[EL] ELB News and Commentary 10/15/20
Rick Hasen
rhasen at law.uci.edu
Wed Oct 14 21:06:57 PDT 2020
“Biden raised whopping $383M in September”<https://electionlawblog.org/?p=116824>
Posted on October 14, 2020 8:59 pm<https://electionlawblog.org/?p=116824> by Rick Hasen<https://electionlawblog.org/?author=3>
Politico<https://www.politico.com/news/2020/10/14/biden-fundraising-haul-429546>:
Joe Biden announced<https://twitter.com/JoeBiden/status/1316548847712182272> Wednesday evening that his campaign and affiliated committees raised $383 million in September, breaking a record he had just set the prior month as his campaign continues to ride a surge of online donations.
Biden, the Democratic National Committee and the campaign’s joint fundraising committees started the final 34 days of the campaign with $432 million in the bank, Biden campaign manager Jen O’Malley Dillon tweeted<https://twitter.com/jomalleydillon/status/1316549946385010688>.
President Donald Trump’s campaign and the Republican National Committee have not yet released their fundraising totals for September, though they must file campaign finance reports for the month by Oct. 20. In August, Biden raised $154 million than Trump, $365 million to $210 million.
The enormous September fundraising haul for Biden, powered by more than $203 million from online donors, is the latest windfall for the Democratic campaign as it roared ahead of Trump’s political machine this fall. It’s a role reversal from the spring, when Trump started the general election with a nine-figure head start over the former vice president.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
“Across the country, Democratic enthusiasm is propelling an enormous wave of early voting”<https://electionlawblog.org/?p=116822>
Posted on October 14, 2020 8:55 pm<https://electionlawblog.org/?p=116822> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/early-voting-2020-election/2020/10/14/500c22ce-0d90-11eb-8a35-237ef1eb2ef7_story.html>:
With less than three weeks to go before Nov. 3, roughly 15 million Americans have already voted in the fall election, reflecting an extraordinary level of participation despite barriers erected by the coronavirus<https://www.washingtonpost.com/coronavirus/?itid=lk_inline_manual_2> pandemic — and setting a trajectory that could result in the majority of voters casting ballots before Election Day for the first time in U.S. history.
In Georgia this week, voters waited <https://www.washingtonpost.com/politics/georgia-early-vote-lines/2020/10/12/f8ffcd8c-0ca9-11eb-8a35-237ef1eb2ef7_story.html?itid=lk_inline_manual_4> as long as 11 hours to cast their ballots on the first day of early voting. In North Carolina, nearly 1 in 5 of roughly 500,000 who have returned mail ballots so far did not vote in the last presidential election. In Michigan, more than 1 million people — roughly one-fourth of total turnout in 2016 — have already voted.
The picture is so stark that election officials around the country are reporting record early turnout, much of it in person, meaning that more results could be available on election night than previously thought.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Having Dementia Doesn’t Mean You Can’t Vote; Yes, you can help a cognitively impaired person participate in the election. But heed these two guidelines.”<https://electionlawblog.org/?p=116820>
Posted on October 14, 2020 8:53 pm<https://electionlawblog.org/?p=116820> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports.<https://www.nytimes.com/2020/10/14/health/election-voting-seniors-dementia.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Election 2020: When Are Results Official and What Happens if Results Are Disputed”<https://electionlawblog.org/?p=116818>
Posted on October 14, 2020 4:54 pm<https://electionlawblog.org/?p=116818> by Rick Hasen<https://electionlawblog.org/?author=3>
ALI podcast<https://www.ali.org/news/podcast/episode/election-2020-when-are-results-official-and-what-happens-if-results-are-disputed/> with Ned Foley, Steve Huefner, Derek Muller, and Franita Tolson.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Judge: North Carolina must strengthen absentee witness rule”<https://electionlawblog.org/?p=116816>
Posted on October 14, 2020 4:52 pm<https://electionlawblog.org/?p=116816> by Rick Hasen<https://electionlawblog.org/?author=3>
WRAL<https://www.wral.com/judge-orders-north-carolina-to-revise-absentee-ballot-rules/19336687/>:
A federal judge ordered North Carolina on Wednesday to ensure that absentee ballots have a witness signature in a mixed ruling that allows voters to fix other more minor problems without casting a new ballot from scratch.
Judge William Osteen issued an injunction requiring state officials to revise a directive issued Sept. 22 that allowed voters to fix a lack of a witness signature by returning an affidavit — but without starting a new ballot over from the beginning. However, he said he would permit that kind of fix for small errors such as an incomplete witness address or a signature in the wrong place.
Osteen, who was presiding over three elections-related lawsuits, struck a middle ground between voting rights advocates concerned about restrictive absentee rules during the pandemic and Republican leaders who wanted more procedures returned to previous, stricter versions. He also declined to alter an extended deadline for county boards to accept absentee ballots after Election Day as long as they are postmarked by Nov. 3.
Still, Osteen complained in his order Wednesday that the State Board of Elections’ late September rule update could let someone cast a ballot without having a witness at all. He said that conflicts with a ruling he issued in August upholding the overall witness requirement in state law but requiring that voters be given due process to fix, or cure, minor ballot errors.
“This court upheld the witness requirement — to claim a cure which eliminates that witness requirement is ‘consistent with’ this court’s order is a gross mischaracterization,” he wrote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Third Petition Filed in Supreme Court (This One by Democrats) in Wisconsin Absentee Voting Case<https://electionlawblog.org/?p=116814>
Posted on October 14, 2020 4:45 pm<https://electionlawblog.org/?p=116814> by Rick Hasen<https://electionlawblog.org/?author=3>
Justice Kavanaugh<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public%5C20a66.html> wants a response by Friday.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Courts are supposed to protect the right to vote. Why aren’t they?”<https://electionlawblog.org/?p=116812>
Posted on October 14, 2020 4:38 pm<https://electionlawblog.org/?p=116812> by Rick Hasen<https://electionlawblog.org/?author=3>
Josh Douglas<https://www.cnn.com/2020/10/14/opinions/courts-not-protecting-voting-rights-douglas/index.html> CNN oped.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Why Americans must be patient while votes are counted in this year’s election”<https://electionlawblog.org/?p=116810>
Posted on October 14, 2020 4:15 pm<https://electionlawblog.org/?p=116810> by Rick Hasen<https://electionlawblog.org/?author=3>
Trey Grayson and Robin Carnahan oped<https://www.usatoday.com/story/opinion/2020/10/14/2020-election-americans-must-patient-awaiting-results-column/5976951002/> in USA Today.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Voting Is An ‘Individual Right,’ Barrett Testifies, But Critics Remain Leery”<https://electionlawblog.org/?p=116806>
Posted on October 14, 2020 12:25 pm<https://electionlawblog.org/?p=116806> by Rick Hasen<https://electionlawblog.org/?author=3>
NPR<https://www.npr.org/sections/live-amy-coney-barrett-supreme-court-confirmation/2020/10/14/923626264/voting-is-an-individual-right-barrett-testifies-but-critics-remain-leery?utm_medium=social&utm_source=twitter.com&utm_term=nprnews&utm_campaign=politics>:
Sen. Dick Durbin of Illinois returned to voting rights questions during his portion of the morning on Wednesday by returning to a case Barrett handled on the appeals court. She wrote that a man involved who had been convicted of a crime should have his right restored to own a gun but not to vote, as Durbin described the situation.
“You made a distinction there that is hard to understand and difficult to explain,” Durbin said.
(Read more about that case and Barrett’s record on guns here<https://www.npr.org/2020/10/09/921713631/gun-control-groups-voice-grave-concerns-about-supreme-court-nominee-s-record>.)
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
Federal Court Rejects Argument that Election Authorities Cannot Take Donations Coming from Zuckerberg Through Foundation to Help with Costs of Election Administration<https://electionlawblog.org/?p=116803>
Posted on October 14, 2020 11:07 am<https://electionlawblog.org/?p=116803> by Rick Hasen<https://electionlawblog.org/?author=3>
27-Order-Denying-Motion-for-Temporary-Restraining-Order-and-Other-Preliminary-Relief<https://electionlawblog.org/wp-content/uploads/27-Order-Denying-Motion-for-Temporary-Restraining-Order-and-Other-Preliminary-Relief.pdf>Download<https://electionlawblog.org/wp-content/uploads/27-Order-Denying-Motion-for-Temporary-Restraining-Order-and-Other-Preliminary-Relief.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Recommendations for Media Covering the 2020 U.S. Presidential Election”<https://electionlawblog.org/?p=116800>
Posted on October 14, 2020 10:13 am<https://electionlawblog.org/?p=116800> by Rick Hasen<https://electionlawblog.org/?author=3>
This is important<https://mediafordemocracy.org/> from a group of journalism and political science professors:
As we count down to Election Day in the U.S., November 3, 2020, we find ourselves at a dangerous moment for democracy. As scholarly experts in politics and media, we draw on research from our field to offer practical, nonpartisan, evidence-based recommendations to journalists covering the 2020 U.S. presidential election. We hope these recommendations—based on decades of research into electoral processes, news coverage, and public opinion—support the important work journalists are doing to cover the election and safeguard democracy.
We would like to offer resources in three areas:
· Covering the election between now and November 3;
· What to do if there is a contested election when the result is unclear or a candidate does not concede; and,
· What to do if there is civil unrest.
Throughout, we strive to highlight the practical considerations of what can be done given the considerable economic and other constraints within which newsrooms operate. We conclude with several resources.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“We’re a bipartisan group of former leaders who have joined forces to protect our democracy”<https://electionlawblog.org/?p=116798>
Posted on October 14, 2020 10:11 am<https://electionlawblog.org/?p=116798> by Rick Hasen<https://electionlawblog.org/?author=3>
Boston Globe<https://www.bostonglobe.com/2020/10/13/opinion/were-bipartisan-group-former-leaders-who-have-joined-forces-protect-our-democracy/>:
More than 40 former congressional leaders, former Cabinet secretaries, retired military officials, and leaders of civic organizations have formed the bipartisan National Council on Election Integrity to ensure a democratic outcome to the 2020 election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Videos show closed-door sessions of leading conservative activists:” “Be not afraid of the accusations that you’re a voter suppressor, you’re a racist and so forth'”<https://electionlawblog.org/?p=116796>
Posted on October 14, 2020 10:07 am<https://electionlawblog.org/?p=116796> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo reports<https://www.washingtonpost.com/investigations/council-national-policy-video/2020/10/14/367f24c2-f793-11ea-a510-f57d8ce76e11_story.html>. The quote in the headline is from J. Christian Adams.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
Veteran Election Lawyer Ben Ginsberg Sees a Less Than 1 Percent Risk of an Election Meltdown<https://electionlawblog.org/?p=116794>
Posted on October 14, 2020 7:46 am<https://electionlawblog.org/?p=116794> by Rick Hasen<https://electionlawblog.org/?author=3>
Bloomberg<https://www.bloomberg.com/news/articles/2020-10-14/election-night-has-paths-to-a-fast-result-or-a-lengthy-slog?sref=JAemJnte>:
Benjamin Ginsberg, a longtime Republican election lawyer, puts the odds of the 2020 presidential election ending up in an all-out legal brawl that lasts into January at less than 1%.
Democrat Joe Biden has widened his lead over President Donald Trump in national and most battleground state polls in recent weeks. Ginsberg says the history of past U.S. presidential elections means there’s a very high chance the winner will be clear on election night or within the following three weeks.
But all bets are off if the race tightens, given the fiercely polarized electorate, a record number of mail-in ballots and Trump’s hurling of unsubstantiated charges. That could set up a historically contentious — and lengthy — post-election struggle.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“Federal judge extends Virginia voter registration through Thursday”<https://electionlawblog.org/?p=116792>
Posted on October 14, 2020 7:41 am<https://electionlawblog.org/?p=116792> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/local/va-politics/virginia-voter-registration-extended/2020/10/14/837e6ed6-0db9-11eb-b1e8-16b59b92b36d_story.html>:
A federal judge in Virginia agreed Wednesday to extend the state’s voter registration deadline through Thursday after a severed fiber optic cable kept thousands of voters from registering <https://www.washingtonpost.com/local/va-politics/virginia-state-websites-shut-down/2020/10/13/8e4443d8-0d5d-11eb-b1e8-16b59b92b36d_story.html?itid=lk_inline_manual_1> online on Tuesday, the original deadline for doing so.
U.S. District Court Judge John A. Gibney Jr. ordered the new deadline be set for 11:59 p.m. Thursday. State Attorney General Mark R. Herring (D) agreed to the change as part of a lawsuit filed by voter advocacy groups, who argued that Tuesday’s disruption disproportionately affected ethnic minorities and younger voters.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Today at 2 Eastern: ABA’s “Fifth Annual State of Voting Rights”<https://electionlawblog.org/?p=116790>
Posted on October 14, 2020 7:18 am<https://electionlawblog.org/?p=116790> by Rick Hasen<https://electionlawblog.org/?author=3>
Zoom registration.<https://americanbar.zoom.us/webinar/register/WN_UZv910xITRGE4t-BwK-A7g?fbclid=IwAR05_Zk8Ve9inA6_wpuI2LnUNgrYEgmL98qmhp6pd8Hs12YI3o0kveQUw7g>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“What not to wear when you go vote”<https://electionlawblog.org/?p=116788>
Posted on October 14, 2020 7:14 am<https://electionlawblog.org/?p=116788> by Rick Hasen<https://electionlawblog.org/?author=3>
CNN reports.<https://www.cnn.com/2020/10/14/us/election-what-not-to-wear-trnd/index.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“The Case Against Packing the Court”<https://electionlawblog.org/?p=116785>
Posted on October 14, 2020 6:43 am<https://electionlawblog.org/?p=116785> by Richard Pildes<https://electionlawblog.org/?author=7>
At the New Republic<https://newrepublic.com/article/159691/case-against-packing-supreme-court>, from Jeff Sheshol, one of the leading scholars of the political battle over FDR’s Court-packing plan:
When Roosevelt finally struck against the court<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.nytimes.com_1962_02_04_archives_legacy-2Dof-2Dthe-2Dcourtpacking-2Dplan-2Da-2Dquartercentury-2Dafter-2Dfdr-2Dbegan.html&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=QAFxODUW2ri4OFWW0KS8THaFTShsUT-7yBT_nvgKMQI&s=w4EANVoxkF7w2lxZSjElcwn44qCLAba88fqa5ymZCuQ&e=>, at the start of his second term, his party held 76 of 96 seats in the Senate; he saw no reason why he could not persuade Congress to expand the court and, at the same time, renew his assault on the economic crisis. Yet his court plan cost him his mandate. It consumed Congress for nearly six months, dividing his supporters and driving some into the arms of the GOP. In May 1937—nearly four months into this war of attrition—Roosevelt proposed one of the most sweeping pieces of legislation<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.dol.gov_general_aboutdol_history_flsa1938&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=QAFxODUW2ri4OFWW0KS8THaFTShsUT-7yBT_nvgKMQI&s=VDx-00lDT6jEqOlNydpzs8glzS0N_HMVK6TULwSAPc4&e=> of his presidency: a bill to ban child labor in factories and to create a labor standards board that would regulate wages and hours. He did this, in part, to change the subject. The gambit failed. The bill did nothing to draw recalcitrant Southern Democrats back into the fold. “To ask them simultaneously to support a national wages-and-hours law” and the court bill, this magazine observed, “is probably to ask more than human flesh is capable of.”
The New Deal never regained its momentum. While the court plan did not create the divisions in the Democratic Party, it wrenched them wide open; it left the party raw and at war with itself. . . .
History, therefore, as well as political logic and math, counsel Biden against moving rashly. Even the more bullish blue-wave projections would give him nothing approaching FDR’s 60-vote margin in the Senate. At best, Biden might have three or four votes to spare. To advance his agenda—really, to do much of anything at all—he needs to avoid alienating Democratic senators like Joe Manchin of West Virginia with a costly fight over the court. He will also need the votes of senators who have just recaptured<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.cnn.com_2020_08_31_politics_election-2D2020-2Dsenate-2Draces_index.html&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=QAFxODUW2ri4OFWW0KS8THaFTShsUT-7yBT_nvgKMQI&s=zXQ4X87b5hohPuruSii7uB6Iguoalj63USqowhiTz-w&e=> Republican seats (most likely in Arizona, Colorado, and Maine), as well as those who will face reelection in 2022 in states that are less-than-reliably blue: New Hampshire, for example, and Nevada.
Of course, Biden’s calculus could change over time. The party’s left wing—as Senator Ed Markey has made clear<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.boston.com_news_politics_2020_09_21_joe-2Dbiden-2Ded-2Dmarkey-2Druth-2Dbader-2Dginsberg-2Dsupreme-2Dcourt-2Dpacking&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=QAFxODUW2ri4OFWW0KS8THaFTShsUT-7yBT_nvgKMQI&s=Ud9Igc-aQvTA7gH3EaSA-UxEhfOo6xnVppGXE11g3Kw&e=>—is determined to rebalance the court. And if oral arguments begin to look, increasingly, like meetings of a student chapter of the Federalist Society (“Government Overreach in the Wake of COVID-19” was the title of one such session<https://urldefense.proofpoint.com/v2/url?u=https-3A__fedsoc.org_events_government-2Doverreach-2Din-2Dthe-2Dwake-2Dof-2Dcovid-2D19&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=QAFxODUW2ri4OFWW0KS8THaFTShsUT-7yBT_nvgKMQI&s=3JQMCN82y0_rN1wF94sEZRjizvwb1Y2pU9E6RiER6H4&e=> in September at Baylor University), the court will find itself at odds not only with a Biden administration but with “the plainest facts of our national life,” as Chief Justice Charles Evans Hughes put it in 1937. Every time a bad decision comes down—a decision restricting abortion rights, for example, or discounting the effects of racial discrimination, or blessing the purchase of political influence by business interests, or constraining the government’s ability to address the climate crisis—the calls to pack the court will grow more insistent. We are no longer terrified of the phrase, but perhaps the justices in the majority should be.
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Rick Hasen
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UC Irvine School of Law
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