[EL] ELB News and Commentary 10/6/20

Mon Oct 5 21:11:10 PDT 2020

“A key fix for an unthinkable election disaster”<https://electionlawblog.org/?p=116266>
Posted on October 5, 2020 9:07 pm<https://electionlawblog.org/?p=116266> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://www.cnn.com/2020/10/05/opinions/a-key-fix-for-an-unthinkable-election-disaster-hasen/index.html> for CNN Opinion. It begins:

With coronavirus infections raging through the White House and the state of the President’s health unclear, it’s time to face up to an unsettling reality. We need to start thinking about what to do if the disease incapacitates or kills President Donald Trump or his opponent, Joe Biden — or even both of them — between now and January 6, 2021, when Congress meets to count Electoral College votes.

These scenarios may be unlikely, but they need to be considered because being unprepared for any of them would be a calamity for our democracy.

There is one thing each state can do now to minimize the risk: pass a law providing that voters’ votes for a deceased or incapacitated presidential candidate count toward a replacement chosen by that candidate’s party, and that state’s electoral college votes for the deceased or incapacitated candidate also go to the party replacement.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

Federal Court Extends Arizona Voter Registration Deadline from Today to October 23; Appeal Likely<https://electionlawblog.org/?p=116264>
Posted on October 5, 2020 8:55 pm<https://electionlawblog.org/?p=116264> by Rick Hasen<https://electionlawblog.org/?author=3>

Big news<https://twitter.com/andrewboxford/status/1313321501278437377?s=20>:

I expect this will be quickly appealed and could end up very quickly at the Supreme Court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

In Unusual and Important Move, Democrats in Pennsylvania Voting Case Before Supreme Court Ask Court to Fully Resolve the Issues Before the Election. The Supreme Court Should Listen.<https://electionlawblog.org/?p=116261>
Posted on October 5, 2020 8:50 pm<https://electionlawblog.org/?p=116261> by Rick Hasen<https://electionlawblog.org/?author=3>

I wrote earlier today at Slate<https://slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html> about the important case coming out of the Pennsylvania Supreme Court. Here’s part of what I wrote:

The final argument that Republicans are advancing is the boldest and perhaps most dangerous one. The argument is that when state supreme courts apply their state constitutions’ provisions protecting a right to vote to loosen voting rules in a pandemic, these state courts are usurping the power given by the Constitution to state legislatures to set the manner for conducting presidential elections. The argument echoes an argument that three conservative justices on the Supreme Court accepted in the 2000 Bush v. Gore case ending that presidential election. It’s a dangerous idea that a state court applying a state constitution is taking away legislative power, particularly in states like Pennsylvania where the state legislature has itself approved<https://www.supremecourt.gov/DocketPDF/20/20A53/156682/20201002164607951_298904_Brief.pdf> the constitutional provisions being applied.

But this argument is likely to resonate with at least some of the conservative justices on the court. As professor Ned Foley explains<https://www.washingtonpost.com/opinions/2020/10/05/think-constitution-lets-voters-pick-president-better-read-it-again/>, this argument for vast legislative power to set the rules for presidential elections could have dire consequences and that “partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.”

Of all the arguments advanced by Republicans in these lawsuits, this argument about legislative power can do the most mischief. Most dangerous is the idea, furthered in a recent Bart Gellman Atlantic piece<https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/>, that state legislatures could try to disenfranchise voters and take back their power to appoint presidential electors directly even after the votes are counted.

Democrats filed their response in the Pennsylvania case today, but rather than simply oppose the stay, they make the following argument:<https://www.supremecourt.gov/DocketPDF/20/20A54/156820/20201005144503184_Brief.pdf>

This Court may construe applications for a stay as petitions for certiorari and resolve them summarily—a course that is particularly appropriate when an election is fast approaching. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 2 (2006). That is the circumstance here. The 2020 general election is less than a month away, and the issues presented here call out for immediate and definitive resolution to provide States and voters with certainty about the rules that will govern them this fall, during this pandemic and at a time when COVID-19 cases are rising in Pennsylvania and around the country. If the Court agrees and reaches the merits, it should affirm the decision of the Pennsylvania Supreme Court for the reasons explained below….

This Court must definitively resolve the questions presented in this case in order to provide certainty both with respect to the balloting rules governing in Pennsylvania and, should the Court reach the merits, with respect to broader legal questions that are implicated in both this case and in other cases currently proceeding through state courts. Across the country, litigants from both parties are asking state courts to interpret or invalidate state election-law provisions on grounds similar to those asserted here. See, e.g., 20A54 Emergency Application for Stay 34-36 & nn.6-7 (hereinafter, “RPP Stay”). The question whether the Elections Clause curtails state courts’ authority to grant such relief is therefore likely to be recurring and, in light of the approaching election and the number of pending cases, of overwhelming importance. Moreover, as the Republican Party Applicants explain, the more specific questions presented here—whether courts may extend Election Day received-by deadlines and how election officials should treat nonpostmarked ballots received after Election Day—are equally important and recurring, as many pending suits involve both federal- and state-law questions related to the treatment of such ballots. Id. at 19, 36 n.7 (citing cases).

Unless these questions are definitively resolved now, uncertainty about the legal rules governing election regulation, and about what parties will have standing to challenge or defend them, could persist up to and after Election Day. Merely deciding whether the Applicants are entitled to the stays they seek would not provide the necessary definitive resolution. Denying the stay (or construing the applications as petitions for certiorari and denying certiorari) would not provide an opportunity for definitive resolution or even necessarily reveal the Court’s ultimate views as to the standing and merits questions, even in this very case. A stay denial would permit the Applicants to again seek stay relief from this Court closer to Election Day—or, even more disturbingly, to challenge Pennsylvania’s election results after Election Day on the ground that the results are allegedly tainted by mail-in ballots that should not have been counted under (what Applicants contend are) the correct legal rules. Conversely, granting the stay would signal merely that a majority of the Court believes there is a “fair prospect” of certiorari and reversal—without facilitating a definitive resolution of the questions presented. Moreover, any certiorari petitions would not be due until well after Election Day, but, by that time, the Pennsylvania Supreme Court’s decision will have expired by its own terms (as it governs only the 2020 election) and the case will have become moot. Thus, while granting the stay would effectively determine the mail-in ballot rule governing the 2020 election in Pennsylvania, it would not provide or facilitate the provision of definitive guidance concerning the important and recurring legal questions at issue.

When Ned Foley a<https://twitter.com/Nedfoley/status/1313299411544440832>nd the Wall Street Journal <https://www.wsj.com/articles/courts-shouldnt-change-election-law-now-11601935320> editorial page and I agree—we need certainty on these issues before the election—the Supreme Court should listen. As the Journal puts it: “To the Supreme Court: Please rule on the Pennsylvania legislature’s appeal. The rules are much less important than for people to know what they are before the election.”
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“US Supreme Court allows SC vote-by-mail restriction to proceed”<https://electionlawblog.org/?p=116259>
Posted on October 5, 2020 8:37 pm<https://electionlawblog.org/?p=116259> by Rick Hasen<https://electionlawblog.org/?author=3>

Ariane de Vogue<https://www.cnn.com/2020/10/05/politics/supreme-court-south-carolina-ballot-signature/index.html> for CNN.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Florida voter registration system crashes on last day for filing”<https://electionlawblog.org/?p=116257>
Posted on October 5, 2020 8:31 pm<https://electionlawblog.org/?p=116257> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.cnn.com/2020/10/05/opinions/a-key-fix-for-an-unthinkable-election-disaster-hasen/index.html>

Florida’s online voter portal crashed on the final day of registration, prompting Democrats to accuse Gov. Ron DeSantis and other Republican state officials of trying to suppress the vote less than a month before Election Day.

Details: Secretary of State Laurel Leesaid the site went down briefly Monday. The portal appeared to continue with problems and in the early evening was down again or moving slowly, possibly overwhelmed by people trying to access it.

Lee, in a text on Monday evening, said her office thought it had handled the crash “right away”, but was “working now to see if there’s an ongoing problem.”

Floridians who want to vote in the November election have until 12 a.m. Tuesday to register, and Republicans and Democrats had mounted campaigns to urge people to sign up. With President Donald Trump and Democrat Joe Biden on the ballot, turnout is expected to be high in the battleground state.

Democrats were suspicious of the timing of the crash, noting the system has had problems in the past when demand is high.
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Posted in voter registration<https://electionlawblog.org/?cat=37>

Archived Video: “An election like no other: Getting Californians ready for November”<https://electionlawblog.org/?p=116255>
Posted on October 5, 2020 8:10 pm<https://electionlawblog.org/?p=116255> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch this archived video:<https://www.youtube.com/watch?v=rHkW-91hFXo&feature=youtu.be>

University of California Office of the President<https://www.youtube.com/channel/UCB1OsWv9ATtvUN7ceXrM6IQ>

Hear directly from the experts on what Californians need to know as they get ready to vote. UC Irvine Professor Rick Hasen (BA, UC Berkeley; MA, JD, PhD, UCLA), an election expert and CNN Election Analyst, along with James Schwab (BA, UC Davis), Chief Deputy Secretary of State (California) share how Californians can safely exercise their right to vote. This conversation discusses the historic nature of holding an election during a pandemic –and the opportunities and challenges that come with it –and how public officials are addressing questions related to confidence in the electoral process. Jen Tolentino (BA, UC Riverside; MPP, UCLA), Deputy Director for the Los Angeles Mayor’s Office, Innovation Team moderates this nonpartisan discussion. This webinar was hosted by the UC Advocacy Network.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The murky legal concept that could swing the election”<https://electionlawblog.org/?p=116253>
Posted on October 5, 2020 6:38 pm<https://electionlawblog.org/?p=116253> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Gerstein <https://www.politico.com/news/2020/10/05/murky-legal-concept-could-swing-the-election-426604> on the Purcell Principle in Politico.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

New Allegations of Trashed Ballots in New Jersey; Let’s Wait and See What Pans Out<https://electionlawblog.org/?p=116251>
Posted on October 5, 2020 6:31 pm<https://electionlawblog.org/?p=116251> by Rick Hasen<https://electionlawblog.org/?author=3>

Will see if these allegations <https://nj1015.com/usps-is-probing-mail-including-ballots-found-trashed-in-nj/> pan out better than the allegations of ballots in a ditch in Wisconsin<https://electionlawblog.org/?p=116162>. Especially concerning is the original source<https://en.wikipedia.org/wiki/David_Wildstein>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

Breaking and Analysis: Without noted dissent, Supreme Court reverses 4th Circuit and says South Carolina voters still need to provide witness signatures to cast absentee ballots (except for those who already voted and ballots received within 2 days)<https://electionlawblog.org/?p=116241>
Posted on October 5, 2020 5:18 pm<https://electionlawblog.org/?p=116241> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the order here<https://electionlawblog.org/wp-content/uploads/20A55-Order.pdf>.

As I explained today in Slate<https://slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html>, “In South Carolina, a federal district court held that a requirement that those voting by mail obtain a witness signature unconstitutionally burdened voters’ rights during the pandemic, given the higher risk of COVID coming from obtaining such signatures. This followed similar, unchallenged orders from the judge during the primary season. A 4th U.S. Circuit Court of Appeals panel reversed, but the full 4th Circuit reinstated the requirement. The Republican Party and South Carolina government have gone to the Supreme Court to restore the requirement, even as voting by mail has already begun.”

In today’s order, the Court reversed the en banc 4th Circuit and reinstated the signature requirement (except for those who already voted and ballots received within two days of this order). Justices Thomas, Alito and Gorsuch would have made those people who voted without a signature have to vote again to have that vote count.

Justice Kavanaugh, speaking only for himself, defending the Court’s order on two grounds: deference to state officials over what do to about covid-related issues and the Purcell principle. I wrote in Slate about Purcell:

The third argument we are seeing from Republicans in both federal and state cases is something I have dubbed the Purcell principle<https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr>, which suggests that courts should not accept challenges to state laws the nearer the date to an election because changes to voting close to the election can cause voter and election administrator confusion.

The Purcell principle has never been fully explained, it has been applied inconsistently, and it focuses on only one aspect of how courts should consider emergency changes to the rules. It also doesn’t follow ordinary Supreme Court practice of considering a number of factors when adjudicating whether to grant emergency relief. Still, many courts this cycle, including the Supreme Court, have rejected changes to voting rules on grounds they come too close to the election. The South Carolina case is particularly interesting since the witness signature requirement was not in place in the primary and has been used for voting so far. Reinstating it now would cause more confusion and disenfranchisement.

There were no noted dissents from the Court’s order, not even from the three liberals.

What to make of all of this? A few observations:
1.      This sends a strong signal that the Supreme Court is going to be wary of federal court ordered changes close to the election, even those done to deal with burdens on voters created by the pandemic (like the need to get witness signatures). This does not bode well for other cases heading up the pipeline where federal courts issued such orders. It also signals, per Justice Kavanaugh’s concurrence, a strong version of the Purcell principle is in play. With Gorsuch, Alito, and Thomas willing to go even further in risking disenfranchisement of voters, this is a signal that this continues to be<https://www.liebertpub.com/doi/full/10.1089/elj.2020.0646> a Court not willing to strongly protect voting rights.<https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html>
2.      It is not clear exactly how these principles will play out when these emergency actions come up from state courts, where the doctrinal context is different. Rather than Anderson-Burdick federal constitutional balancing, these are cases under state law. And as Rick Pildes points out, it would be something new to move Purcell into state court doctrine. We could get some sense of this as the Court decides the pending Pennsylvania petition (also described in my Slate piece).
3.      Why did the Court’s liberals not note a dissent? It could be that they dissented without noting it, but in the other voting cases these Justices did note a dissent. One possibility is a compromise here: note the Court’s order did not extend to those in South Carolina who already voted without including a witness signature. Maybe unanimity was the price here. This also sends a signal to voting rights plaintiffs and Democrats who have been suing that things are not likely to go well as these cases work their way up to the Supreme Court. This is not a place that is going to be friendly for voting rights.
4.      This result doesn’t mean that Democrats and voting rights plaintiffs will lose all the cases coming up to the Court. There are reasons to think that the Pennsylvania case may not go Republicans’ way (as I explain in Slate, the Election Day argument is especially weak). That result may too signal a call to stand down in some of these cases with attempts to further litigate the election rules during a period when over 2 million Americans have voted.
5.      Then again, this is all on the shadow docket, and these ruling are abbreviated and not fully explained. Perhaps we should not read too much into any one ruling. But if I’m a federal district court judge contemplating new relief at this stage of the process, I’m going to think long and hard about that before ordering it.

[This post has been updated.]
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“In big states, tiny counties, Trump attacking voting rules”<https://electionlawblog.org/?p=116239>
Posted on October 5, 2020 5:04 pm<https://electionlawblog.org/?p=116239> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/virus-outbreak-election-2020-donald-trump-local-elections-lawsuits-4298a514550323d39931f3e5fff2ccae>:

When Donald Trump’s campaign took issue with a new rule on processing some votes in North Carolina, it didn’t just complain to the Board of Elections and file a lawsuit. It wrote to some of the state’s 100 local election offices with extraordinary guidance: Ignore that rule.

“The NC Republican Party advises you to not follow the procedures,” Trump campaign operative Heather Ford wrote in an email to county officials last week.

The email urging defiance was a small glimpse at the unusually aggressive, hyperlocal legal strategy the Trump campaign is activating as voting begins. Through threatening letters, lawsuits, viral videos and presidential misinformation, the campaign and its GOP allies are going to new lengths to contest<https://apnews.com/article/election-2020-donald-trump-elections-census-2020-courts-a82ca88da5b59b55094d9c8a54956428> election procedures county-by-county across battleground states.

That means piling new pressure on the often low-profile election officials on the frontline of the vote count, escalating micro-disputes over voting rules and seeking out trouble in their backyards.

The local approach already is producing a blizzard of voting-related complaints. Trump and his allies have then seized on the disputes, distorted them and used them to sow broad doubts of fairness and accuracy.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Judge blocks Iowa directive on absentee ballot applications”<https://electionlawblog.org/?p=116237>
Posted on October 5, 2020 4:14 pm<https://electionlawblog.org/?p=116237> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.yahoo.com/news/judges-blocks-iowa-directive-absentee-215002215.html>

A judge blocked Iowa’s secretary of state Monday from enforcing an order that barred counties from sending absentee ballot applications to voters with their personal information already filled in.

Judge Robert Hanson sided with Democratic Party groups, who contended that Secretary of State Paul Pate exceeded his authority when he told counties that absentee ballot request forms must be blank when mailed to voters.

Hanson ordered Pate to put enforcement of his directive on hold. Local elections officials said they were studying the ruling to determine the impact, including whether they could take steps to mail ballots to thousands of voters whose requests were previously invalidated<https://apnews.com/2e0e60b6571044a80ea2717078ac78eb> based on Pate’s directive.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Eligible, but excluded: A guide to removing the barriers to jail voting”<https://electionlawblog.org/?p=116235>
Posted on October 5, 2020 2:42 pm<https://electionlawblog.org/?p=116235> by Rick Hasen<https://electionlawblog.org/?author=3>

New<https://www.prisonpolicy.org/reports/jail_voting.html> from the Prison Policy Initiative.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Alaska judge rules witness requirement for absentee ballots during pandemic ‘impermissibly burdens the right to vote’”<https://electionlawblog.org/?p=116233>
Posted on October 5, 2020 2:35 pm<https://electionlawblog.org/?p=116233> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.adn.com/politics/2020/10/05/alaska-judge-rules-witness-requirement-for-absentee-ballots-impermissibly-burdens-the-right-to-vote/>:

An Alaska court judge on Monday ruled enforcement of witness requirements for absentee ballots during a pandemic “impermissibly burdens the right to vote” but did not immediately put into effect an order eliminating the requirement for the general election.

Superior Court Judge Dani Crosby gave the parties until late Tuesday to propose how the Division of Elections should communicate the message and said she would later issue an order “specifying how to implement elimination” of the requirement for the Nov. 3 election.

She noted the state might appeal to the Alaska Supreme Court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“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>

--
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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