[EL] ELB News and Commentary 10/12/20

[Rick Hasen]

Huge Disparity in Election Voting Timing Between Democrats and Republicans in ABC-WaPo Poll<https://electionlawblog.org/?p=116660>
Posted on October 11, 2020 9:54 pm<https://electionlawblog.org/?p=116660> by Rick Hasen<https://electionlawblog.org/?author=3>

This is something<https://www.washingtonpost.com/politics/poll-post-abc-presidential/2020/10/10/303b2230-0b1d-11eb-859b-f9c27abe638d_story.html>:

Half of all likely voters say they plan to vote early, and an additional 7 percent say they have already voted. Among likely voters who have voted or say they will vote early, 40 percent are voting by mail, and 22 percent are dropping off their ballots at a designated drop box, while 37 percent were voting in person. Over the past month, more say they will use drop boxes, and slightly fewer say they will use the Postal Service.

Likely voters 65 and older are much more likely to have already voted (15 percent) than voters under 65 (5 percent). A 64 percent majority of likely voters supporting Biden plan to vote early, and an additional 10 percent say they have already voted, leaving about a quarter who say they plan to vote on Election Day. Among likely voters supporting Trump, a 61 percent majority plan to vote on Election Day, while 33 percent plan to vote early, and 3 percent say they have already voted. Among senior likely voters, 23 percent who back Biden say they have already cast their ballots, compared with 6 percent of Trump supporters.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Jaime Harrison raised record-breaking $57 million in third quarter, campaign says”<https://electionlawblog.org/?p=116658>
Posted on October 11, 2020 9:50 pm<https://electionlawblog.org/?p=116658> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2020/10/11/jaime-harrison-raised-record-shattering-57-million-third-quarter-campaign-says/>

Democrat Jaime Harrison raised a record-breaking $57 million in the past three months in his bid to unseat Sen. Lindsey O. Graham (R-S.C.), shattering the mark for a Senate candidate.

The single-quarter haul Harrison raised from July through September smashes the $38.1 million then-Rep. Beto O’Rourke raised in the third quarter<https://www.washingtonpost.com/politics/texas-democratic-senate-candidate-reports-massive-381-million-quarterly-fundraising-haul/2018/10/12/4b795138-ce21-11e8-a3e6-44daa3d35ede_story.html?itid=lk_inline_manual_3> of 2018 in his unsuccessful bid to oust Sen. Ted Cruz (R-Tex.). At the time, O’Rourke broke the record for the largest-ever quarterly fundraising haul in a Senate race, according<https://www.opensecrets.org/news/2018/10/beto-orourke-smashes-quarterly-fundraising-record/> to the Center for Responsive Politics.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


Joe Biden Quickly Walks Back Comments: “The only way we lose this is by the chicanery going on with regard to polling places.”; Trump Doubles Down on Delegitimizing Rhetoric<https://electionlawblog.org/?p=116656>
Posted on October 11, 2020 9:43 pm<https://electionlawblog.org/?p=116656> by Rick Hasen<https://electionlawblog.org/?author=3>

After I and others <https://twitter.com/rickhasen/status/1315042602782089216?s=20> called out these comments<https://twitter.com/tylerpager/status/1315041824168448000> as potentially delegitimizing the election, Biden quickly issued the following clarification<https://twitter.com/AndrewSolender/status/1315061619702009860?s=20>:

Trump of course has made dozens of comments delegitimizing the election, such as saying<https://www.cnn.com/2020/08/17/politics/donald-trump-campaign-swing/index.html> that the only way he loses is if the election is rigged. Trump has not backed off this, but instead has doubled and tripled down.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Trump is making the 2020 election a recipe for chaos. How Philly is preparing.”<https://electionlawblog.org/?p=116654>
Posted on October 11, 2020 9:31 pm<https://electionlawblog.org/?p=116654> by Rick Hasen<https://electionlawblog.org/?author=3>

Philadelphia Inquirer<https://www.inquirer.com/politics/election/trump-philadelphia-2020-election-unrest-preparations-20201011.html?utm_medium=referral&utm_source=ios&utm_campaign=app_ios_homefeed_inapp&utm_content=ASFYB76ANFC7BLKDQCNFYUMSFI>:

What if in-person votes suggestPresident Donald Trump is winning Pennsylvania after the polls close, but the slow counting of mail ballots<https://www.inquirer.com/politics/election/pennsylvania-2020-election-blue-shift-20200127.html>in Philadelphia flips the tally in favor of Democratic nomineeJoe Biden in the days after? And what happens if Trump then wrongly claims the election is being stolen from him and calls on supporters to storm elections offices?

“This is the scenario that scared people the most,” said one participant in the planning session, who like two others present would discuss it only on condition of anonymity so they could describe a process that wasn’t open to public participation.

Their fear isn’t unfounded.

Trump has for months falsely<https://www.politifact.com/factchecks/2020/apr/09/donald-trump/donald-trumps-dubious-claim-thousands-are-conspiri/> assailed<https://www.nytimes.com/article/mail-in-voting-explained.html> mail ballotsas beingvulnerable to widespread fraud, leading his voters to shun them<https://www.inquirer.com/politics/pennsylvania/pa-mail-ballots-trump-republicans-20200529.html>.Requests for mail ballots in Pennsylvania show Democrats using them in far greater numbers<https://www.inquirer.com/politics/election/pennsylvania-2020-election-early-mail-voting-20200928.html> than Republicans. They take longer to count than votes cast on polling-place machines, meaning early returns will disproportionately count Trump voters — a phenomenon Democrats have branded the “red mirage,”<https://www.cnn.com/2020/09/01/politics/2020-election-count-red-mirage-blue-shift/index.html> though it’s known academically as the “blue shift.”<https://www.inquirer.com/politics/election/pennsylvania-2020-election-blue-shift-20200127.html> And while election officials can’t legally start counting mail ballots in Pennsylvania until the polls open on Election Day, Trump has made clear he wants the results known by that night<https://www.cnn.com/2020/09/12/politics/mcenany-trump-election-night-results/index.html>.

It’s a recipe for chaos<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html>.

Dozens of officials talked through how to handle this scenario and others over the course of four hours in the EOC, in the basement of the Fire Administration Building, where long banks of large video screens stand in front of clusters of work stations. It’s a place where the city deals with everything from the coronavirus pandemic<https://www.inquirer.com/health/coronavirus/> to crowd control after an Eagles Super Bowl victory — and now, potential postelection unrest.

Officials from the City Commissioners — who run elections — police, fire, the Office of Emergency Management, and other agencies, along with staffers from thePennsylvania Emergency Management Agency, left with plans they hope they’ll never need. Their meeting took place before Trump put Philadelphia on the front lines <https://www.inquirer.com/politics/election/trump-philadelphia-pennsylvania-voting-20201003.html> of his attack on voting by declaring in a nationally televised debate<https://www.inquirer.com/politics/election/trump-poll-watchers-philadelphia-early-voting-20200929.html> that “bad things happen” in the city’s elections<https://www.inquirer.com/news/trump-bad-things-happen-in-philadelphia-debate-20200930.html>.

The participants worked through how to handle civil unrest at polling places. And officials even considered how to respond to a cyberattack that publishes fake results online.

“I’m more concerned about the disinformation and misinformation about fraud than I am about the possibility and reality of fraud,” said David Thornburgh, head of the nonpartisan, good-government group Committee of Seventy, who did not attend the planning session.“It’s very destabilizing. It causes an unnecessary and even dangerous lack of confidence in our local election systems. It encourages people to question something that is foundational to our democracy.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Federal Court Holds Republican Presidential Electors in Minnesota Lack Standing to Challenge Consent Decree Extending Deadline for Receipt of Absentee Ballots<https://electionlawblog.org/?p=116652>
Posted on October 11, 2020 9:25 pm<https://electionlawblog.org/?p=116652> by Rick Hasen<https://electionlawblog.org/?author=3>

This interesting ruling<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/09/10118509334.pdf> has some interesting discussions about the working of the electoral college/safe harbor rules.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, electoral college<https://electionlawblog.org/?cat=44>


“Taking Page From Authoritarians, Trump Turns Power of State Against Political Rivals”<https://electionlawblog.org/?p=116650>
Posted on October 11, 2020 9:11 pm<https://electionlawblog.org/?p=116650> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/10/us/politics/trump-barr-pompeo.html>

President Trump’s order to his secretary of state to declassify thousands of Hillary Clinton’s emails, along with his insistence that his attorney general issue indictments against Barack Obama and Joseph R. Biden Jr., takes his presidency into new territory — until now, occupied by leaders with names like Putin, Xi and Erdogan.

Mr. Trump has long demanded — quite publicly, often on Twitter — that his most senior cabinet members use the power of their office to pursue political enemies. But his appeals this week, as he trailed badly in the polls and was desperate to turn the national conversation away from the coronavirus, were so blatant that one had to look to authoritarian nations to make comparisons.

He took a step even Richard M. Nixon avoided in his most desperate days: openly ordering direct, immediate government action against specific opponents, timed to serve his re-election campaign.

“There is essentially no precedent,” said Jack Goldsmith, who led the Justice Department’s Office of Legal Counsel under President George W. Bush and has written extensively on presidential powers. “We have a norm that developed after Watergate that presidents don’t talk about ongoing investigations, much less interfere with them.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump, GOP working to tamp down voting as a path to victory”<https://electionlawblog.org/?p=116646>
Posted on October 11, 2020 9:01 pm<https://electionlawblog.org/?p=116646> by Rick Hasen<https://electionlawblog.org/?author=3>

Newsday<https://www.newsday.com/news/nation/voter-suppression-trump-gop-1.50032465> reports.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


California “Unofficial ballot drop boxes popping up throughout the state worry elections officials; Promoting such boxes — which have been found in Los Angeles, Orange and Fresno counties — could be a felony.”<https://electionlawblog.org/?p=116644>
Posted on October 11, 2020 8:57 pm<https://electionlawblog.org/?p=116644> by Rick Hasen<https://electionlawblog.org/?author=3>

OC Register:<https://www.ocregister.com/2020/10/11/unofficial-ballot-drop-boxes-popping-up-throughout-the-state-worry-elections-officials/>

In a photo posted to social media last week, a young man wearing a mask with Orange County congressional candidate Michelle Steel’s name on it is holding a mail ballot and giving a thumbs up next to a box about the size of a file cabinet labeled “Official ballot drop off box.”

The post, from Jordan Tygh, a regional field director for the California Republican Party, encouraged people to message him for “convenient locations” to drop their own ballots.

The problem is the drop box in the photo is not official – and it could be against the law.

The California Secretary of State has received reports in recent days about possible unauthorized ballot drop boxes in Fresno, Los Angeles and Orange counties, agency spokesman Sam Mahood said Sunday evening. Reports place such boxes at local political party offices, candidate headquarters and churches.

Secretary of State Alex Padilla said his office is coordinating with local elections officials to look into the reports.

Only county elections officials can oversee ballot drop boxes, choosing the number, location, hours of operation and other details. County registrars are charged with making sure every box follows strict state guidelines for security, including making sure they can’t be tampered with and tracing the chain of custody of all ballots.

“Operating unofficial ballot drop boxes – especially those misrepresented as official drop boxes – is not just misleading to voters, it’s a violation of state law,” Padilla said, with a felony conviction carrying a prison sentence of two to four years….

More<https://twitter.com/DavidOAtkins/status/1315499177900568577?s=20>:
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“A ‘Twitterized Bush v Gore 2.0’? It’s possible, election experts say”<https://electionlawblog.org/?p=116642>
Posted on October 11, 2020 8:51 pm<https://electionlawblog.org/?p=116642> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News<https://abcnews.go.com/Politics/twitterized-bush-gore-20-election-experts/story?id=73494059> reports.

(The title of the article is a quote from this response of mine<http://www.bu.edu/bulawreview/2020/10/05/optimism-and-despair-about-a-2020-election-meltdown-and-beyond/> in the BU symposium <https://electionlawblog.org/?p=116210> on Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking: Federal District Court Finds Major Security Flaws with Georgia’s Voting Machines (BMDs), Heavily Criticizing State and Manufacturer, But Denies Preliminary Injunction Because It is Too Late to Grant Such Relief for November<https://electionlawblog.org/?p=116639>
Posted on October 11, 2020 5:32 pm<https://electionlawblog.org/?p=116639> by Rick Hasen<https://electionlawblog.org/?author=3>

147-page district court opinion<https://electionlawblog.org/wp-content/uploads/2020-10-11-Opinion-dckt-964_0.pdf> that begins with a quote from “Groundhog Day” and ends with this:

Plaintiffs’ challenge to the State of Georgia’s new ballot marking device QR barcode-based computer voting system and its scanner and associated software presents serious system security vulnerability and operational issues that may place Plaintiffs and other voters at risk of deprivation of their fundamental right to cast an effective vote that is accurately counted. While these risks might appear theoretical to some, Plaintiffs have shown how voting equipment and voter registration database problems during the 2019 pilot elections and again in the June and August 2020 primary elections caused severe breakdowns at the polls, severely burdening voters’ exercise of the franchise. (See September 28, 2020 Order, Doc. 918.)

Established Supreme Court authority recognizes that States retain the authority and power to regulate their elections and the voting process itself, subject to the preservation of citizens’ fundamental First and Fourteenth Amendment rights. And the Supreme Court has repeatedly emphasized in the last months the principle that district courts must exercise great restraint in considering the grant of injunctive relief that requires major new electoral rules on the cusp of an election where a court’s order could cause electoral disruption and potential voter confusion. The posture of this case collides with this latter principle. The sweeping injunctive relief that Plaintiffs seek would require immediate abandonment of the ballot marking device voting system enacted by the Georgia Legislature in 2019 that is in its first year of implementation by the Secretary of State pursuant to his authority under Georgia law. Though major difficulties have arisen during the course of this new system’s rocky first year, the Court recognizes that the staff of the Secretary of State’s Office and county election offices have worked hard to roll out the system in short order during a Covid-19 pandemic era that presents unique hurdles. That hard work though does not answer the fundamental deficits and exposure in the system challenged by Plaintiffs.

Thus, although Plaintiffs have put on a strong case indicating they may prevail on the merits at some future juncture, the Court must exercise real caution in considering the grant of their request for extraordinary injunctive relief, given its obligation to follow governing Supreme Court and Eleventh Circuit authority. Despite the profound issues raised by the Plaintiffs, the Court cannot jump off the legal edge and potentially trigger major disruption in the legally established state primary process governing the conduct of elections based on a preliminary evidentiary record. The capacity of county election systems and poll workers, much less the Secretary of State’s Office, to turn on a dime and switch to a full-scale hand-marked paper ballot system is contradicted by the entire messy electoral record of the past years. Implementation of such a sudden systemic change under these circumstances cannot but cause voter confusion and some real measure of electoral disruption. As with any systemic change, implementation of a statewide hand-marked paper ballot system as the State’s primary electoral system would require long term planning and advanced poll worker training. Accordingly, based on the binding appellate legal authority, the State’s strong legal interest in ensuring an orderly and manageable administration of the current election, and the Court’s assessment of the operational realities before it, the Court must deny the Plaintiffs’ Motions for Preliminary Injunctive Relief in so far as they request immediate replacement of the current BMD system with a statewide hand-marked paper ballot system.

But the Court cannot part with that message alone. The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation. These risks are neither hypothetical nor remote under the current circumstances. The insularity of the Defendants’ and Dominion’s stance here in evaluation and management of the security and vulnerability of the BMD system does not benefit the public or citizens’ confident exercise of the franchise. The stealth vote alteration or operational interference risks posed by malware that can be effectively invisible to detection, whether intentionally seeded or not, are high once implanted, if equipment and software systems are not properly protected, implemented, and audited. The modality of the BMD systems’ capacity to deprive voters of their cast votes without burden, long wait times, and insecurity regarding how their votes are actually cast and recorded in the unverified QR code makes the potential constitutional deprivation less transparently visible as well, at least until any portions of the system implode

because of system breach, breakdown, or crashes. Any operational shortcuts now in setting up or running election equipment or software creates other risks that can adversely impact the voting process.

The Plaintiffs’ national cybersecurity experts convincingly present evidence that this is not a question of “might this actually ever happen?” – but “when it will happen,” especially if further protective measures are not taken. Given the masking nature of malware and the current systems described here, if the State and Dominion simply stand by and say, “we have never seen it,” the future does not bode well.

Still, this is year one for Georgia in implementation of this new BMD system as the first state in the nation to embrace statewide implementation of this QR barcode-based BMD system for its entire population. Electoral dysfunction – cyber or otherwise – should not be desired as a mode of proof. It may well land unfortunately on the State’s doorstep. The Court certainly hopes not.

The Court recognizes the major challenges facing the Secretary of State’s Office in rapidly implementing a new statewide voting system. Yet the vital issues identified in this case will not disappear or be appropriately addressed without focused State attention, resources, ongoing serious evaluation by independent cybersecurity experts, and open-mindedness. The Secretary of State and Dominion are obviously not without resources to tackle these issues. And at very least, the Court cannot fathom why, post-election, the State and Dominion would not at least be moving toward consideration of the software upgrade option Dominion

originally promised, allowing voters to cast ballots that are solely counted based on their voting designations and not on an unencrypted, humanly unverifiable QR code that can be subject to external manipulation and does not allow proper voter verification and ballot vote auditing.

Time will tell whether Act V here can be still avoided or at least re-written.

For the foregoing reasons, the Court DENIES the Curling Plaintiffs’ Motion for Preliminary Injunction [Doc. 785] and DENIES IN PART AND GRANTS IN PART the Coalition Plaintiffs’ Motion for Preliminary Injunction on BMDs, Scanners, and Tabulators, and Audits [Doc. 809].

(Here’s how the court described the part of the injunction being granted: For the reasons discussed in Section III D, the Coalition Plaintiffs’ Motion is GRANTED IN PART in connection with the scanner/tabulator settings in tandem with Dominion’s adjudication software that as currently configured allow certain voter marks on hand-marked absentee and provisional ballots to disregarded and not be counted.
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In Defending Judge Barrett’s Non-Committal on Recusal in a Trump v. Biden Case, Ed Whelan Lies in Saying No One Questioned Whether Justice Ginsburg Would Have to Recuse in an Election-Related Case Given Her Comments About Trump<https://electionlawblog.org/?p=116637>
Posted on October 11, 2020 5:11 pm<https://electionlawblog.org/?p=116637> by Rick Hasen<https://electionlawblog.org/?author=3>

From this ABC report<http://www.wcsjnews.com/news/politics/a-twitterized-bush-v-gore-2-0-its-possible-election-experts-say/article_cb698d9c-dfe8-55b2-bd47-15b496e813c7.html>:

If Judge Amy Coney Barrett is confirmed and seated by Nov. 3 or shortly after, she could participate in decisions about any election-related petitions. This week, Sen. Chris Coons, D-Del., said Barrett “made no commitment to recusal” when asked if she would step back from a case involving Trump.

There is no formal recusal requirement for Supreme Court justices. The practice is entirely at each justices’ discretion.

“Recusal is a decision that’s made heavily fact-dependent,” said Ed Whelan, president of the Ethics and Public Policy Center and a former clerk to the late Justice Antonin Scalia. “In 2016, Justice Ginsburg made lots of remarks very derogatory about President Trump. No one was suggesting at that time that if there was election litigation that she should recuse.” (my emphasis)

From an Ariane de Vogue piece <https://www.cnn.com/2016/07/13/politics/ruth-bader-ginsburg-donald-trump-recuse/index.html> in 2016:

If the Supreme Court finds itself in the position of deciding the presidential election — as it did in 2000 between Al Gore and George W. Bush — some legal experts say the liberal icon would likely have to recuse herself.

“A federal law requires all federal judges, including the justices, to recuse themselves if their ‘impartiality might reasonably be questioned’,” said Stephen Gillers, a legal ethicist at New York University School of Law.

“Under this test, Justice Ginsburg’s remarks would prevent her from sitting in the unlikely event of a ‘Clinton v. Trump’ case that determines the next president,” he said.

Ginsburg attacked Trump in no uncertain terms this week, calling him a “faker”<http://www.cnn.com/2016/07/12/politics/justice-ruth-bader-ginsburg-donald-trump-faker/> in an interview with CNN legal analyst Joan Biskupic. To The New York Times<http://www.nytimes.com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html>, Ginsburg said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

Gillers was referring to 28 U.S. Code 455<https://www.gpo.gov/fdsys/pkg/USCODE-2011-title28/pdf/USCODE-2011-title28-partI-chap21-sec455.pdf> that says “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

“If a Trump election-related question made it to the Supreme Court, I expect that the Trump team would move for Justice Ginsburg to recuse herself,” said Rick Hasen, an election law expert who runs the Election Law Blog.”

Justice Ginsburg herself would decide on that motion, as there is no other mechanism for recusal,” Hasen said.

Steven Lubet, of Northwestern Pritzker School of Law, agrees with Gillers that Ginsburg would need to recuse herself in the event of a disputed election.

See also my Reuters opinion piece from 2016, Commentary: Ruth Bader Ginsburg’s slam of Trump does the nation no favors<https://www.reuters.com/article/us-election-trump-ginsburg-commentary/commentary-ruth-bader-ginsburgs-slam-of-trump-does-the-nation-no-favors-idUSKCN0ZT2IM>.

And here’s <https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html> what I wrote about a Judge Barrett recusal in any Trump v. Biden case:

Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Strong or shaky? Black voter turnout for Biden in these 3 Midwestern cities viewed as key in race vs. Trump”<https://electionlawblog.org/?p=116634>
Posted on October 11, 2020 5:56 am<https://electionlawblog.org/?p=116634> by Richard Pildes<https://electionlawblog.org/?author=7>

The Chicago Tribune takes a deep dive<https://www.chicagotribune.com/election-2020/ct-joe-biden-black-voters-detroit-milwaukee-cleveland-20201008-qfpaofyj4jclhaavgrqg7sjfc4-story.html> into this issue, interviewing 60 Black local elected officials, religious leaders in Detroit, Milwaukee, and Cleveland.

Among the more than 3,000 counties nationwide, the three with the largest drop in Democratic votes between Barack Obama’s reelection win in 2012 and Clinton’s 2016 loss were Wayne County, Michigan (home to Detroit), Cuyahoga County, Ohio (home to Cleveland) and Milwaukee County, Wisconsin, according to certified election results compiled by the Massachusetts Institute of Technology. . . .

Cleveland City Councilman Basheer Jones worked as a regional field director in his city for Obama’s 2012 campaign and as a consultant for Clinton’s 2016 campaign, organizing events to engage Black voters. He described Obama’s campaign as a “well-oiled machine” that sent “waves of people who never considered voting” to the polls while “Hillary Clinton took that vote for granted.”

“They just believed there was no way Black people would support Donald Trump,” said Jones, the first Muslim elected to Cleveland’s council who represents a ward on the city’s predominantly Black East Side. “But they never made the case on why we needed to support Hillary Clinton. There wasn’t a sense of urgency.”

Jones said he’s seeing slightly more energy around this election — mostly because of deep opposition to Trump.

“I’m not seeing a lot of excitement on the ground here in Cleveland for Joe Biden, unfortunately,” Jones said. “So, at least if you’re not pro-Biden, I’m hoping you’re anti-Trump and that will be enough to bring you out, but I’m just not sure.”

“If you want this community to support you, you need to touch down in a lot of ways in this community,” said Rev. Gregory Lewis, executive director of Souls to the Polls, a faith-based grassroots organization that is aiming to boost Milwaukee’s Black turnout by 100,000 voters.

“I know it’s a pandemic, but get people out here with a ton of free yard signs, door hangers, put up some billboards — do something that shows us you want our vote,” Lewis said. “I could go down the street right now and ask someone if they know who Joe Biden is, and they probably won’t know.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“One way to modernize Congress is a throwback — more pay for staff, a return of earmarks”<https://electionlawblog.org/?p=116630>
Posted on October 11, 2020 5:44 am<https://electionlawblog.org/?p=116630> by Richard Pildes<https://electionlawblog.org/?author=7>

With all the attention focused on the election, this story<https://www.washingtonpost.com/powerpost/congress-reform-earmarks-budget/2020/10/10/13e79bd0-0a6a-11eb-9be6-cf25fb429f1a_story.html> about an impressive bipartisan congressional report on how to fix Congress, with 97 recommendations, is not likely to get the attention it deserves. This line stood out to me: “That’s why their most important recommendation is for the return of earmarks.” I’ve endorsed that idea, as part of my critique<https://www.yalelawjournal.org/pdf/PildesPDF_r93catbu.pdf> of how a number of “good government” reforms of recent decades have actually contributed to making government more dysfunctional.

From the story:

Tom Graves entered Congress in the summer of 2010, one of the first Republicans elected under the anti-spending tea party banner, a hard-charging conservative pushing to abolish everything from Obamacare to earmarks….

For almost two years, Graves served as the vice-chair of the Select Committee on the Modernization of Congress, alongside Rep. Derek Kilmer (D-Wash.), the chairman, whom he now counts as a close friend. Their sleepy little temporary panel worked in the smartest fashion possible, forging early consensus on the relatively easy items and built toward tackling the politically challenging issues at the end.

The result is one of the most important proposals to reform Congress, with more weight than the countless wonky blue papers cranked out by think tanks that did nothing but gather dust. This new offering came from within the building, six Democrats and six Republicans, forging common ground despite serving during a brutally partisan time. . . .

Rank-and-file lawmakers like Kilmer and Graves basically waited to be told when to show up and vote yes. . .

Soon after Graves arrived in Congress, Republicans swept the 2010 midterms and claimed the House majority. Their new, anti-corruption-minded speaker, John A. Boehner (R-Ohio), banished those narrow special interest spending items because they had been tied to many corruption investigations.

Like every new idea with such good intentions, it turned out disastrous….

“One of the biggest reasons, I think, Congress is held in low regard is because of the dysfunction that you’ve seen on budget and appropriations matters,” Kilmer said.
They believe that if members of Congress could be in charge of directing funding to their districts, they will be much more invested in the entire process.
Their proposal would limit earmarks to local entities like water authorities and police departments, not private companies, and that they would function like grant proposals. And if local officials abused the system, federal investigators would be empowered to claw back the funds.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Forgotten’ Pennsylvania region holds key to Trump’s fate”<https://electionlawblog.org/?p=116627>
Posted on October 11, 2020 5:21 am<https://electionlawblog.org/?p=116627> by Richard Pildes<https://electionlawblog.org/?author=7>

In 2016, one of the early signals of Donald Trump’s impending victory were the unexpected, extremely long lines to vote in Luzerne County, PA. Politico examines<https://www.politico.com/news/2020/10/10/forgotten-pennsylvania-region-holds-key-to-trumps-fate-428482> where matters stand in Luzerne County on the eve of the 2020 election:

In the wake of the 2016 election, a little-known county in northeastern Pennsylvania emergedas a national symbol of Donald Trump’s unexpected victory, seeming to epitomize the political forces that explained the stunning outcome….

Trump won working-class Luzerne by 26,000 votes in 2016 — nearly 60 percent of his margin of victory in a state that he narrowly carried. As part of his strategy to win Pennsylvania again, his campaign is betting on increased turnout in the small cities and rural reaches of the northeast….

A historic coal region, Luzerne County was a longtime Democratic stronghold with a proud labor tradition. Residents are predominantly white and the vast majority do not have college degrees. The county supported President Barack Obama twice, but in recent years, has been moving sharply toward the Republican Party.

Much like Democrats have spent the last four years turning red seats in the state’s suburbs blue, Republicans have seized power in ancestrally Democratic areas in northeastern Pennsylvania over the same period. Local GOP leaders said Democrats are dreaming if they think that Luzerne County is in play this year.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pennsylvania emerges as ‘tipping-point’ battleground for Biden and Trump — before and after Election Day”<https://electionlawblog.org/?p=116625>
Posted on October 10, 2020 8:31 pm<https://electionlawblog.org/?p=116625> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/pennsylvania-emerges-as-tipping-point-battleground-for-biden-and-trump/2020/10/10/e063f7dc-0afe-11eb-a166-dc429b380d10_story.html>

Both parties are increasingly focused on the pivotal — and potentially messy — role that Pennsylvania could play in deciding the outcome of the presidential race<https://www.washingtonpost.com/elections/2020/10/10/trump-biden-live-updates/?itid=lk_inline_manual_1>.

President Trump’s campaign in recent days has redirected ad spending there from other northern battlegrounds, while Joe Biden’s campaign and supportive groups are increasing their spending in the state, which between its rolling rural expanses and major metropolitan hubs<https://www.washingtonpost.com/graphics/2020/politics/pennsylvania-political-geography/?itid=lk_inline_manual_2> is seen as a classic political bellwether.

Both sides now see Pennsylvania, with 20 electoral college votes, as a must-win prize on the path to the 270 needed to win the White House, according to Democratic and Republican strategists. They also increasingly view the battle for those votes as one that could well continue beyond Election Day — with a growing list of balloting disputes and lawsuits setting the stage, if the race is close, for a contested election reminiscent of the Florida drama that transfixed the nation after the 2000 election.

Not only is Pennsylvania allowing anyone to vote by mail in a general election for the first time, but all the state’s polling places also have new voting machines, and the rules that govern the vote have been shifting in recent weeks, as the two parties in a state with divided government battle in the courts on multiple fronts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots”<https://electionlawblog.org/?p=116623>
Posted on October 10, 2020 8:20 pm<https://electionlawblog.org/?p=116623> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/amy-coney-barrett-bush-gore/2020/10/10/594641b8-09e3-11eb-991c-be6ead8c4018_story.html>

Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.

The litigation was a sidebar to the central drama of the 2000 presidential contest, but a loss in thecase could have cost Bush the presidency.

At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.

This year, the Trump campaign and Republicans in Iowa have pushed<https://www.fairmontsentinel.com/news/mn-state-news-apwire/2020/10/07/iowa-supreme-court-puts-absentee-ruling-on-hold/> to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.

“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”…

Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them.

The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.

Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.

Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”

Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.

“It tells you that sometimes what goes around comes around,”said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>


“Voting-related lawsuits pepper US before Election Day”<https://electionlawblog.org/?p=116621>
Posted on October 10, 2020 8:14 pm<https://electionlawblog.org/?p=116621> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.yahoo.com/news/voting-related-lawsuits-pepper-us-125531141.html>
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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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