https://electionlawblog.org/?p=91762> and Kavanaugh<https://theintercept.com/2018/07/12/brett-kavanaugh-supreme-court-donor-disclosure/> being reliable conservative votes in these cases before they joined the Court, and the predictions turned out to be correct.

The Court could perhaps soon reverse its decision in the 2015 Arizona case, which would reempower politicians to draw their own congressional districts even if voters want nonpartisan redistricting commissions to do it. Roberts wrote a bitter dissent for conservative justices in this case, and if the Court is willing to revisit recent precedent, he almost certainly would have a majority on this issue.

On Friday, the Court said that next year it would take up another case from Arizona that concerns the Voting Rights Act. An appeals court held that the state engaged in intentionally discriminatory conduct against minority voters by limiting the ability to collect absentee ballots, which were a tool, especially on Native American reservations, to get out the vote. A finding of intentional discrimination would open up Arizona to further federal oversight of its elections under the Voting Rights Act, and my sense is that the Court took the case to reverse the appeals court’s holding….

The Court could also make things much worse when it comes to campaign financing.Senator Mitch McConnell and others have already been pushing cases that would allow individuals and corporations to make unlimited campaign contributions directly to candidates. And some justices believe that those making contributions or expenditures in campaigns have a constitutional right to total anonymity from the public. This would make our political system much more prone to corruption, deprive voters of valuable information, and let the rich have even greater influence over election officials than they do now.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“Welcome to Lammville”: Deep Dive into the Bloomingburg Election Fraud Scandal<https://electionlawblog.org/?p=116223>
Posted on October 5, 2020 10:50 am<https://electionlawblog.org/?p=116223> by Rick Hasen<https://electionlawblog.org/?author=3>

Can’t wait to dive into this Britta Lokting<https://jewishcurrents.org/author/brittalokting/> and Sam Adler-Bell<https://jewishcurrents.org/coauthor?id=91> piece in Jewish Currents<https://jewishcurrents.org/welcome-to-lammville/>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Fortier and Ornstein: How Faithless Elector Laws and COVID-19 Could Undermine Our Presidential Election<https://electionlawblog.org/?p=116221>
Posted on October 5, 2020 10:41 am<https://electionlawblog.org/?p=116221> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from John Fortier<https://bipartisanpolicy.org/person/john-c-fortier/> and Norm Ornstein<https://www.aei.org/profile/norman-j-ornstein/>:

After 9/11, in the course of our work on continuity of government, we wrote a piece in the Election Law Journa<https://www.liebertpub.com/doi/abs/10.1089/elj.2004.3.597>l, “If Terrorists Attacked our Presidential Election.”  A grim subject, of course, but the purpose was to think through the electoral timeline from primaries to Inauguration Day, how terrorist attacks leading to the death of the candidates might disrupt our electoral system–and what legal and constitutional tools we have to recover.

The dangers of disruption, of course, are not just from terrorists. In recent days, we have both been asked these same sorts of questions about the pandemic, especially with the President’s positive test and hospitalization. In particular, what would happen if the Covid illness of the President were severe enough that he chose  to withdraw from the presidential race (or what if he or another candidate were to die before the election.)  How would a replacement be selected?  Could the ballots be changed?  What would happen to the ballots already cast for the withdrawn candidate?

We wrestled with these questions in our ELJ piece, and the answers have held up pretty well. We said that political parties could select a replacement nominee and that the unlikelihood of changing the ballot at this late date would not disrupt the election because, in a presidential race, the people are really not voting for the nominees Biden or Trump, but are electing presidential electors for the electoral college, and that these slates of electors, loyal to their party, could cast their ballots for a replacement candidate who did not appear on the ballot.

But one thing has changed in recent years that makes replacing a presidential candidate more difficult.  Thirteen states have passed laws intended to ensure that presidential electors vote “faithfully,” that is, when they meet on December 14th to cast their votes in the electoral college, they vote the way their state voted on the November ballot (2 other states’ laws are understood to have given their secretary of state the power to enforce faithful elector pledges<https://www.fairvote.org/faithless_elector_state_laws>).

These recent “faithless elector” laws are not the garden variety pledges that bind electors without any penalty or impose a small fine for electors who stray from their pledges.  They have real teeth.  The laws call for electors who vote “faithlessly” for another candidate to be removed immediately and replaced by an alternate elector who can then vote the correct way (Note that only North Carolina had a law like this when we wrote in 2004; fourteen other states have adopted this procedure, by law or direction, since).   In 2016, these laws kicked in, with one prominent example in Colorado where an elector pledged to Hillary Clinton voted for John Kasich, but was immediately replaced by an alternate elector who then voted faithfully for Hillary Clinton.

This summer the Supreme Court upheld these faithless electors laws, but did send a warning in a footnote that the issue of a dead candidate was problematic.  The Court surmised that states might not enforce these provisions in the case of a deceased candidate, all but urged states to enact an exception for deceased candidates (an exception that a few states do have) and noted that the Court had not ruled on the constitutionality of a pledge that binds electors to a deceased candidate.

So how could these faithless elector laws undermine the replacement of a withdrawn or deceased candidate? Let’s say that President Trump withdraws from the ticket sometime in October.  The Republican National Committee could convene and select a replacement ticket of, say, Pence-Rubio.  But Trump-Pence would remain on the election day ballot.  If Republicans prevailed in the election, they would face uncertainty as to what would happen on December 14th when the presidential electors meet.

 What if some electors voted for Mike Pence as President and others under the inflexible faithless elector provisions were forced to vote for the withdrawn or deceased Trump?  Democratic won states, of course would vote for Joe Biden. But no candidate would garner the required 270 EVs for a majority. This three way, no majority scenario would lead to a vote of the House of Representatives who would select a president (with voting by state delegation). It would be the new House, on January 6; currently, Republicans have majorities in 26 state delegations, but that, of course, could change. If no candidate got to 26, the new Senate, voting as individuals, would choose a Vice President who could serve as acting president when sworn in on January 20.

Another plausible scenario would be that Republican electors and those that replace them would simply refuse to vote for Donald Trump and that no slate of electors comes out of the official vote.  Perhaps a Republican controlled legislature would appoint a slate of electors directly for the Pence-Rubio ticket or perhaps multiple actors step in and appoint alternative slates, ultimately leaving Congress to resolve the very difficult situation of multiple slates of electors.

The uncertainty would extend to Congress counting the vote.  We have examples where Congress refused to count electors’ votes cast for deceased candidates.  In the case of losing presidential candidate Horace Greeley, who died before the electors met in the election of 1872, Congress refused to count the votes of three electors.  Here Congress could refuse to count the votes for Trump, again perhaps leading to a situation where no candidate would have a majority and an election by the House of Representatives.  Less likely, Congress might find a way to throw out entire slates of electors as not regularly given, which could lead to a reduction in the total number of electors cast and perhaps an electoral college majority for the losing candidates, in this case the Biden-Harris slate.  And again, perhaps Congress would get stuck in a deadlock over multiple slates of electors, unable to move because of divided government between the House and Senate.

All of these scenarios are unlikely if cooler heads prevail, but they might give a political party pause before attempting to select replacement candidates.  The uncertainty of what might happen makes the simple process of selecting replacements and instructing the electors to vote for the replacements less of a slam dunk.

Clarity in advance would make a big difference.  In the longer term, states should consider exceptions in their laws which would not force electors to vote for replaced or deceased candidates.  In the short term, states with laws without exceptions could indicate that they do not plan to enforce them in the case of a replacement ticket.  Without this kind of certainty, we will have added one more category of election meltdown to the already too long list.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>


“UCI Podcast: What could cause an election meltdown?”<https://electionlawblog.org/?p=116219>
Posted on October 5, 2020 10:33 am<https://electionlawblog.org/?p=116219> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen here.<https://news.uci.edu/2020/10/05/uci-podcast-what-could-cause-an-election-meltdown/>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Think the Constitution lets voters pick the president? Better read it again.”<https://electionlawblog.org/?p=116217>
Posted on October 5, 2020 10:32 am<https://electionlawblog.org/?p=116217> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley WaPo oped:<https://www.washingtonpost.com/opinions/2020/10/05/think-constitution-lets-voters-pick-president-better-read-it-again/>

In other words, although voters might be under the impression that they get to choose the president, in fact, the Constitution does not mandate that role. Ordinary voters have a say in the process only as a matter of legislative grace within each state, not as a consequence of constitutional protection.

In an age of political hardball and rampant political gerrymandering, there are at least three ways in which partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


PA Quote of the Day<https://electionlawblog.org/?p=116213>
Posted on October 5, 2020 8:34 am<https://electionlawblog.org/?p=116213> by Richard Pildes<https://electionlawblog.org/?author=7>

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

“If state leaders want to run the risk of negative national news coverage during a presidential election in a battleground state with the anticipated high turnout, then they should do nothing,” Jeff Snyder, a Republican county commissioner in central Pennsylvania’s Clinton County, said Thursday. “The General Assembly must give counties additional time before Election Day to begin the time consuming manual work” of preparing ballots to be counted.”

This is the issue Ned Foley, Michael Morley, and I discussed last week on PA law and the 2020 election, in front of a PA audience. In my view, this is the most troubling issue for the election there is still time for lawmakers to fix. Why is the PA legislature not listening to the state’s election administrators about what they need to ensure a smooth election process?

Here is a link to our PC conference, in which much of the discussion dealt with this issue: https://psu.zoom.us/rec/share/sKrsw-RJ6flbplRmrLJlZ2EqoOIyM4XHWBUJyo3a1j_aaVhSwTXFQAukQHNAnSOL.zBfwpt-_r5aRp5KM?startTime=1601413335000
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy”<https://electionlawblog.org/?p=116210>
Posted on October 5, 2020 7:56 am<https://electionlawblog.org/?p=116210> by Rick Hasen<https://electionlawblog.org/?author=3>

Honored that the Boston University Law Review has published this online symposium<http://www.bu.edu/bulawreview/2020/10/05/online-symposium-richard-hasen-election-meltdown/> on my book, Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>:

With the 2020 election now less than one month away, the Boston University Law Review is pleased to present this symposium on Richard L. Hasen’s recent book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy<https://yalebooks.yale.edu/book/9780300248197/election-meltdown>.

The eight contributors to this symposium surely have their disagreements including on fundamental questions about the likelihood of an election meltdown this November and about the most troubling drivers of a meltdown, or a broader democratic breakdown, in the short term and long term. But they all agree on at least one thing: they, like us, share a commitment to America’s experiment with democracy as a project that is both worth cherishing and defending and that we have to work at together. American democracy won’t magically maintain itself. We thank them for that commitment and their contributions to that shared project in this symposium and the rest of their scholarship.


Atiba R. Ellis, Bug or Feature: The Long-Intertwined Legacy of Disinformation, Race, and Voting, 100 B.U. L. Rev. Online 238 (2020)<http://www.bu.edu/bulawreview/2020/10/05/bug-or-feature-the-long-intertwined-legacy-of-disinformation-race-and-voting/>

Ellen D. Katz, Eight Months Later, 100 B.U. L. Rev. Online 243 (2020)<http://www.bu.edu/bulawreview/2020/10/05/eight-months-later/>

Anthony J. Gaughan, American Democracy Is Healthier than It Appears, 100 B.U. L. Rev. Online 249 (2020)<http://www.bu.edu/bulawreview/2020/10/05/american-democracy-is-healthier-than-it-appears/>

Lisa Marshall Manheim, Cracks in the Foundation, 100 B.U. L. Rev. Online 268 (2020)<http://www.bu.edu/bulawreview/2020/10/05/cracks-in-the-foundation/>

Lorraine C. Minnite, Putting a Band-aid on a Gunshot Wound, 100 B.U. L. Rev. Online 273 (2020)<http://www.bu.edu/bulawreview/2020/10/05/putting-a-band-aid-on-a-gunshot-wound/>

Derek T. Muller, Governing Elections Without Law, 100 B.U. L. Rev. Online 278 (2020)<http://www.bu.edu/bulawreview/2020/10/05/governing-elections-without-law/>

Eugene D. Mazo, Voting During a Pandemic, 100 B.U. L. Rev. Online 283 (2020)<http://www.bu.edu/bulawreview/2020/10/05/voting-during-a-pandemic/>

Richard L. Hasen, Optimism and Despair About a 2020 “Election Meltdown” and Beyond, 100 B.U. L. Rev. Online 298 (2020)<http://www.bu.edu/bulawreview/2020/10/05/optimism-and-despair-about-a-2020-election-meltdown-and-beyond/>
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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>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>


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