[EL] more news and commentary 10/6/20

Tue Oct 6 14:09:52 PDT 2020

Wisconsin Supreme Court, ofn4-3 Party Line Vote, Holds that the State Legislature Can Represent Wisconsin’s Interest in Federal Litigation Expanding Vote by Mail Opportunities During the Pandemic<https://electionlawblog.org/?p=116343>
Posted on October 6, 2020 1:58 pm<https://electionlawblog.org/?p=116343> by Rick Hasen<https://electionlawblog.org/?author=3>

The opinion and dissent are here<https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=295046> on the question certified by the 7th Circuit. The action will shift back to federal court over the question of a federal court decision easing vote by mail during the pandemic in Wisconsin.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Wisconsin: “Fiserv Forum, Miller Park will not be used for early voting after all because of ‘legal challenge concerns'”<https://electionlawblog.org/?p=116341>
Posted on October 6, 2020 1:53 pm<https://electionlawblog.org/?p=116341> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/10/06/fiserv-forum-miller-park-canceled-early-voting-sites-milwaukee/3637017001/>

Fiserv Forum and Miller Park will not be used for in-person absentee voting for the November election after all, the Milwaukee Election Commission announced Tuesday.

Election Commission Executive Director Claire Woodall-Vogg cited “legal challenge concerns” as the reason behind the change.

In an interview with the Journal Sentinel, she cited a ruling in which U.S. District Judge William Conley rejected requests to expand early voting and a notice from the Wisconsin Elections Commission to clerks<https://elections.wi.gov/sites/elections.wi.gov/files/2020-10/Clerk%20Communication%20-%20In%20Person%20Absentee%20Sites%2010-05-2020.pdf> stating WEC has “no ability to authorize” clerks to designate alternate or additional sites for in-person absentee voting for the November election. Those sites must have been designated by June 12, according to the WEC notice.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The list of COVID-19 election cases hits 275<https://electionlawblog.org/?p=116339>
Posted on October 6, 2020 1:49 pm<https://electionlawblog.org/?p=116339> by Justin Levitt<https://electionlawblog.org/?author=4>

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 275<https://electionlawblog.org/?p=111962>. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database<https://healthyelections-case-tracker.stanford.edu/cases> of these cases, with more info.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September, and squeaking into October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for very tailored relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here<https://electionlawblog.org/?p=111962>, please let me know.
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Posted in election administration<https://electionlawblog.org/?cat=18>, election law and constitutional law<https://electionlawblog.org/?cat=55>, Election Meltdown<https://electionlawblog.org/?cat=127>

Federal District Court Rejects Trump Campaign Challenge to New Jersey Accepting Mail-In Ballots That Arrive Within 2 Days of Election Day<https://electionlawblog.org/?p=116336>
Posted on October 6, 2020 1:43 pm<https://electionlawblog.org/?p=116336> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the order at this link <https://assets.documentcloud.org/documents/7222829/10-6-20-Trump-for-President-v-Way-Opinion.pdf> (via Zoe Tillman).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Voters Should Not Be Intimidated”<https://electionlawblog.org/?p=116334>
Posted on October 6, 2020 1:05 pm<https://electionlawblog.org/?p=116334> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center resource<https://www.brennancenter.org/our-work/research-reports/voters-should-not-be-intimidated>.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“9th Circuit won’t block MT counties from mailing ballots”<https://electionlawblog.org/?p=116328>
Posted on October 6, 2020 12:40 pm<https://electionlawblog.org/?p=116328> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://billingsgazette.com/news/state-and-regional/govt-and-politics/9th-circuit-wont-block-mt-counties-from-mailing-ballots/article_5cd4debc-8710-5e01-a35f-efcb27f2caf8.html?utm_campaign=snd-autopilot&utm_medium=social&utm_source=facebook_Billings_Gazette&fbclid=IwAR2ESt-h1EjrL01c24rq_A-YTUSCY6ADLMuOh_11qDPAma2X0c0NdemI_rA>:

A federal appeals court on Tuesday denied a request for an emergency injunction to block most Montana counties from mailing ballots to active voters.

A three-member panel of the 9th U.S. Circuit Court of Appeals denied the request filed by Joe Lamm, the Ravalli County Republican Central Committee and Republican voters, but said it would continue to hear the appeal. The first briefs are due in January.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How We Vote and What It Means”<https://electionlawblog.org/?p=116326>
Posted on October 6, 2020 12:38 pm<https://electionlawblog.org/?p=116326> by Rick Hasen<https://electionlawblog.org/?author=3>

New video:<https://www.youtube.com/watch?v=H-jyqtyGEQw&feature=youtu.be>

On Wednesday, September 30, the Georgetown University Humanities Initiative and Georgetown University Press cosponsored a panel discussion on how we vote in the United States. Participants included How We Vote authors Kathleen Hale and Mitchell Brown and Georgetown University professors Robert Patterson, Hans Noel, and Diana Owen.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Federal District Court Won’t Issue Requirement that Ohio Secretary LaRose Expand Use of Drop Boxes Given Other Options for Collecting Ballots LaRose Has Offered, For Now<https://electionlawblog.org/?p=116323>
Posted on October 6, 2020 12:37 pm<https://electionlawblog.org/?p=116323> by Rick Hasen<https://electionlawblog.org/?author=3>

From the ruling<https://electionlawblog.org/wp-content/uploads/10-6-20-a-Phillip-Randolph-Institute-v-LaRose.pdf>:

It is now settled law that off-site drop boxes are neither prohibited nor compelled in Ohio.

Yesterday, October 5, the Secretary issued Directive 2020-22. In his latest Directive, the Secretary authorized any board to deploy its staff to receive ballots at sites other than the board office. This means that the Cuyahoga County board may implement its intended plan to receive ballots at six public libraries, and that any other board in Ohio that votes to do so may deploy its staff to receive ballots off-site, so long as the board complies with the procedures set forth in Section II of Directive 2020-22.

While the off-site staff collection of absentee ballots may not have all the advantages of off-site drop boxes, such a program alleviates many of the concerns raised at the hearing. There is no evidence before the Court that Secretary LaRose is currently prohibiting any board from doing something it voted to do to protect the voting rights of its citizens with respect to off-site drop boxes or off-site delivery of ballots. Therefore, there is no problem that requires an injunction.

Accordingly, this case is DISMISSED WITHOUT PREJUDICE. The Court fervently hopes that now that voting has begun, the litigation over drop boxes and off-site ballot collection will come to an end. Should it come to pass, however, that between now and November 3 any county board of elections votes to implement off-site drop boxes, Plaintiffs may refile their lawsuit, so long as the affected board is added as a party.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“How Mail-in Ballots Might Affect Election Night”<https://electionlawblog.org/?p=116321>
Posted on October 6, 2020 12:24 pm<https://electionlawblog.org/?p=116321> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Latner blogs<https://blog.ucsusa.org/michael-latner/how-mail-in-ballots-might-affect-election-night>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Fox News: “Shift in Ohio vote tallies after election not a sign of ‘something nefarious,’ secretary of state says”; Fox Also Says: “Trump has argued, without evidence, that mail-in ballots are susceptible to fraud”<https://electionlawblog.org/?p=116319>
Posted on October 6, 2020 12:10 pm<https://electionlawblog.org/?p=116319> by Rick Hasen<https://electionlawblog.org/?author=3>

Notable that this story is at Fox News:<https://www.foxnews.com/politics/ohio-voting-results-mail-in-ballots-election-day-frank-larose>

More than two million Ohio residents requested mail-in ballot applications prior to the start of early voting on Tuesday, doubling the count at the same time in 2016 and 2012. Ballots in the state are counted for up to 10 days after Election Day — as long as they are postmarked by Nov. 2 — meaning that election results displayed on the night of Nov. 3 will be unofficial and include all votes received through any method by 7:30 p.m. local time.

LaRose, a Republican, said the state will have “pretty conclusive” results on election night if early returns show President Trump or Democratic nominee Joe Biden winning the state by a wide margin.

But if the race is close, he acknowledged that it could take “three weeks or more” to know the final results as elections officials work to tabulate mail-in and provisional ballots. LaRose added that the state is taking steps to be transparent about the process, such as publishing the number of outstanding mail-in ballots online.

“When the results on election night say one thing and then when the results change over the ensuing several weeks, that’s not a sign that something nefarious is happening. In fact, quite the contrary,” LaRose told Fox News. “It’s a sign that the legal process is being allowed to play itself out so that every legally cast vote can be tabulated. That’s exactly what we need to do.”…

Trump has argued, without evidence, that mail-in ballots are susceptible to fraud and suggested that their widespread use could result in a “rigged election.” During his debate with Biden last week, Trump said he would only accept the results of the vote “if it’s a fair election.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

California Redistricting Commission Seeks Chief Counsel<https://electionlawblog.org/?p=116317>
Posted on October 6, 2020 11:48 am<https://electionlawblog.org/?p=116317> by Rick Hasen<https://electionlawblog.org/?author=3>

Job announcement:

The 2020 California Citizens Redistricting Commission  is seeking a Chief Counsel with min. 10 yrs. law experience. The Chief Counsel will advise the Commission on all aspects of the redistricting process and government affairs. The ideal candidate will have served as the principal legal advisor to a governing board, as well as government relations, redistricting and voting rights experience, and has a history of working closely with community organizations developing and maintaining relationships with diverse groups and coalitions. The Commission is charged with drawing the State’s legislative, Congressional, and Board of Equalization electoral lines.  For additional information, refer to the Job Bulletin at https://wedrawthelines.ca.gov/wp-content/uploads/sites/64/2020/09/Chief-Counsel_Recuitment-2020-Sept-30.pdf

Please note that  the first round of interviews is scheduled for 13 October, but we will continue to accept applications until the position is filled.<webextlink://Please%20note%20that%C2%A0%20the%20first%20round%20of%20interviews%20is%20scheduled%20for%2013%20October,%20but%20we%20will%20continue%20to%20accept%20applications%20until%20the%20position%20is%20filled.>

Inquiries may be directed to voterfirstact at crc.ca.gov<mailto:%20voterfirstact at crc.ca.gov%3C/font%3E%3C/center%3E>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Federal Court in Pennsylvania Vote by Mail Challenge is Going to Resolve Case on Summary Judgment, Without Taking Evidence<https://electionlawblog.org/?p=116315>
Posted on October 6, 2020 11:44 am<https://electionlawblog.org/?p=116315> by Rick Hasen<https://electionlawblog.org/?author=3>

This order does not bode well for the Trump campaign’s federal claims (such as that Pa. court allowing drop boxes somehow creates a federal constitutional problem):

ORDER vacating 462 amended scheduling order. Upon careful consideration of the parties’ cross-motions for summary judgment, the Court finds that there are no material disputes of fact on the remaining legal claims and defenses in this case. The Court intends to resolve all claims on summary judgment. As such, the remaining deadlines, obligations, and events in the amended scheduling order (ECF 462 ), including the evidentiary hearing, are hereby VACATED.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Reply Brief Filed in Pennsylvania Voting Case, Teeing Up Case for Supreme Court Order at Any Time<https://electionlawblog.org/?p=116286>
Posted on October 6, 2020 10:48 am<https://electionlawblog.org/?p=116286> by Rick Hasen<https://electionlawblog.org/?author=3>

Here’<https://www.supremecourt.gov/DocketPDF/20/20A53/156957/20201006125831856_20A53%20Reply%20Brief%20in%20Support%20of%20Emergency%20Application%20final.pdf>s the reply brief. Update: Here<https://www.supremecourt.gov/DocketPDF/20/20A54/156989/20201006141940771_20A54%20-%20Reply%20Brief%20with%20Appendices%20-%20Republican%20Party%20of%20Pennsylvania.pdf>‘s the other reply brief.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Georgetown created fact sheets on illegal militias at the polls and what to do if you spot them”<https://electionlawblog.org/?p=116284>
Posted on October 6, 2020 10:31 am<https://electionlawblog.org/?p=116284> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/10/06/us/georgetown-militias-voter-intimidation-fact-sheets-trnd/index.html>

It’s illegal in all 50 states to engage in militia activity. Still, militia members will almost certainly appear at some polling places this election cycle<https://www.cnn.com/election/2020/voter-guide/>.To prepare voters for potential voter intimidation, Georgetown University Law Center created fact sheets for all 50 states<https://www.law.georgetown.edu/icap/our-work/addressing-the-rise-of-unlawful-private-paramilitaries/state-fact-sheets/> on illegal militias and what to do if voters encounter them.

A private militia engages in law enforcement activities without authorization by state or federal officials. Their members are often armed and wearing uniforms or identifying insignias, and they often believe they have legal authority to protect property or control crowds.

But no private militia has that authority. Every state bans unauthorized militias from taking on the activities of law enforcement.

So, Georgetown Law’s Institute for Constitutional Advocacy and Protection, along with several pro bono law firms, created state-specific fact sheets about militias and the state statutes that ban their activities.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Florida extends voter registration deadline after website failure”<https://electionlawblog.org/?p=116282>
Posted on October 6, 2020 10:11 am<https://electionlawblog.org/?p=116282> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/states/florida/story/2020/10/06/florida-extends-voter-registration-deadline-after-website-failure-1321509?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>

Florida extended the deadline for voter registration after the state’s online portal crashed under the weight of heavy traffic hours before the Oct. 5 deadline.

Registration will be open for an additional seven hours, from noon to 7 p.m. on Tuesday, Secretary of State Laurel Lee said in a written statement.

The move should short-circuit a lawsuit that civil rights and voting groups were preparing to file early Tuesday.
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Posted in voter registration<https://electionlawblog.org/?cat=37>

Ninth Circuit Reverse Order that Would Have Allowed Arizona Voters Whose Mail Ballots Were Lacking Signatures to Have Up to 5 Days to Provide Signature<https://electionlawblog.org/?p=116280>
Posted on October 6, 2020 9:52 am<https://electionlawblog.org/?p=116280> by Rick Hasen<https://electionlawblog.org/?author=3>

Another example <http://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/06/20-16759.pdf> of a district court case favorable to voting rights gorups getting reversed on appeal.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“After early victories, Democrats’ voting lawsuits face tougher terrain in conservative-leaning appeals courts”<https://electionlawblog.org/?p=116276>
Posted on October 6, 2020 7:29 am<https://electionlawblog.org/?p=116276> by Rick Hasen<https://electionlawblog.org/?author=3>

Marshall Cohen<https://www.cnn.com/2020/10/05/politics/democrats-republicans-election-lawsuits/index.html> for CNN:

After a string of early legal victories in voting rights cases, Democrats are now fighting on more challenging terrain in federal appeals courts across the country, and have seen some of their hard-fought victories wiped off the books by conservative-leaning judges.

There are hundreds of state and federal lawsuits <https://moritzlaw.osu.edu/electionlaw/litigation/index.php> related to the 2020 election, with cases brought by both political parties, trying to get the rules changed in their favor and rulings coming on a near-daily basis. But Democrats have celebrated a wave of early victories in some key battleground states.Many of those rulings have been appealed. Democrats now find themselves in more hostile territory, and Republicans are clawing their way back in some cases, experts say. President Donald Trump and Senate Republicans have reshaped the federal judiciary <https://www.cnn.com/2020/06/24/politics/trump-200-judicial-appointments-cory-wilson/index.html> by confirming more than 200 judges since 2017, and have filled dozens of vacancies specifically on appeals courts.

“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,” CNN election law analyst Rick Hasen wrote in a Slate op-ed <https://slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html> published Monday. “Although Democrats in particular have crowed about some of their (sometimes partial) victories, things are far from over.”
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

October 13 Event: “Waiting and Watching: What To Expect From Election Night 2020”<https://electionlawblog.org/?p=116274>
Posted on October 6, 2020 7:22 am<https://electionlawblog.org/?p=116274> by Rick Hasen<https://electionlawblog.org/?author=3>

CAP<https://www.americanprogress.org/events/2020/09/30/491036/waiting-watching-expect-election-night-2020/>:

The United States’ electoral culture demands instant gratification when it comes to election results. Members of the public, candidates, and journalists have come to expect that they will know the winners and losers of electoral races within hours of polls closing on election night. This year, counting ballots will likely take longer than usual due to increased reliance on vote by mail in response to the COVID-19 pandemic. This will be particularly true in states that do not begin processing absentee ballots until Election Day or after polling places close on election night.

The winners of the U.S. presidential election and other hotly contested races will almost certainly not be known on November 3, and results may not be announced for several days after Election Day. Experts worry that candidates will claim victory prematurely, before all ballots are counted, and that bad actors will propagate dangerous conspiracy theories to sow public confusion and challenge electoral outcomes. It is the responsibility of government officials, members of the media, and technology platforms to set realistic expectations now for members of the public about when election results will be finalized. Preparations must also be made for pushing back against distortions of legitimate electoral procedures and vote counts.

Please join the Center for American Progress for a discussion about ballot-counting processes in November and why electoral results may not be known until well after election night. Panelists will discuss the importance of responsible results reporting by the media and technology platforms, as well as best practices for preventing the spread of misinformation on election night.

We’d love to hear your questions. Please submit any questions you have for our distinguished panel via email at CAPeventquestions at americanprogress.org<mailto:CAPeventquestions at americanprogress.org> or on Twitter using #ElectionNightExpectations<https://twitter.com/search?q=%23ElectionNightExpectations&src=typed_query>.

Distinguished Panelists:
Jocelyn Benson<https://www.michigan.gov/sos/0,4670,7-127-1640_9105---,00.html>, Michigan Secretary of State
Adam Conner<https://www.americanprogress.org/about/staff/conner-adam/bio/>, Vice President, Technology Policy, Center for American Progress
Benjamin Hovland<https://www.eac.gov/about/commissioner-benjamin-hovland>, Chairman, U.S. Election Assistance Commission
Amanda Terkel<https://www.huffpost.com/author/amanda-terkel>, Washington Bureau Chief, HuffPost

Moderator:
Daniella Gibbs Léger<https://www.americanprogress.org/about/staff/gibbs-leger-daniella/bio/>, Executive Vice President, Communications and Strategy, Center for American Progress
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How Tana Mongeau’s offer to send nude pics to Biden voters violates election law”<https://electionlawblog.org/?p=116272>
Posted on October 6, 2020 7:14 am<https://electionlawblog.org/?p=116272> by Rick Hasen<https://electionlawblog.org/?author=3>

Interesting twist<https://www.yahoo.com/entertainment/tana-mongeaus-nude-pics-biden-voters-violates-election-law-225755025.html> on the perennial problem of offering inducements for voting.
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Posted in vote buying<https://electionlawblog.org/?cat=43>

“Voter fraud myth persists despite constant failure to prove claims”<https://electionlawblog.org/?p=116270>
Posted on October 6, 2020 7:10 am<https://electionlawblog.org/?p=116270> by Rick Hasen<https://electionlawblog.org/?author=3>

Sherman Smith<https://kansasreflector.com/2020/10/06/voter-fraud-myth-persists-despite-constant-failure-to-prove-claims/> for the States Newsroom.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Thousands of North Carolina ballots in limbo amid challenges over rule changes”<https://electionlawblog.org/?p=116268>
Posted on October 6, 2020 6:43 am<https://electionlawblog.org/?p=116268> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News:<https://abcnews.go.com/US/thousands-north-carolina-ballots-limbo-amid-challenges-rule/story?id=73432943>

A whirlwind of competing lawsuits and legal actions has thousands of ballots in North Carolina in limbo.

With just a few weeks left until the Oct. 27 deadline to request absentee ballots, the North Carolina State Board of Elections has no clear plan for fixing errors on voters’ mail-in ballots.

As of Oct. 4, 7,272 ballots are classified as “pending cure,” meaning there is missing information on the ballot or envelope. “Currently the cure process is being considered by the courts. We will contact you soon with more information,” county election<https://abcnews.go.com/alerts/elections> board employees are being instructed to tell voters who call about the status of their ballot.

On Sunday, North Carolina State Board of Elections Executive Director Karen Brinson-Bell sent a memo<https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2020/Numbered%20Memo%202020-28%20Court%20Orders.pdf> to local boards directing them to “take no action” on ballots that come in with mistakes on the envelopes. Brinson-Bell said the decision is to avoid confusion while matters are pending in several courts. “Envelopes with deficiencies shall be kept in a secure location and shall not be considered by the county board until future notice,” according to the memo.

The North Carolina state board announced last week new rules it says make it easier for voters to fix or “cure” mail-in ballots. The changes were included in a joint settlement agreement with North Carolina Alliance for Retired Americans after the group filed a lawsuit challenging several absentee voting processes.

Under the agreement, the NCSBE would allow voters who are missing witness signatures or addresses on their ballot envelope to correct the mistake by filling out an affidavit instead of completing a new ballot. The settlement also allows election boards to accept absentee ballots up to nine days after the election if they are postmarked by Nov. 3.

A county judge approved the settlement last Friday, but the next day a federal judge issued a temporary restraining order banning the NCSBE from enacting the changes.
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Posted in election administration<https://electionlawblog.org/?cat=18>

--
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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