[EL] Fifth Circuit order on Texas drop boxes; more news and commentary

[Rick Hasen]

Fifth Circuit Panel (Three Trump Appointees) Temporarily Halts District Court Restoration of Texas Drop Boxes As Panel Considers What to Do<https://electionlawblog.org/?p=116618>
Posted on October 10, 2020 2:29 pm<https://electionlawblog.org/?p=116618> by Rick Hasen<https://electionlawblog.org/?author=3>

Following up on this<https://electionlawblog.org/?p=116577> district court order, the first words from the Fifth Circuit:
[cid:image001.png at 01D69F13.CEAD7EC0]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Specter of election chaos raises questions on military role”<https://electionlawblog.org/?p=116616>
Posted on October 10, 2020 2:18 pm<https://electionlawblog.org/?p=116616> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/virus-outbreak-election-2020-donald-trump-united-states-elections-5ea93aa5f411244d47dd4dadb105e82d>

 It’s a question Americans are unaccustomed to considering in a presidential election campaign: Could voting, vote-counting or the post-vote reaction become so chaotic that the U.S. military would intervene?

The answer is yes, but only in an extreme case. There is normally no need for the military to play any role in an election. The Constitution keeps the military in a narrow lane — defending the United States from external enemies. Civil order is left largely to civilian police. But there is an obscure law, the Insurrection Act, that theoretically could thrust the active-duty military into a police-like role. And governors have the ability to use the National Guard in state emergencies if needed.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Voters will decide this election, not the courts, says former Justice Dept. official”<https://electionlawblog.org/?p=116613>
Posted on October 10, 2020 12:49 pm<https://electionlawblog.org/?p=116613> by Rick Hasen<https://electionlawblog.org/?author=3>

Justin Levitt <https://www.msnbc.com/ali-velshi/watch/voters-will-decide-this-election-not-the-courts-says-former-justice-dept-official-93597765618> on MSNBC.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Dan Balz: “As Trump refuses to say he’ll accept election results, Republicans press to make voting harder”<https://electionlawblog.org/?p=116606>
Posted on October 10, 2020 11:59 am<https://electionlawblog.org/?p=116606> by Rick Hasen<https://electionlawblog.org/?author=3>

Balz<https://www.washingtonpost.com/politics/as-trump-refuses-to-say-hell-accept-election-results-republicans-press-to-make-voting-harder/2020/10/10/7cdd69be-0b08-11eb-859b-f9c27abe638d_story.html> at WaPo:

Republican officials have rhetorically brushed aside President Trump’s refusal to say he will accept the results of the election<https://www.washingtonpost.com/politics/contested-election-2020-preparations/2020/10/08/49a58352-08af-11eb-a166-dc429b380d10_story.html?itid=lk_inline_manual_1>. They note that presidencies have changed hands peacefully since the start of the republic. Meanwhile, they are engaged in a systematic effort to make voting more difficult.

These actions are not the work of a confident, expanding party; they are not signs of a party that sees its coalition growing and its appeal widening. Instead, they are an acknowledgment that, unless something changes, they could face a bleak future, one in which winning elections will depend more on holding down the size of an increasingly diverse electorate than on encouraging the widest possible enfranchisement.

This is not a new phenomenon. For some years, Republicans at the state level have instituted barriers to voting. They have done this in the name of ballot integrity, despite the absence of evidence of widespread fraud in voting.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Huge Absentee Vote in Key States Favors Democrats So Far”<https://electionlawblog.org/?p=116604>
Posted on October 10, 2020 10:32 am<https://electionlawblog.org/?p=116604> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/10/us/politics/early-voting-swing-states.html>

In Madison, Wis., thousands of people have gone to parks to deliver their ballots during Saturday voting festivals. In Milwaukee, Facebook feeds are inundated with selfies of Democrats<https://www.facebook.com/JoelsyWales/posts/3634973613189059> inserting ballots<https://www.facebook.com/photo/?fbid=10106893714772135&set=a.10106893666873125> into drop boxes<https://www.facebook.com/seth.t.hoffmeister/posts/10217592174868287>. And along the shores of Lake Superior, voters in Wisconsin’s liberal northwest corner still trust the Postal Service to deliver ballots.

Of all the mini-battlegrounds within Wisconsin — perhaps the most pivotal state in November for both President Trump and Joseph R. Biden Jr. — the mother lode of absentee ballots is coming in Dane County, a Democratic stronghold that includes Madison. As of Friday, the number of submitted ballots there amounted to more than 36 percent of the county’s total 2016 election vote, a sign of significant enthusiasm; that figure is 10 percentage points higher than in any other county in the state.

In Wisconsin’s Republican heartland, the suburban counties that ring Milwaukee, the absentee turnout is only at about the state average so far. And in the dozens of rural counties where President Trump won huge victories four years ago, ballots are being returned at a far slower rate than in the state’s Democratic areas.

The yawning disparities in voting across Wisconsin and several other key battlegrounds so far are among the clearest signs yet this fall that the Democratic embrace of absentee voting is resulting in head starts for the party ahead of Election Day. For Republicans, the voting patterns underscore the huge bet they are placing on high turnout on Nov. 3, even as states like Wisconsin face safety concerns at polling sites given the spikes in coronavirus cases.

he Democratic enthusiasm to vote is not limited to Wisconsin. Ballot return data from heavily Democratic cities like Pittsburgh; Chapel Hill, N.C.; and Tampa, Fla., and the long lines of cars waiting at a Houston arena to drop off ballots, are signs that many voters have followed through on their intentions to cast ballots well ahead of Nov. 3.

There is still time for Republicans to catch up in many places, and they are expected to vote in strong numbers in person on Election Day. And untold numbers of absentee ballots could be rejected for failing to fulfill requirements, like witness signatures, or could face legal challenges. But in states that have begun accepting absentee ballots, Democrats have built what appears to be a sizable advantage, after years when Republicans were usually more likely to vote by mail….

The Wisconsin ballot numbers illustrate how much voting has changed in the pandemic era. In the 2016 general election, 146,294 Wisconsinites voted by mail<https://elections.wi.gov/node/4397>, and 666,035 others voted at in-person early-voting sites. In the current general election, 646,987 people have already voted absentee as of Friday<https://elections.wi.gov/node/7164>. Early-voting sites start opening in Wisconsin on Oct. 20.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Bush v. Gore’s Uniformity Principle and the Equal Protection Right to Vote”<https://electionlawblog.org/?p=116602>
Posted on October 10, 2020 10:22 am<https://electionlawblog.org/?p=116602> by Rick Hasen<https://electionlawblog.org/?author=3>

This is a terrific new paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3694851> from Michael Morley (forthcoming, George Mason Law Review), though there are aspects I disagree with. Here is the abstract:

The U.S. Supreme Court cautioned in Bush v. Gore that its “consideration is limited to the present circumstances.” Pointing to this admonition, many commentators predicted that, despite the case’s immediate impact in resolving the 2000 presidential election, Bush v. Gore would have little lasting effect on constitutional law. Two decades later, these predictions have proven incorrect.

Bush v. Gore extended Equal Protection principles to the nuts-and-bolts aspects of election administration. The case established a Uniformity Principle that prohibits states from applying “arbitrary and disparate treatment” to different voters participating in the same election. This Article explores the Uniformity Principle’s subsequent development over the ensuing two decades based on a personal examination of all 471 federal and state cases that cited Bush through June 30, 2020.

Courts have applied Bush’s Uniformity Principle in three main contexts. First, they have generally invalidated laws that expressly require or allow materially different treatment of different groups of voters participating in the same election. Second, courts have been almost as skeptical of laws that expressly delegate authority to county or municipal election officials to set substantial voting-related policies. In particular, they have been generally unwilling to allow different jurisdictions within a state to adopt different voting systems with substantially different error rates. Finally, courts have been skeptical of laws that establish vague standards that are subject to a range of conflicting interpretations by local officials in different municipalities or counties. This is especially true in challenges to the constitutional adequacy of states’ ballot-counting standards.

In contrast, courts have been most resistant to applying the Uniformity Principle to selective restrictions on absentee and early voting, administrative “matching” requirements (including laws requiring election officials to determine whether a voter’s information matches official records), and challenges involving the restoration of felons’ voting rights. Citing a conflicting line of Supreme Court precedent from the Civil Rights Era, several courts have held that states are generally free to reduce barriers to voting and expand opportunities to vote, even if they do so selectively, only for particular groups of voters. In the years to come, a compelling need will likely arise for the Court to resolve the apparent conflict between these historic cases and the Bush Uniformity Principle.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>


“If Trump Loses the Election, What Happens to Trumpism?”<https://electionlawblog.org/?p=116598>
Posted on October 10, 2020 9:51 am<https://electionlawblog.org/?p=116598> by Richard Pildes<https://electionlawblog.org/?author=7>

Tom Edsall published another terrific piece<https://twitter.com/Edsall?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor> synthesizing political scientists’ analyses, this time on what both political parties might look like after this election. For reasons readers of this blog will know, I was particularly struck by these comments from Sean McElwee<https://www.dataforprogress.org/who-we-are>, one of the founders of the liberal research institute Data for Progress<https://www.dataforprogress.org/>:

McElwee said:

Progressives increasingly control much of the party infrastructure. It’s hard to find staffers who aren’t progressives. Wonks? They’re all super liberal!

Furthermore, McElwee argued,

Young people who dedicate their careers to helping Democrats win elections are much more liberal than the country as a whole, as are the donors who give millions to the campaigns. The increasing reliance on small dollar ideological donors also keeps progressives in the mix.

Daniel Schlozman,<https://politicalscience.jhu.edu/directory/daniel-schlozman/> a political scientist at Johns Hopkins, agreed that the Trump wing of the party will not disappear if Trump is defeated:

Whatever happens to Donald Trump himself, or to his family, Trumpism — that is, the American manifestation of global right-populism — is not going away, nor is what Jacob Hacker<https://politicalscience.yale.edu/people/jacob-hacker> and Paul Pierson<https://polisci.berkeley.edu/people/person/paul-pierson> call plutocratic populism, namely the fusion of resentment and classic conservatism.

Schlozman warned that if Trumpism

succeeds in finding new recruits among members of historically Democratic blocs, e.g. anti-immigrant Blacks, it may succeed. The only way to imagine a more responsible Republican Party is for it to lose badly and repeatedly. Given the realities of evenly matched parties and Republican advantages in the Senate and the courts, that is not a likely prospect.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Counties are asking for a change to help them tally votes faster. But as election day nears, Pa.’s legislature hasn’t acted on a bill to make that happen”<https://electionlawblog.org/?p=116596>
Posted on October 10, 2020 9:42 am<https://electionlawblog.org/?p=116596> by Richard Pildes<https://electionlawblog.org/?author=7>

Here’s a detailed story<https://www.witf.org/2020/10/07/counties-are-asking-for-a-change-to-help-them-tally-votes-faster-but-as-election-day-nears-pa-s-legislature-hasnt-acted-on-a-bill-to-make-that-happen/> from local news in PA about where things stand in the legislature about changing the law to permit the processing of absentee ballots before Election Day.

“It’s been frustrating, observing that there haven’t been really any constructive discussions about this, that we can tell, in public or behind closed doors,” said Pat Christmas, policy director at nonpartisan good government think tank Committee of 70. “The time that the counties would have to process these ballots – that’s a purely administrative change that should not have any implications one way or another, on one party’s … ability to win votes or not.”

Directors have been asking to begin pre-canvassing before Election Day since April<https://www.witf.org/2020/05/01/counties-could-be-overwhelmed-by-mail-in-ballots-election-directors-warn/>, ahead of a vote-by-mail surge predicted for the primary. At the time, lawmakers punted. They did the same thing after the June 2 primary because they wanted data<https://www.witf.org/2020/06/10/bill-requiring-detailed-report-on-presidential-primary-heads-to-governors-desk/> to inform election code changes. They’ve since received that data<https://www.wlvr.org/2020/08/the-pennsylvania-department-of-state-is-asking-state-lawmakers-to-act-quickly-on-election-reforms/#.X31U_GhKhPY>.

“It’s mystifying to see this train coming at us, the counties, the voters – and for the legislature not to do anything about it,” Christmas said. “If Pennsylvania happens to have electoral votes that … could be the decisive ones in a presidential election — if that is the case, we’re asking for just an incredible amount of scrutiny during election week, and potentially beyond that if some ballots are being challenged.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“One Neat Trick that Could Save America from Vote-Counting Chaos”<https://electionlawblog.org/?p=116594>
Posted on October 10, 2020 9:34 am<https://electionlawblog.org/?p=116594> by Richard Pildes<https://electionlawblog.org/?author=7>

The Rolling Stone covered<https://www.rollingstone.com/politics/politics-news/election-pennsylvania-vote-by-mail-chaos-trump-biden-1071329/> the PA event that Michael Morley, Ned Foley, and I did on why PA is ground zero for potential ballot-counting issues and what the state can still do to minimize these issues.

The sub-heading to the piece is: “There’s an easy solution to dealing with the flood of mail-in ballots. Will Pennsylvania do it?” From the story:

Right now, Pennsylvania law only allows election clerks to begin sorting ballots at 8 a.m. on Election Day. Such a policy makes sense in a state where absentee voting typically makes up a small percentage of all ballots cast. But with Covid-19 raging, more than 2 million Pennsylvanian voters have requested absentee ballots for this year’s elections, which would smash previous state records<https://www.cbsnews.com/news/mail-in-voting-rules-pennsylvania-2020-election-60-minutes-2020-09-20/> for mail-in voting.

“If I could just have a magic wand to wave over one issue, it would be this issue [pre-canvassing] that sounds somewhat arcane,” Rick Pildes, an NYU law professor and election law expert, said at a recent panel hosted by Penn State University.

“The goal here is to think about ways a state can reduce risk,” Ned Foley, an Ohio State University law professor and election-law expert, said at the same panel. Foley said adding precanvassing in Pennsylvania was “the one single most important thing to do to mitigate risk and avoid a problem” come Election Day.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The collapse of the Cambridge Analytica conspiracy theory”<https://electionlawblog.org/?p=116592>
Posted on October 10, 2020 9:24 am<https://electionlawblog.org/?p=116592> by Richard Pildes<https://electionlawblog.org/?author=7>

This<https://www.spectator.co.uk/article/the-complete-collapse-of-the-cambridge-analytica-conspiracy-theory?utm_medium=email&utm_source=CampaignMonitor_Editorial&utm_campaign=BOCH%20%2020201009%20%20GC+CID_af6ca6b319bc7a1dad516f6b32630c4c> is from The Spectator in the UK. I know nothing about the credibility of the U.K. Information Commission that undertook this three-year study, nor do I endorse The Spectator’s rhetoric. But I think readers will want to be aware of this report:

So there you have it. Cambridge Analytica was ‘not involved’ in the 2016 EU referendum. The digital marketing firm that Remainers love to hate did not swing the British electorate towards Leave, as we were constantly told. In the words of the Guardian, no doubt uttered through gritted teeth, Cambridge Analytica did not ‘directly misuse data to influence the Brexit referendum’.

These are the conclusions of the Information Commissioner’s extensive three-year investigation into Cambridge Analytica. Throwing a big bucket of cold water on the chattering-class belief that Cambridge Analytica stealthily and probably illegally harvested people’s online data in order to manipulate our minds and make us vote Leave, the Information Commissioner Elizabeth Denham said yesterday that, in truth, CA was not a significant player in the referendum, ‘beyond some initial enquiries’. . . .

Indeed, the Information Commissioner’s Office concludes that CA used online data in a fairly standard way. ‘On examination’, it says, CA’s methods were ‘well-recognised processes using commonly available technology’. That was always one of the most striking things about the anti-CA hysteria of the past four years – it struck many of us that this company was only doing what other political campaigns, including Barack Obama’s, had done, in terms of tapping into online data in order to build up potential audiences for political messages.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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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