[EL] ELB News and Commentary 10/23/20

[Rick Hasen]

Should We Be Worried About Russian Interference in the 2020 Elections? Reasons for Comfort, Reasons for Concern, and BIG Reasons for More Early Voting<https://electionlawblog.org/?p=117282>
Posted on October 22, 2020 3:57 pm<https://electionlawblog.org/?p=117282> by Rick Hasen<https://electionlawblog.org/?author=3>

By Richard L. Hasen

The latest murky revelations<https://www.nytimes.com/2020/10/22/us/politics/russia-election-interference-hacks.html?action=click&module=Top%20Stories&pgtype=Homepage> from U.S. intelligence officials that Russian government operatives are probing state voter registration databases as they did in 2016 raises the question: is this all they’ve got?  Why aren’t the Russians doing a better job interfering in the 2020 elections to benefit Trump? The answer is either comforting or terrifying, but the risk of a terrifying answer suggests the prudent course is a full court press to get as many people voting before election day as possible.

U.S. government officials concluded that in 2016 the Russians engaged in three types of operations aimed at disrupting the U.S. presidential elections and helping Donald Trump win election over Hillary Clinton: the hack and leak of Democratic Party emails, a big part of which Wikileaks released just after the “Access Hollywood” tape emerged embarrassing Trump; a social media campaign aimed at passing along disinformation and stirring up social discord, especially aimed at depressing African-American turnout through messages that Hillary Clinton did not care about black lives; and the sniffing or probing of state voter registration databases across the country, which apparently was aimed not at changing votes but as creating the perception of vast interference in the election.

So far the 2020 version of Russian interference looks like a pale substitute of 2016. The Hunter Biden story based upon information supposedly on a Biden laptop has mostly fizzled, except among right-wing media and Trump’s most ardent supporters. It certainly has not broken through in an election where most Americans are focused on the more than 200,000 dead because of the coronavirus. Social media companies have gotten better at detecting coordinated inauthentic behavior, as when Russian agents pose as black activists. Even the Russian attempt to hire legitimate journalists to divide the American left seems to have gone nowhere. And now comes revelations that the Russians appear to be doing the same thing they did in 2020 in relation to voter registration databases. Then, as now, officials say there is little danger that these agents could change any vote totals.

So one possible conclusion of all of this is that there’s not much to worry about. Just like Trump cannot reconjure the “magic” of his 2016 rallies and chants to “lock up” his political opponent, the Russians perhaps lost their mojo and we can worry less about all of this foreign interference. That would be comforting.

But there is room for much greater concern. As I explained in my book Election Meltdown<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>, one of my greatest fears about election interference is that there could be a Russian cyberattack on the power grid, as the Russians did at one point in Ukraine, aimed at knocking the power out in a Democratic city like Detroit in a swing state like Michigan. I have urged election officials to have a plan B for dealing with such a problem, but states have not done so and throwing the matter to the courts—especially now with the courts so bitterly divided along party lines on voting rights and voter suppression—would be a disaster.

So this reporting from the New York Times about the Russian interference has me concerned:

A hacking group believed to be operating at the behest of Russia’s Federal Security Service, the F.S.B. — the successor agency to the Soviet-era K.G.B. — has infiltrated multiple state and local computer networks in recent weeks, according to officials and researchers. The group, known to private researchers as Energetic Bear or Dragonfly, has hacked into American nuclear, water and power plants and airports before. While it has stopped short of shutting them down, the group is considered to be among Russia’s most formidable.

The Russian hackers were able to get inside some election administrators’ systems and had access to voting information. What alarmed officials was the targets, the timing — the attacks began two months ago — and the adversary, which is known for burrowing inside the supply chain of critical infrastructure that Russia may want to take down in the future. The officials fear that Russia could change, delete or freeze voter data, making it harder for voters to cast ballots, invalidating mail-in ballots or creating enough uncertainty to undermine election results.

Back in 2016, President Obama used the “red phone” to warn Vladimir Putin against interference in our elections. Interference such as knocking out our power, particularly during an election, should be considered an act of war. As I argued in Election Meltdown, not only can we not count on Trump to do the same as Obama; he’s actually encouraged election interference. That’s why these latest revelations are potentially terrifying; the worst could be yet to come.

So what can we do about it? For one thing, we can take solace in the fact that American intelligence officials have been able to release this information despite President Trump not wanting any blame put on Russia. It’s true that at Wednesday’s briefing, DNI Radcliffe put more emphasis on Iran’s activities rather than Russia’s and made the odd claim that Iran was seeking to hurt Trump’s reelection chances by sending threatening emails to Democrats in the name of the Proud Boys. But officials then spoke to the Times and other news organizations to get the word out. I know that federal officials have been working diligently with state and local election agencies to fight these cyberattacks.

The average person cannot do much to bolster those efforts, but there is something that can be done in most parts of the United States: vote early. The more voters that vote now, the less a disruption on Election Day will matter. Banking those votes helps to assure for less pressure to vote on election day if there are attempts at disruptions. It makes it easier to come up with potential solutions.

I’m not panicking about Russian interference; they may just be out of gas. But we’ve got to be prudent, and recognize that with all the threats to voting rights and our election system that we’ve already seen, it’s not over yet. Far, far from it.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, voting technology<https://electionlawblog.org/?cat=40>


“Voting-rights’ groups end federal fight over drop boxes in Ohio’s presidential election”<https://electionlawblog.org/?p=117280>
Posted on October 22, 2020 3:55 pm<https://electionlawblog.org/?p=117280> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com<https://www.cleveland.com/politics/2020/10/voting-rights-groups-end-federal-fight-over-drop-boxes-in-ohios-presidential-election.html>:

A legal fight to add more drop boxes in Ohio counties before Election Day ended Thursday, as voting-rights’ advocates dismissed their federal lawsuit against Secretary of State Frank LaRose.

The NAACP of Ohio, the League of Women Voters and the A. Philip Randolph Institute of Ohio filed a brief notice that dropped all claims against LaRose in U.S. District Court in Cleveland.

The filing marked the end of a contentious issue that lasted six weeks and bounced between a federal judge in Cleveland and the 6th U.S. Circuit Court of Appeals, which ruled in LaRose’s favor earlier this month and limited the number of drop boxes across the state.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Video Interview at Reuters: “How COVID-19 exposes U.S. election ‘pathologies’: Rick Hasen”<https://electionlawblog.org/?p=117278>
Posted on October 22, 2020 3:43 pm<https://electionlawblog.org/?p=117278> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here.<https://www.reuters.com/video/watch/how-covid-19-exposes-us-election-patholo-idRCV008VT3>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump campaign, North Carolina Republicans ask justices to stop extension of absentee-ballot deadline”<https://electionlawblog.org/?p=117276>
Posted on October 22, 2020 2:32 pm<https://electionlawblog.org/?p=117276> by Rick Hasen<https://electionlawblog.org/?author=3>

Amy Howe<https://www.scotusblog.com/2020/10/trump-campaign-north-carolina-republicans-ask-justices-to-stop-extension-of-absentee-ballot-deadline/> for SCOTUSBlog:

Two days after three judges on the U.S. Court of Appeals for the 4th Circuit urged them to “take this case up to the Supreme Court immediately,” the Trump campaign and North Carolina Republicans did exactly that, asking the justices to block an extension of the deadline for absentee ballots in that state to nine days after the election. Timothy Moore, the Republican speaker of the state’s House of Representatives, and Philip Berger, the highest-ranking Republican in the state’s senate, told the justices<https://www.supremecourt.gov/DocketPDF/20/20A72/158478/20201022114507746_SCOTUS%20Emergency%20Motion%20for%20Injunction%20Pending%20Appeal%20vf%20wDHT%20sig.pdf> that they should step in immediately to stop an “unconstitutional usurpation of power,” and “to avoid the specter of a post-election dispute over the validity of ballots received during the disputed period in North Carolina.” A second filing<https://www.supremecourt.gov/DocketPDF/20/20A71/158465/20201022093436364_WISE%20SCOTUS%20Emergency%20Injunction.pdf>, by the Trump campaign and the Republican National Committee, characterized the extension of the deadline as an “extraordinary attempt by an unelected state board of elections to rewrite the unambiguous terms of a statute enacted in June” by the North Carolina legislature.

Moore and Berger asked the justices to intervene in a dispute that began this summer, when the North Carolina Alliance for Retired Americans and several voters filed a lawsuit in state court to challenge the state’s rule that mail-in ballots be received within three days of Election Day – that is, by Nov. 6. The challengers and the state’s board of elections entered into a consent agreement to extend the deadline for mail-in ballots by six days, to Nov. 12, and the state court approved that agreement earlier this month.

Moore and Berger had entered the state case as defendants to argue that the state should keep the original deadline, but they also went to federal court, where they sought to block the consent agreement from going into effect. Although a federal judge initially granted that request, the additional six-day extension – bringing the deadline to Nov. 12 – eventually went into effect.

Moore and Berger then went to the 4th Circuit, as did the Trump campaign and the RNC, which had also tried to stop the implementation of the consent agreement in federal court. By a vote of 12-3, the court of appeals denied their plea<https://assets.documentcloud.org/documents/7273830/10-20-20-Wise-v-Circosta-4th-Circuit.pdf>, leaving the nine-day extension in place. Judge James Wynn stressed that all absentee ballots must still be mailed by Election Day, and that the state’s election procedures had previously allowed ballots to be counted as long as they arrived within three days of Election Day. All that the consent agreement does, Wynn reiterated, is extend that deadline from three days to nine.

Judge J. Harvie Wilkinson dissented from the 4th Circuit’s order, in an opinion joined by two other judges. Wilkinson complained that federal courts and state election boards are “upend[ing] the set rules” for elections, which are established by state legislatures, and then claiming that their actions are the “new status quo” and cannot be disturbed.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Supreme Court<https://electionlawblog.org/?cat=29>


“Trump Campaign Draws Rebuke for Surveilling Philadelphia Voters”<https://electionlawblog.org/?p=117274>
Posted on October 22, 2020 2:30 pm<https://electionlawblog.org/?p=117274> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/10/22/us/politics/trump-campaign-draws-rebuke-for-surveilling-philadelphia-voters.html>

The Trump campaign has been videotaping Philadelphia voters while they deposit their ballots in drop boxes, leading Pennsylvania’s attorney general to warn this week that the campaign’s actions fall outside of permitted poll watching practices and could amount to illegal voter intimidation.

The campaign made a formal complaint to city officials on Oct. 16, saying a campaign representative had surveilled voters depositing two or three ballots at drop boxes, instead of only their own. The campaign called the conduct “blatant violations of the Pennsylvania election code,” according to a letter from a lawyer representing the Trump campaign that was reviewed by The New York Times. The campaign included photos of three voters who it claimed were dropping off multiple ballots.

“This must be stopped,” a local lawyer for the Trump campaign, Linda A. Kerns, wrote in the letter, adding that the actions “undermine the integrity of the voting process.”

Both the Trump and Biden campaigns are focused on Pennsylvania, seen as one of the most important swing states in the election and where polls show Joseph R. Biden Jr. with a seven-point lead<https://www.nytimes.com/2020/10/03/upshot/polls-election-florida-pennsylvania.html>. The Trump campaign’s aggressive strategy in Philadelphia suggests its aim is to crack down on people dropping off ballots for family members or anyone else who is not strictly authorized to do so. Ms. Kerns demanded that the names of all voters who had used a drop box in front of Philadelphia’s City Hall on Oct. 14 be turned over to the campaign, and insisted that the city station a staff member around every drop box “at all times.” She also asked for footage from municipal cameras around City Hall.

But city officials rejected the assertion that the voters who had been photographed had necessarily done something improper. The city’s lawyers forwarded the campaign’s complaints to the local district attorney, but did not make a formal referral and cast doubt on the assertions. They also said they do not track which voters use which drop box.

“Third party delivery is permitted in certain circumstances,” Benjamin H. Field, a deputy city solicitor and counsel to the city Board of Elections, wrote in a letter sent to Ms. Kerns on Monday. “The Board cannot agree with your conclusion on the basis of the information you provided. Nor can the Board, in exercising its duties, assume that an individual is violating the Election Code when that person can act as an agent for a voter who required assistance.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Open carry ban at polls prompts lawsuits against Michigan Secretary of State”<https://electionlawblog.org/?p=117272>
Posted on October 22, 2020 2:26 pm<https://electionlawblog.org/?p=117272> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit Free Press reports.<https://www.freep.com/story/news/politics/elections/2020/10/22/open-carry-polls-voting-lawsuit-michigan/6004659002/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘A lot of chaos’: Trump’s rhetoric, a global pandemic and a tsunami of lawsuits complicate 2020 election”<https://electionlawblog.org/?p=117270>
Posted on October 22, 2020 2:22 pm<https://electionlawblog.org/?p=117270> by Rick Hasen<https://electionlawblog.org/?author=3>

USA Today reports.<https://www.usatoday.com/story/news/politics/elections/2020/10/22/a-lot-chaos-trump-rhetoric-covid-lawsuits-complicate-election/3643521001/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Texas Supreme Court, Over One Dissent, Won’t Block Drive-Thru Voting in Harris County<https://electionlawblog.org/?p=117268>
Posted on October 22, 2020 2:21 pm<https://electionlawblog.org/?p=117268> by Rick Hasen<https://electionlawblog.org/?author=3>

Jasper Scherer<https://twitter.com/jaspscherer/status/1319383652560678914?s=20>:

Dissent<https://www.txcourts.gov/media/1449950/200819d.pdf>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“How Amy Coney Barrett could be key to new lawsuit to block Pa.’s mail-in ballot extension” (and reasons for my skepticism in this particular case)<https://electionlawblog.org/?p=117264>
Posted on October 22, 2020 2:05 pm<https://electionlawblog.org/?p=117264> by Rick Hasen<https://electionlawblog.org/?author=3>

VoteBeat:<https://www.inquirer.com/politics/election/spl/pa-election-lawsuit-mail-ballots-republicans-20201022.html>

A new federal lawsuit seeks to block Pennsylvania officials from counting mail-in and absentee ballots received within three days after Election Day, an extension approved by the state’s highest court and recently allowed to stand by the U.S. Supreme Court.

The latest challenge came as the state’s top elections official, Kathy Boockvar, urged voters not to count on the extension, and instead mail in their ballots right away to get their votes counted.

“I want to make it clear, I honestly don’t care what the Supreme Court said or didn’t say,” Boockvar said Wednesday. “Ballots need to be mailed. If they’re going to be put in the mail, they need to be put in the mail this week. If they need to be dropped off, it needs to be done on Nov. 3.”

In the latest lawsuit, filed Thursday in federal court in Pittsburgh, a Republican congressional candidate and four voters argue that extending the deadline was unconstitutional, and the state Supreme Court overstepped its authority when it enacted the change….

This is not the first time Republicans have tried to block the three-day extension. This past Monday, the U.S. Supreme Court narrowly declined to block the extension as requested by the state GOP. The justices deadlocked 4-4 on whether to take the case, resulting in the rejection.

Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — sought to grant the request. Chief Justice John Roberts sided with the three remaining liberal members of the court.

But the justices did not explain their reasoning, and the latest lawsuit could potentially end with a different result if appealed to the high court. With the U.S. Senate set to quickly confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg, it’s possible the conservative bloc would have enough votes to intervene and put a stop to the ballot deadline extension.

You can find the new complaint filed at this link<https://electionlawblog.org/wp-content/uploads/Bognet-v.-Boockvar-Complaint-20-cv-215.pdf>.

I have already written<https://slate.com/news-and-politics/2020/10/supreme-court-pennsylvania-election-law-order.html> that if there is any post-election litigation, Judge Barrett could join with the four other conservatives in embracing a muscular version of the “independent state legislature” doctrine. That could pay a key role if, for example, the Pennsylvania or North Carolina supreme courts (both dominated by Democrats) relied upon the state constitution to extend deadlines for the conduct of a recount.

But this particular argument about the timing of those ballots would be a harder one before the Court, because the Court having once denied the stay lulled voters into reliance that these later accepted ballots would be counted. It would be a tough argument, even for the die-hard conservatives on the Court, to retroactively disenfranchise these voters after having not done it before the election. This would be much worse than what Justices Alito, Gorsuch, and Thomas (but not Kavanaugh and Roberts) were willing to do in the South Carolina witness signature case–which would have been to have all those people who relied upon the lower court order and send in a ballot without a witness signature complete a new ballot. This would be worse because there would be no remedy for disenfranchisement.

A Court majority that would do this would be doing something much worse than what the Court in Bush v. Gore did.

I think and hope I’m right on this one.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Supreme Court<https://electionlawblog.org/?cat=29>


Bucks County, PA Hopes to Have Most Counting Done by Friday After Election Day<https://electionlawblog.org/?p=117262>
Posted on October 22, 2020 1:50 pm<https://electionlawblog.org/?p=117262> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer.<https://www.inquirer.com/politics/election/live/elections-2020-candidates-updates-news-pennsylvania-presidential-debate-20201022.html>
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Posted in election administration<https://electionlawblog.org/?cat=18>


Here’s One Person Who Thinks Jim Comey Handed Donald Trump the 2016 Election: Donald Trump<https://electionlawblog.org/?p=117260>
Posted on October 22, 2020 1:49 pm<https://electionlawblog.org/?p=117260> by Richard Pildes<https://electionlawblog.org/?author=7>

In today’s Washington Post story<https://www.washingtonpost.com/national-security/trump-wray-biden-barr/2020/10/21/6ce69f02-13b0-11eb-ad6f-36c93e6e94fb_story.html> about President Trump’s “repeated” discussions with aides about whether to fire FBI Director Christopher A. Wray after Election Day, here’s what the President’s aides reportedly say about the reasons for these repeated discussions and why Wray will be fired, if he is:

People familiar with the discussions say Trump wants official action similar to the announcement made 11 days before the last presidential election by then-FBI Director James B. Comey, who informed Congress he had reopened an investigation into Clinton’s use of a private email server while she was secretary of state after potential new evidence had been discovered.

That puts the President in alignment with Nate Silver’s view at the 538 blog on the movement in the state polls over the last 11 days in the 2016 election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Sixth Circuit, on 2-1 Party Line Vote, Restores for Now Michigan’s Ban on Providing Free Transportation to People Getting to the Polls<https://electionlawblog.org/?p=117257>
Posted on October 22, 2020 9:03 am<https://electionlawblog.org/?p=117257> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion here<https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0336p-06.pdf>.

I believe Michigan is the only state with such a prohibition.

The pattern in these cases is clearer by the day.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Electoral Anxieties: November 3rd and Its Aftermaths<https://electionlawblog.org/?p=117253>
Posted on October 22, 2020 8:58 am<https://electionlawblog.org/?p=117253> by Richard Pildes<https://electionlawblog.org/?author=7>

Later today, the Social Science Research Council’s “Anxieties of Democracy<https://www.ssrc.org/programs/view/anxieties-of-democracy/>” program is hosting this event. The event features Harvard’s Steven Levitsky, co-author of How Democracies Die; the Director of the Agora Institute at John Hopkins, Hahrie Han, whose newest book is Prisms of the People: Power and Organizing in 21st Century America (forthcoming soon); and me.

The event will be live-streamed on You Tube here<https://youtu.be/_lGMAqay0FQ>, and a full description of the program is here.<https://www.ssrc.org/events/view/electoral-anxieties-november-3rd-and-its-aftermaths/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The US Eliminated Nearly 21,000 Election Day Polling Locations for 2020”<https://electionlawblog.org/?p=117254>
Posted on October 22, 2020 8:57 am<https://electionlawblog.org/?p=117254> by Rick Hasen<https://electionlawblog.org/?author=3>

Vice:<https://www.vice.com/en/article/pkdenn/the-us-eliminated-nearly-21000-election-day-polling-locations-for-2020>

Almost 21,000 Election Day polling places have been eliminated heading into the 2020 U.S. election, a drastic dip in voting locations driven by a heavy shift to mail voting, coronavirus-related consolidations, cost-cutting measures, and voter suppression.

VICE News obtained data from all 50 states and Washington, D.C., on the number of physical polling locations they will have in place on November 3, and compared their numbers to how many sites they had in 2016 and 2012.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Jack Rakove: Justice Ginsburg Got It Right (on the Meaning of “Legislature”)<https://electionlawblog.org/?p=117250>
Posted on October 22, 2020 8:19 am<https://electionlawblog.org/?p=117250> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from historian Jack Rakove<https://history.stanford.edu/people/jack-rakove-emeritus> of Stanford:

As Rick Pildes (my fellow Cubs fan and Evanston IL high school grad) noted<https://electionlawblog.org/?p=117166> the other day, the Supreme Court’s recent ruling in the Pennsylvania voting case leaves open the possibility that the Court might soon revisit a key holding from Arizona State Legislature v. Arizona Independent Redistricting Commission.<https://www.supremecourt.gov/opinions/14pdf/13-1314_3ea4.pdf> There Justice Ginsburg, writing for a majority that included Justice Kennedy, argued that the people of Arizona had the constitutional authority to delegate the legislative authority to design congressional districts to an independent commission. Chief Justice Roberts took profound umbrage at this holding. In the Appendix to his dissent, Roberts listed the seventeen clauses of the Constitution that referred to the state legislatures, all to the effect that when the Constitution says legislature, it means legislature—that is, the representative assembly that enacts the state’s laws.

As it happens, I was the main author of a historians’ amicus brief that I believe had some influence on Justice Ginsburg’s majority opinion. (Alex Keyssar, Peter Onuf, Rosemarie Zagarri, and the late Richard Beeman joined me in the brief.) In the brief, we argued, among other points, that one explicit rationale for the Times, Places and Manner Clause of Art. I, Sect. 4 was the framers’ concern that state legislatures could design congressional districts inequitably, in violation of the principle of equal representation that we now call one person, one vote. Numerous members of the founding generation asserted that a legislature should be a “mirror,” “miniature,” “portrait” or “transcript” of the larger society—an idea that originated in the English constitutional controversies of the 1640s.

Second, and more important, we also argued—from what John Marshall might have called “general principles”—that the idea of the people vesting a legislative power in another body than the legislature was fully consistent with the constitutional theory of the founding generation. In making this claim, we drew explicitly on the authority of John Locke’s Second Treatise of Government, §149. Justice Ginsburg apparently relished the quote, for she repeated it at p. 31 of her opinion. The passage is worth quoting at length. “In a Constituted Commonwealth,” Locke observed, “there can be but one Supream [sic] Power, which is the Legislative.” Yet, he continued,

the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power into the hands of those that gave it, who may place it anew where they shall think best for their safety and security [emphasis added].

This passage is interesting in at least two ways. First, when Locke speaks of “the Legislative,” the word has both institutional and substantive connotations. It may mean the institutional legislature, which would be Chief Justice Roberts’ preferred or arguably sole meaning. But it also means the power being exercised. And second, when that latter aspect is invoked, the people retain the fundamental power to reassign the power in question somewhere else.

This conception of the people’s sovereign authority was, of course, readily available to the adopters of the Constitution. If they did not have the specific knowledge of modern constitutional initiatives at hand, they nonetheless had the capacity to conceive how such initiatives could be created and deployed. (It is worth noting that Rhode Island originally rejected the Constitution by referendum.) Given the suspicion of state legislative power that was so central to Federalist thinking in the late 1780s—and which was particularly crucial to James Madison—it takes no great leap of historical speculation to imagine that the creation of independent districting commissions would seem a plausible solution to the systemic malapportionment of congressional districts.

This brief discussion is also relevant to another topic of recent interest, our unending debates about textualist and originalism. A pure textualist might follow Chief Justice Roberts and say, legislature always means legislature; no other definition would accord with the seventeen clauses he cited in the appendix to his dissent in the Arizona case. A “public meaning” originalist might have a few qualms. If he or she understood Locke’s profound impact on eighteenth-century ideas about language, the elision between legislature and legislative could pose a problem. Whereas a historical originalist like me would know that Justice Ginsburg (as always) got it right: that once one grasps the real world of constitutional debate in the Revolutionary era, the idea that the people of Arizona could exercise their popular sovereignty by creating an independent redistricting commission was perfectly consistent with the original meaning of the Constitution. (On this point, see my recent Washington Post op-ed,<https://www.washingtonpost.com/outlook/originalism-constitution-founders-barrett/2020/10/16/1906922e-0f33-11eb-8a35-237ef1eb2ef7_story.html> “The Framers of the Constitution Did Not Worry About ‘Originalism.’”
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>, Supreme Court<https://electionlawblog.org/?cat=29>


Today’s Must Read: Adam Serwer: “Pack the Court, Save the Vote; The Supreme Court’s conservative majority appears poised to entrench minoritarian rule without the consent of the electorate.”<https://electionlawblog.org/?p=117248>
Posted on October 22, 2020 8:05 am<https://electionlawblog.org/?p=117248> by Rick Hasen<https://electionlawblog.org/?author=3>

This is the best article<https://www.theatlantic.com/ideas/archive/2020/10/dont-let-supreme-court-choose-its-own-electorate/616808/> with deep historical context connecting the debate over the size of the Supreme Court with the Supreme Court’s increasing tolerance for measures making it harder for people to register and vote.

Read it.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117248&title=Today%E2%80%99s%20Must%20Read%3A%20Adam%20Serwer%3A%20%E2%80%9CPack%20the%20Court%2C%20Save%20the%20Vote%3B%20The%20Supreme%20Court%E2%80%99s%20conservative%20majority%20appears%20poised%20to%20entrench%20minoritarian%20rule%20without%20the%20consent%20of%20the%20electorate.%E2%80%9D>
Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Calls for armed guards, ‘Army for Trump’ volunteers vex Minnesota election officials”<https://electionlawblog.org/?p=117246>
Posted on October 22, 2020 7:47 am<https://electionlawblog.org/?p=117246> by Rick Hasen<https://electionlawblog.org/?author=3>

The Star Tribune reports.<https://www.startribune.com/calls-for-armed-guards-army-for-trump-cause-alarm-in-minnesota/572817002/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117246&title=%E2%80%9CCalls%20for%20armed%20guards%2C%20%E2%80%98Army%20for%20Trump%E2%80%99%20volunteers%20vex%20Minnesota%20election%20officials%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


My Statement to the S.F. Chronicle About Yes on 22 Using Nonprofit Status for Mailing Reflected My Ignorance; Other Ballot Measure Committees Have Used Same Status to Mail Ballot Materials<https://electionlawblog.org/?p=117244>
Posted on October 22, 2020 6:45 am<https://electionlawblog.org/?p=117244> by Rick Hasen<https://electionlawblog.org/?author=3>

Last night I linked<https://electionlawblog.org/?p=117236> to a story<https://www.sfchronicle.com/business/article/Cash-rich-Uber-backed-Prop-22-campaign-scrimps-15664758.php> in the San Francisco Chronicle “Cash-rich, Uber-backed Prop. 22 campaign scrimps on postage.”<https://electionlawblog.org/?p=117236> The article starts: “Proposition 22, the ballot measure to exempt Uber and Lyft drivers and other gig workers from being employees, got a nonprofit postal permit for its deluge of glossy mailers, allowing it to save millions on postage.”

I was asked to give comment for this article about the use of nonprofit status for mailing, and I initially declined, because I am not following the Prop. 22 campaign finance issues closely and my expertise is on the federal, not state, side. The reporter then pushed for a general statement, and I said: ““I have never heard of a campaign using nonprofit status for campaign mailers and cannot think of any circumstances where that would be appropriate.”‘

That statement was true—I had never heard of it and it didn’t seem appropriate to me. But I’ve since learned from an election lawyer (who I believe may be representing the campaign) that there have been numerous instances of ballot measure committees using nonprofit status for mailing. There was even a 2006 case, Alliance for a Better California v. USPS<https://casetext.com/case/alliance-for-a-better-calif-v-us-postal-service>, where a party challenged an opposing ballot measure committee for using this status with USPS, and the federal court dismissed the case for lack of standing.

It still seems wrong to me that ballot measure committees can do this, but I now know that there is a history of committees using the status for mailings.

It’s my own fault for giving a quote after initially declining. I regret giving a statement that reflects my ignorance on this question.

Update: I asked for the Chronicle to post an update to the online story, explaining what I have learned. The editor in charge of the story refused, and wrote the following;

First, I want to acknowledge your discomfort with this situation. You are certainly owed consideration and further discussion, as well as an explanation of our policies.

It is not uncommon for sources and subjects of coverage to have regrets or even share newly discovered facts after the publication of an article. Under our ethics policy, we cannot retrospectively edit or otherwise amend our stories after publication unless we ascertain an error which requires correction.

In this case, you spoke accurately and truthfully about your own experience and familiarity with the issue Carolyn asked about, so no correction can be made.
I would add that your handling of the situation by publicly sharing what you learned following the publication of our story is an admirable model of transparency.

Should we return to this topic, we would be grateful for more of your time and would likely note your subsequent investigations into the matter.

I disagree with this decision and let them know it.
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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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