[EL] ELB News and Commentary 10/9/20

Thu Oct 8 20:38:02 PDT 2020

Well Now We Know What Ohio SOS Frank LaRose Really Thinks About Drop Boxes: He’s Appealed the Federal Court Ruling That Would Allow Them; With No Stay, Expect a Quick Ruling<https://electionlawblog.org/?p=116519>
Posted on October 8, 2020 8:34 pm<https://electionlawblog.org/?p=116519> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com<https://www.cleveland.com/open/2020/10/federal-judge-strikes-down-ohio-secretary-of-state-frank-laroses-limit-on-ballot-drop-boxes.html>:

LaRose, a Republican, appealed within hours of the ruling. Polster declined to put a stay on his order, meaning it will take effect immediately unless the appeals court intervenes. If it stands, the ruling would allow Cuyahoga County to move forward with a plan to set up staffed ballot collection sites at six county library branches<https://www.cleveland.com/news/2020/09/cuyahoga-county-board-of-elections-to-allow-residents-to-return-early-voting-ballots-at-six-libraries.html>.

“The Secretary has not advanced any legitimate reason to prohibit a county board of elections from utilizing off-site drop boxes and/or off-site delivery of ballots to staff. Voting began October 6, the Cuyahoga County board voted to begin collecting ballots at public libraries on October 13, other county boards may now vote to implement plans for off-site collection, and it is time for this litigation to end,” [the court] wrote, ruling in favor of a lawsuit brought by a group of voting-rights advocates.

In a statement, LaRose spokeswoman Maggie Sheehan said: “Voting has begun, and Ohio’s elections are safe, secure and accessible. The place to make changes in how we run our elections is the Statehouse, not the courthouse.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How the practice of maintaining voter lists became so polarized”<https://electionlawblog.org/?p=116517>
Posted on October 8, 2020 8:27 pm<https://electionlawblog.org/?p=116517> by Rick Hasen<https://electionlawblog.org/?author=3>

States Newsroom reports.<https://kansasreflector.com/2020/10/08/how-the-practice-of-maintaining-voter-lists-became-so-polarized/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Elliott Broidy, a Top Trump Fund-Raiser, Charged in Foreign Influence Case”<https://electionlawblog.org/?p=116515>
Posted on October 8, 2020 8:23 pm<https://electionlawblog.org/?p=116515> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/08/us/politics/elliott-broidy-trump-fundraiser.html>

The details of the accusations against Mr. Broidy<https://www.nytimes.com/2019/08/13/us/politics/elliott-broidy-trump.html> are especially striking: They include a promised $75 million success fee from Mr. Low and discussions about arranging for Malaysia’s prime minister to play golf with Mr. Trump. But they follow a pattern that has become familiar since Mr. Trump began seeking the White House.

People who had backgrounds or were pursuing business that was likely to have raised red flags in other campaigns and administrations marketed themselves as intermediaries to individuals, companies and countries wanting something from the Trump administration. They were able to do so because Mr. Trump ran for office and came to Washington without the established networks of gatekeepers, lobbyists and fund-raisers that typically surround a president.

 number of Mr. Trump’s associates have been charged in the nearly four years since he was elected. Among those who have pleaded or were found guilty of charges related to their work for him are Michael T. Flynn<https://www.nytimes.com/2017/12/01/us/politics/michael-flynn-guilty-russia-investigation.html>, the former national security adviser whose case the Justice Department is now seeking to dismiss<https://www.nytimes.com/2020/09/29/us/politics/michael-flynn-emmet-sullivan-hearing.html>; George Papadopoulos<https://www.nytimes.com/2017/10/30/us/politics/george-papadopoulos-russia-trump.html>, a former campaign adviser; and Roger J. Stone Jr., a longtime friend whose sentence the president commuted<https://www.nytimes.com/2020/07/10/us/politics/trump-roger-stone-clemency.html>.

Mr. Trump’s former campaign chairman, Paul Manafort, and his deputy, Rick Gates, were charged<https://www.nytimes.com/2017/10/30/us/politics/paul-manafort-indicted.html> with lobbying and financial crimes that predated their work for the president’s campaign. The two pleaded guilty to lesser charges in exchange for agreeing to cooperate with prosecutors, as did Michael D. Cohen<https://www.nytimes.com/2018/11/29/nyregion/michael-cohen-trump-russia-mueller.html>, Mr. Trump’s longtime personal lawyer.

Mr. Cohen, Mr. Gates and Mr. Manafort had sought to parlay their perceived access<https://www.nytimes.com/2018/05/09/us/politics/michael-cohen-shell-company.html> to the president into business opportunities<https://www.politico.com/story/2017/06/15/paul-manafort-fbi-trump-239573>.

But few figures seized on the Trump presidency more ambitiously than Mr. Broidy, who owns a defense contracting firm.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, lobbying<https://electionlawblog.org/?cat=28>

“Citing 25th Amendment, Pelosi, Raskin move to create panel that could rule on president’s fitness for office”<https://electionlawblog.org/?p=116513>
Posted on October 8, 2020 8:18 pm<https://electionlawblog.org/?p=116513> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/pelosi-presidency-succession-trump/2020/10/08/3c71dfae-09a5-11eb-859b-f9c27abe638d_story.html>:

House Speaker Nancy Pelosi (D-Calif.) and Rep. Jamie B. Raskin (D-Md.) plan to introduce legislation Friday that would create a commission to “help ensure effective and uninterrupted leadership” in the presidency.

The panel would be called the Commission on Presidential Capacity to Discharge the Powers and Duties of Office, “the body and process called for in the 25th Amendment to the U.S. Constitution,” the offices of Pelosi and Raskin said in a statement announcing the move.

The 25th Amendment formalizes that the vice president takes over the duties of the presidency in the event of a president’s death, inability to perform his duties or resignation from office. It also lays out a process by which a sitting president may be removed from office. Congress’s role in this, however, is limited.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Mike Pence does not seem prepared to save the republic, should he be called upon to do so”<https://electionlawblog.org/?p=116511>
Posted on October 8, 2020 8:14 pm<https://electionlawblog.org/?p=116511> by Rick Hasen<https://electionlawblog.org/?author=3>

Philip Bump:<https://www.washingtonpost.com/politics/2020/10/08/mike-pence-does-not-seem-prepared-save-republic-should-he-be-called-upon-do-so/>

Should that happen, Vice President Pence may be put in a position where he needs to decide between standing with his boss or standing with the will of the country. Asked about such a scenario at the vice-presidential debate Wednesday, his response suggested that his loyalties would lie with the former.

“If Vice President Biden is declared the winner and President Trump refuses to accept a peaceful transfer of power, what would be your role and responsibility as vice president?” moderator Susan Page asked. “What would you personally do? You have two minutes.”

Pence’s response came in three parts. The first was to assert his confidence that Trump would win, rattling off the familiar litany of accomplishments that’s often peppered throughout the president’s speeches.

Then he pivoted to a line of attack familiar to regular consumers of conservative media….

“President Trump and I are fighting every day in courthouses to prevent Joe Biden and Kamala Harris from changing the rules and creating this universal mail-in voting that will create a massive opportunity for voter fraud,” Pence said. “If we have a free and fair election, we know we’re going to have confidence in it, and I believe in all my heart that President Donald Trump is going to be reelected for four more years.”

n other words, Pence holds to the party line, which is not reassuring.

Again, there is no “massive opportunity for fraud” that’s created, given the safeguards that are in place. The bigger risk is clearly that more mail ballots will be rejected on review in an effort to stamp out even attempted fraud. Biden and Harris aren’t pushing universal mail-in voting; that, instead, was driven by state leaders who wanted to offer an alternative form of voting, given the coronavirus pandemic. Only five states moved to mailing out ballots<https://www.washingtonpost.com/graphics/2020/politics/vote-by-mail-states/?itid=lk_inline_manual_36> automatically, four of which Trump is not likely to win.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump Lashes Out at His Aides With Calls to Indict Political Rivals”<https://electionlawblog.org/?p=116509>
Posted on October 8, 2020 8:11 pm<https://electionlawblog.org/?p=116509> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/08/us/politics/trump-calls-to-indict-political-rivals.html>

Mr. Trump has not been seen in person since returning from the hospital on Monday, but he sought to reassert himself on the public stage with a pair of telephone interviews with Fox News and Fox Business, a video and a series of Twitter messages. Even for him, they were scattershot performances, ones that advisers said reflected increasing frustration over his political fortunes only 26 days before an election with surveys that show him trailing Mr. Biden by double digits.

The president castigated his own team, declaring that Attorney General William P. Barr would go down in history “as a very sad, sad situation” if he did not indict Democrats like Mr. Biden and former President Barack Obama. He complained that Secretary of State Mike Pompeo had not released Hillary Clinton’s emails, saying, “I’m not happy about him for that reason.” And he targeted Christopher A. Wray, the F.B.I. director. “He’s been disappointing,” Mr. Trump said.

He was all over the map, throwing out unsubstantiated or discredited accusations, explaining that he wanted to bring home troops from Afghanistan to be ready to fight China or Russia if necessary and calling Gov. Gretchen Whitmer of Michigan “the lockup queen” even as his own Justice Department was announcing the existence of an anti-government group’s plot to kidnap her<https://www.nytimes.com/2020/10/08/us/gretchen-whitmer-michigan-militia.html?smid=tw-share>….

“Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it,” Mr. Trump said, referring to the investigation into his 2016 campaign ties with Russia. “But these people should be indicted. This was the greatest political crime in the history of our country, and that includes Obama and it includes Biden.”

Mr. Trump has often argued that his political antagonists should be prosecuted, but in this case, he went further by indicating that he had directly pressured Mr. Barr to indict without waiting for more evidence. “He’s got all the information he needs,” the president said. “They want to get more, more, more, they keep getting more. I said, ‘You don’t need any more.’”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“America Needs Compulsory Voting”<https://electionlawblog.org/?p=116507>
Posted on October 8, 2020 8:01 pm<https://electionlawblog.org/?p=116507> by Rick Hasen<https://electionlawblog.org/?author=3>

Anthony Fowler<https://www.foreignaffairs.com/articles/united-states/2020-10-08/america-needs-compulsory-voting> for Foreign Affairs.
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Posted in voting<https://electionlawblog.org/?cat=31>

“Both parties prepare for possibility of contested election as chaotic White House race hurtles to a close”<https://electionlawblog.org/?p=116505>
Posted on October 8, 2020 7:56 pm<https://electionlawblog.org/?p=116505> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo deep dive:<https://www.washingtonpost.com/politics/contested-election-2020-preparations/2020/10/08/49a58352-08af-11eb-a166-dc429b380d10_story.html>

Even as a coronavirus outbreak has upended the White House, Democrats and Republicans have been gaming out another potential crisis that experts agree could plunge the country into unprecedented turmoil — a contested election in the weeks after Nov. 3.

House Speaker Nancy Pelosi (D-Calif.) has recently spoken in multiple meetings about preparing for a situation in which neither candidate attains the 270 electoral votes needed to win the presidency, according to multiple Democrats familiar with her remarks — a historic development that would throw the outcome to the new Congress in January.

She has also directed some of her members to be ready if GOP legislatures in states with narrow margins or unfinished counts seek to appoint their own electors, a situation Democrats hope to head off with an obscure law from the 19th century that allows Congress to intervene.

The internal talks are among a number of strategy sessions taking place in political and legal circles in anticipation of a post-Election Day fight. The campaigns of President Trump and former vice president Joe Biden are preparing for all scenarios, each amassing robust legal teams to prepare for post-Nov. 3 disputes, in addition to monitoring Election Day activity and ballot counting.

An uncharted battle over who the next president will be, after a campaign that has roiled and exhausted Americans, could severely test the nation’s faith in its election system — and undermine the principle that the president should be selected by voters rather than Congress or the courts, experts said.

“These are all terrible scenarios to contemplate,” said Richard H. Pildes, a professor of constitutional law at New York University. “Nothing is more explosive in a democratic system than a disputed election for the chief executive, because so much turns on who holds that office.”…
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>

Federal District Court Issues Order Mandating that Ohio Secretary of State Frank LaRose Allow Drop Boxes to Be Set Up When County Election Boards Want to Use Them to Collect Absentee Ballots; What’s Next?<https://electionlawblog.org/?p=116503>
Posted on October 8, 2020 3:57 pm<https://electionlawblog.org/?p=116503> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion at this link.<https://www.courtlistener.com/recap/gov.uscourts.ohnd.269062/gov.uscourts.ohnd.269062.91.0.pdf>

Given the South Carolina rulin<https://electionlawblog.org/?p=116241>g from the Supreme Court this week, and the reaction from the 7th Circuit in the Wisconsin case, <https://electionlawblog.org/?p=116480> it could well be that the 6th Circuit reverses this order fairly quickly. We’ll see.

That’s IF Secretary LaRose chooses to appeal. He doesn’t have to, and had earlier indicated he had no problem with drop boxes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Bill Barr Is Using an Old Voter Suppression Tactic. Don’t Fall for It.”<https://electionlawblog.org/?p=116501>
Posted on October 8, 2020 2:51 pm<https://electionlawblog.org/?p=116501> by Rick Hasen<https://electionlawblog.org/?author=3>

Pema Levy<https://www.motherjones.com/politics/2020/10/bill-barr-is-using-an-old-voter-suppression-tactic-dont-fall-for-it/> for Mother Jones.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Electoral Structure Matters: Fixing the Creaks and Cracks in the Constitution by Its Quarter Millennium”<https://electionlawblog.org/?p=116499>
Posted on October 8, 2020 2:19 pm<https://electionlawblog.org/?p=116499> by Rick Hasen<https://electionlawblog.org/?author=3>

New Idaho Law Review article<https://www.uidaho.edu/-/media/UIdaho-Responsive/Files/law/law-review/symposium/democracy-evolved/symposium-larue.pdf?la=en&hash=1EBDB4BF20AFAB8278AD437920B2EE85C9C001D52> by Rick LaRue. Abstract:

Our nation’s constitutionally prescribed governing structure has original problems (the Electoral College) and those that have developed over time (excessively long congressional tenures and, for the presidency, biased reelection timing and unequally productive terms that are equal in length). Repairing the erosion in any one or all three of these components by the Constitution’s 250th anniversary in 2037 constitutes a workable civic engineering timeframe. This article reviews the context for constitutional change; presents the Electoral College’s primary failings; identifies three objectives for its replacement (delivering majority outcomes, providing meaningful roles to states, and broadening the structural focus for such change); and explains which term limit and term length adjustments would provide such breadth while correcting for deficiencies that have emerged in their own roles.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Vote-by-mail ballot rejection and experience with mail-in voting”<https://electionlawblog.org/?p=116497>
Posted on October 8, 2020 2:14 pm<https://electionlawblog.org/?p=116497> by Rick Hasen<https://electionlawblog.org/?author=3>

David Cottrell, Michael Herron, and Dan Smith have posted this new draft<http://www.dartmouth.edu/~herron/VBM_experience.pdf>. Here is the abstract:

Although most ballots in the United States have historically been cast in-person, an increasing number of Americans are turning to mail-in voting during the ongoing COVID-19 pandemic. Voters inexperienced with the form of voting, however, disproportionately submit ballots that end up being rejected, either because they arrive late at local elections offices or have signature defects on their return envelopes. Our analysis of ballot rejections in the political battleground state of Florida shows that inexperienced mail voters were three and 2.75 times more likely, respectively, in the 2016 and 2018 General Elections to have their ballots rejected than experienced mail voters. Similarly, in Florida’s recent 2020 Presidential Preference Primary, held in March 2020 as the COVID-19 pandemic was beginning to take hold in the state, voters inexperienced with mail ballots suffered from rejection rates 2.75 times as great as voters with experience voting by mail. Moreover, the effect of inexperience on vote-by-mail ballot rejection rates varies by party affiliation, race/ethnicity, age, and gender.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

Mark Your Calendars for Oct. 29 OSU Event: “5 Days Out – A Virtual Roundtable of Election Law Experts”<https://electionlawblog.org/?p=116494>
Posted on October 8, 2020 1:02 pm<https://electionlawblog.org/?p=116494> by Rick Hasen<https://electionlawblog.org/?author=3>

Details:<https://u.osu.edu/electionlaw/events/5-days-out-a-virtual-roundtable-of-election-law-experts/>

Election Law at Ohio State is honored to host this panel of election law experts from around the country who will share their assessments of where things stand with 5 days to go before this unprecedented presidential election.

THURSDAY, OCTOBER 29
4:00 – 5:30pm (ET)

REGISTER HERE<https://osu.zoom.us/webinar/register/WN_VrOIAkzWSdyEi6WQHifmNQ>

HOST: Edward B. Foley | Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law, Moritz College of Law, The Ohio State University

MODERATOR: Steven F. Huefner | C. William O’Neill Professor in Law and Judicial Administration; Deputy Director, Election Law, Moritz College of Law, The Ohio State University

PANELISTS:

Rebecca Green | Professor of the Practice of Law, Kelly Professor of Excellence in Teaching, Co-Director of the Election Law Program, William & Mary Law School

Richard L. Hasen | Chancellor’s Professor of Law and Political Science, UC Irvine School of Law

Lisa Manheim | Charles I. Stone Associate Professor of Law, University of Washington School of Law

Derek T. Muller | Professor of Law, Caruso School of Law, Pepperdine University

Nathaniel Persily | James B. McClatchy Professor of Law at Stanford Law School

Richard H. Pildes | Sudler Family Professor of Constitutional Law, New York University School of Law

Charles Stewart III | Kenan Sahin Distinguished Professor of Political Science, MIT; Co-director, Caltech/MIT Voting Technology Project; Director, MIT Election Data and Science Lab

Franita Tolson | Vice Dean for Faculty and Academic Affairs, and Professor of Law, USC Gould School of Law
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Justice Kagan Denies Republican Party Attempt to Stop Expansion of Mail-In Balloting in Montana; Still Awaiting Potentially Big SCOTUS Ruling in Pennsylvania Case<https://electionlawblog.org/?p=116488>
Posted on October 8, 2020 12:42 pm<https://electionlawblog.org/?p=116488> by Rick Hasen<https://electionlawblog.org/?author=3>

As expected<https://electionlawblog.org/?p=116361>, Justice Kagan has denied<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\20a61.html> the petition without referring it to the full court.

We are still awaiting the ruling in the Pennsylvania petition before the Supreme Court, which could be a very big deal<https://slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Voting Advocates Call on Officials to Do More to Stop Voter Intimidation and Election Violence”<https://electionlawblog.org/?p=116486>
Posted on October 8, 2020 11:50 am<https://electionlawblog.org/?p=116486> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld reports<https://billmoyers.com/story/voting-advocates-call-on-officials-to-do-more-to-stop-voter-intimidation-and-election-violence/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking and Analysis: 7th Circuit, on 2-1 Vote, Rejects District Court Extension of Wisconsin Deadline for Receipt of Absentee Ballots, Relying Heavily on Supreme Court’s Earlier Ruling in South Carolina Case<https://electionlawblog.org/?p=116480>
Posted on October 8, 2020 11:03 am<https://electionlawblog.org/?p=116480> by Rick Hasen<https://electionlawblog.org/?author=3>

As I noted in this Slate piece <https://slate.com/news-and-politics/2020/10/supreme-court-covid-voting-cases-pennsylvania-south-carolina.html> earlier this week, “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.” And the South Carolina ruling from earlier this week, sent an unmistakable signal<https://electionlawblog.org/?p=116241> from the Supreme Court to roll back federal district court orders easing voting burdens during the pandemic.

Today’s ruling from the 7th Circuit illustrates perfectly what’s going on.

From the majority opinion<https://drive.google.com/file/d/1mZJD4QtlWNHOrN6IDRtS5sO59kvZxnl8/view>:

The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the,Supreme Court’s recent stay of another injunction issued close to the upcoming election. Andino v. Middleton, No. 20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992).

Voters have had many months since March to register or  obtain absentee ballots; reading the Constitution to extend  deadlines near the election is difficult to justify when the  voters have had a long time to cast ballots while preserving  social distancing. The pandemic has had consequences (and  appropriate governmental responses) that change with time,  but the fundamental proposition that social distancing is  necessary has not changed since March. The district court did not find that any person who wants to avoid voting in person on Election Day would be unable to cast a ballot in  Wisconsin by planning ahead and taking advantage of the  opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could  be encountered by voters who do not plan ahead and wait  until the last day that state law allows for certain steps. Yet,  as the Supreme Court observed last April in this very case,  voters who wait until the last minute face problems with or  without a pandemic. ..

From Judge Rovner’s dissent:

Today, by granting that stay, the court adopts a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote. It does so on two grounds: (1) the Supreme Court’s Purcell doctrine, as exemplified by the Court’s recent shadow-docket rulings, in the majority’s view all but forbids alterations to election rules in the run-up to an election; and (2) in times of pandemic, revisions to election rules are the province of elected state officials rather than the judiciary. With respect, I am not convinced that either rationale justifies a stay of the district court’s careful, thorough, and well-grounded injunction. At a time when judicial intervention is most needed to protect the fundamental right of Wisconsin citizens to choose their elected representatives, the court declares itself powerless to do anything. This is inconsistent both with the stated rationale of Purcell and with the Anderson-Burdick framework, which recognizes that courts can and must intervene to address unacceptable burdens on the fundamental right to vote. The inevitable result of the court’s decision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it.

This is a travesty.

Judge Rovner’s dissent concludes:

Given the great care that the district court took in issuing its preliminary injunction and the ample factual record supporting its decision, I am dismayed to be dissenting. It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages. The district court ordered five modest changes to Wisconsin’s election rules aimed at minimizing the number of voters who may be denied the right to vote. Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices.

Good luck and G-d bless, Wisconsin. You are going to need it.

Correction: The original version of this post said it was a party line vote. This was in error.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Facebook bans marketing firm running ‘troll farm’ for pro-Trump youth group”<https://electionlawblog.org/?p=116478>
Posted on October 8, 2020 10:19 am<https://electionlawblog.org/?p=116478> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2020/10/08/facebook-bans-media-consultancy-running-troll-farm-pro-trump-youth-group/>

Facebook said Thursday it will permanently ban from its platform an Arizona-based marketing firm running what experts described as a domestic “troll farm” — in a probe of the deceptive behavior prompted by a Washington Post article<https://www.washingtonpost.com/politics/turning-point-teens-disinformation-trump/2020/09/15/c84091ae-f20a-11ea-b796-2dd09962649c_story.html?itid=lk_inline_manual_2> last month.

The firm, Rally Forge, was “working on behalf of Turning Point USA,” Facebook concluded in an investigation that led to the removal of 200 accounts and 55 pages, as well as 76 Instagram accounts — many of them operated by teenagers in the Phoenix area. The fake accounts, some with either cartoonlike Bitmoji profiles or images generated by artificial intelligence, complemented the real accounts of users involved in the effort, which largely entailed leaving comments sympathetic to President Trump and other conservative causes across social media.

Facebook stopped short of penalizing Turning Point USA, the prominent conservative youth organization<https://www.washingtonpost.com/lifestyle/style/inside-a-right-wing-groups-safe-space-for-young-trump-supporting-women/2018/06/18/35f153e0-7289-11e8-b4b7-308400242c2e_story.html?itid=lk_inline_manual_5> based in Phoenix, or its 26-year-old president, Charlie Kirk, saying it could not determine the extent to which the group’s leaders were aware of the specific violations carried out on their behalf, such as the use of fake accounts. Twitter also acted against the operation on Thursday, suspending 262 accounts involved in “platform manipulation and spam” — in addition to the several hundred accounts already removed last month following questions from The Post — but similarly did not boot Turning Point USA, a tax-exempt nonprofit founded in 2012, or its affiliates from the online platform.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>

Divided 9th Circuit Panel Allows Arizona Registration Deadline Extension to Continue for Now, Suggesting RNC Has No Standing to Appeal<https://electionlawblog.org/?p=116471>
Posted on October 8, 2020 9:53 am<https://electionlawblog.org/?p=116471> by Rick Hasen<https://electionlawblog.org/?author=3>

Interesting order. <https://www.scribd.com/document/479243659/Mi-Familia-Vota-v-Hobbs-Ct-Scheduling-Order-100720#from_embed> Judge Bybee would stop the registration extension as the Ninth Circuit continues the case. (h/t AZ Law<https://arizonaslaw.blogspot.com/2020/10/update-split-9th-circuit-panel.html>)

I guess the Governor and state legislature either chose not to appeal or don’t have the ability under state law, but I am open to hearing other explanations. Update: “The Court also notes that it has not yet granted Brnovich’s effort to intervene.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The Purcell Principle Needs to Be Reined in and David Gans Has the Goods<https://electionlawblog.org/?p=116469>
Posted on October 8, 2020 9:07 am<https://electionlawblog.org/?p=116469> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve been quite critical of the Purcell Principle, most comprehensively in this piece, Reining in the Purcell Principle<https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr>. Since I wrote that article, the Court has only made things worse.

David Gans, in this careful ACS issue brief,<https://www.acslaw.org/wp-content/uploads/2020/10/Purcell-Voting-Rights-IB-Final-Version.pdf> brings this research up to date and makes a strong case:

Purcell should be reconsidered. Through a series of orders that either offer no reasoning or simply rely on Purcell and its progeny, the Court has effectively displaced a long line of prior precedents that recognized the judiciary’s obligation to enforce the Constitution and voting rights laws, while also placing limits on the scope of remedies consistent with long-standing equitable principles. Reconsidering the Purcell principle would not mean courts would grant injunctive relief across the board. Rather in line with Reynolds and other cases, the Court would consider longstanding equitable principles, which require consideration of the likelihood of
success on the merits, the balance of hardships, and the public interest, including the interest in the orderly administration of the election.74 As Reynolds laid out, “[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree.”75

74 See Hasen, Reining in the Purcell Principle, supra note 12, at 444 (“[T]he Supreme Court should adjudicate its election disputes consistent with the general standards and levels of deference it has established for considering non-election requests to stay a lower court order, vacate a lower court stay, or issue an injunction in its own right. Special considerations related to elections should be one, but not a dominating, factor.”).

75 Reynolds, 377 U.S. at 585.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

--
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UC Irvine School of Law
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