[EL] ELB News and Commentary 10/13/20

[Rick Hasen]

“What happened to Florida’s Amendment 4? Five takeaways from our investigation”<https://electionlawblog.org/?p=116715>
Posted on October 12, 2020 8:12 pm<https://electionlawblog.org/?p=116715> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times:<https://www.tampabay.com/news/florida-politics/2020/10/11/what-happened-to-floridas-amendment-4-five-takeaways-from-our-investigation/>

 A few months ago, we and ProPublica wanted to answer a question: How many people with felony convictions have registered to vote under Amendment 4?

Passed by nearly two-thirds of voters in 2018, the amendment was supposed to be America’s greatest expansion of civil rights in decades, allowing an estimated 1.4 million to vote. Some speculated it could swing Florida’s election in favor of Democrats.

We found that hasn’t happened. At all.

You can read the full investigation here<https://www.tampabay.com/news/florida-politics/elections/2020/10/07/florida-ruled-felons-must-pay-to-vote-now-it-doesnt-know-how-many-can/>. Here are 5 things we learned while reporting this story…
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“California GOP in legal standoff over ‘ballot harvesting’ with unofficial drop boxes”<https://electionlawblog.org/?p=116713>
Posted on October 12, 2020 8:07 pm<https://electionlawblog.org/?p=116713> by Rick Hasen<https://electionlawblog.org/?author=3>

Cal Matters.<https://calmatters.org/politics/california-election-2020/2020/10/california-republican-drop-boxes-legal-trouble/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“With Polling Sites Lacking Workers, a New Generation Steps Up”<https://electionlawblog.org/?p=116711>
Posted on October 12, 2020 8:04 pm<https://electionlawblog.org/?p=116711> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports<https://www.nytimes.com/2020/10/12/us/politics/poll-workers-teenagers-young-people.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A legal fight over how to fix ballot errors in North Carolina has left thousands of voters in limbo. Nearly half are people of color.”<https://electionlawblog.org/?p=116709>
Posted on October 12, 2020 7:59 pm<https://electionlawblog.org/?p=116709> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/north-carolina-ballot-errors/2020/10/12/cd7bd50a-0981-11eb-a166-dc429b380d10_story.html>

A dispute over how North Carolina voters should correct problems with their mail ballots remains unresolved roughly three weeks before Election Day, leaving at least 6,800 votes — including more than 3,300 ballots from people of color — in limbo across a key presidential battleground state.

The legal fight intensified after the state Board of Elections said last month it would allow voters to “cure,” or fix, deficiencies in their mail ballots by completing and returning an affidavit to county election officials. The affidavit would neutralize a range of voter errors that could lead to ballots being tossed, including failure to provide a witness signature.

But a federal judge put the plan on hold Oct. 3, arguing it changed the rules too close to Election Day. And a second federal judge expressed concern that the affidavits would allow voters to essentially dodge the state’s witness requirement — the primary method used in North Carolina to prove mail ballots are authentic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Long lines mark the first day of early voting in Georgia as voters flock to the polls”<https://electionlawblog.org/?p=116707>
Posted on October 12, 2020 7:57 pm<https://electionlawblog.org/?p=116707> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/georgia-early-vote-lines/2020/10/12/f8ffcd8c-0ca9-11eb-8a35-237ef1eb2ef7_story.html>

While the lines were longest in the state’s heavily Democratic strongholds in and around Atlanta, Augusta, Savannah and Macon, hours-long waits were also reported in smaller, more conservative counties, including Lowndes and Floyd, officials said. By the evening, at least 120,000 voters had cast their ballots, according to Jordan Fuchs, Georgia’s deputy secretary of state.

“This is a fantastic turnout election,” she said. “I’m on the floor.”

Voters in Gwinnett County, northeast of Atlanta, began queuing up as early as 4 a.m. — three hours before the polls opened Monday, and an unusually early start, officials said. By the afternoon, the main elections office in the county had an eight-hour wait, and two other locations reported five- to six-hour lines, officials said.

Voters said the crowds were generally patient, but some reported that they saw people walking away before casting their ballots.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Judges across the country cast doubt on voter fraud claims pushed by Republicans and Trump campaign “<https://electionlawblog.org/?p=116705>
Posted on October 12, 2020 6:34 pm<https://electionlawblog.org/?p=116705> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/2020/10/12/politics/judges-reject-voter-fraud-claims/index.html>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


52% of Fox News Viewers, But Few Others, Believe Voter Fraud is a Major Problem with Mail-In Balloting<https://electionlawblog.org/?p=116703>
Posted on October 12, 2020 6:29 pm<https://electionlawblog.org/?p=116703> by Rick Hasen<https://electionlawblog.org/?author=3>

Details:<https://twitter.com/johngramlich/status/1315825276270653442?s=20>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Alaska Supreme Court Upholds Order Barring State from Enforcing Witness Signature Requirement for Mail Ballots During November Covid Election<https://electionlawblog.org/?p=116701>
Posted on October 12, 2020 6:25 pm<https://electionlawblog.org/?p=116701> by Rick Hasen<https://electionlawblog.org/?author=3>

Order here<https://lawyerscommittee.org/wp-content/uploads/2020/10/AlaskaVictory.pdf>; opinion to follow.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Engagement with untrustworthy Facebook content doubles since 2016”<https://electionlawblog.org/?p=116699>
Posted on October 12, 2020 6:21 pm<https://electionlawblog.org/?p=116699> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/engagement-with-untrustworthy-facebook-content-doubles-since-2016-3afc508d-afda-4b95-ac16-76ef3fe7fa1c.html?utm_source=twitter&utm_medium=social&utm_campaign=onhrs>

Facebook users engage with content from untrustworthy outlets twice as often today as they did at the time of the 2016 U.S. election, researchers at the German Marshall Fund found, despite the many measures the platform and its competitors have rolled out to combat the spread of misinformation.

How it works: The German Marshall Fund, along with nonpartisan news reliability service NewsGuard and social media intelligence firm NewsWhip, measured the spread of articles<https://www.gmfus.org/blog/2020/10/12/new-study-digital-new-deal-finds-engagement-deceptive-outlets-higher-facebook-today> from deceptive sites across Facebook in the U.S.-focused study.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“California Republicans embrace legally dubious ballot harvesting after Trump and the GOP spent months decrying the practice”<https://electionlawblog.org/?p=116697>
Posted on October 12, 2020 6:17 pm<https://electionlawblog.org/?p=116697> by Rick Hasen<https://electionlawblog.org/?author=3>

Grace Panetta<https://www.businessinsider.com/california-gop-breaks-with-party-embraces-unauthorized-ballot-harvesting-2020-10> for Business Insider.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Worst Election Law Decision of the Year?”<https://electionlawblog.org/?p=116694>
Posted on October 12, 2020 3:39 pm<https://electionlawblog.org/?p=116694> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas<https://takecareblog.com/blog/the-worst-election-law-decision-of-the-year> at Take Care.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Democrats accuse tech companies of deceitful tactics in campaign against Calif. ballot measure”<https://electionlawblog.org/?p=116692>
Posted on October 12, 2020 2:28 pm<https://electionlawblog.org/?p=116692> by Rick Hasen<https://electionlawblog.org/?author=3>

The Hill:<https://thehill.com/policy/technology/520671-democrats-accuse-tech-companies-of-deceitful-tactics-in-campaign-against>

Democrats are accusing app-based gig companies including Uber and Lyft of playing dirty in their multimillion-dollar ad campaign supporting a California ballot measure that would allow their drivers to continue to be treated as independent contractors rather than employees.

California state Assemblywoman Lorena Gonzalez<https://thehill.com/person/lorena-gonzalez> (D) said Monday that the campaign backing Proposition 22 includes tactics that are “dirtier than I’ve ever seen before,” such buying up “fake groups” that have no actual members and misleading names meant to tie them to progressives such as Sen. Bernie Sanders<https://thehill.com/people/bernie-sanders> (I-Vt.).

“This is historic spending by any side on an initiative, and not historic by California standards; it’s historic nationally,” Gonzalez said during a press conference. “When you think about how much these companies put into the initiative process to simply write their own rules, this is a new path that has been chosen by these Silicon Valley billionaire corporations, and it should alarm all of us.”

Sanders on Monday tweeted his personal opposition to Proposition 22, denouncing as dishonest a mailer that backed it under the title “Feel the Bern, Progressive Voter Guide.”…

The mailers, which also back the Democratic presidential ticket, have been showing up in Southern California mailboxes. But the groups named in them, such as “Our Voice, Latino Voter Guide” and the “Council of Concerned Women Voters Guide,” do not exist, SFGate reported<https://www.sfgate.com/politics/article/Fake-progressive-mailers-urge-yes-on-Uber-Lyft-15635173.php>.

Yes on 22<https://yeson22.com/coalition/>, a PAC supported by Uber and Lyft as well as delivery-based apps DoorDash, Instacart and Postmates, spent hundreds of thousands of dollars on mailers in expenditures on Aug. 28, according to the California secretary of state’s Cal-Access database<http://cal-access.sos.ca.gov/Campaign/Committees/Detail.aspx?id=1422181&session=2019&view=expenditures>. The expenditures included $20,000 for a “progressive slate,” $60,000 for a “California voter guide” and $48,750 for a “California Latino voter guide.”

Spokespeople for Uber and Lyft were not immediately available for comment when asked about the mailers or to respond to Sanders’s call to “denounce the deception.”

In total, more than $186 million has been contributed to the campaign in support of Proposition 22, according to California’s Fair Political Practices Commission<http://www.fppc.ca.gov/transparency/top-contributors/nov-20-gen.html>, reportedly making it the costliest ballot measure campaign in the nation’s history and far outstripping the opposition’s spending.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Limits on Observers and Challengers at the Polls”<https://electionlawblog.org/?p=116690>
Posted on October 12, 2020 12:08 pm<https://electionlawblog.org/?p=116690> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center resource<https://www.brennancenter.org/our-work/research-reports/limits-observers-and-challengers-polls> on what’s allowed and what’s prohibited in each state.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Should Democrats Worry About Absentee Ballots?”<https://electionlawblog.org/?p=116688>
Posted on October 12, 2020 11:57 am<https://electionlawblog.org/?p=116688> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Bernstein<https://www.bloomberg.com/opinion/articles/2020-10-12/should-democrats-worry-about-absentee-ballots>:

Early-voting maven Michael McDonald has been running evaluations of the vote so far<https://electproject.github.io/Early-Vote-2020G/Early_Vote_Analysis_10_11.html> every weekend, and if you want to understand what’s happening it’s a must-read. This week he added a prediction: “I predict in the coming weeks the Democratic narrative will change from euphoria over the apparent large leads in early voting to concern that a disproportionately large number of younger voters have yet to return their mail ballots.”

Safe bet — at least, it’s a safe be that Democrats will be panicking about something. If it’s not the lower ballot-return rate from younger voters, it will be that more mail-in than in-person ballots wind up disqualified, or perhaps just that former Vice President Joe Biden’s current very large lead over President Donald Trump will slide back to being just a large lead. Democrats always are on the verge of panic, and after Trump won in 2016 despite being behind in the polls (but nowhere near as far behind as he is now) that’s only going to make them more insecure.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Some Wonder If California’s Election Chief Is Too Partisan”<https://electionlawblog.org/?p=116686>
Posted on October 12, 2020 11:52 am<https://electionlawblog.org/?p=116686> by Rick Hasen<https://electionlawblog.org/?author=3>

KQED’s Scott Shafer:<https://www.kqed.org/news/11841574/some-wonder-if-californias-election-chief-is-too-partisan>

“When the Secretary State’s office becomes a stepping stone to other office, it’s inevitable that it’s going to serve a kind of partisan purpose. And I think that that disserves the voters,” said U.C. Irvine Law Professor Rick Hasen, one of the nation’s leading election law experts. Hasen said the job should be above politics.

That does not describe the current Secretary of State. Padilla regularly endorses candidates for office and this year he has campaign committees to raise money for three statewide propositions, including ones to end the ban on affirmative action (Prop. 16) and another (Prop. 18) to allow 17-year-olds to vote in primary elections.

“[The Secretary of State] should be someone whose allegiance is first and foremost to the integrity of the election system. I certainly shouldn’t be endorsing candidates or serving on their committees,” Hasen said.

Indeed, Padilla has focused on lowering barriers to voting in California and has had to help implement a raft of new state laws doing just that. In the process, he’s been sued by Republicans who say he’s failed to rid voter rolls of dead or duplicated voters.

“So if you’re a Republican, you probably see Alex Padilla as really supporting Democratic causes. If you’re a Democrat, you probably see Alex Padilla is doing what he should be doing, which is expanding the ability of people to easily vote to make sure that the barriers to vote are very low,” said Loyola Law School’s Jessica Levinson.

In 2016 Padilla endorsed Hillary Clinton for president which she won over Sen. Bernie Sanders. At the Democratic National Convention in Philadelphia that year, supporters of Sanders were furious at Padilla — shouting him down at a delegation breakfast — and claimed he had disadvantaged Sanders in the California primary.

It is episodes like that one that make Hasen, the law professor, say he would like to see the Secretary of State nominated by the governor, rather than be elected on their own.

“If I had a few million dollars, I would try to qualify a measure for the California ballot that would make the Secretary of State’s position a nonpartisan office,” Hasen said.

“What I’d like to see is have the governor nominate someone who is above politics to run the election system and have that person confirmed by a two-thirds vote of the Senate and the Assembly. That way you would have bipartisan buy-in on that person.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Saying the Quiet Part Out Loud: Some Republicans Say Trump’s Best Bet For a Second Term is To Prematurely Declare Victory Before Mail-In Ballots Are Counted and Hope Courts Can Hand Him a Victory<https://electionlawblog.org/?p=116684>
Posted on October 12, 2020 11:39 am<https://electionlawblog.org/?p=116684> by Rick Hasen<https://electionlawblog.org/?author=3>

Just wow:<https://apnews.com/article/election-2020-virus-outbreak-joe-biden-donald-trump-campaigns-904620e3b58a8abf75227848c8762396>

Some Trump allies say their best bet is to hope that the results look close election night, before some of the mail-in ballots are counted, allowing Trump to declare victory and have the results thrown to the courts.

How this is not the headline of the piece baffles me.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


More Hateful Voicemail from Same Person Who Left Racist and Homophobic Earlier Message<https://electionlawblog.org/?p=116681>
Posted on October 12, 2020 11:30 am<https://electionlawblog.org/?p=116681> by Rick Hasen<https://electionlawblog.org/?author=3>

Earlier message<https://electionlawblog.org/?p=88432>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“U.S. TV news networks aim for credibility, not speed, on election night”<https://electionlawblog.org/?p=116679>
Posted on October 12, 2020 10:11 am<https://electionlawblog.org/?p=116679> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/us-usa-election-tv-networks-insight-idUSKBN26X18U>

In separate interviews with Reuters about their plans for election night, top executives at five major news networks described a focus on restraint, not speed; on transparency about what remains unknown; and on a reassuring message that slow results don’t signify a crisis.

Election night “is not going to be about storylines or narratives or projections or predictions,” said NBC News President Noah Oppenheim. “It’s going to be about: ‘What do we know in any given moment?’ and staying firmly focused on only those facts.”

Compared to election night features such as the white board Tim Russert scrawled on in 2000, many of this year’s tools will be decidedly more scientific. Networks will be showcasing their investments in more polling, deeper data analysis, and additional reporting on the mechanics of voting, voting integrity and misinformation.

Walt Disney Co’s DIS.N ABC News and ViacomCBS Inc VIACA.O- owned CBS News have voter integrity units dedicated to topics such as foreign election interference and how the vote is tallied, state by state. CBS is using its “Battleground Tracker” that combines polling, files on voter participation, U.S. Census data and historical patterns.

Comcast CMCSA.O-owned NBC News has doubled the size of its “Vote Watch” team, which includes 24 correspondents, reporters and producers who specialize in issues such as voting rights and misinformation campaigns. For the past year, the news division has been reporting on voter sentiment in five “bellwether” counties in Florida, Michigan, Wisconsin, Pennsylvania and Arizona.

This will be the first presidential election in which the major TV networks will get data from different providers, raising the potential for divergent perspectives on election night returns.

Since 2018, Fox Corp’s FOXA.O Fox News has partnered with the Associated Press to replace traditional in-person exit polls with online and telephone surveys that aim to reach early and Election Day voters. The survey data will be combined with real-time results tabulated by the AP to help make projections. Fox and the AP left the National Election Pool consortium, which includes the three broadcast news networks and AT&T T.N-owned CNN. The consortium will rely on the firm Edison Research for exit polls and results as they come in from each precinct. Reuters has a distribution deal with the NEP for 2020 election data.

Networks may benefit from an adjustment in pre-election polling since 2016: Weighting state polls for education, not just gender and age. In the 2016 election, a voter’s education figured prominently in whether they would vote for Trump or Democratic challenger Hillary Clinton. Whites without college degrees turned out for Trump in greater numbers.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“As Trump team rushes to train ‘army’ of poll watchers, experts on watch for voter intimidation”<https://electionlawblog.org/?p=116677>
Posted on October 12, 2020 9:42 am<https://electionlawblog.org/?p=116677> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News:<https://abcnews.go.com/US/trump-team-rushes-train-army-poll-watchers-critics/story?id=73542441&cid=clicksource_4380645_7_three_posts_card_hed>

“One of the major concerns about poll watching is that it will still lead, intentionally or not, to voter intimidation,” said Sean Morales-Doyle, the deputy director of voting rights and election programs at the Brennan Center for Justice.

“An ‘army’ doesn’t sound like people just there to observe,” Morales-Doyle said. “An army sounds like people there to engage in war with the enemy.”

Responding to that concern in a statement Sunday to ABC News, Clark pushed back: “This isn’t about intimidation but about transparency in the election process. Anything to the contrary is just demagoguery.”

Trump campaign officials said they view poll watchers as critical to ensuring the fairness of the election, a point the president tried to drive home during the first presidential debate. Trump referenced his plans to mobilize his supporters to monitor the polls, saying he is “urging my supporters to go in to the polls and watch very carefully.”

“You know why? Because bad things happen,” he said.

Richard Hasen, an election law expert at the University of California, Irvine Law School, said in a recent interview with Slate that he grew more concerned about voter intimidation when the president in the same debate refused to condemn a hard-right group known for violent confrontations.

“He’s talking about sending poll watchers to places. When he says that in a debate at the same time he’s talking about the Proud Boys standing by, it’s very worrisome,” Hasen said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Microsoft Takes Down a Risk to the Election, and Finds the U.S. Doing the Same”<https://electionlawblog.org/?p=116675>
Posted on October 12, 2020 9:35 am<https://electionlawblog.org/?p=116675> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/12/us/politics/election-hacking-microsoft.html>

Microsoft and a team of companies and law enforcement groups have disabled — at least temporarily — one of the world’s largest hacking operations, an effort run by Russian-speaking cybercriminals that officials feared could disrupt the presidential election in three weeks.

But as soon as Microsoft began dismantling the operations last week, seeking to cripple a network of infected computers known as TrickBot that has been used to paralyze computer systems with ransomware attacks, it discovered that someone else was trying to do the same thing.

In a separate but parallel effort — which was apparently not coordinated with Microsoft — United States Cyber Command, the military cousin to the National Security Agency, had already started hacking TrickBot’s command and control servers around the world late last month, according to two government officials.

The one-two punch painted a picture of the accelerating cyberconflict underway in the final weeks before the elections. Cyber Command, following a model it created in the 2018 midterm elections, kicked off a series of covert pre-emptive strikes on the Russian-speaking hackers it believes could aid President Vladimir V. Putin in disrupting the casting, counting and certifying of ballots this November. Meanwhile, Microsoft, Symantec and other American companies are doing the same.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, voting technology<https://electionlawblog.org/?cat=40>


“‘Green tsunami’: Inside Senate Republicans’ financial freak-out”<https://electionlawblog.org/?p=116673>
Posted on October 12, 2020 9:13 am<https://electionlawblog.org/?p=116673> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/12/senate-republicans-financial-freak-out-428863?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

The online fundraising edge that Democrats have enjoyed for years has mushroomed into an overpowering force, with small-dollar donors smashing “donate” buttons over the last three months to process their disgust for President Donald Trump, fury with Senate Majority Leader Mitch McConnell and grief for the late Justice Ruth Bader Ginsburg.Propelled by the wave of money, Democrats have suddenly expanded the Senate battlefield to a dozen competitive races, burying long-contested states like Iowa and Maine in TV ads while also overwhelming Republican opponents in states like Alaska, Kansas and South Carolina that are suddenly tightening.

Where most of the top Democratic Senate candidates two years ago raised $4 million to $7 million in the third quarter of 2018, their contenders this year are multiplying those totals. Colorado’s John Hickenlooper raised $22 million, more than six times what his presidential campaign raised before he dropped out of that race in 2019. Iowa’s Theresa Greenfield and North Carolina’s Cal Cunningham each cleared $28 million.

And on Sunday, South Carolina Democrat Jaime Harrison announced a record $57 million third-quarter haul for his race against GOP Sen. Lindsey Graham, where the most favorable public polling for Graham in the last month has shown him leading by a single point. Altogether, the money has given Democrats a TV spending edge in 12 of the 13 most expensive Senate races.

“The money is indicative [of] how much energy there is on their side, and the lack thereof on our side,” said Mike DuHaime, a Republican consultant. “I think we’re finding that Trump — the energy for Trump — is not always transferable, the same way it wasn’t transferable for Democrats from Obama.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“How Biden could end 2020 on election night — and why Trump’s path is unlikely”<https://electionlawblog.org/?p=116671>
Posted on October 12, 2020 9:03 am<https://electionlawblog.org/?p=116671> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/10/12/biden-trump-2020-election-night-428856?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>

President Donald Trump has demanded to know the results of the 2020 election on election night, even though some states warn that it will take days to count their votes. But if there is a winner declared on Nov. 3, it will almost certainly be bad news for the president.

While vote counting could be delayed in many states due to a glut of mail ballots, Biden is challenging Trump in several fast-counting, Republican-leaning swing states the president carried four years ago. Election administrators in those states, especially Florida and North Carolina, are confident they should have most of the vote counted on election night.

Meanwhile, the most important states that tipped the Electoral College to Trump in 2016 — Michigan, Pennsylvania and Wisconsin — allow, at best, extremely limited pre-processing of mail ballots. That means it could take days to actually declare a winner in those states.

The result: Several narrow paths to a fast 270 electoral votes for Biden, and basically none for Trump — barring a major surprise in states he lost four years ago. The president likely cannot win another term in the White House without waiting days to find out, though Trump has hinted that he could try to claim he won on election night based on vote counts that won’t yet include many mail ballots, which more Democrats are planning to use this year.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Constitutional Right of Self-Government”<https://electionlawblog.org/?p=116668>
Posted on October 12, 2020 8:45 am<https://electionlawblog.org/?p=116668> by Rick Hasen<https://electionlawblog.org/?author=3>

Nikolas Bowie has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3676811> on SSRN (forthcoming, Yale LJ). Here is the abstract:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.
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Posted in theory<https://electionlawblog.org/?cat=41>


How FDR’s Court-Packing Plan Ended the New Deal<https://electionlawblog.org/?p=116662>
Posted on October 12, 2020 8:43 am<https://electionlawblog.org/?p=116662> by Richard Pildes<https://electionlawblog.org/?author=7>

The confirmation battle over Judge Amy Coney Barrett is bringing the issue of Court-packing into public discussion for the first time since FDR’s failed effort in 1937 — as Adam Liptak’s NYT piece today<https://www.nytimes.com/2020/10/12/us/supreme-court-packing.html?action=click&module=Top%20Stories&pgtype=Homepage> reflects. If this issue gains traction after the election, the “lesson” of FDR’s failure will inevitably play a central role.

I wrote about that question several years ago, in an academic article titled Is the Supreme Court a ‘Majoritarian’ Institution?<http://is%20the%20supreme%20court%20a%20%27majoritarian%27%20institution/?> Here is a modified version of that discussion:

“The lesson of 1937” is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson?

The conventional takeaway [reflected in Adam Liptak’s piece] is that FDR lost the battle, but won the war. His Court-packing plan failed, but the Court soon stopped invalidating New Deal legislation. Generalizing from this account, scholars have argued that the Court is not a counter-majoritarian institution, but tends to fall in line with prevailing public opinion (a brief digression: were this true, one wonders why fights over appointments to the Court are among the most significant political battles of recent years).

But by focusing too narrowly on the Court alone, the conventional story that FDR won that battle misses the far more important point: the political backlash against the Court-packing plan ended the New Deal — and the progressive policy agenda did not recover until 1964.

The most significant study of the Court-packing fight, Jeff Sheshol’s superb 2010 book, Supreme Power: Franklin Roosevelt vs. the Supreme Court<http://supreme%20power:%20Franklin%20Roosevelt%20vs.%20the%20Supreme%20Court/>, portrays the full political context — and consequences — of this battle.

First, the Court’s challenge to the political branches in the 1930s was breathtaking, far beyond anything we have seen in more recent decades. Many people are aware of the major highlights–the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA).

But consider the range of national and state legislation or Presidential action the Court held unconstitutional in one seventeen-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition and the President’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the President to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Guffey Coal Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, ultimately in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades (some of these decisions have withstood the test of time, but most, of course, have not).

In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation. Moreover, at least some of these issues cut to the bone of the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.”

In that context, FDR put forth his Court-packing plan as the first piece of legislation after he had just won the biggest landslide in American history. Yet even so, resistance to FDR’s Court-packing plan was vehement, geographically widespread, and bipartisan. The legislation was in dire shape politically long before the Court’s famous “switch in time” took the last wind out of that effort.

Two-thirds of the newspapers that had endorsed FDR came out immediately and vociferously against the plan. The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge. Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan. Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart. And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court-packing.

We cannot know, of course, whether FDR would ultimately have prevailed, had the Court’s decisions not started to change course. But more remarkably, here was the most popular President in history, with a Congress his party controlled overwhelmingly, confronted by the most aggressive Court in American history – and yet, it is likely that FDR’s legislative challenge to the authority of the Court would have failed, given how deep the cultural and political support was for the Court’s institutional role. That remained so even as the Court issued one unpopular decision after another.

But even more importantly, who actually “won” the Court-packing fight? As I’ve noted, the conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, because the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation — despite his huge electoral triumph just a year before in 1936.

As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How to Avoid Bush v. Gore 2.0”<https://electionlawblog.org/?p=116664>
Posted on October 12, 2020 8:42 am<https://electionlawblog.org/?p=116664> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley in WaPo<https://www.washingtonpost.com/opinions/2020/10/12/how-avoid-bush-v-gore-20/>:

There is a way to avoid this outcome, if it comes to that.

The court could protect itself — and help reassure the country — by appointing a three-member expert panel that would consider any vote-counting challenges that come before it. The notion of this special master panel draws on a 2008 experiment conducted by Georgetown University, Ohio State University and the AEI-Brookings Election Reform Project<https://www.aei.org/events/mccain-v-obama-a-hypothetical-supreme-court-case/>. They held a mock trial of a hypothetical McCain v. Obama<https://moritzlaw.osu.edu/electionlaw/projects/mccainvobama/index.php> lawsuit, to test whether a deliberately neutral tribunal might enable the nonpartisan resolution of a disputed presidential election.
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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
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