[EL] ELB News and Commentary 10/17/20

[Rick Hasen]

“Independent Spending in 2020 Congressional Elections Has Surpassed the $1 Billion Mark”<https://electionlawblog.org/?p=116964>
Posted on October 16, 2020 3:18 pm<https://electionlawblog.org/?p=116964> by Rick Hasen<https://electionlawblog.org/?author=3>

Campaign Finance Institute<http://cfinst.org/Press/PReleases/20-10-16/Independent_Spending_in_2020_Congressional_Elections_Has_Passed_1_Billion.aspx>:

Independent spending (IEs) in the general elections of 2020 for the U.S. House and Senate reached $1.035 billion as of October 15. This is nearly one-third of a billion dollars more than congressional IEs as of the same date in the previous record year of 2018 (see Table 1).

In fact, the spending so far already is almost equal to the record level of $1.05 billion in for the full cycle of 2018, (For full-cycle information, see CFI’s Guide to Money in Federal Elections, 1974-2018<http://cfinst.org/pdf/federal/2018Report/CFIGuide_MoneyinFederalElections_2018upd.pdf>.) With 18 days left until Election Day, and IEs averaging $15 million per day over the past seven days, there is likely to be a noticeable gap between the mark set in 2018 and the new one about to be set.

It is also important to note that 63% of the IEs so far have been made by the formal congressional party committees or the Super PACs and dark money groups directly associated with the four party leaders. The parties and party-related committees are dominating the IEs so far and no one else is even close. (For all of the IEs in this year’s congressional elections arranged by spender <http://cfinst.org/data/2020_Org_IndependentSpending.aspx> , see CFI’s daily IE tracker by group. The IE tracker also shows the spending in each House<http://cfinst.org/data/2020_House_Independent.aspx> and Senate<http://cfinst.org/data/2020_Senate_Independent.aspx> race, updated daily.)
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Florida Republicans Launch Last-Minute Effort to Shut Down Ballot Drop Boxes”<https://electionlawblog.org/?p=116962>
Posted on October 16, 2020 3:14 pm<https://electionlawblog.org/?p=116962> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Joseph Stern<https://slate.com/news-and-politics/2020/10/florida-republicans-close-ballot-drop-box.html> for Slate:

Florida law also allows supervisors to set up discretionarydrop boxes outside locations that qualify<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0100-0199/0101/Sections/0101.657.html> as early voting sites but aren’t being used for that purpose. So, for instance, supervisors can place drop boxes outside libraries, courthouses, and community centers that could be used for early voting but weren’t this year. Many supervisors have already set up<https://www.tampabay.com/opinion/2020/10/12/all-counties-should-offer-secure-247-drop-boxes-for-mail-ballots-column/> these discretionary drop boxes, and they’ve proved extremely popular. By providing enough drop boxes to meet demand, they have avoided appalling scenes like those in Texas, where voters have waited in endless, snaking lines to place their ballots in the single drop box<https://www.vox.com/2020/10/10/21506522/texas-drop-off-ballot-locations-abbott-harris-county> allowed per county.

On Wednesday, however, Secretary of State Laurel Lee tried to shutter a large number of both mandatory and discretionary boxes. In guidance<https://www.scribd.com/document/480339929/Drop-Box-Questions-and-Answers> sent to election supervisors and obtained by Slate, Brad McVay, general counsel of the Florida Department of State, imposed onerous new drop box regulations. McVay announced that mandatory drop boxes must be staffed by election officials at all times, and that these officials must ensure that each voter has signed and sealed their ballot envelope. He also declared that discretionary drop boxes may only remain open during early voting days and hours.

This guidance, if implemented, would force dozens of counties to close hundreds of drop boxes every day and remove others altogether. Florida’s counties do not have sufficient personnel to staff mandatory drop boxes 24 hours a day, or to devote the number of staffers necessary to screen each voter’s ballot. So supervisors would have to close these mandatory drop boxes for at least part of each day. Further, counties that use 24-hour discretionary drop boxes would have to shut them until Monday, when early voting begins. Then, starting Monday, they would have to either close these boxes early or keep them closed permanently. The result would be an abrupt and drastic contraction in the number of drop boxes available to Floridians.

But there’s a problem with McVay’s guidance: It has no legal basis. Florida law<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0100-0199/0101/Sections/0101.69.html> does notrequire mandatory drop boxes to be staffed at all times; it merely says that these boxes must be “secure.” As Ron Labasky, legal counsel for the Florida Supervisors of Elections association, told the Tampa Bay Times<https://www.tampabay.com/news/florida-politics/elections/2020/10/16/late-guidance-from-floridas-elections-chief-could-limit-use-of-mail-ballot-drop-boxes/?outputType=amp>, there’s no definition of “secure” in the statute. Instead, the law leaves security “within the discretion of the supervisor.” And there is no legal reason why monitoring by 24-hour video or certified volunteers does not count as “secure.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“How Trump’s Tax Records Could Point to Campaign Finance Violations”<https://electionlawblog.org/?p=116960>
Posted on October 16, 2020 3:06 pm<https://electionlawblog.org/?p=116960> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.brennancenter.org/our-work/analysis-opinion/how-trumps-tax-records-could-point-campaign-finance-violations> for the Brennan Center.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Supreme Court Speeds Up Case On Trump’s Push To Alter Census For House Seats”; But Still a Good Chance Trump Loses Case<https://electionlawblog.org/?p=116958>
Posted on October 16, 2020 2:51 pm<https://electionlawblog.org/?p=116958> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2020/10/16/917713444/supreme-court-speeds-up-case-on-trumps-push-to-alter-census-for-house-seats>:

The U.S. Supreme Court has granted<https://twitter.com/hansilowang/status/1317209489892925441> the Trump administration’s request to speed up the appeal of a lower court ruling<https://www.npr.org/2020/09/10/908768472/court-blocks-trumps-attempt-to-change-who-counts-for-allocating-house-seats> that is blocking the president’s attempt to exclude unauthorized immigrants from the census numbers used to reallocate seats in Congress.

The move sets up an expedited legal fight that includes a hearing before the high court on Nov. 30, a month before federal law says<https://www.law.cornell.edu/uscode/text/13/141> the latest state population counts for reapportioning the 435 seats in the House of Representatives among the states are due to the president. The timing increases the potential for Trump to try to make the unprecedented change to who is included in the numbers while he is in the White House.

In understanding what’s going on here and the Trump Administration’s chances it is important to understand the procedural posture of this case. This is a case coming up on mandatory appellate jurisdiction from a three-judge court. It is not like a regular cert petition where the Court has complete discretion about whether to take the case.

I had thought that this case was so clear-cut against the Trump Administration that the Court might have just summarily affirmed. At least one Justice likely objected to that and the case was set for argument. But given the strong textual argument in the constitution to count all “persons,” the Trump Administration still has a tough road ahead.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


“Trump Campaign Lawyers Are Aiding a Leading Proponent of QAnon”<https://electionlawblog.org/?p=116956>
Posted on October 16, 2020 12:27 pm<https://electionlawblog.org/?p=116956> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/10/16/us/politics/qanon-trump-greene-lawyers.html?action=click&module=Top%20Stories&pgtype=Homepage>:

Senior lawyers for the Trump campaign set up a small law firm last year that is working for Marjorie Taylor Greene<https://www.newyorker.com/news/us-journal/how-the-qanon-candidate-marjorie-taylor-greene-reached-the-doorstep-of-congress>, a Republican House candidate in Georgia with a history of promoting QAnon, a pro-Trump conspiracy theory.

While federal filings show that the firm, Elections L.L.C., principally collects fees from the president’s campaign and the Republican National Committee, it also does work for a number of congressional candidates, and none more so<https://www.opensecrets.org/campaign-expenditures/vendor?year=2020&vendor=Elections+LLC> than Ms. Greene, underscoring the connections between QAnon and Mr. Trump and his inner circle. The latest example came Thursday night, when President Trump repeatedly declined<https://www.nytimes.com/2020/10/15/us/politics/presidential-town-halls.html> to disavow QAnon at a televised town hall.

Ms. Greene is one of several Republican candidates who openly espouse the collection of bogus and bizarre theories embraced by followers of QAnon, who have been labeled a potential domestic terror threat<https://news.yahoo.com/fbi-documents-conspiracy-theories-terrorism-160000507.html> by the F.B.I. and who former President Barack Obama warned Wednesday were infiltrating the mainstream<https://www.nytimes.com/live/2020/10/15/us/trump-vs-biden#obama-warns-that-insane-qanon-conspiracy-theories-stoked-by-trump-are-becoming-the-republican-mainstream> of the Republican Party. QAnon imagines, falsely, that a Satanic cabal of pedophile Democrats are plotting against Mr. Trump, plays on anti-Semitic tropes<https://forward.com/news/national/451647/just-how-anti-semitic-is-qanon/> and stokes real<https://www.nytimes.com/2019/12/06/nyregion/gambino-shooting-anthony-comello-qanon.html> world<https://www.thedailybeast.com/proud-boy-member-accused-of-murdering-his-brother-with-a-sword-4?ref=home> violence<https://www.nytimes.com/2017/06/22/us/pizzagate-attack-sentence.html> — and has been expounded on at length by Ms. Greene in videos<https://www.youtube.com/watch?v=2rtYok4fdbQ&feature=youtu.be>.

Elections L.L.C. was founded last year by Justin Clark, Mr. Trump’s deputy campaign manager, and Stefan Passantino, a former top ethics lawyer in the Trump White House. Matthew Morgan, the Trump campaign’s counsel, is also a partner at the firm. Ms. Greene’s campaign has made 14 payments to the firm since last year, worth nearly $70,000 in total, the most of any congressional campaign.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election law biz<https://electionlawblog.org/?cat=51>


North Carolina: “Former GOP legislator charged with assaulting a poll worker at Wake early voting site”<https://electionlawblog.org/?p=116953>
Posted on October 16, 2020 12:01 pm<https://electionlawblog.org/?p=116953> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer:<https://www.newsobserver.com/news/politics-government/election/article246502300.html>

A former Republican state legislator was charged with assaulting an election worker at a Wake County early voting site on Friday morning.

Gary Pendleton was an official Republican poll observer at the Northern Regional Center, 350 East Holding Ave. in Wake Forest, where he was charged with a misdemeanor assault. Pendleton, 73, served in the N.C. General Assembly from 2015 to 2017 and is a former Wake County Commissioner.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Statement on Florida Officials’ Plans to Remove People with Past Convictions from Florida’s Voter Roll”<https://electionlawblog.org/?p=116951>
Posted on October 16, 2020 11:40 am<https://electionlawblog.org/?p=116951> by Rick Hasen<https://electionlawblog.org/?author=3>

Via email:

With less than 18 days until the 2020 General Election, the Florida

Division of Elections made plans to remove returning citizens who owe legal financial obligations from Florida’s voter roll in direct violation of Florida’s 30-day notice period.

The American Civil Liberties Union (ACLU), ACLU of Florida, Brennan Center for Justice at NYU Law and NAACP Legal Defense and Educational Fund, Inc. responded with the following:

“On the eve of a consequential election, Florida officials wrongfully endeavor to scare as many

eligible voters as possible away from voting. Florida’s Division of Elections intends to send whatever unreliable information it has to Florida Supervisors of Elections (‘SOEs’) to merely suggest some registered voters may owe legal financial obligations (‘LFOs’).

“Under a recent appellate court decision, Florida, for now, can require people with most felony convictions to pay LFOs arising from their conviction(s) before regaining their right to vote. Yet Florida had not removed people from the voter rolls for LFOs since the Florida Legislature undercut the will of Florida’s people and enacted a law creating this pay-to-vote system on July 1, 2019.

 “It is now long past when they are permitted to do so. The Division of Elections’ untimely effort to disqualify currently eligible voters requires a 30-day notice period and cannot be completed before Election Day. Importantly, Florida knows it can only remove an otherwise eligible voter through unequivocally credible and reliable information of the otherwise eligible voter’s outstanding LFOs. It additionally must give the voter notice and an opportunity to contest the state’s information. All of this takes time—seven days for the SOEs to review and act on the Division of Elections’ information and 30 days for each voter to participate in a hearing to contest the State’s information, which we know—and a federal trial court recognized—is flawed. In short, there is insufficient time before Election Day for any voter to be removed from the rolls under Florida state law requirements. Florida’s proposed action is simply an attempt to scare people with felony convictions away from voting and constitutes voter intimidation—par for the course in Florida.

“Yet as the Eleventh Circuit made clear: until Florida ‘complete[s] its screening’ of the 85,000 registrations it received ‘from felons who believe[d] they were re enfranchised’ at the time of trial, ‘it will not have credible and reliable information supporting anyone’s removal from the voter rolls, and all 85,000 felons will be entitled to vote.’ Jones v. Governor of Florida, No. 20-12003, 2020 WL 5493770, at *2 (11th Cir. Sept. 11, 2020).”
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“In Ohio, a Printing Company Is Overwhelmed and Mail Ballots Are Delayed”<https://electionlawblog.org/?p=116949>
Posted on October 16, 2020 11:14 am<https://electionlawblog.org/?p=116949> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/10/16/us/politics/ohio-mail-ballots-trump.html>:

As the presidential election headed into the final stretch in late summer, counties in Ohio and Pennsylvania worried that a deluge of absentee ballot requests would swamp their printing capacity. So 16 of them contracted with Midwest Direct, a Cleveland mailing company.

But when it came time to print and ship Ohio ballots early last week, it was Midwest Direct that was overwhelmed. Several Ohio counties that expected absentee ballots printed by the company to land in voters’ mailboxes are now scrambling to print them themselves or find a last-minute contingency plan less than three weeks before Election Day.

In Pennsylvania, for instance, nearly 30,000 ballots sent to voters in Allegheny County, which includes Pittsburgh, went to the wrong addresses.

The counties had provided the company with lists of tens of thousands of requests weeks in advance. The company’s inability to meet demand has underscored the stress that mail voting has put on the nation’s election process as the coronavirus pandemic curtails in-person voting. Midwest Direct is the primary outside provider of absentee ballots for 16 Ohio counties, though many also have their own in-house operations.

Midwest Direct is owned by two brothers, Richard Gebbie, the chief executive, and James Gebbie, the chairman. This summer they began flying a Trump 2020 flag above Midwest Direct’s headquarters on the west side of Cleveland. It was a curious juxtaposition — a company in the business of distributing absentee ballots through the mail showing a preference for a president who has spent months denigrating the practice of voting by mail.

“We have freedom to vote for who we want and support who we want,” Richard Gebbie said in an interview last month. “We fly a flag because my brother and I own the company and we support President Trump.”

Mr. Gebbie said he didn’t “have an opinion” on Mr. Trump’s false claims that voting by mail<https://www.nytimes.com/article/mail-in-voting-explained.html> is corrupt and rife with fraud, but he emphasized that the ballots his company mailed met strict security standard
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Which Constitution Is Amy Coney Barrett Talking About?”<https://electionlawblog.org/?p=116947>
Posted on October 16, 2020 11:07 am<https://electionlawblog.org/?p=116947> by Rick Hasen<https://electionlawblog.org/?author=3>

Jamelle Bouie:<https://www.nytimes.com/2020/10/16/opinion/amy-coney-barrett-originalism.html>

Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification, as she states at the outset of a paper she wrote called “Originalism and Stare Decisis<https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4734&context=ndlr>….

Many Americans think the same, identifying the Constitution with the document drafted by James Madison to supplant the Articles of Confederation and create more stable ground for national government. But there’s a strong argument that this Constitution died with the attack on Fort Sumter on April 12, 1861.

The Civil War fractured an already divided country and shattered the constitutional order. What came next, Reconstruction, was as much about rebuilding that order as it was about rebuilding the South. The Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country. “So profound were these changes,” the historian Eric Foner writes in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution<https://wwnorton.com/books/9780393358520>,”

that the amendments should not be seen simply as an alteration of an existing structure but as a “second founding,” a “constitutional revolution,” in the words of Republican leader Carl Schurz, that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.

Whereas the Constitution of 1787 established a white republic in which the right to property meant the right to total domination of other human beings, the Reconstruction Constitution established a biracial democracy that made the federal government what Charles Sumner called<https://law.marquette.edu/assets/marquette-lawyers/pdf/marquette-lawyer/2013-summer/2013-summer-p32.pdf> the “custodian of freedom” and a caretaker of equal rights. To that end, the framers of this “second founding” — men like Thaddeus Stevens, Lyman Trumbull and John Bingham — understood these new amendments as expansive and revolutionary. And they were. Just as the original Constitution codified the victories (and contradictions) of the Revolution, so too did the Reconstruction Constitution do the same in relation to the Civil War.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Purcell Brief<https://electionlawblog.org/?p=116943>
Posted on October 16, 2020 10:57 am<https://electionlawblog.org/?p=116943> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Here’s the link<https://wilkinsonwalsh.sharefile.com/share/view/s54b541ef9b54856b> to a Supreme Court amicus brief, filed earlier today on behalf of several election law scholars (including myself), asking the Court to provide more guidance about the Purcell principle. The brief makes two principal arguments: (1) that Purcell advises against, but doesn’t categorically bar, judicial intervention close to an election; and (2) that, in determining whether to intervene, courts should weigh the disenfranchisement that will occur if they don’t step in against the voter confusion that might result from their involvement.

Amici strongly believe that lower courts would benefit from further guidance on the import and application of Purcell. That guidance would clarify that timing alone should not drive the decision whether to grant an injunction in election cases. Rather, as in any equitable proceeding, context is vital. Thus, as further explained below, a court considering a request for an injunction should weigh, inter alia, whether the injunction sought would likely cause voter confusion that would chill voting, whether failure to issue the injunction would likely lead to a greater chilling effect, whether the injunction would likely lead election officials to err, and whether the party seeking the injunction acted diligently or could have sought relief earlier in time. Only by fully considering those factors—and others that may apply given the context—can a court properly determine whether injunctive relief is warranted.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Would President George W. Bush Speak Up If Trump Loses But Refuses to Concede?<https://electionlawblog.org/?p=116944>
Posted on October 16, 2020 10:54 am<https://electionlawblog.org/?p=116944> by Rick Hasen<https://electionlawblog.org/?author=3>

The Atlantic:<https://www.theatlantic.com/politics/archive/2020/10/george-w-bush-trump-2020/616713/>

With less than three weeks until the election, Bush—as the only living former Republican president—would be in a position to stand up for American democracy if Trump loses but refuses to concede<https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/?gclid=Cj0KCQjwoJX8BRCZARIsAEWBFMKff0KtaaJseTqh35TEmkP5suZElFuOqt8ESXSch3eJFE0a49IPKhAaAuwrEALw_wcB>, as he has threatened to do.

But if Bush is planning on doing anything about Trump, or considering some way to stand together with the other former presidents to protect democracy, that would be news to the offices of those former presidents. They haven’t heard from him.

Joe Biden’s campaign looked into whether Bush would consider endorsing him but was told he wouldn’t be getting involved. If Biden wins and Trump refuses to concede, though, the Democrat would likely lean on Bush to speak up, a person familiar with the campaign’s thinking told me. I asked the Trump campaign if the president would want Bush’s endorsement. My email was ignored.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Pa. has rejected 372,000 ballot applications — most of them duplicates — bewildering voters and straining officials”<https://electionlawblog.org/?p=116940>
Posted on October 16, 2020 10:38 am<https://electionlawblog.org/?p=116940> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer<https://www.inquirer.com/politics/election/pennsylvania-mail-ballot-rejections-duplicate-applications-20201016.html>:

Pennsylvania has rejected 372,000 requests for mail ballots, straining election offices and bewildering voters in one of the most hotly contested battlegrounds<https://www.inquirer.com/politics/election/pennsylvania-2020-presidential-election-trump-biden-20200908.html> in the presidential election.

More than 90% of those applications, or about 336,000, were denied as duplicates, primarily because people who had requested mail ballots for the state’s June 2 primary did not realize they had checked a box to be sent ballots for the general election, too. Voters have also been baffled by unclear or inaccurate information on the state’s ballot-tracking website, and by a wave of mail ballot applications from political parties and get-out-the-vote groups. County offices across the state have been forced to hire temporary staff and work seven days a week to cope with the confusion.

“The volume of calls we have been getting has been overwhelming,” said Marybeth Kuznik, elections director in Armstrong County, northeast of Pittsburgh. It’s been preventing her office from working on anything else: “It has been almost like a denial of service attack at times because it seemed that sometimes all I could get done was answer the phone!”

Though it may deter some people from voting, the mass rejection of ballot applications is unlikely to have a big effect on turnout. Voters who submitted duplicate applications should eventually receive a ballot. Those who don’t can still vote at the polls on Election Day.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Twitter Changes Course After Republicans Claim ‘Election Interference’”<https://electionlawblog.org/?p=116936>
Posted on October 16, 2020 10:36 am<https://electionlawblog.org/?p=116936> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/15/technology/facebook-twitter-republicans-backlash.html>

President Trump called Facebook and Twitter “terrible<https://twitter.com/realDonaldTrump/status/1316501350658707456>” and “a monster<https://twitter.com/realDonaldTrump/status/1316821530769149952>” and said he would go after them. Senators Ted Cruz and Marsha Blackburn said they would subpoena the chief executives of the companies for their actions. And on Fox News, prominent conservative hosts blasted the social media platforms as “monopolies” and accused them of “censorship” and election interference.

On Thursday, simmering discontent among Republicans over the power that Facebook and Twitter wield over public discourse erupted into open acrimony. Republicans slammed the companies and baited them a day after the sites limited or blocked the distribution of an unsubstantiated New York Post article<https://www.nytimes.com/2020/10/14/us/politics/hunter-biden-ukraine-facebook-twitter.html> about Hunter Biden, the son of the Democratic presidential nominee, Joseph R. Biden Jr.

For a while, Twitter doubled down. It locked the personal account of Kayleigh McEnany, the White House press secretary, late Wednesday after she posted the article, and on Thursday it briefly blocked a link to a House Judiciary Committee webpage. The Trump campaign said Twitter had also locked its official account after it tried promoting the article. Twitter then prohibited the spread of a different New York Post article about the Bidens.

But late Thursday, under pressure, Twitter said it was changing the policy that it had used to block the New York Post article and would now allow similar content to be shared, along with a label to provide context about the source of the information. Twitter said it was concerned that the earlier policy was leading to unintended consequences.

Even so, the actions brought the already frosty relationship between conservatives and the companies to a new low point, less than three weeks before the Nov. 3 presidential election, in which the social networks are expected to play a significant role. It offered a glimpse at how online conversations could go awry on Election Day. And Twitter’s bob-and-weave in particular underlined how the companies have little handle on how to consistently enforce what they will allow on their sites.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>


“An Election Without Chaos Will Be a Miracle; This year, I trained to work at the polls. I’m sure I’ll screw up.”<https://electionlawblog.org/?p=116934>
Posted on October 16, 2020 10:29 am<https://electionlawblog.org/?p=116934> by Rick Hasen<https://electionlawblog.org/?author=3>

Judith Shulevitz<https://www.theatlantic.com/ideas/archive/2020/10/five-hours-training-and-285-guard-democracy/616719/> for The Atlantic.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116934&title=%E2%80%9CAn%20Election%20Without%20Chaos%20Will%20Be%20a%20Miracle%3B%20This%20year%2C%20I%20trained%20to%20work%20at%20the%20polls.%20I%E2%80%99m%20sure%20I%E2%80%99ll%20screw%20up.%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“G.O.P.-Appointed Judges Threaten Democracy, Liberals Seeking Court Expansion Say”<https://electionlawblog.org/?p=116932>
Posted on October 16, 2020 10:24 am<https://electionlawblog.org/?p=116932> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/16/us/politics/court-packing-judges.html>

Progressive activists who want Democrats to expand the Supreme Court and pack it with additional liberal justices are mustering a new argument: Republican-appointed jurists, they say, keep using their power to make it harder for Americans to vote.

Backed by a new study of how federal judges and justices have ruled in election-related cases this year, the activists are building on their case for why mainstream Democrats should see their idea as a justified way to restore and protect democracy, rather than as a radical and destabilizing escalation of partisan warfare over the judiciary.

The study, the “Anti-Democracy Scorecard,”<https://www.takebackthecourt.today/antidemocracy-scorecard> was commissioned by the group Take Back the Court<https://www.takebackthecourt.today/>, which supports expanding the judiciary. It identified 309 votes by judges and justices in 175 election-related decisions and found a partisan pattern: Republican appointees interpreted the law in a way that impeded ballot access 80 percent of the time, versus 37 percent for Democratic ones.

The numbers were even more stark when limited to judges appointed by President Trump, who has had tremendous success<https://www.nytimes.com/2020/03/14/us/trump-appeals-court-judges.html> at rapidly reshaping the judiciary<https://www.nytimes.com/2017/11/11/us/politics/trump-judiciary-appeals-courts-conservatives.html>. Of 60 rulings in election-related cases, 85 percent were “anti-democracy” according to the analysis.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Top Recent Downloads in Election Law on SSRN<https://electionlawblog.org/?p=116929>
Posted on October 16, 2020 10:11 am<https://electionlawblog.org/?p=116929> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
Rank
Paper
Downloads
1.
Foreword: The Degradation of American Democracy—and the Court<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3671830>
Michael J. Klarman<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=40521>
Harvard University
Date Posted: 31 Aug 2020
Last Revised: 01 Sep 2020
1,944
2.
Mail-In Voter Fraud: Anatomy of a Disinformation Campaign<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3703701>
Yochai Benkler<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1101358>, Casey Tilton<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2734528>, Bruce Etling<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4400172>, Hal Roberts<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=917761>, Justin Clark<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2680732>, Robert Faris<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1586728>, Jonas Kaiser<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4060283> and Carolyn Schmitt<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3366669>
Harvard University, Berkman Klein Center for Internet & Society, Berkman Klein Center for Internet & Society at Harvard University, Harvard University – Berkman Klein Center for Internet & Society, Harvard University – Berkman Klein Center for Internet & Society, Harvard University – Berkman Klein Center for Internet & Society, Harvard University – Berkman Klein Center for Internet & Society and Harvard University – Berkman Klein Center for Internet & Society
Date Posted: 08 Oct 2020
Last Revised: 09 Oct 2020
1,452
3.
Post-Election Chaos: A Primer<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3685392>
Cass R. Sunstein<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=16333>
Harvard Law School
Date Posted: 03 Sep 2020
Last Revised: 28 Sep 2020
836
4.
Reconsidering Lost Votes by Mail<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3660625>
Charles Stewart III<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1329707>
Massachusetts Institute of Technology (MIT) – Department of Political Science
Date Posted: 03 Sep 2020
Last Revised: 21 Sep 2020
723
5.
Optimism and Despair About a 2020 “Election Meltdown” and Beyond<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3694142>
Richard L. Hasen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>
University of California, Irvine School of Law
Date Posted: 17 Sep 2020
Last Revised: 06 Oct 2020
146
6.
The Race-Blind Future of Voting Rights<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3658671>
Jowei Chen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4015864> and Nicholas Stephanopoulos<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=636048>
University of Michigan at Ann Arbor and Harvard Law School
Date Posted: 02 Sep 2020
Last Revised: 02 Sep 2020
139
7.
How Outside Money Makes Governing More Difficult<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3655691>
Mike Norton<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3223285> and Richard H. Pildes<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=121253>
Stanford Law School and New York University School of Law
Date Posted: 11 Sep 2020
Last Revised: 11 Sep 2020
57
8.
Election Law’s Efficiency-Convergence Dilemma<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3678254>
Ezekiel Wald<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3991073>
University of California, Berkeley, School of Law
Date Posted: 28 Aug 2020
Last Revised: 05 Oct 2020
52
9.
Bring the Masks and Sanitizer: The Surprising Bipartisan Consensus About Safety Measures for In-Person Voting During the Coronavirus Pandemic<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3693286>
Joshua A. Douglas<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=683935> and Michael Zilis<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1685125>
University of Kentucky – College of Law and University of Kentucky – Department of Political Science
Date Posted: 19 Sep 2020
Last Revised: 19 Sep 2020
42
10.
Conducting Elections During a Pandemic<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675846>
David Becker<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3494823>
The Center for Election Innovation & Research
Date Posted: 20 Aug 2020
Last Revised: 20 Aug 2020
40
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“If we want results on election night, this is a reform both parties should support”<https://electionlawblog.org/?p=116927>
Posted on October 16, 2020 4:27 am<https://electionlawblog.org/?p=116927> by Richard Pildes<https://electionlawblog.org/?author=7>

Glad to see the Washington Post<https://www.washingtonpost.com/opinions/pennsylvania-allow-ballot-processing-before-election-day/2020/10/15/49d69184-0e5b-11eb-b1e8-16b59b92b36d_story.html> weighing in the need for states like PA to permit processing of absentee ballots sooner than Election Day. How long have some of us been urging states to make this change? Since March, when the very first shutdown was imposed –as in my early warning cry on Reducing One Source of a Potential Election Meltdown.<https://www.lawfareblog.com/reducing-one-source-potential-election-meltdown> PA now has just three days of legislative sessions left to make this change.

Here is an excerpt from the WP editorial:

Yet there are still two politically pivotal states — Wisconsin (10 electoral votes) and Pennsylvania (20) — that permit no<https://www.politico.com/news/2020/09/15/swing-states-election-vote-count-michigan-pennsylvania-wisconsin-414465> pre-Election Day ballot processing, even though both expect far higher than normal volumes of absentee voting. In Wisconsin, where county clerks have already received more than 785,000<https://madison.com/wsj/news/local/govt-and-politics/about-a-dozen-wisconsin-municipalities-need-poll-workers/article_a223e562-7c38-5201-b4cf-0851dc178c77.html> absentee ballots — almost as many<https://madison.com/wsj/news/local/govt-and-politics/nearly-800-000-early-votes-cast-so-far-in-wisconsin/article_0b905189-1f7d-58cc-a204-693b58b4dafe.html> as in all of 2016 — the Republican legislature has not acted and has no plans to reconvene before Nov. 3, despite an appeal by the state’s GOP senator, Ron Johnson, to address the issue. In Pennsylvania, which is expecting 10 times<https://talkingpointsmemo.com/news/absentee-voting-data-pennsylvania-new-mexico-indiana-dc> more absentee ballots than in 2016, GOP legislators are commendably willing to allow ballot processing three days<https://www.pennlive.com/news/2020/09/republican-lawmakers-slam-pa-supreme-court-ruling-on-elections-it-is-about-allowing-one-party-to-steal-this-election.html> prior to the election. But they are attempting to trade their agreement for supposed election security measures, such as eliminating ballot drop boxes, that Gov. Tom Wolf, a Democrat, rightly opposes.

I’m less concerned about WI than PA. That’s because WI requires a witness signature on absentee ballots, instead of doing signature verification of the voter’s signature. That means the absentees can be processed more quickly in WI than states that have to go through the signature verification process.
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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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