[EL] ELB News and Commentary 10/26/20

Mon Oct 26 07:59:10 PDT 2020

Florida Drop Box Issue and a Potential Florida Hail Mary to Throw Out Ballots or Invalidate the Election<https://electionlawblog.org/?p=117427>
Posted on October 26, 2020 7:56 am<https://electionlawblog.org/?p=117427> by Rick Hasen<https://electionlawblog.org/?author=3>

I had not been keeping an eye on this issue flagged by Brian Beutler<https://crooked.com/articles/trump-corrupt-endgame/>:

This concern about challenged ballots commingling with unchallenged ballots isn’t limited to Pennsylvania, and even raises the specter of Republicans engineering situations that allow them to circumvent vote counting: by kettling absentee voters into submitting ballots in ways and at times that leaves them vulnerable to legal challenges, waiting until those ballots have been commingled with the rest, and then declaring it impossible to determine the “legitimate” winner.

Last week, the general counsel to the Florida department of state issued guidance to election officials<https://www.scribd.com/document/480339929/Drop-Box-Questions-and-Answers> asserting that secure ballot drop boxes must be staffed by humans at all times. Scores of thousands of ballots have already passed through drop boxes that do not meet this criterion.

Slate legal writer Mark Joseph Stern noted<https://slate.com/news-and-politics/2020/10/florida-republicans-close-ballot-drop-box.html> that though this guidance lacks support in state law, it may nevertheless form the basis of a GOP legal challenge. “Presuming supervisors ignore McVay’s guidance, Florida’s largest counties will collect a huge number of absentee ballots in a manner deemed unlawful by the Department of State,” he writes. “If Joe Biden narrowly wins the state in November, Florida’s Republican-controlled government could argue that these ballots should be thrown out because they were cast through an illegal process. That claim could give rise to litigation that might allow the federal judiciary to call election results into question and invalidate ballots.”

As in Pennsylvania, though, the biggest risk may not be that Trump and the GOP will successfully challenge some ballots. It’s that those invalid ballots will have been irretrievably commingled with unchallenged ones. Republicans wouldn’t succeed in helping Trump throw out Democratic votes; they’d succeed in making a full count impossible.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Adam Liptak NYT Deep Dive into the Shadow Docket and the Purcell Principle: “Missing From Supreme Court’s Election Cases: Reasons for Its Rulings”<https://electionlawblog.org/?p=117425>
Posted on October 26, 2020 7:47 am<https://electionlawblog.org/?p=117425> by Rick Hasen<https://electionlawblog.org/?author=3>

New Sidebar NYT column<https://www.nytimes.com/2020/10/26/us/supreme-court-election-cases.html> from Adam Liptak:

At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama<https://www.nytimes.com/2020/07/02/us/supreme-court-alabama-voting-restrictions.html>, South Carolina<https://www.nytimes.com/2020/10/05/us/supreme-court-south-carolina-absentee-ballots.html> and Texas<https://www.nytimes.com/2020/06/26/us/supreme-court-texas-vote-by-mail.html>, and the potential disenfranchisement of hundreds of thousands of people<https://www.nytimes.com/2020/07/16/us/supreme-court-felons-voting-florida.html> with felony convictions in Florida.

Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.

“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos<https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos>, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”…

If the court is going to treat emergency applications with something like equal care, it might consider explaining what it is doing. Explaining, Judge Frank H. Easterbrook<https://www.fjc.gov/history/judges/easterbrook-frank-hoover> wrote in 2000<https://casetext.com/case/union-oil-co-of-california-v-leavell>, is what distinguishes judges from politicians.

“The political branches of government claim legitimacy by election, judges by reason,” he wrote. “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Terse rulings on emergency applications are not new. But “the shadow docket has truly exploded<https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html> in the last few years,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Scotusblog<https://www.scotusblog.com/2020/10/symposium-the-solicitor-general-the-shadow-docket-and-the-kennedy-effect/> last week.

The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.

More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges….

The passage in the Purcell ruling that has been boiled down to the shadow doctrine of a near-categorical bar on late-breaking adjustments to state election procedures by federal courts was three sentences long. It was not at all clear, but it suggested that judges should balance competing interests and use judgment.

“Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or non-issuance of an injunction, considerations specific to election cases and its own institutional procedures,” the unsigned opinion said. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”

In an influential 2016 law review article<https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2542&context=lr>, Richard L. Hasen<https://www.law.uci.edu/faculty/full-time/hasen/>, a law professor at the University of California, Irvine, coined a phrase for the way the passage has been caricatured, calling it “the Purcell principle.”…

Professor Stephanopoulos said the Purcell order did not support the Purcell principle. “It’s weird and indefensible to make Purcell a categorical rule against late-breaking judicial intervention,” he said. “No one can read Purcell itself and think it created the doctrine that it now has been transformed into by the Supreme Court.”

In his article, Professor Hasen proposed a partial solution: The court should give reasons for its election rulings. If time is very short, he wrote, the justices can rule first and supply their reasoning later. (Last year, in a death penalty case, five justices explained their thinking<https://www.supremecourt.gov/opinions/18pdf/18a985_1a72.pdf#page=4> six weeks after the court granted a stay of execution.)

Professor Hasen gave three reasons for giving reasons.

“Reasons will help lower courts use the right standards in election cases, rather than having to try to read tea leaves from unexplained court orders,” he wrote. They will “bolster the legitimacy of the court in the eyes of the public, something especially important in controversial cases, such as election cases.” And they “may also discipline justices into deciding similar cases alike, regardless of the identity of the parties.”
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“20,000 Ballots an Hour, with Paper and Ink by the Ton”<https://electionlawblog.org/?p=117423>
Posted on October 26, 2020 7:42 am<https://electionlawblog.org/?p=117423> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT Mag<https://www.nytimes.com/interactive/2020/10/26/magazine/printing-mail-in-ballots.html> on the record-setting absentee ballot printing required for our pandemic election.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“When we’ll find out election results: Here’s what we know about swing states, ballot counting and more”<https://electionlawblog.org/?p=117421>
Posted on October 26, 2020 7:40 am<https://electionlawblog.org/?p=117421> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2020/10/26/timing-election-results/>:

We will probably get earlier results in states with two key traits: voters who have widely embraced early in-person or mail voting, and rules that let officials process and count mail ballots before Election Day. Arizona, Florida and North Carolina could provide information quickly, experts say, while states including Pennsylvania and Michigan could lag behind.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Coronavirus cases are surging again. These states have refused to loosen rules on who can vote by mail.”<https://electionlawblog.org/?p=117419>
Posted on October 26, 2020 7:38 am<https://electionlawblog.org/?p=117419> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/vote-limits-coronavirus/2020/10/25/523538c8-1223-11eb-ad6f-36c93e6e94fb_story.html>

Coronavirus<https://www.washingtonpost.com/coronavirus/?itid=lk_inline_manual_2> cases are rising again in Texas, but most voters fearful of infection are not allowed to cast ballots by mail. For the limited number who qualify with a separate excuse, Republican Gov. Greg Abbott restricted drop-off locations to one per county. And when the Democratic stronghold of Harris County took steps to make voting easier, GOP leaders sued local officials.

Texas is one of five red states that emerged as conspicuous holdouts this year as the rest of the country rushed to loosen voting rules because of the coronavirus pandemic. Most of the roughly 30 million registered voters who live there, and in Indiana, Louisiana, Mississippi and Tennessee have no choice but to cast ballots in person this fall, even as the rate of coronavirus in the United States approaches its third peak.

The situation underscores how the nation’s decentralized election systems and Republican opposition to mail voting this year are translating into vastly different voting experiences for Americans, depending on where they live. Legal challenges to the voting limits have foundered in some courts, rejected by a federal judiciary that has shifted rightward under President Trump.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump Wants COVID-19 Media Coverage To Be Illegal: ‘Should Be An Election Law Violation’”<https://electionlawblog.org/?p=117417>
Posted on October 26, 2020 7:35 am<https://electionlawblog.org/?p=117417> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM reports.<https://talkingpointsmemo.com/news/trump-wants-covid-19-media-coverage-to-be-illegal-should-be-an-election-law-violation>
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Why voter suppression continues and how the pandemic has made it worse”<https://electionlawblog.org/?p=117415>
Posted on October 26, 2020 7:33 am<https://electionlawblog.org/?p=117415> by Rick Hasen<https://electionlawblog.org/?author=3>

PBS News Hour.<https://www.pbs.org/newshour/podcasts/special-series/why-voter-suppression-continues-and-how-the-pandemic-has-made-it-worse>
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

Major Standing Problem in Pennsylvania Republicans’ Hail Mary to SCOTUS?<https://electionlawblog.org/?p=117413>
Posted on October 26, 2020 7:28 am<https://electionlawblog.org/?p=117413> by Rick Hasen<https://electionlawblog.org/?author=3>

Over the weekend, I posted Understanding the Pennsylvania GOP Hail Mary Fighting the Extended Deadline for Receipt of Mailed Ballots, and the Awful Pressure that the GOP’s Petition Could Put on Soon-to-Be Justice Barrett<https://electionlawblog.org/?p=117382>. which begins:

The Pennsylvania GOP has gone back<https://www.scotusblog.com/wp-content/uploads/2020/10/Application-for-Relief.pdf-1.pdf> to the U.S. Supreme Court and the state supreme court in an effort to renew its objection to the counting of mail-in ballots<https://www.scotusblog.com/2020/10/pennsylvania-republicans-return-to-supreme-court-to-challenge-extended-deadline-for-mail-in-ballots/> that arrive after 8 pm on Election night (as set forth in the state statute) to include all ballots arriving within three days of election day postmarked by election day or without a legible postmark. This comes just a few days after the Supreme Court deadlocked on the question<https://www.scotusblog.com/2020/10/supreme-court-leaves-in-place-order-requiring-pennsylvania-to-count-absentee-ballots-after-election-day/> thereby leaving the deadline in place. The GOP’s play is unlikely to work, first, because the chances are still small that the election would come down not only to Pennsylvania but to these later arriving ballots; and second, because of the reliance interests created by the Supreme Court’s earlier failure to reverse the extension. If it does come down to all that, the request to expedite the cert. petition would put Judge Amy Coney Barrett, soon to be the ninth Justice, in an awful position, perhaps increasing the chances she will recuse<https://electionlawblog.org/?p=117015> in the litigation.

An ELB reader writes in to note that it appears so far that only the PA Republican Party has filed a cert petition and request to expedite, and not the state legislature or Republican state legislative leaders (who had filed<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a53.html> a request for a stay earlier that was denied on a 4-4 vote). Hard to see how the Republican Party has standing to raise the question related to the Legislature’s Article II powers. (They’d have a better shot at standing on their election day timing argument, but that one is very weak on the merits.)
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Experts rated the likelihood of a number of nightmare scenarios for the 2020 election that have been identified by experts or in the press.”<https://electionlawblog.org/?p=117411>
Posted on October 26, 2020 7:21 am<https://electionlawblog.org/?p=117411> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<http://brightlinewatch.org/american-democracy-on-the-eve-of-the-2020-election/> from Bright Line watch. Tweet<https://twitter.com/BrightLineWatch/status/1320729617423077376>:
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

The Journalism Empire Strikes Back: Ben Smith NYT Column on WSJ’s Failure to Bite on the Hunter Biden Story Despite Efforts of Trump World and White House Counsel Lawyer<https://electionlawblog.org/?p=117408>
Posted on October 26, 2020 7:17 am<https://electionlawblog.org/?p=117408> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.nytimes.com/2020/10/25/business/media/hunter-biden-wall-street-journal-trump.html> is a must-read.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>

“Georgia’s legacy of voter suppression is driving historic Black turnout”<https://electionlawblog.org/?p=117406>
Posted on October 26, 2020 7:13 am<https://electionlawblog.org/?p=117406> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/26/georgia-voter-suppression-black-turnout-432405?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

Voters interviewed by POLITICO said anger over perceived voter suppression tactics is fueling their eagerness to cast early ballots. And indeed, Georgians are voting in numbers never seen before in the state’s history. Since Oct. 12, the first day of early voting, a staggering 2.7 million voters have cast a ballot — a nearly 110 percent increase from 2016<https://sos.ga.gov/index.php/elections/record_breaking_early_in-person_voting_continues_october_24_8_pm_update>. Beyond that, Democrats are organizing caravans, volunteering as election workers and serving as poll watchers. This level of enthusiasm is also a reflection of apprehension about the election: Voters here are turning out in waves.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump v. Biden: Campaigns Weigh Lawyers for Possible SCOTUS Bout”<https://electionlawblog.org/?p=117403>
Posted on October 26, 2020 7:06 am<https://electionlawblog.org/?p=117403> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Law reports.<https://www.bloomberglaw.com/exp/eyJjdHh0IjoiTFdOVyIsImlkIjoiMDAwMDAxNzUtMjM4NS1kZmMwLWFkZmQtZjdiZjc3ZmMwMDAyIiwic2lnIjoiVzZBMENBUjczUHduNyt4UlFLc2V2QzIzREVFPSIsInRpbWUiOiIxNjAzNzEwOTYzIiwidXVpZCI6IldjRWlGQ2FCRVVJMG4rV0NqWDg2d1E9PWdLM05Bb1RSeERITzRocGExbUdFQ1E9PSIsInYiOiIxIn0=?usertype=External&bwid=00000175-2385-dfc0-adfd-f7bf77fc0002&qid=7000361&cti=LSCH&uc=1320041183&et=NEWSLETTER&emc=blwnw_nl%3A4&source=newsletter&item=read-button&region=digest>
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Posted in election law biz<https://electionlawblog.org/?cat=51>, Supreme Court<https://electionlawblog.org/?cat=29>

Pennsylvania: “Agreement reached over incorrect ballots sent to voters in Allegheny County”<https://electionlawblog.org/?p=117401>
Posted on October 26, 2020 7:02 am<https://electionlawblog.org/?p=117401> by Rick Hasen<https://electionlawblog.org/?author=3>

WPXI:<https://www.wpxi.com/news/top-stories/republican-candidates-parnell-negron-reach-agreement-with-allegheny-co-over-incorrect-ballots/PPVLO2YR6BHXJLYDZLKIDC2UPM/>

A lawyer for Republican congressional candidates Sean Parnell and Luke Negron said an agreement has been reached over nearly 29,000 incorrect mail-in ballots sent to Allegheny County voters<https://cmg.arcpublishing.com/composer/edit/PDIEAVICCBCW5DQGOIPSHGJXMM/>.

The Republican candidates and the Allegheny County Board of Elections agreed on a process for handling the wrong ballots, including a detailed plan to ensure every vote is properly counted.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“‘A disgrace to democracy’: Dozens of ballots destroyed in suspected arson of a Boston drop box”<https://electionlawblog.org/?p=117399>
Posted on October 26, 2020 6:59 am<https://electionlawblog.org/?p=117399> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports<https://www.washingtonpost.com/nation/2020/10/26/boston-ballot-dropbox-arson-election/>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>

“Barrett Could Be Decisive in Election Cases”<https://electionlawblog.org/?p=117397>
Posted on October 26, 2020 6:49 am<https://electionlawblog.org/?p=117397> by Rick Hasen<https://electionlawblog.org/?author=3>

Jost on Justice<http://www.jostonjustice.com/2020/10/barrett-could-be-decisive-in-election.html>.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“California Republicans face turnout burden after Trump mail ballot attacks”<https://electionlawblog.org/?p=117395>
Posted on October 26, 2020 6:44 am<https://electionlawblog.org/?p=117395> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/states/california/story/2020/10/23/california-republicans-face-turnout-burden-after-trump-mail-ballot-attacks-1330107?nname=california-playbook&nid=00000150-384f-da43-aff2-bf7fd35a0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=641189>:

California’s mass-mail voting experience is tilting decidedly Democratic.

Three weeks after every registered, active voter in America’s most populous state was mailed a ballot, liberal Californians are proving far more eager to return ballots than conservatives. That trend inverts voting patterns of years past — and could create opportunity for liberal campaigns while increasing turnout burdens for Republican-reliant ones.

Veteran strategists suggest that President Donald Trump’s frequent attempts to cast aspersions on California’s mail-balloting system may have backfired on his own party’s candidates by deterring Republicans from participating early. That could force GOP voters to wait in longer lines if they insist on voting at California’s fewer in-person precincts this year.

Republicans have installed their own ballot boxes<https://www.politico.com/states/california/story/2020/10/15/california-republicans-spark-national-feud-over-harvesting-ballot-boxes-1325367> in some congressional battleground districts, potentially as a way to encourage their skeptical voters to participate early. The move, which has drawn legal action from Democratic state officials, is the latest sign that Republicans have their turnout work cut out for them.

“When your campaign is reaching out to voters who have voted early in five of the last five campaigns but now won’t because they think it’s rigged, that’s a problem,” said Paul Mitchell, vice president of Political Data Inc., a leading firm that tracks voter information. “It’s a resource suck.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How Delayed Is Your Mail-In Ballot?”<https://electionlawblog.org/?p=117391>
Posted on October 26, 2020 3:35 am<https://electionlawblog.org/?p=117391> by Richard Pildes<https://electionlawblog.org/?author=7>

From the WSJ,<https://www.wsj.com/articles/how-delayed-is-your-mail-in-ballot-11603706400?mod=hp_lead_pos10> which is closely tracking this issue:

That puts critical votes at risk in an election that, more than any before, will hang on mail-in ballots<https://www.wsj.com/articles/coronavirus-surge-in-mail-voting-likely-to-lead-to-more-rejected-ballots-11601827201>. To find choke points for those ballots, the Journal is tracking millions of letters traveling across the U.S. in near real time….

Of the 29 states that require mail-in ballots to arrive on or before election day, 28 have since late July seen periods of average delivery times exceeding six days, the Journal analysis found. Among them are battleground states like Florida, Arizona, Wisconsin and Georgia….

“It’s really hectic right now, crazy busy—there’s just a lot of ballots,” said Michael Moriconi, president of the Tucson, Ariz. branch of the American Postal Workers Union. “We don’t have enough people.” The APWU’s national executive board endorsed Joe Biden in June.
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“Our choice is Joe Biden*”–Union Leader<https://electionlawblog.org/?p=117388>
Posted on October 25, 2020 10:22 am<https://electionlawblog.org/?p=117388> by Richard Pildes<https://electionlawblog.org/?author=7>

The fact that the New Hampshire Union Leader is endorsing Biden has made big news, understandably enough given that it’s the first time in more than 100 years the Union Leader has endorsed a Democrat for President. Here’s what the asterisk in its header says:

While Joe Biden is the clear choice for president, it would be a disservice to the country to send him to the White House without a backstop. We suggest splitting the ballot and electing a healthy dose of GOP senators and representatives. The best governance often comes through compromise. The civility of the Biden administration will help foster such compromise, but a blue wave would be nearly as disastrous for this country as four more years of Trump. It would result in a quagmire of big government programs that will take decades to overcome.

This made me wonder how much split ticketing voting we’ll see this year. Polling data suggests only about 4% of voters say they plan to split their vote for President and Senate or House between the major parties — in line with the decline in split ticketing voting as politics has become more polarized.
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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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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