[EL] ELB News and Commentary 10/18/20
Rick Hasen
rhasen at law.uci.edu
Sun Oct 18 16:15:56 PDT 2020
“‘My people fought for the right to vote’: With a surge of emotion, Black Americans rush to the polls”<https://electionlawblog.org/?p=117036>
Posted on October 18, 2020 3:52 pm<https://electionlawblog.org/?p=117036> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/black-voters-2020-election/2020/10/18/bdc06ad0-0f3b-11eb-8074-0e943a91bf08_story.html?utm_source=rss&utm_medium=referral&utm_campaign=wp_politics>:
Two weeks before Election Day, Black Americans have voted in striking numbers, helping drive historic levels of early voting as mail ballots have flooded election offices and people have endured huge lines to cast ballots in person across the country.
In interviews in 10 states where early voting is underway, Black voters said this year’s presidential election is the most important of their lifetime — some calling it more consequential even than 2008, when those who were old enough went to the polls in record numbers to make Barack Obama the country’s first Black president.
They spoke of a sense of urgency to protect the nation’s democracy, and their role in it, which they believe a second Trump term would erode beyond repair. Many said they view the president as a racist who cannot bring himself to disavow white supremacists or the year’s spate of police killings of unarmed Black Americans, and they believe the country is less safe for themselves and their families.
Over and over again, Black Americans described their vote this year as much more than a choice between two presidential candidates, but as an urgent stand in the long fight against racial injustice in America, which the year’s events have made clear is not yet over.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“As Local News Dies, a Pay-for-Play Network Rises in Its Place; A nationwide operation of 1,300 local sites publishes coverage that is ordered up by Republican groups and corporate P.R. firms.”<https://electionlawblog.org/?p=117034>
Posted on October 18, 2020 3:41 pm<https://electionlawblog.org/?p=117034> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT<https://www.nytimes.com/2020/10/18/technology/timpone-local-news-metric-media.html>:
The instructions were clear: Write an article calling out Sara Gideon, a Democrat running for a hotly contested U.S. Senate seat in Maine, as a hypocrite.
Angela Underwood, a freelance reporter in upstate New York, took the $22 assignment over email. She contacted the spokesman for Senator Susan Collins, the Republican opponent, and wrote an article on his accusations that Ms. Gideon was two-faced for criticizing shadowy political groups and then accepting their help.
The short article was published on Maine Business Daily, a seemingly run-of-the-mill news website, under the headline “Sen. Collins camp says House Speaker Gideon’s actions are hypocritical.” It extensively quoted Ms. Collins’s spokesman but had no comment from Ms. Gideon’s campaign.
Then Ms. Underwood received another email: The “client” who had ordered up the article, her editor said, wanted it to add more detail.
The client, according to emails and the editing history reviewed by The New York Times, was a Republican operative.
Maine Business Daily is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.
The sites appear as ordinary local-news outlets, with names like Des Moines Sun, Ann Arbor Times and Empire State Today. They employ simple layouts and articles about local politics, community happenings and sometimes national issues, much like any local newspaper.
But behind the scenes, many of the stories are directed by political groups and corporate P.R. firms to promote a Republican candidate or a company, or to smear their rivals….
Jeanne Ives, a Republican candidate for the U.S. House in Illinois, has had a direct financial relationship with the operation.
Ms. Ives has paid Mr. Timpone’s companies $55,000 over the past three years, according to state and federal records. During that time, the Illinois sites have published overwhelmingly positive coverage of her, including running some of her news releases verbatim.
In an interview, she said her payments were to create her website and monitor her Wikipedia page. One $14,342 payment included the note “Advertising-newspaper<https://illinoissunshine.org/expenditures/3474297/>.” Ms. Ives initially could not explain why. She later called back to say Mr. Timpone had bought Facebook ads for her.
Asked if she was paying for positive coverage, she replied: “Oh, no, there’s none of that going on. I assure you. Oh, my gosh, no. Oh, no, not at all.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
CNN’s Reliable Sources: “Have Patience, America. This Could Take a While”<https://electionlawblog.org/?p=117030>
Posted on October 18, 2020 1:21 pm<https://electionlawblog.org/?p=117030> by Rick Hasen<https://electionlawblog.org/?author=3>
Brian Stelter<https://www.cnn.com/2020/10/17/politics/2020-election-projections-explained/index.html> and Sam Feist:
STELTER: Typically 11:00 p.m. is the earliest time — 11:00 p.m. eastern time — that an election will be called because the western states have closed their polls. Is there any chance of a projection at 11:00 p.m. on November 3?
FEIST: Yes, of course there’s a chance of a projection. It is possible and we tend to make projections early on election night if the race is not close particularly in those battleground states, so it is possible. But it is entirely possible that there won’t be a projection on election night.You know, people forget that in two of the last five elections, we have gone to bed without a president-elect. Everyone remembers 2000 where Florida was the deciding state and then it was too close to call on election night, and we didn’t know, and it took another 31 days.But the very next election was 2004, and in that case, Ohio was the state that was going to be decisive and we did not have enough votes in to project a winner on election night, so we waited. And it was midday the next day when enough results were clear in Ohio that George W. Bush won Ohio and was reelected. So, it is not unusual for elections to not be decided on Election Day, especially this year because mail-in ballots take longer to count. You have to open them, you have to process them, and so it could be that we don’t know until Wednesday or Thursday or even later. But I think the vast majority of the votes in the country will be counted by late in the election week, so I believe that we will likely know a winner. It just may not be on election night.And that’s OK. That doesn’t mean anything is wrong. The public, the media, the candidates just need to be a little bit patient.
What if a candidate prematurely declares victory?
STELTER: Right. We need to tell people to have patience. A slow count is a safe count. But you know, we don’t know what’s going to happen in terms of Florida or other key states, what’s going to happen with the turnout in those votes. What about let’s say it’s midnight or 1:00 a.m., and Donald Trump comes out and says I am the winner of the election, and our data does not back that up at all, what will CNN do?
FEIST: If we have not projected enough states for a candidate to get to 270 electoral votes, and a candidate comes out and declares victory, we will make it clear that the facts do not back up that claim of victory. And we’ll do it in a number of ways. If you’ve watched CNN’s election night, John King at the magic wall spends an awful lot of election night explaining why we haven’t projected a winner in a particular state.And he goes county by county, reveals how many votes are left to come in, how many votes have been counted, which counties have not reported much votes. This year, of course, we will layer in absentee votes throughout the night in our conversation. And if we’re not ready to project the state — we’re not ready to project the state, that doesn’t mean that anything is wrong.And we will make it clear to our viewers and our readers, that there’s simply not enough information to make a projection, and that the candidate, if a candidate goes out and declares a winner — declares victory ahead of time, that they are doing it before the votes have been counted, before — that is based in fact.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
Florida: “Trump Republicans ask to double-check Broward ballot signatures”<https://electionlawblog.org/?p=117027>
Posted on October 18, 2020 12:53 pm<https://electionlawblog.org/?p=117027> by Rick Hasen<https://electionlawblog.org/?author=3>
South Florida Sun Sentinel:<http://trump%20republicans%20ask%20to%20double-check%20broward%20ballot%20signatures/>
Teams of lawyers for President Donald Trump and Joe Biden got a rare look Friday at Broward voter signatures, at an event staged to clear up Republicans’ questions about election accuracy.
Lawyers for Trump’s presidential campaign had asked to periodically check signed Broward ballots to see if signatures really did match those on file, internal elections office emails and letters say. That request — which could have significantly delayed Broward’s vote-counting — was rejected.
Broward elections supervisor Pete Antonacci instead allowed a one-time look on Friday at 15 randomly selected ballot signatures, from recent mail-in ballots, as a “confidence building exercise.” Each voter’s official signature on file was copied and laid alongside the signed ballot. The matches were near clones.
Antonacci said the Republicans’ request to verify signatures came after the St. Lucie County elections office allowed ballot processing to be viewed there during the August primary.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
“Experts: Ohio voters can trust ballot security”<https://electionlawblog.org/?p=117025>
Posted on October 18, 2020 12:46 pm<https://electionlawblog.org/?p=117025> by Rick Hasen<https://electionlawblog.org/?author=3>
Dayton Daily News reports.<https://epaper.daytondailynews.com/popovers/dynamic_article_popover.aspx?guid=3db402cc-c8cf-4b5b-af04-c38f20b2f606&pbid=66ab59ea-5cfc-438d-83e4-dc9e4a34f79d&utm_source=app.pagesuite&utm_medium=app-interaction&utm_campaign=pagesuite-epaper-html5_share-article>
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Posted in election administration<https://electionlawblog.org/?cat=18>
“Five Myths About Mail-In Voting”<https://electionlawblog.org/?p=117023>
Posted on October 18, 2020 12:45 pm<https://electionlawblog.org/?p=117023> by Rick Hasen<https://electionlawblog.org/?author=3>
David Daley<https://www.washingtonpost.com/outlook/five-myths/five-myths-about-mail-in-voting/2020/10/16/dd273132-0e33-11eb-8a35-237ef1eb2ef7_story.html> in WaPo.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Retired Republican Member of Congress Jim Gerlach: “Pennsylvania’s election officials should have more time to process absentee ballots”<https://electionlawblog.org/?p=117021>
Posted on October 18, 2020 12:30 pm<https://electionlawblog.org/?p=117021> by Rick Hasen<https://electionlawblog.org/?author=3>
Penn Live oped:<https://www.pennlive.com/opinion/2020/10/pennsylvanias-election-officials-should-have-more-time-to-process-absentee-ballots.html>
Failing to allow election officials to begin processing absentee ballots early will put undue pressure on them on Election Day. Failing to provide more time for processing these ballots also means that it is more likely that Pennsylvanians — and the entire country — will be waiting for days, if not weeks, for the winner of races here to be determined. The sad truth is that an extended period of uncertainty about election results — especially the winner of the presidential race here in Pennsylvania — will only harm the public’s trust in the sacred institutions and election processes that have made our country a beacon of freedom to the whole world.
The good news is that there is still time for legislators and the governor to get this right and help avoid unnecessary delays in tabulating the vote. Now is the time for Pennsylvania to listen to state and local election officials who are saying they need more time to process the deluge of absentee ballots they are expecting because of the COVID-19 pandemic. It would be a shame if the legislature and Gov. Tom Wolf fail to act on this critical issue before Election Day. The time to remedy this problem is now.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
New at Fox News: “Ex-Defense Secretaries Hagel & Panetta: Our national security requires free and fair elections”<https://electionlawblog.org/?p=117019>
Posted on October 18, 2020 12:27 pm<https://electionlawblog.org/?p=117019> by Rick Hasen<https://electionlawblog.org/?author=3>
Opinion piece:<https://www.foxnews.com/opinion/election-integrity-chuck-hagel-leon-panetta>
While we come from different parts of the United States and represent different political parties, we share a common concern about the numerous and growing threats to our republic.
We remain united around a common commitment to the American tradition of safe, secure, and legitimate elections. This is why we joined with more than 40 other political, government and civic leaders to establish the National Council on Election Integrity<https://counteveryvote.org/members/> to defend of our elections and uphold the principle that every vote cast in accordance with applicable laws should be counted this year.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“All Elections Have Irregularities; That Doesn’t Necessarily Invalidate Them”<https://electionlawblog.org/?p=117017>
Posted on October 18, 2020 12:24 pm<https://electionlawblog.org/?p=117017> by Rick Hasen<https://electionlawblog.org/?author=3>
New<https://medium.com/the-carter-center/all-elections-have-irregularities-that-doesnt-necessarily-invalidate-them-7d89e440b30d> from Larry Garber and Thessalia Merivaki of the Carter Center.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
Retired Judge Michael Luttig, in WaPo Oped, Suggests Judge Barrett, If Confirmed Would Likely Have to Recuse (under the Caperton Case) in Any Supreme Court Election Litigation<https://electionlawblog.org/?p=117015>
Posted on October 18, 2020 12:13 pm<https://electionlawblog.org/?p=117015> by Rick Hasen<https://electionlawblog.org/?author=3>
Judge Luttig:<https://www.washingtonpost.com/opinions/2020/10/17/amy-coney-barrett-recuse-2020-election-cases-caperton-v-massey-coal-co/>
The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether the judge recognized it.
The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.
Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.
I have already explained<https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html> why I believe a Justice Barrett would have to recuse in such circumstances.
Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
“Bannon Says Trump Will Claim Victory Early, But They Don’t Know Counting Process”<https://electionlawblog.org/?p=117013>
Posted on October 18, 2020 12:05 pm<https://electionlawblog.org/?p=117013> by Rick Hasen<https://electionlawblog.org/?author=3>
Steven Rosenfeld:<https://billmoyers.com/story/bannon-says-trump-will-claim-victory-early-but-they-dont-know-counting-process/>
One of President Trump’s most loyal propagandists is predicting that Trump will claim victory on election night as soon as he is ahead among Election Day voters. But that scenario is based on a misconception of how all ballots are counted and the early returns are compiled, according to election and legal experts.
“At 10 o’clock or 11 o’clock… on November 3, Donald J. Trump is going to walk into the Oval Office, and he may hit a tweet before he goes in there… and he’s going to sit there, having won Ohio, and being up in Pennsylvania and Florida, and he’s going to say, ‘Hey, game’s over,’” said Stephen K. Bannon<https://en.wikipedia.org/wiki/Steve_Bannon>, Trump’s 2016 campaign CEO and former White House adviser, during a defiant speech on October 10 forum<https://www.facebook.com/YRFVA/videos/2455833978058630> hosted by the Young Republican Federation of Virginia.
“The elites are traumatized. They do not want to go stand in line and vote. That, ladies and gentlemen, is a game-changer,” Bannon said. “It [the decisive factor] is what electorate shows up to vote on a vote that can be certified. That’s a vote that counts. And right now, what they [Trump critics] don’t want to talk about, is Donald J. Trump leads on people who are actually going to show up and vote on November 3, by 21 percent.”
Bannon’s prediction that Trump would defy norms by asserting that he won before indisputable victory margins were reported was not just another sign that Trump would not heed the rules governing 2020’s election. Bannon’s fiery speech was a glimpse into a propagandist’s mindset that drew on smears and distortions to fan partisan ill will. But his prediction of how Trump could claim an early victory was based on a flawed premise, because no early returns on election night were only going to contain the in-person votes cast on Election Day.
“The first reports are the county totals,” said Chris Sautter<https://www.american.edu/spa/faculty/sautter.cfm>, an attorney who has specialized in post-election challenges and recounts for decades. “You don’t get the breakdowns [of votes cast in different categories such as early voting, mail-in votes, Election Day votes, and overseas votes] until after election night. It depends on the state.”
Other election administration experts confirmed that the election night returns would be a mix of all of the earliest votes cast—from early in-person voting sites, from absentee ballots that had been returned and processed, and from in-person voting on Election Day. (As of October 15, more than 16 million absentee ballots had been returned or cast in early voting, the U.S. Elections Project said<https://electproject.github.io/Early-Vote-2020G/index.html>.)
“Right now… they’ve requested 1.5 million absentee ballots in Pennsylvania,” Bannon said. “Ten to 20 percent will not be certifiable. What that means is it [is] going to be a dogfight in those rooms [in county offices where returned ballots are processed]. Remember, every ballot that can be certified should be certified. And that ballot should count. That’s a vote. But you’ve got a lot of things that you [absentee voters] have got to check off to get to certification, because you chose—you chose—not to go to a poll.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
PA: A Potentially Explosive Mix of the Worst Election Laws in A Potentially Decisive State<https://electionlawblog.org/?p=117010>
Posted on October 18, 2020 6:59 am<https://electionlawblog.org/?p=117010> by Richard Pildes<https://electionlawblog.org/?author=7>
From the Washington Post<https://www.washingtonpost.com/politics/amid-fears-of-election-day-chaos-one-county-prepares-for-anxious-days-after-the-vote/2020/10/17/c2c9e928-0a60-11eb-a166-dc429b380d10_story.html>:
It’s not Election Day that worries most county officials. It’s the next stage — the count.
This spring, in the primary, it took 10 days for the county elections office to count about 30,000 mail-in ballots. With more than 70,000 expected this time around, Erie officials have hired up, going from eight to 15 workers opening envelopes and feeding ballots into the tallying machines. They’ve added hours — counting will start each day at 7 a.m., three hours earlier than during the primary. And they’ve added machines, including a second high-speed scanner to read ballots and an automatic letter-opener that can unseal 20,000 ballots per hour, Smith said.
Each envelope takes about 90 seconds to scan and prepare for counting, work that Smith would love to do ahead of time. But a state law prohibits opening and preparing mail-in envelopes for tallying before Election Day and counting those ballots before the polls close. So far, neither lawmakers nor the courts have approved a change to the rules. [emphasis added]
All that work will take place in counting rooms jammed with people trying to oversee every move. Salmon said Republicans will deploy an army of pollwatchers, lawyers and count observers. Wertz said Democrats will do the same, with more than 200 volunteers around the county and two shifts of observers in the counting rooms.
The scene can look chaotic and crowded, but it works, Republicans and Democrats agree. “We do everything in our power to keep each vote, even if the signature is sloppy and it’s changed over 15 years,” said county councilman Shank, who acts, along with his fellow council members, as Erie’s board of elections.
Still, every day a final count is delayed could undermine trust in the outcome, many in the county say.
“The integrity of the vote is going to be questioned,” said Dillon, the open-carry activist. “It doesn’t make sense that we have to wait weeks before learning who won.”
Despite the drive to accelerate the count, “they’re so far from having the resources they need, it’s not even funny,” Hayes, the Republican legislative candidate, said after meeting with local police chiefs and election officials. “If we get an answer within three weeks, I’ll be surprised.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
CA Has 12 — Count them, 12 — Ballot Measures for Voters to Vote on This Fall<https://electionlawblog.org/?p=117006>
Posted on October 18, 2020 4:59 am<https://electionlawblog.org/?p=117006> by Richard Pildes<https://electionlawblog.org/?author=7>
For details on each of these measures, which also reports that $630 million has been spent so far on them, see this<https://www.politico.com/interactives/2020/california-november-ballot/> story.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“California allows Republican ballot boxes with safeguards”<https://electionlawblog.org/?p=117003>
Posted on October 18, 2020 4:52 am<https://electionlawblog.org/?p=117003> by Richard Pildes<https://electionlawblog.org/?author=7>
The first part of this story<https://www.politico.com/states/california/story/2020/10/16/california-allows-republican-ballot-boxes-with-safeguards-1326076> suggests the conflicts over GOP drop boxes in CA have now been resolved:
California officials lowered the temperature Friday in their legal standoff with the California Republican Party<https://www.politico.com/states/california/story/2020/10/15/california-republicans-spark-national-feud-over-harvesting-ballot-boxes-1325367> over its unauthorized ballot boxes, saying the party had committed to enough changes for now to satisfy their concerns. . . .
In an earlier response to Padilla, the California Republican Party said it would continue to accept mail ballots at boxes but promised some safeguards: The boxes will be attended to whenever the public has access to them, and ballots will be secured and then delivered to elections officials within the required 72-hour frame, the party said. The party pledged to not represent those boxes as “official,” saying a volunteer had done so in error, while arguing that the process was legal due to a 2018 law that loosened collection requirements.
“If they want to continue ballot collection activity, that is legal in California, but they must abide by state law around the ballot collection program,” Padilla said.
But later parts of the story also suggest the conflicts over this issue might not be fully settled.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“6 Places Where Police Reform Is Going Straight to the Voters”<https://electionlawblog.org/?p=116998>
Posted on October 18, 2020 4:44 am<https://electionlawblog.org/?p=116998> by Richard Pildes<https://electionlawblog.org/?author=7>
Politico story<https://www.politico.com/news/magazine/2020/10/15/police-reform-ballot-initiatives-2020-420614> on local-government ballot measures this fall to change policing systems:
Nevertheless, in Los Angeles, San Francisco, Portland, Philadelphia, Akron and Seattle, voters will get to decide on some pioneering changes to the way their policing systems work. These six cities aren’t the only places with police reform on the ballot, but they are the most notable for their scale, boldness or their locations, some of which have been in the spotlight throughout the summer for ongoing unrest. A few proposed changes are big, such as one proposal to shift millions of dollars away from law enforcement and to community services and programs in the most populous county in the country; others are smaller, such as a symbolic rejection of stop-and-frisk policing on the street. But like all ballot measures, if passed, these reforms might be just the beginning; they can provide a potential model for legislation later and elsewhere.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Polling Data on Election-Related Issues<https://electionlawblog.org/?p=116996>
Posted on October 18, 2020 4:40 am<https://electionlawblog.org/?p=116996> by Richard Pildes<https://electionlawblog.org/?author=7>
Some interesting data on several election-policy issues from a recent Ipsos poll for Axios<https://www.ipsos.com/en-us/news-polls/axios-voting-and-race-2020>:
What we’re watching: Most Black respondents (82%), Hispanic Americans (77%), Asian Americans (63%) and white respondents (59%) say the president should be elected nationally by popular vote rather than by the Electoral College.
· Two-thirds of all Americans say election day should be a national holiday.
· About eight in 10 voters overall support requiring photo ID to vote in person, slightly less — 73%— for Black respondents.
· Majorities of Black Americans (81%), white Americans (70%), Hispanic respondents (64%) and Asian Americans (63%) support restoring voting rights to convicted felons who have served their time.
· Only Black Americans (52%) favor allowing convicted felons who are still in prison to vote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Posted on October 18, 2020 4:30 am<https://electionlawblog.org/?p=116992> by Richard Pildes<https://electionlawblog.org/?author=7>
“New Jersey Election Officials Scramble on First Mostly Mail-In Vote”
From the WSJ<https://www.wsj.com/articles/new-jersey-election-officials-scramble-on-first-mostly-mail-in-vote-11602936000>:
New Jersey’s election system will be tested in the coming weeks as most voters will be casting their ballots for the presidential election by mail or dropping them off for the first time in the state’s history.
The state is one of four in the U.S. that this year opted to automatically mail ballots to voters <https://www.wsj.com/articles/how-to-vote-by-mail-in-every-state-11597840923> to minimize in-person voting to limit the spread of the coronavirus. A handful of other states, including Utah and Oregon, already take the approach for every election.
Local election officials have begun delivering nearly six million ballots statewide to active registered voters, the most ever mailed in the state. More than 1.25 million ballots had been returned as of Thursday, according to the New Jersey Secretary of State’s office, or 32% of the total number who voted in the 2016 presidential election. . . .
County clerks and boards of elections have also been inundated with queries from voters asking why the election process changed this year or to inquire about the status of their ballots.
“Phones are ringing all day long with questions,” said John Hogan, the Bergen County clerk. . . .
Nicole DiRado, administrator for the Union County Board of Elections, said her office hired 50 seasonal workers for the election and was expecting to receive about 200,000 mail-in and drop-off ballots to count. That will shatter the county’s record for absentee ballots set in 2018 when it received 19,000 ballots, she said.
“I know at the end of the day we will have run a fair, transparent, successful election,” Ms. DiRado said. “I know that. It’s just getting there—honestly, it’s overwhelming.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Federal Appeals Courts Emerge as Crucial for Trump in Voting Cases”<https://electionlawblog.org/?p=116989>
Posted on October 17, 2020 1:19 pm<https://electionlawblog.org/?p=116989> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2020/10/17/us/politics/federal-appeals-courts-trump-voting.html?action=click&module=Top%20Stories&pgtype=Homepage>
The Texas case is one of at least eight major election disputes around the country in which Federal District Court judges sided with civil rights groups and Democrats in voting cases only to be stayed by the federal appeals courts, whose ranks Mr. Trump has done more to populate<https://www.nytimes.com/2020/03/14/us/trump-appeals-court-judges.html> than any president in more than 40 years.
The rulings highlight how Mr. Trump’s drive to fill empty judgeships is yielding benefits to his re-election campaign even before any major dispute about the outcome may make it to the Supreme Court. He made clear the political advantages he derives from his power to appoint judges when he explained last month<https://nymag.com/intelligencer/2020/09/trump-supreme-court-needs-9-justices-for-election-dispute.html> that he was moving fast to name a successor to Justice Ruth Bader Ginsburg so the Supreme Court would have a full contingent to handle any election challenges, which he has indicated he might bring in the event of a loss.
In appointing dozens of reliable conservatives to the appellate bench, Mr. Trump has made it more likely that appeals come before judges with legal philosophies sympathetic to Republicans on issues including voting rights. The trend has left Democrats and civil rights lawyers increasingly concerned that they face another major impediment to their efforts to assure that as many people as possible can vote in the middle of a pandemic — and in the face of a campaign by Republicans<https://www.nytimes.com/2020/09/30/magazine/trump-voter-fraud.html> to limit voting.
“There has been a very significant number of federal voting rights victories across the country and those have in the last week or two — many if not most — been stayed by appellate courts,” said Wendy R. Weiser, the director of the Democracy Program at the Brennan Center for Justice at New York University, which has been involved in several voting rights lawsuits this year. “We’re seeing the brakes being put on the voting rights expansion at the appellate level in these jurisdictions, in many cases in ways that won’t be remediable before the election.”
In potentially pivotal states like Wisconsin and Ohio, the outcomes appear to be serving the president’s effort to limit voting while in some cases creating widespread confusion about the rules only three weeks before Election Day….
The higher the level of confusion, Mr. Persily said, the more likely that final results could wind up before judges.
“The most important thing is that we have clear rules right now about how this election is going to be conducted,” he said. “While there are good rules and bad rules, it’s better to have a rule than no rule at all. The more uncertainty that the courts are injecting into the process right now, the greater the likelihood there will be postelection litigation.”
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>
The Games Major-Party Candidates Play with Third Parties<https://electionlawblog.org/?p=116980>
Posted on October 17, 2020 1:18 pm<https://electionlawblog.org/?p=116980> by Richard Pildes<https://electionlawblog.org/?author=7>
From the WSJ:<https://www.wsj.com/articles/third-party-candidates-could-play-spoiler-in-tight-senate-races-11602840600?mod=searchresults&page=1&pos=1>
THIRD-PARTY SENATE CANDIDATES could play key roles in some of the fall’s closest contests—in some cases with the help of a major party candidate. In South Carolina<https://www.wsj.com/articles/senate-battleground-map-grows-boosting-democrats-hopes-11602694203>, where Democrat Jaime Harrison has run close to Sen. Lindsey Graham with the help of record-shattering fundraising, Harrison has paid for digital ads that use reverse psychology to promote Constitution Party candidate Bill Bledsoe, calling him “Too Conservative” for the Senate, a bid to get Graham voters to defect to Bledsoe. Graham’s campaign seems to have recognized the risk—Bledsoe dropped out of the race and backed Graham earlier this month, and Graham quickly promoted the endorsement. But Bledsoe’s name remains on the ballot.
Harrison is employing an oft-used tactic by Democrats in red states, said nonpartisan election analyst Dave Wasserman: “Try to lower your threshold for victory to ~48%.” A similar dynamic is at play in Maine<https://www.wsj.com/articles/another-supreme-court-vacancy-puts-re-election-squeeze-on-sen-susan-collins-11600608125>, where Sen. Susan Collins narrowly trails Democrat Sara Gideon in polling averages. Collins is expected to be at a disadvantage because of the state’s ranked-choice voting system<https://www.sunjournal.com/2020/09/01/in-ranked-choice-senate-race-only-independents-willing-to-name-their-second-pick/>, where candidates outside the top two finishers have their votes reallocated to the top two based on voters’ second choices. Independent candidate Lisa Savage has urged her supporters to list Gideon as their second choice, while Max Linn, another independent, asked his voters to rank Savage second, depriving Gideon and Collins of extra votes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench”<https://electionlawblog.org/?p=116987>
Posted on October 17, 2020 1:14 pm<https://electionlawblog.org/?p=116987> by Rick Hasen<https://electionlawblog.org/?author=3>
Joan Biskupic for CNN.<https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html>
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, Supreme Court<https://electionlawblog.org/?cat=29>
“Why Do Nonwhite Georgia Voters Have to Wait in Line for Hours? Their Numbers Have Soared, and Their Polling Places Have Dwindled.”<https://electionlawblog.org/?p=116985>
Posted on October 17, 2020 1:09 pm<https://electionlawblog.org/?p=116985> by Rick Hasen<https://electionlawblog.org/?author=3>
ProPublica and Georgia Public Broadcasting<https://www.propublica.org/article/why-do-nonwhite-georgia-voters-have-to-wait-in-line-for-hours-their-numbers-have-soared-and-their-polling-places-have-dwindled>:
The clogged polling locations in metro Atlanta reflect an underlying pattern: the number of places to vote has shrunk statewide, with little recourse. Although the reduction in polling places has taken place across racial lines, it has primarily caused long lines in nonwhite neighborhoods where voter registration has surged and more residents cast ballots in person on Election Day. The pruning of polling places started long before the pandemic, which has discouraged people from voting in person.
In Georgia, considered a battleground state for control of the White House and U.S. Senate, the difficulty of voting in Black communities like Union City could possibly tip the results on Nov. 3. With massive turnout expected, lines could be even longer than they were for the primary, despite a rise in mail-in voting and Georgians already turning out by the hundreds of thousands to cast ballots early.
Since the U.S. Supreme Court’s Shelby v. Holder decision in 2013 eliminated key federal oversight of election decisions in states with histories of discrimination, Georgia’s voter rolls have grown by nearly 2 million people, yet polling locations have been cut statewide by nearly 10%, according to an analysis of state and local records by Georgia Public Broadcasting and ProPublica. Much of the growth has been fueled by younger, nonwhite voters, especially in nine metro Atlanta counties, where four out of five new voters were nonwhite, according to the Georgia secretary of state’s office.
The metro Atlanta area has been hit particularly hard. The nine counties — Fulton, Gwinnett, Forsyth, DeKalb, Cobb, Hall, Cherokee, Henry and Clayton — have nearly half of the state’s active voters but only 38% of the polling places, according to the analysis.
As a result, the average number of voters packed into each polling location in those counties grew by nearly 40%, from about 2,600 in 2012 to more than 3,600 per polling place as of Oct. 9, the analysis shows. In addition, a last-minute push that opened more than 90 polling places just weeks before the November election has left many voters uncertain about where to vote or how long they might wait to cast a ballot.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“We have to count every vote even if it takes weeks”<https://electionlawblog.org/?p=116983>
Posted on October 17, 2020 1:07 pm<https://electionlawblog.org/?p=116983> by Rick Hasen<https://electionlawblog.org/?author=3>
Jane Harman and Deborah Pryce CNN oped<https://www.cnn.com/2020/10/16/opinions/election-night-results-count-every-vote-harman-pryce/index.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“Barrett Won’t Pull Away From Trump’s Coattails”<https://electionlawblog.org/?p=116981>
Posted on October 17, 2020 1:04 pm<https://electionlawblog.org/?p=116981> by Rick Hasen<https://electionlawblog.org/?author=3>
Jost on Justice:<http://www.jostonjustice.com/2020/10/barrett-wont-pull-away-from-trumps.html>
The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a justice.
Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.
When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>
Amy Barrett and “The Law of Democracy”<https://electionlawblog.org/?p=116978>
Posted on October 17, 2020 7:03 am<https://electionlawblog.org/?p=116978> by Richard Pildes<https://electionlawblog.org/?author=7>
My favorite TikTok video of all time, especially the end, not surprisingly:
https://twitter.com/LissaJoStewart/status/1316496502567641089?s=09<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_LissaJoStewart_status_1316496502567641089-3Fs-3D09&d=DwMCaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=a2USTbAkgIJvUdNs94Lk_Y9MkDJmSfTGRI6W6Ahn5WQ&m=2tzPWXVkLlHhNLTOKpQ51Os7_a1x0v5T__1n83fE-pI&s=DpGUatuO_jN83bfsXlNfiazybyrAbeWk3ocmgyzvLSA&e=>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Democrats Preferred to Vote by Mail. But as Election Day Nears, More Say They’ll Head to the Polls”<https://electionlawblog.org/?p=116976>
Posted on October 17, 2020 4:39 am<https://electionlawblog.org/?p=116976> by Richard Pildes<https://electionlawblog.org/?author=7>
This is from the latest <https://morningconsult.com/2020/10/15/democrats-preferred-to-vote-by-mail-but-as-election-day-nears-more-say-theyll-head-to-the-polls/> Morning Consult Poll:
But as Nov. 3 has inched closer, questions over the U.S. Postal Service’s ability to deliver mailed ballots on time has prompted some Democratic organizers to encourage people to vote in person. Morning Consult/Politico polling shows that guidance may be resonating with the party’s base, with more Democrats saying they plan to cast their ballots in-person.
An Oct. 8-10 poll<https://assets.morningconsult.com/wp-uploads/2020/10/15122702/201044_crosstabs_POLITICO_RVs_v1_AUTO.pdf> found the share of Democrats who now plan to vote in person rose 12 percentage points, to 42 percent, compared with a July 31-Aug. 2 survey<https://assets.morningconsult.com/wp-uploads/2020/08/05073342/2007146_crosstabs_POLITICO_RVs_v2_RG.pdf> that gauged how they preferred to vote, while the share who plan to vote by mail was down 10 points from the 65 percent who said that was their inclination in the summer.
Another way to put these numbers is there has been about a 50% increase in the percentage of Democrats who now plan to vote in person compared to how they thought they would vote back in early August. I suspect this number is going to continue going up as we get closer to the election.
Perhaps the messaging<https://www.cnn.com/2020/09/14/opinions/election-2020-vote-by-mail-absentee-pildes/index.html> that has been coming out encouraging voters<https://www.washingtonpost.com/opinions/2020/06/23/absentee-ballots-will-be-critical-this-fall-in-person-voting-is-even-more-essential/> to vote in person, to avoid various issues absentee balloting might generate, has been getting through; or perhaps voters are becoming more comfortable seeing voting as comparable to going to the grocery store<https://www.theatlantic.com/politics/archive/2020/09/voting-during-pandemic-pretty-safe/616084/> or similar places that people have gotten comfortable going to with masks and social distancing in place.
Whatever the reasons, it’s extremely good news for the election process. The higher the percent of the vote that’s in-person, the more it diminishes the role of absentee ballots and the three main risks the latter pose: (1) mail delays; (2) rejection rates; and (3) significant delays in knowing who has won the election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Michigan State Appeals Court Rejects Later Counting of Absentee Ballots, and Third Party Collection of Ballots<https://electionlawblog.org/?p=116974>
Posted on October 16, 2020 4:57 pm<https://electionlawblog.org/?p=116974> by Rick Hasen<https://electionlawblog.org/?author=3>
Detroit News<https://www.detroitnews.com/story/news/politics/2020/10/16/appellate-panel-wont-allow-michigans-late-ballots-counted/3685251001/>:
A Michigan Court of Appeals panel has reversed a lower court ruling that would have required election officials to count late absentee ballots and allowed third parties to collect absentee ballots from voters.
The Court of Claims “abused its discretion” by granting injunctions that allowed for the lifting of those provisions, appellate Judges Thomas Cameron, Mark Boonstra and Michael Gadola ruled in a 3-0 opinion. Court of Claims Judge Cynthia Stephens made the ruling on Sept. 18<https://www.detroitnews.com/story/news/local/michigan/2020/09/18/michigan-clerks-must-accept-late-ballots-if-mailed-nov-2-judge-rules/3492245001/>.
Cameron, Gadola and Boonstra were appointees of Republican former Gov. Rick Snyder.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
WSJ Profile of Facebook’s Zuckerberg Talks About His Political Education, “Open Line” With President’s Son-in-Law and Others<https://electionlawblog.org/?p=116972>
Posted on October 16, 2020 4:54 pm<https://electionlawblog.org/?p=116972> by Rick Hasen<https://electionlawblog.org/?author=3>
WSJ:<https://www.wsj.com/articles/how-mark-zuckerberg-learned-politics-11602853200>
Mr. Zuckerberg maintains an open line with Mr. Kushner, the president’s son-in-law and senior adviser. The two sometimes discuss Facebook policies over WhatsApp. The CEO spoke this year with Mr. Kushner and separately with Treasury Secretary Steven Mnuchin about TikTok’s U.S. presence, people familiar with the talks said….
As tech platforms announced new political-content policies over the past year, Mr. Kushner has argued to Mr. Zuckerberg that some of those moves could hurt Republican and Democratic campaigns alike, people familiar with the matter said.
Mr. Zuckerberg also has forged ties with right-leaning publishers that drive engagement on the platform, including Ben Shapiro, co-founder of the Daily Wire and a Trump supporter, people familiar with the matter say. The conservative news site has been flagged repeatedly by Facebook’s fact-checkers for sharing falsehoods and distortions. But it is frequently among the most popular on the platform based on user interactions, according to CrowdTangle, a Facebook-owned analytics tool….
In late 2017, when Facebook tweaked its newsfeed algorithm to minimize the presence of political news, policy executives were concerned about the outsize impact of the changes on the right, including the Daily Wire, people familiar with the matter said. Engineers redesigned their intended changes so that left-leaning sites like Mother Jones were affected more than previously planned, the people said. Mr. Zuckerberg approved the plans. “We did not make changes with the intent of impacting individual publishers,” a Facebook spokesman said….
After the launch last year of Courier Newsroom, a network of eight progressive local-news sites that is part-owned by a left-leaning nonprofit with close ties to Democratic donors, Mr. Zuckerberg argued that Courier wasn’t a real news outlet, given its political connections, according to people familiar with his views.
The discussion sparked a new Facebook policy in August that limits the reach of partisan-backed sites by blocking their pages from inclusion in Facebook News, restricting their access to the Facebook Messenger and WhatsApp platforms and curtailing their advertising.
The nonprofit behind Courier Newsroom, called Acronym, criticized the policy, saying it favors conservative news sources.
Mr. Zuckerberg has also begun meeting with progressive groups, whose leaders argued that if he was developing personal relationships with conservatives like Mr. Shapiro, he should hear from the other side, too. The conversations haven’t always gone smoothly.
Rashad Robinson, president of the civil-rights group Color of Change, said that Mr. Zuckerberg appeared to lack an understanding of the ways Facebook could be contributing to voter suppression.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>
A Florida purge of supposed felons just before the election….where have I heard this before?<https://electionlawblog.org/?p=116970>
Posted on October 16, 2020 4:42 pm<https://electionlawblog.org/?p=116970> by Rick Hasen<https://electionlawblog.org/?author=3>
CNN<https://www.cnn.com/2020/10/16/politics/florida-felons-unpaid-debts-voting-rolls/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>:
Election officials in Florida are taking steps to remove ex-felons from the voter rolls if they still owe court debts, according to an email sent this week to county elections officials obtained by CNN.
The state’s elections director, Maria Matthews, told local elections supervisors on Tuesday that they would begin to receive files on convicted felons “whose potential ineligibility is based on not having satisfied the legal financial obligations of their sentence.” The email added that if local officials received information about registered voters who are ineligible from sources other than the Florida Department of State, “you should act on it.”
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Posted in felon voting<https://electionlawblog.org/?cat=66>
Kennedy Campaign in Massachusetts Illegally Spent $1.5 Million of General Election Funds in the Primary<https://electionlawblog.org/?p=116968>
Posted on October 16, 2020 4:33 pm<https://electionlawblog.org/?p=116968> by Rick Hasen<https://electionlawblog.org/?author=3>
Wow.<https://www.bostonglobe.com/2020/10/16/metro/joe-kennedy-campaign-says-it-improperly-spent-15-million-senate-primary/>
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“EXCLUSIVE: Ross Commits To Protocols That Make It Harder For Trump To Mess With Census”<https://electionlawblog.org/?p=116966>
Posted on October 16, 2020 3:39 pm<https://electionlawblog.org/?p=116966> by Rick Hasen<https://electionlawblog.org/?author=3>
Tierney Sneed<https://talkingpointsmemo.com/news/wilbur-ross-census-data> for TPM:
Commerce Secretary Wilbur Ross said in a statement to TPM that when the Census Bureau gives the President the 2020 census data for congressional apportionment, it will make that data public at the same time.
The statement commits the Trump administration to following a decades-long tradition of simultaneously releasing and transmitting the numbers, encouraging public confidence that the data will not be secretly manipulated by the White House.
For months, former Census officials and other census observers have been on the lookout for signals that the Trump administration might deviate from these long-established protocols. On Thursday, TPM sent the Commerce Department and the Census Bureau a detailed list of questions about its plans for the apportionment process.
“I have no further comment on the ongoing litigation, but we will release this Census data publicly, and in keeping with past practice, will do so simultaneously with its delivery to the President,” Ross said in a response provided to TPM on Friday afternoon.
After a follow up from TPM, the Commerce Department confirmed that Ross was referring to the total population counts, the apportionment calculations that they produce, and, in the event the Supreme Court gives a green light, the immigration data that Trump is requesting so that he can exclude undocumented immigrants from apportionment process.
A lower court has declared the exclusion of undocumented immigrants from the apportionment count illegal. Not long after TPM received the initial statement from Ross, the Supreme Court announced it would hear arguments in that case on a timetable that could let it resolve the dispute before early January.
The gambit, if okayed by the Supreme Court, would allow Trump to diminish political representation for immigrant-rich states, while boosting the political power of whiter, Republican-leaning parts of the country. It has been blocked by a lower court.
Even amid the legal uncertainty, the Census Bureau has been moving forward on assembling data on undocumented immigrants. Recent developments in the various census-related court cases have suggested that the Bureau is having trouble collecting reliable data on undocumented immigrants beyond those that can be linked to ICE detention records, which would be a relatively small number of people.
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--
Rick Hasen
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UC Irvine School of Law
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