[EL] Supreme Court Breaking News/FBI election security breaking news/more news and commentary 10/21/20

Wed Oct 21 18:17:23 PDT 2020

Breaking: Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means<https://electionlawblog.org/?p=117228>
Posted on October 21, 2020 6:15 pm<https://electionlawblog.org/?p=117228> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the order and dissent here<https://www.supremecourt.gov/opinions/20pdf/20a67_3e04.pdf>.

I am not at all surprised by this ruling, even though I agree 100% with Justice Sotomayor’s disssent. If you look at the two main statements of the Court in these emergency covid election cases, from Wisconsin and South Carolina, it is clear that the conservative Justices believe that it is up to states, rather than federal courts, to decide how to best balance health concerns related to voting during the pandemic with burdens on voting rights. These Justices also seem to have adopted a strong view of the Purcell Principle against changes in voting rules by federal courts close to the election. (Chief Justice Roberts, who was in the majority in both of those cases and the Pennsylvania state case seems to believe in great deference to states—even state courts—in deciding how to balance these health and safety concerns.)

This would seem to bode poorly for the attempts by Democrats and voting rights groups petitioning the Supreme Court to reinstate the extension of voting deadlines in Wisconsin, which a district court had granted and the 7th Circuit had reversed, citing the Supreme Court precedents. Any more federally ordered voting changes that make their way to the Supreme Court before the election face a steep uphill climb.

The liberals, as expressed in the Wisconsin dissent by Justice Ginsburg and the Sotomayor dissent today would, as I believe they should, put a thumb on the scale favoring voting rights during the pandemic. It is quite clear that the right to vote is too weakly protected<https://www.liebertpub.com/doi/full/10.1089/elj.2020.0646> in the U.S. even during the pandemic.

Justice Sotomayor’s dissent concludes:

The District Court’s modest injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; it simply gives prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the State’s interest in orderly elections. The District Court’s compromise likewise does not risk creating “voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). The injunction lifts burdensome requirements rather than imposing them, and permits county officials to help educate voters about whether curbside voting is available in their county. See _ F. Supp. 3d, at _, 2020 WL 5814455, *44. Moreover, the injunction neither invalidates state law nor prohibits the secretary from issuing guidance consistent with the District Court’s ruling. Id., at *45, 61–62.

Plaintiff Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: “‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.’” Id., at *11, *15. Election officials in at least Montgomery and Jefferson Counties agree. They are ready and willing to help vulnerable voters like Mr. Porter cast their ballots without unnecessarily risking infection from a deadly virus. This Court should not stand in their way. I respectfully dissent.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Feds say Russia and Iran have interfered with the presidential election”; What We Know and Don’t<https://electionlawblog.org/?p=117226>
Posted on October 21, 2020 6:04 pm<https://electionlawblog.org/?p=117226> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/10/21/politics/fbi-election-security/index.html>:

Director of National Intelligence John Ratcliffe said Wednesday both Iran and Russia have obtained US voter registration information in an effort to interfere in the election<https://www.cnn.com/2020/10/01/politics/voting-polls-trump-intimidation/index.html>, including Iran posing as the far-right group Proud Boys <https://www.cnn.com/2020/10/20/politics/threatening-emails-sent-to-voters-florida-alaska/index.html> to send intimidating emails to voters.

“This data can be used by foreign actors to attempt to communicate false information to registered voters that they hope will cause confusion, sow chaos and undermine your confidence in American democracy,” Ratcliffe said.

Iranians are responsible for a voter intimidation email campaign<https://www.cnn.com/2020/10/20/politics/threatening-emails-sent-to-voters-florida-alaska/index.html> that was made to look like it came from the Proud Boys and was also spreading disinformation about voter fraud through a video linked in some of the emails.

“We have already seen Iran sending spoof emails designed to intimidate voters, incite social unrest and damage President (Donald) Trump,” Ratcliffe added. “You may have seen some reporting on this in the last 24 hours, or you may have even been one of the recipients of those emails.”

Ratcliffe did not explain what he meant by his statement that the emails — which were sent to registered voters from “info at proudboys.com” and warned recipients to “Vote for Trump or else!” — were intended to damage the President.

There is still a lot we don’t know about the story including:
1.       Was the voter registration information “obtained” through phishing/hacking or were the materials bought either legally or from sites on the web?
2.       What did the Russians do with the data they obtained, if anything?
3.       Why did the DNI conclude that Iran’s actions would “hurt Trump”? The idea I suppose is that it would provoke a voter suppression story backfire and motivate Democrats. Is there evidence of this intention? Or perhaps it was motivated to deter Democrats from voting?
4.       Why hold a press conference at 7:30 pm at night on a hasty basis rather than wait for the next morning?
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“U.S. government concludes Iran was behind threatening emails sent to Democrats”<https://electionlawblog.org/?p=117224>
Posted on October 21, 2020 4:40 pm<https://electionlawblog.org/?p=117224> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2020/10/20/proud-boys-emails-florida/>

The U.S. government has concluded that Iran is behind a series of threatening emails arriving this week in the inboxes of Democratic voters, according to two U.S. officials.

Department of Homeland Security officials told state and local election administrators on a call Wednesday that a foreign government was responsible for the online barrage, according to the U.S. officials and state and local authorities who participated in the call, all speaking on the condition of anonymity because of the matter’s sensitivity. A DHS officials also said they had detected holes in state and local election websites and instructed those participating to patch their online services.

The emails claimed to be from the Proud Boys, a far-right group supportive of President Trump, but appeared instead to be a deceptive campaign making use of a vulnerability in the organization’s online network.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: California Supreme Court Will Hear Case About California Voting Rights Act, Potentially Reviving CVRA Claims Against Santa Monica<https://electionlawblog.org/?p=117222>
Posted on October 21, 2020 4:19 pm<https://electionlawblog.org/?p=117222> by Rick Hasen<https://electionlawblog.org/?author=3>

The court’s order:<https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2326039&doc_no=S263972&request_token=OCIwLSEmXkg%2FW1BJSCJdSENIUEg0UDxTJSIuIz1TXDtLCg%3D%3D>

The petition for review is granted. The parties are ordered to brief the following issue: What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act? On the Court’s own motion, the Court of Appeal’s Opinion is ordered depublished. On the court’s own motion, the Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed July 9, 2020, which appears at 51 Cal.App.5th 1002. (Cal. Const., art. VI, section 14; Cal. Rules of Court, rule 8.1125.)

>From my coverage<https://electionlawblog.org/?p=112954> of the court of appeal opinion:

On the question of violating the CVRA, the appeals court said that the trial court made a legal error. It said that plaintiffs alleging a CVRA violation not only had to prove racially polarized voting, but had to prove that this led to a dilution of the vote which affected the political power of the minority of the city. This is somewhat of a surprise; I had understood the CVRA as not requiring such proof, which is why I thought it <https://electionlawblog.org/?p=111649> was somewhat vulnerable to a federal constitutional challenge as a race-based remedy that could be found by SCOTUS conservatives to violate the U.S. Constitution’s equal protection clause.

It strikes me that the appeals court decision engages in a pretty uncharitable reading of the relevant part of the statute (section 14027), which reads in pertinent part: that plaintiffs must prove “the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters” who belong to a protected class.” The appeals court says there was no proof of “dilution” but it is dilution of the ability to influence the election, and that seems a very low bar. (The appeals court has a response to that, which you can read.)

This first part of the opinion, if it withstands further review at the state Supreme Court, is likely to lead many more California cities to resist lawsuits aimed at forcing the elimination of at large districts. (It might also cause the California legislature to rework part of the statute to make it easier for plaintiffs to win these cases.)

The appeals court was even less charitable of the trial court’s factual finding as to intentional vote dilution in Santa Monica. Generally speaking factual findings are reviewed under a very deferential standard in the appeals court. The appeals court tries to dance around this standard by saying it can review the evidence independently, but that seems questionable here. The plaintiffs’ expert historian, Morgan Kousser, presented lots of evidence about intent, which the appeals court reviewed with no deference whatsoever.

This second part of the ruling is very specific to the state of Santa Monica, but does demonstrate that some courts are going to be very wary of inferring racially discriminatory intent from mostly documentary evidence.

In short, this is a big loss for voting rights plaintiffs under the CVRA, and it enunciates a standard that, if it holds, will make these cases much more like federal Voting Rights Act cases.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

Must-Read from Persily and Stewart: “How to Survive Election Night”<https://electionlawblog.org/?p=117220>
Posted on October 21, 2020 2:35 pm<https://electionlawblog.org/?p=117220> by Rick Hasen<https://electionlawblog.org/?author=3>

Nate and Charles <https://slate.com/news-and-politics/2020/10/how-to-watch-and-understand-election-night-vote-count.html> at Slate:

Americans need to be prepared for the possibility of experiencing a roller coaster ride as the votes are counted, especially in the first couple of hours after the polls close. Counties will be reporting partial counts for longer than is typical. At the same time, analysts will be looking for glimpses of solid information about where the election is headed, based on the results from counties that do complete their counts quickly.

Panning the election returns for nuggets of complete information will be critical, if the inevitable initial uncertainty about the vote count is to be kept from sowing longer-term doubts. Americans have become aware of the possibility of a red mirage<https://nymag.com/intelligencer/2020/09/trump-could-have-election-night-lead-due-to-mail-in-voting.html> giving way to a blue shift<https://www.theatlantic.com/ideas/archive/2020/08/brace-blue-shift/615097/>, caused by Trump-dominated Election Day ballots being counted first, followed by Biden-dominated mail ballots being counted later. Some of these expectations have been developed by relying on cartoon images of how ballots are counted.

With the election night landscape changing for 2020, we offer the following seven pointers, aimed at the public and media alike, for an informed, and informative, viewing of the election results.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Sweep of the Electoral Power”<https://electionlawblog.org/?p=117187>
Posted on October 21, 2020 1:17 pm<https://electionlawblog.org/?p=117187> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

In the event that there’s unified Democratic government in Washington next year, electoral reform is likely to be high on the agenda. Debates about such reform revolve around not just its policy merits but also its constitutionality. In that vein, I’ve just posted an article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3715826>, forthcoming in Constitutional Commentary, whose thesis is that Congress should and does possess sweeping authority to regulate federal and state elections. The abstract is below.

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Ariane de Vogue for CNN on the Purcell Principle: “The legal doctrine that could sway the election”<https://electionlawblog.org/?p=117199>
Posted on October 21, 2020 1:08 pm<https://electionlawblog.org/?p=117199> by Rick Hasen<https://electionlawblog.org/?author=3>

Ariane de Vogue<https://www.cnn.com/2020/10/21/politics/purcell-election-supreme-court/index.html> for CNN:

As emergency petitions concerning voting rights challenges<https://www.cnn.com/2020/10/19/politics/pennsylvania-mail-in-voting-supreme-court/index.html> have raced through the courts in the final weeks of the election, judges and justices have found themselves trying to explain a legal doctrine that was designed to preserve the integrity of the electoral process.

But for a doctrine aimed at clarity, it has, in the age of coronavirus<https://www.cnn.com/specials/world/coronavirus-outbreak-intl-hnk>, raised plenty of confusion on its own, and it could swing the presidential election. At issue: When should courts refrain from changing voting rules too close to an election in order to avoid causing voter confusion?

The so-called “Purcell Principle” arises out of a 2006 Supreme Court case<https://www.oyez.org/cases/2006/06-532> concerning a strict voter-identification law. A federal appeals court blocked the law pending appeal. But the Supreme Court stepped in and allowed the law to take effect.

In doing so, the Supreme Court sent a strong message to federal courts: “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.”…

Election law expert and CNN contributor Rick Hasen has coined the term “Purcell Principle” and said it needs tweaking

.In a 2016 law review<https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr> article, Hasen said the court was right in Purcell to “note special considerations in election cases,” because voters could be not only confused but also disenfranchised. They could, for example, show up without the right documentation or at the wrong polling place. But he said those interests should not be the sole consideration of a court.Hasen said courts should also consider factors such as the likelihood of success of the case on the merits, and the potential irreparable harm to both sides.

Early next week, Amy Coney Barrett is set to take the seat left vacant by Justice Ruth Bader Ginsburg’s death. Her view on Purcell might represent the deciding vote.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“A year ago, voting machines malfunctioned in a pivotal Pa. county. Have the problems been fixed?”<https://electionlawblog.org/?p=117197>
Posted on October 21, 2020 1:00 pm<https://electionlawblog.org/?p=117197> by Rick Hasen<https://electionlawblog.org/?author=3>

Votebeat reports<https://www.spotlightpa.org/news/2020/10/pa-northampton-county-voting-machines-glitches-presidential-election/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Election Isn’t Doomed…Yet”<https://electionlawblog.org/?p=117195>
Posted on October 21, 2020 10:57 am<https://electionlawblog.org/?p=117195> by Rick Hasen<https://electionlawblog.org/?author=3>

Kara Swisher talks<https://www.nytimes.com/2020/10/19/opinion/sway-kara-swisher-trevor-potter.html> to Trevor Potter for the NYT “Sway” Podcast.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Progressive Group Sues Trump and Others for Voter Intimidation In Violation of the Voting Rights Act, Ku Klux Klan Act and Constitution<https://electionlawblog.org/?p=117193>
Posted on October 21, 2020 10:43 am<https://electionlawblog.org/?p=117193> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://freespeechforpeople.org/citing-pattern-of-violently-suppressing-opposition-sabotaging-a-free-and-fair-election-and-rejecting-a-peaceful-transfer-of-power-voting-rights-group-sues-president-trump-and-top/>:

Latino civic engagement organization Mi Familia Vota Education Fund and several voters today filed a lawsuit against President Trump and members of the administration in the U.S. District Court for the District of Columbia. The lawsuit, which names President Trump, Attorney General Bill Barr, and Acting Secretary of Homeland Security Chad Wolf, is based on the defendants’ violent suppression of public protests opposing police brutality, the encouragement of white supremacist “vigilantes,” threats to send “sheriffs” and other law enforcement to the polls, the undermining of mail-in voting, and the rejection of the peaceful transfer of power, which, the complaint alleges, constitute illegal voter intimidation under the Voting Rights Act of 1965 and unconstitutional suppression of speech and votes under the First, Fifth, and Fourteenth Amendments to the US Constitution.  The complaint and a motion simultaneously filed with the court seek a preliminary injunction restraining Trump and the other defendants from continuing to engage in this unconstitutional and illegal intimidation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Actually, Americans Do Want to Wear Masks to Vote”<https://electionlawblog.org/?p=117191>
Posted on October 21, 2020 10:40 am<https://electionlawblog.org/?p=117191> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas and Michael Zilis in Politico.<https://www.politico.com/news/magazine/2020/10/21/americans-wear-masks-vote-430365>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Could We See a “Red Shift” in Vote Totals Toward Republicans After Election Night?<https://electionlawblog.org/?p=117189>
Posted on October 21, 2020 7:55 am<https://electionlawblog.org/?p=117189> by Rick Hasen<https://electionlawblog.org/?author=3>

For years we have been noticing a pattern of Democrats voting later with absentee ballots, resulting in their ballots being counted later, and races where a Republican was in the lead on election night end with a Democratic victory. A prominent example of this “blue shift<https://www.theatlantic.com/ideas/archive/2020/08/brace-blue-shift/615097/>,” as Ned Foley and Charles Stewart call it, is Sinema’s victory over McSally in Arizona in 2018. Sinema gained 70,000 votes after election day.

I had been thinking that the shift would be even MORE pronounced this year, an it still may be in some places, as Democrats shift to much more vote by mail than Republicans, and as many (but not all) states report in person voting first. (Much depends on the state’s rules for processing mail ballots).

But then Nate Silver <https://twitter.com/NateSilver538/status/1317478024745451520> noted that Democrats are returning their mail-in ballots more quickly than Republicans, perhaps because they are more receptive to the “vote early” messages to deal with the problems of mail voting during the pandemic:

Charles Stewart thinks<https://twitter.com/cstewartiii/status/1318702152177635329?s=20> this could be an issue too.

Nate says this may not matter if it is a Biden blowout,<https://twitter.com/NateSilver538/status/1317479740106854401?s=20> and Michael McDonald thinks<https://twitter.com/ElectProject/status/1318647792307503105> that decision desks and election forecasters can handle the uncertainty:

Still, it strikes me as a reason for greater caution and patience on Election Night.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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