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

[Rick Hasen]

“The Big Role That Big Donors Still Play, Quietly, for Joe Biden; The Biden campaign has trumpeted its success with small donations, but in the last six months it has raised almost $200 million from donors who gave at least $100,000. As sums have grown, transparency has diminished.”<https://electionlawblog.org/?p=117117>
Posted on October 20, 2020 7:58 am<https://electionlawblog.org/?p=117117> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/10/20/us/politics/joe-biden-donors.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republican Voters Take a Radical Conspiracy Theory Mainstream; QAnon, with encouragement from the president himself, has moved from online message boards to political rallies and congressional campaigns.”<https://electionlawblog.org/?p=117115>
Posted on October 20, 2020 7:57 am<https://electionlawblog.org/?p=117115> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/10/19/us/politics/qanon-trump-republicans.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Here’s Why Concerns About Absentee Ballot Fraud Are Overhyped; We analyzed a conservative foundation’s catalog of absentee ballot fraud and found no credible threat to the 2020 election.” (Heritage database)<https://electionlawblog.org/?p=117113>
Posted on October 20, 2020 7:54 am<https://electionlawblog.org/?p=117113> by Rick Hasen<https://electionlawblog.org/?author=3>

Frontline<https://www.pbs.org/wgbh/frontline/article/heres-why-concerns-about-absentee-ballot-fraud-are-overhyped/> dives into the Heritage Foundation Database:

eila and Gary Blake didn’t want to miss elk hunting season.

It was 2000, and the election conflicted with their plans<https://billingsgazette.com/news/state-and-regional/wyoming/pair-admits-guilt-to-voting-fraud/article_3bf66f52-a167-522b-83fc-5797314a3e11.html>, so the Wyoming couple requested absentee ballots.

But the Blakes had moved from 372 Curtis Street five miles down the road to 1372 Curtis Street, crossing a town line. When they mailed their votes using the old address, they were criminally charged. The misdemeanor case was settled with $700 in fines and a few months’ probation, but two decades later, the Blakes are still listed as absentee ballot fraudsters in the Heritage Foundation’s Election Fraud Database.

Far from being proof of organized, large-scale vote-by-mail fraud, the Heritage database presents misleading and incomplete information that overstates the number of alleged fraud instances and includes cases where no crime was committed, an investigation by USA TODAY, Columbia Journalism Investigations and the PBS series FRONTLINE found.

EDITOR’S NOTE: This story is part of an ongoing investigation by FRONTLINE<https://www.pbs.org/wgbh/frontline/>, Columbia Journalism Investigations<https://journalism.columbia.edu/columbia-journalism-investigations> and USA TODAY Network<http://voteraccess.usatoday.com/> reporters that examines allegations of voter disenfranchisement and how the pandemic could impact turnout. It includes the film Whose Vote Counts<https://www.pbs.org/wgbh/frontline/film/whose-vote-counts/>, premiering on PBS and online Oct. 20 at 10 p.m. EST/9 p.m. CST.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“No mask, no problem. In California, maskless voters can cast ballots on election day”<https://electionlawblog.org/?p=117111>
Posted on October 20, 2020 7:48 am<https://electionlawblog.org/?p=117111> by Rick Hasen<https://electionlawblog.org/?author=3>

LA Times reports<https://www.latimes.com/california/story/2020-10-20/maskless-california-voters-ballots-election-day>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘It’s Going to Be Hell’: How Pennsylvania Is on Track for Election Chaos<https://electionlawblog.org/?p=117109>
Posted on October 20, 2020 7:36 am<https://electionlawblog.org/?p=117109> by Rick Hasen<https://electionlawblog.org/?author=3>

AJ Vicen<https://www.motherjones.com/politics/2020/10/pennsylvania-2020-election/>s for Mother Jones:

Perhaps nowhere worries experts more than Pennsylvania. As a perennial presidential battleground, its 20 electoral college votes—decided by just 44,292 votes in 2016—always attract the spotlight. But this year, the state is grappling with a number of unprecedented conditions and challenges that could complicate the smooth administration of November’s election, including a recent overhaul of state election law predating the pandemic, continuing fights over changes to voting prompted by the coronavirus, and a growing sense that President Donald Trump’s campaign and supporters will ignore democratic norms to ensure victory in a state that he must win. It’s a brew that in a close election could send the state in the direction of high stakes, drawn out, and hard fought post-election challenges that could determine the fate of the nation.

“If the election comes down to electoral college votes in Pennsylvania, I think it’s going to be hell,” says Rick Hasen, a [UC Irvine] law professor and expert on election administration and voting rights. “That’s one of the worst possible outcomes.”

For Hasen, the state’s inexperience with mail ballots is a key concern. In 2019, Pennsylvania’s Republican controlled legislature passed a bill with largely bipartisan support that allowed voters, as part of a growing national trend, to cast ballots by mail under any circumstance. This fall’s general election would have been the first conducted under the new rules, but no one expected a pandemic would push an unforeseeable number of the state’s 8.8 million voters to opt for mail balloting. The flood could swamp little-tested mailing, handling, and processing procedures. Already, issues are flaring up: On October 14, election officials in Allegheny County, home to Pittsburgh, announced that nearly 29,000 ballots went to voters with the wrong contests, a mistake noticed by attentive voters. Officials intervened to prevent another 19,000 faulty ballots from being sent, and have pledged to re-issue correct ballots.

Adding to Hasen’s worries is a state law that bans substantial processing of mail ballots until Election Day. The provision is almost certain to result in a delay between the release of results collected at in-person polling places and those that came by mail ballots, hindering the quick designation of a clear winner. Trump supporters have outlined plans to exploit the delay. Last week, the Associated Press reported<https://www.google.com/url?q=https://apnews.com/article/election-2020-virus-outbreak-joe-biden-donald-trump-campaigns-904620e3b58a8abf75227848c8762396&sa=D&ust=1602867719475000&usg=AFQjCNFwsvUctuIJoSKhaVsRvSgeNCbOJw> that Trump allies think “their best bet” at holding the White House is to “hope results look close on election night, before some of the mail-in ballots are counted, allowing Trump to declare victory and have the results thrown to the courts.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Sixth Circuit Panel Unanimously Rejects Tennessee Attempt to Stay Easing of Pandemic Voting Restrictions for First-Time Voters, Citing Time and Reliance Interests of Voters (Tea Leaves on SCOTUS in PA?)<https://electionlawblog.org/?p=117107>
Posted on October 20, 2020 7:25 am<https://electionlawblog.org/?p=117107> by Rick Hasen<https://electionlawblog.org/?author=3>

Order here<https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0334p-06.pdf>:

Here, the strength of the final three factors of the stay analysis outweigh any probability of defendants’ success on the merits. Partly from defendants’ own doing, the electoral calendar works against their request for a stay of the district court’s preliminary injunction. The district court issued its preliminary injunction on September 9, 2020. While that timing may have been out of defendants’ control, defendants did not file their appeal of the preliminary injunction until October 5, 2020, nearly one month after the injunction sprang into effect. And they did not seek a stay of the district court’s order until October 9, 2020. Plaintiffs’ response to the stay motion was filed October 15, 2020.

During the period between September 9, the day of issuance of the preliminary injunction, and October 15, the day plaintiffs’ response was filed, both absentee voting and early in-person voting had begun in Tennessee. Plaintiffs have been working in their communities to inform their members and the general public about the district court’s preliminary injunction; collectively, they have spoken to over 1,500 voters at union meetings, virtual town halls, and voter-registration events. On Tennessee’s official government webpage about absentee voting, the defendants themselves prominently state that “[p]ursuant to the September 9, 2020 Order of the U.S. District Court, first-time voters are not required to vote in-person if they meet a legal reason to vote by-mail.” Absentee Voting, Tenn. Sec’y of State, https://sos.tn.gov/products/elections/absentee-voting (last accessed Oct. 17, 2020).

Given this situation, the injury to potential voters, who have relied on communications from defendants and local election officials, is great. Moreover, disrupting the new rules at this point poses significant risk of harm to the public interest in orderly elections. In this instance, there is no substantial harm to defendants in continuing to comply with rules they are currently following.

This is the same panel<https://electionlawblog.org/?p=116848> that divided sharply in another Tennessee voting emergency case.

The equities in this case and how the very conservative judges voted in the most recent case says something significant about reliance. This is why last night on Twitter<https://twitter.com/rickhasen/status/1318387577662054400?s=20> I suggested that it seems unlikely the U.S. Supreme Court, after not granting a stay on the acceptance of absentee ballots received up to three days after the election without a postmark in Pennsylvania, would turn around after the election with a Justice Barrett and say that those ballots now could not be counted. The reliance interests are tremendous.

And<https://twitter.com/rickhasen/status/1318389251914960896?s=20>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How should the media cover Election Night?”<https://electionlawblog.org/?p=117104>
Posted on October 20, 2020 6:58 am<https://electionlawblog.org/?p=117104> by Rick Hasen<https://electionlawblog.org/?author=3>

Event today<https://annenberg.usc.edu/events/cclp/how-should-media-cover-election-night> at USC:

The 2020 Presidential Election is unprecedented in many ways: Record numbers of mail-in ballots. Potentially epic post-election legal battles. Voter preferences for in-person voting that fall starkly along party lines. These are just a few of the possible post-election events that the media must be prepared to navigate as it reports on an Election Night that could stretch well past November 3. Join the USC Annenberg Center on Communication Leadership and Policy and the USC Center for the Political Future for a conversation exploring how the media can accurately and fairly cover the results on Election Night and beyond. Our panelists will discuss the role of the press in setting realistic expectations for the American public, preventing the spread of misinformation, and maintaining trust in our democratic institutions. CCLP Director Geoffrey Cowan<https://annenberg.usc.edu/faculty/communication-journalism/geoffrey-cowan> will facilitate a conversation with the following panelists:
·         Sara Fischer, Axios Media Trends Editor<https://www.axios.com/authors/sara/>
·         Adam Clayton Powell III<https://annenberg.usc.edu/faculty/adam-clayton-powell-iii>, Executive Director of the Election Security and Information Project
·         Bob Shrum, CPF Director<https://dornsife-center-for-political-future.usc.edu/staff/robert-m-shrum/>
·         Jessica Yellin,<https://communicationleadership.usc.edu/fellows/senior/yellin/> former Chief White House Correspondent for CNN
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Free Our Vote: Using Data Activism and Crowdsourcing to Restore Voting Rights for Former Felons in Florida”<https://electionlawblog.org/?p=117102>
Posted on October 20, 2020 6:56 am<https://electionlawblog.org/?p=117102> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Neel U. Sukhatme<https://www.law.georgetown.edu/faculty/neel-u-sukhatme/>, Associate Professor, Georgetown University Law Center, and Co-Founder, Free Our Vote<https://www.freeourvote.com/>:

As readers of this blog might know, nearly 65% of voters in Florida supported a ballot initiative<https://en.wikipedia.org/wiki/2018_Florida_Amendment_4> in 2018 to restore voting rights for most former felons in the state. Unfortunately, the state legislature and governor subsequently enacted SB 7066<https://www.flsenate.gov/Session/Bill/2019/7066>, which removed voting rights for hundreds of thousands of former felons who still owe fines, fees, court costs or restitution associated with their sentencing. Subsequent legal challenges to SB 7066 ultimately failed<https://media.ca11.uscourts.gov/opinions/pub/files/202012003.enb.pdf>.

There are many legal and ethical problems<https://campaignlegal.org/sites/default/files/2020-05/04916816902.pdf> stemming from this suppression of voting rights. But a more basic problem is pragmatic: most former felons cannot even find out how much they owe in fines/fees because Florida does not maintain a centralized database that tracks this information.

My colleague, Alexander Billy<https://sites.google.com/georgetown.edu/alexanderbilly/home>, and I were troubled by this. So we founded Free Our Vote<https://www.freeourvote.com/>, a non-partisan, non-profit organization comprised of data scientists, economists, and legal researchers that seeks to restore voting rights for former felons. Leveraging our past experience with Florida data, Free Our Vote has collected accurate fines/fees information for over 425,000 Floridians across 24 counties that comprise over 85% of the state’s population.

The data we’ve gathered has enabled us to launch a multi-media information campaign with our partners, the Campaign Legal Center<https://campaignlegal.org/> and Florida Rights Restoration Coalition<https://floridarrc.com/)>. Together, we have informed tens of thousands of former felons who owe nothing that they should be able to participate in the November election. Free Our Vote’s data-centered approach has also helped us support the Florida Rights Restoration Coalition in strategically allocating repayment<https://floridarrc.com/finesprogram/> of fines/fees to maximize the number of people whose voting rights are restored.

Separately, Free Our Vote is partnering<https://rfkhumanrights.org/freeourvote> with Robert F. Kennedy Human Rights<https://rfkhumanrights.org/>, a 501(c)(3) tax-deductible organization, to pay off fines/fees for Floridians with felony records. Though the support of generous donors, we will have repaid more than $50,000 in fines/fees across multiple counties, enabling Free Our Vote to restore voting rights for well over 1,000 former felons. Free Our Vote’s efforts on this front will continue up through Election Day.

Sadly, the shadow of fines/fees will continue to impact thousands more past November 3, limiting their ability to obtain a driver’s license<https://finesandfeesjusticecenter.org/story-map/florida-drivers-license-suspensions/>, let alone cast a ballot. Free Our Vote will continue to work on this issue, leveraging the rich data we’ve collected and working with partners such as the Fines and Fees Justice Center<https://finesandfeesjusticecenter.org/> to inform policymakers and redress these shortcomings in the criminal justice system.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“Cities brace for Election Day chaos”<https://electionlawblog.org/?p=117100>
Posted on October 20, 2020 6:51 am<https://electionlawblog.org/?p=117100> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/cities-election-day-chaos-intimidation-7fe31e5d-6c3e-48bb-bb44-7863d0de6c5c.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The scary part of the Supreme Court ruling on Pennsylvania’s mail-in ballots”<https://electionlawblog.org/?p=117098>
Posted on October 20, 2020 6:49 am<https://electionlawblog.org/?p=117098> by Rick Hasen<https://electionlawblog.org/?author=3>

New Josh Douglas<https://www.cnn.com/2020/10/20/opinions/supreme-court-pennsylvania-mail-in-ballots-douglas/index.html> at CNN.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Supreme Court<https://electionlawblog.org/?cat=29>


Video of My Appearance Yesterday on AC360/CNN Talking About Supreme Court’s Pennsylvania Voting Ruling<https://electionlawblog.org/?p=117096>
Posted on October 20, 2020 6:30 am<https://electionlawblog.org/?p=117096> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.youtube.com/watch?v=eaUfWybkvW0&feature=youtu.be>:
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


Think You’ve Exhausted Worrying Through all the Nightmare Scenarios for the Election? Try This One —<https://electionlawblog.org/?p=117093>
Posted on October 20, 2020 6:11 am<https://electionlawblog.org/?p=117093> by Richard Pildes<https://electionlawblog.org/?author=7>

“Neil deGrasse Tyson warns asteroid could hit Earth the day before the election”<https://thehill.com/changing-america/sustainability/environment/521727-neil-degrasse-tyson-warns-asteroid-could-hit>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In a 4-4 Split, the Supreme Court Lets Pennsylvania Make Voting Easier—For Now; The decision signals that Amy Coney Barrett will cast the deciding vote in any upcoming election disputes.”<https://electionlawblog.org/?p=117090>
Posted on October 19, 2020 5:11 pm<https://electionlawblog.org/?p=117090> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/10/supreme-court-pennsylvania-election-law-order.html> for Slate. It begins:

After a very long delay in an emergency election case, the shorthanded United States Supreme Court came to a 4-4 tie<https://www.supremecourt.gov/orders/courtorders/101920zr_3fb4.pdf> in an election law case out of Pennsylvania on Monday evening. While a tie result that leaves the lower court ruling standing is a clear short-term win for Democrats in making it easier to vote in the Keystone State in November, Republicans could end up with a much bigger victory if there is any post-election Trump v. Biden litigation. If Amy Coney Barrett joins the Court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures….

This 4-4 tie is doubly troubling. First, it means that we have no guidance from the Court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election. Even though Democrats opposed the stay sought by Republicans in the case, they begged the Court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states—North Carolina and Pennsylvania—with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.

Further, it shows that President Trump was right about the role that Judge Amy Coney Barrett could play in any post-election litigation over the winner of the November election. He has said he wants Barrett on the Supreme Court to decide such a case. I earlier expressed skepticism<https://nymag.com/intelligencer/2020/10/trumps-new-supreme-court-is-coming-for-the-next-elections.html> that Barrett would act as a tie-breaker in such circumstances, reasoning that Chief Justice Roberts would not want to put her in this position. But I’ve now reconsidered. Judge Barrett is a deeply conservative judge, much like Justices Alito, Gorsuch, Kavanaugh, and Thomas who voted Monday to grant a stay. She easily could have been a fifth vote hear to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution.

If you thought the stakes of a Barrett confirmation couldn’t get any higher, they just did.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


Supreme Court, on Equally Divided Vote, Affirms Pennsylvania Order Extending Vote by Mail Deadline<https://electionlawblog.org/?p=117088>
Posted on October 19, 2020 4:50 pm<https://electionlawblog.org/?p=117088> by Rick Hasen<https://electionlawblog.org/?author=3>

Analysis coming soon at Slate.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Fox News may be continuing to undermine Trump’s reelection hopes”<https://electionlawblog.org/?p=117085>
Posted on October 19, 2020 1:59 pm<https://electionlawblog.org/?p=117085> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent<https://www.washingtonpost.com/opinions/2020/10/19/how-fox-news-may-be-continuing-undermine-trumps-reelection-hopes/>:

If President Trump does end up losing reelection, one big area that will be ripe for an autopsy is the role that Fox News played in making that happen.

A mammoth new poll from the Public Religion Research Institute<https://www.dropbox.com/sh/qayz3i7bv223ava/AACdp_btppsnpB5FtfGc5t10a?dl=0> helps underscore another way this may prove to be the case. It finds that Republicans who place great trust in Fox News say in truly overwhelming percentages that they are “not at all” confident that vote-by-mail will be secure against fraud.

This is precisely an outcome that Republican strategists worried about. Last spring, when Trump was pushing false and unsubstantiated claims about fraud in vote-by-mail particularly hard, Republicans loudly voiced their fears<https://www.nytimes.com/2020/06/02/us/politics/republicans-mail-voting-trump.html> this would put them at a disadvantage in key swing states.

Those Republicans noted that Democrats were likely to request absentee ballots in far higher numbers. And they fretted that less committed GOP voters who were dissuaded from voting by mail might not turn out on Election Day, needlessly costing Republicans a way to lock down their votes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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