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

[Marty Lederman]

Rick:  The battle in the reapportionment case will be on ripeness and
remedy, not the merits, where Trump doesn't even have a fig-leaf (and
therefore can secure at most four or five votes).

On Fri, Oct 16, 2020 at 6:38 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> “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.)*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116964&title=%E2%80%9CIndependent%20Spending%20in%202020%20Congressional%20Elections%20Has%20Surpassed%20the%20%241%20Billion%20Mark%E2%80%9D>
>
> 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.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116962&title=%E2%80%9CFlorida%20Republicans%20Launch%20Last-Minute%20Effort%20to%20Shut%20Down%20Ballot%20Drop%20Boxes%E2%80%9D>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116960&title=%E2%80%9CHow%20Trump%E2%80%99s%20Tax%20Records%20Could%20Point%20to%20Campaign%20Finance%20Violations%E2%80%9D>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116958&title=%E2%80%9CSupreme%20Court%20Speeds%20Up%20Case%20On%20Trump%E2%80%99s%20Push%20To%20Alter%20Census%20For%20House%20Seats%E2%80%9D%3B%20But%20Still%20a%20Good%20Chance%20Trump%20Loses%20Case>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116956&title=%E2%80%9CTrump%20Campaign%20Lawyers%20Are%20Aiding%20a%20Leading%20Proponent%20of%20QAnon%E2%80%9D>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116953&title=North%20Carolina%3A%20%E2%80%9CFormer%20GOP%20legislator%20charged%20with%20assaulting%20a%20poll%20worker%20at%20Wake%20early%20voting%20site%E2%80%9D>
>
> 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).”
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116951&title=%E2%80%9CStatement%20on%20Florida%20Officials%E2%80%99%20Plans%20to%20Remove%20People%20with%20Past%20Convictions%20from%20Florida%E2%80%99s%20Voter%20Roll%E2%80%9D>
>
> 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*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116949&title=%E2%80%9CIn%20Ohio%2C%20a%20Printing%20Company%20Is%20Overwhelmed%20and%20Mail%20Ballots%20Are%20Delayed%E2%80%9D>
>
> 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.*
>
> [image: Share]
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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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116943&title=Purcell%20Brief>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116944&title=Would%20President%20George%20W.%20Bush%20Speak%20Up%20If%20Trump%20Loses%20But%20Refuses%20to%20Concede%3F>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116940&title=%E2%80%9CPa.%20has%20rejected%20372%2C000%20ballot%20applications%20%E2%80%94%20most%20of%20them%20duplicates%20%E2%80%94%20bewildering%20voters%20and%20straining%20officials%E2%80%9D>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116936&title=%E2%80%9CTwitter%20Changes%20Course%20After%20Republicans%20Claim%20%E2%80%98Election%20Interference%E2%80%99%E2%80%9D>
>
> 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.
>
> [image: 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116932&title=%E2%80%9CG.O.P.-Appointed%20Judges%20Threaten%20Democracy%2C%20Liberals%20Seeking%20Court%20Expansion%20Say%E2%80%9D>
>
> 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
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116929&title=Top%20Recent%20Downloads%20in%20Election%20Law%20on%20SSRN>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D116927&title=%E2%80%9CIf%20we%20want%20results%20on%20election%20night%2C%20this%20is%20a%20reform%20both%20parties%20should%20support%E2%80%9D>
>
> 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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