[EL] more news and commentary 10/27/20

Tue Oct 27 13:07:22 PDT 2020

My New one in the Washington Post: “Kavanaugh has wild ideas about voting. They likely won’t matter on Election Day.”<https://electionlawblog.org/?p=117496>
Posted on October 27, 2020 1:03 pm<https://electionlawblog.org/?p=117496> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this new piece<https://www.washingtonpost.com/outlook/2020/10/27/brett-kavanaugh-election-opinion/> for WaPo’s PostEverything. It begins:

Should we panic about Justice Brett M. Kavanaugh’s concurring opinion in the Wisconsin voting case<https://www.supremecourt.gov/opinions/20pdf/20a66_b07d.pdf> that the Supreme Court decided Monday night? Does it mean that the Supreme Court is going to do something crazy that will hand the election to President Trump even if Joe Biden is ahead in the count?

The short answer is that an intervention by the Supreme Court to decide the presidential election is still extremely unlikely — but if the extremely unlikely happens, there’s great reason to be worried about the court’s protection of voting rights and the integrity of the vote….

Kavanaugh’s opinion advanced a controversial theory about near-absolute power of state legislatures to set rules in federal elections. It also was sloppy<https://www.msnbc.com/rachel-maddow-show/why-kavanaugh-s-mistakes-key-voting-rights-case-matter-n1244931> in talking about facts and the law<https://twitter.com/Tierney_Megan/status/1321120019040866304?s=20>, and it echoed Trump’s false talking points about the perils of voting by mail.

Let’s start with the point about legislative power, which could be key to any potential post-election dispute. Under Kavanaugh’s reading of the Constitution, which was echoed by Justice Neil M. Gorsuch in his separate opinion, state legislatures have almost absolute power to set the manner for conducting presidential and congressional elections (subject to congressional override for congressional elections).AD

Kavanaugh cited a case that came to the Supreme Court during the disputed 2000 presidential election before Bush v. Gore<https://supreme.justia.com/cases/federal/us/531/98/> — Bush v. Palm Beach County Canvassing Board — as standing for the proposition that state legislatures have this power — negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote. As law professor Justin Levitt pointed out, though, Kavanaugh was wrong: The Supreme Court in the Palm Beach case unanimously raised but did not resolve that question. Kavanaugh further embraced this theory as advanced again by then-Chief Justice William Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.

This theory would matter if, say, Pennsylvania or North Carolina were having a dispute about a recount in which Biden was behind and the state was running out of time to resolve disputes over the ballots. Both states have Democratic-majority state supreme courts, which could order rules for resolving these disputes consistent with their state constitutions but against the wishes of the states’ Republican-dominated legislatures. The conservatives on the court could embrace Kavanaugh’s version of Rehnquist’s Bush v. Gore theory and say that the state court’s changes to allow a full vote count were impermissible, stopping the count.

And although the Supreme Court deadlocked 4-4 on a similar issue last week out of Pennsylvania, with Justice Amy Coney Barrett seated the court could now be 5-4 on this issue, even if Chief Justice John G. Roberts Jr. does not buy into the theory of broad legislative power endorsed by Kavanaugh and Gorsuch. There’s even a small chance<https://electionlawblog.org/?p=117382> the court will reconsider last week’s ruling in the Pennsylvania case now that Barrett has been confirmed.

Even putting aside the question about the power of state legislatures, there are further reasons to worry about Kavanaugh, a veteran of the Bush side in Bush v. Gore, in any future election law dispute. He is usually a careful analyst of legal issues, but this election law opinion was sloppy, much like<https://www.liebertpub.com/doi/full/10.1089/elj.2020.0646> the unsigned opinion (that I suspect he also wrote) in the RNC v. DNC<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> case about deadlines in Wisconsin’s April primary. Aside from misstating the holding in the Palm Beach case, Kavanaugh mischaracterized an article<https://twitter.com/MarshallCohen/status/1320933212005294081> by professor Richard Pildes about<https://lawreviewblog.uchicago.edu/2020/06/26/pandemic-pildes/> whether deadlines should be extended for receipt of ballots in light of the pandemic. And he mischaracterized<https://www.washingtonpost.com/politics/2020/10/26/kavanaughs-argument-rejecting-late-arriving-ballots-is-riddled-with-dubious-arguments/?itid=lk_inline_manual_18> how absentee ballot counting works.

Kavanaugh suggested<https://electionlawblog.org/?p=117447> without evidence that there would be a problem if voting results were not final on election night and results of the election could “flip” to another candidate, even though vote totals are never final<https://www.npr.org/2020/10/27/928120890/wisconsins-ballot-extension-plan-blocked-by-u-s-supreme-court> on election night and require weeks to count. As a veteran of Bush v. Gore, Kavanaugh surely knows this; he may have even been involved in efforts in the weeks after the vote took place in Florida in 2000 to make sure that late-arriving military and overseas absentee ballots would be included in the state’s vote totals. The statement about vote totals this fall was unnecessary to his legal argument, and it served only to echo Trump’s false talking points about mail-in ballots.

The overall tenor of Kavanaugh’s opinion was not only dismissive of voting rights, but it also appeared to suggest that decisions to limit counting and enfranchisement are constitutionally mandated. If Barrett does not recuse from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>

In a Reply Brief Not Even Addressing Whether It Has Standing, PA GOP Asks Supreme Court to Immediately Hear Case on Absentee Ballot Receipt Deadline and Says It Will File ANOTHER Motion Asking for Late Arriving Ballots to Be Segregated<https://electionlawblog.org/?p=117494>
Posted on October 27, 2020 12:43 pm<https://electionlawblog.org/?p=117494> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the filing here<https://www.supremecourt.gov/DocketPDF/20/20-542/158916/20201027153254732_20-542%20Reply%20in%20Support%20of%20Motion%20to%20Expedite%20Consideration.pdf>.

On the serious standing problem, see here.<https://electionlawblog.org/?p=117413>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“With All Eyes on Wisconsin, Partisan Gridlock at State Elections Commission Frustrates Voters and Local Officials”<https://electionlawblog.org/?p=117492>
Posted on October 27, 2020 12:06 pm<https://electionlawblog.org/?p=117492> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica:<https://www.propublica.org/article/with-all-eyes-on-wisconsin-partisan-gridlock-at-state-elections-commission-frustrates-voters-and-local-officials?fbclid=IwAR1dEdMxPnum1MT_80UPyfia1DpEgVGiyL3yTDx_3k_RpUxjvOqZzztMhB0#1006482>

As ballots began pouring in by mail after Wisconsin’s April 7 primary, local election officials became increasingly perplexed over which ones to count.

A federal judge had ordered that ballots arriving as many as six days after the election should be accepted, but the U.S. Supreme Court narrowed that window, ruling that ballots should be counted only if they were postmarked by Election Day.

The trouble was that many ballots were arriving without postmarks, or the marks were unreadable. Other mail ballots were lost or delayed, threatening to disenfranchise thousands of voters. Desperate for guidance, the 1,850 municipal clerks who run Wisconsin’s elections turned to the state agency tasked with helping them: the Wisconsin Elections Commission.

Three days after the primary, the commission’s three Democrats and three Republicans wrangled over the issue for two and a half hours in a virtual meeting. The Democrats wanted all ballots received in the mail by April 8 — postmarked or not — to be accepted; the Republicans pushed to reject all ballots with missing or illegible postmarks.

“We’re going to sit here all night, 3-3, if we can’t even agree the mail takes more than a day,” said Commissioner Ann Jacobs, a Democratic appointee and lawyer, pursing her lips and shaking her head as she peered into her computer screen. “We’re not going to ever agree on whether these marks count or not — we’re wasting our time.”

Dean Knudson, a former Republican lawmaker who was chairman at the time, retorted, “Can you envision supporting any motion that would exclude any ballot?”

In the end, the commission deadlocked 3-3 not once but twice over motions to deal with the disputed ballots, leaving each of Wisconsin’s municipal clerks to decide on their own what to do. For the state’s top agency overseeing elections, such standoffs have become the norm. With the national spotlight on Wisconsin as a swing state that could sway the presidential election, the commission has become increasingly stalemated and ineffective, according to an investigation by Wisconsin Watch and ProPublica.

Although the commission has reached consensus on a handful of important issues, such as the mailing of ballot applications to voters, it increasingly stalemates along party lines. Commission members have strayed far from the apolitical approach of the panel’s predecessor board, which was considered a national model for effective election administration. Both Democratic and Republican members often take their cues from their party leaders.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Pandemic restrictions may impact the nursing home vote”<https://electionlawblog.org/?p=117490>
Posted on October 27, 2020 11:13 am<https://electionlawblog.org/?p=117490> by Rick Hasen<https://electionlawblog.org/?author=3>

The 19th reports.<https://19thnews.org/2020/10/pandemic-restrictions-may-impact-the-nursing-home-vote/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“In search of 362,236 ballots, Democrats plan an all-out scavenger hunt in Wisconsin”<https://electionlawblog.org/?p=117488>
Posted on October 27, 2020 9:37 am<https://electionlawblog.org/?p=117488> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/live/2020/10/27/us/trump-biden-election/in-search-of-362236-ballots-democrats-plan-an-all-out-scavenger-hunt-in-wisconsin>:

They’re well-organized, they’re well-funded, and they have a message: Return your absentee ballot, but don’t use the mail.

The Wisconsin Democratic Party and its supporters had been on a mail-voting education crusade since the coronavirus pandemic hit in March, advising people how to request, fill out and return absentee ballots.

Now, in the wake of a Supreme Court decision Monday<https://www.nytimes.com/2020/10/26/us/supreme-court-wisconsin-ballots.html> disqualifying absentee ballots that are received by election officials after Election Day, the party has changed course, alerting voters not to put ballots in the mail but to return them to their election clerk’s office or use drop boxes.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Brett Kavanaugh foreshadows how Supreme Court could disrupt vote counting”<https://electionlawblog.org/?p=117486>
Posted on October 27, 2020 9:35 am<https://electionlawblog.org/?p=117486> by Rick Hasen<https://electionlawblog.org/?author=3>

Ariane de Vogue <https://www.cnn.com/2020/10/27/politics/kavanaugh-supreme-court-trump-biden/index.html> for CNN.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>

“Undue Deference to States in 2020 Election Litigation”<https://electionlawblog.org/?p=117484>
Posted on October 27, 2020 9:29 am<https://electionlawblog.org/?p=117484> by Rick Hasen<https://electionlawblog.org/?author=3>

Can’t wait to dig into this new draft from Josh Douglas:<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720065>

This Essay provides the first comprehensive analysis of the numerous election law cases that federal appeals courts decided in 2020. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. In at least twenty-seven cases the Supreme Court and federal appellate courts espoused this undue deference standard. The courts did not explicitly overrule the familiar Anderson-Burdick test for the right to vote, but it applied it unfaithfully and without any rigor, failing to require states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. This mode of analysis devalues the right to vote, the most fundamental right in our democracy. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“With Barrett seated, Republicans push for Supreme Court hearing of Pennsylvania voting case”<https://electionlawblog.org/?p=117482>
Posted on October 27, 2020 9:16 am<https://electionlawblog.org/?p=117482> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeremy Herb reports<https://www.cnn.com/2020/10/27/politics/election-2020-supreme-court-voting-challenge/index.html> for CNN.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Unanimous 11th Circuit Panel Affirms Finding Voting Rights Act Section 2 Violation in Sumter County, Georgia<https://electionlawblog.org/?p=117480>
Posted on October 27, 2020 9:11 am<https://electionlawblog.org/?p=117480> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion at this link<https://media.ca11.uscourts.gov/opinions/pub/files/201811510.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Trump Tweets About Poll Watchers in Philly<https://electionlawblog.org/?p=117478>
Posted on October 27, 2020 8:50 am<https://electionlawblog.org/?p=117478> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Lai<https://twitter.com/Elaijuh/status/1321078262131556352?s=20>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Raging Trump wants the Supreme Court to save him. Here’s why it probably won’t.”<https://electionlawblog.org/?p=117476>
Posted on October 27, 2020 8:48 am<https://electionlawblog.org/?p=117476> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent<https://www.washingtonpost.com/opinions/2020/10/27/raging-trump-wants-supreme-court-save-him-heres-why-it-probably-wont/> for WaPo:

President Trump is now raging<https://twitter.com/realDonaldTrump/status/1321051933654863872> at the media for the sin of covering the pandemic and urging<https://twitter.com/realDonaldTrump/status/1321042229838909441> people to change their votes to him, demonstrating fury over an unalterable reality: This election is all about his catastrophic botching of a public health crisis that is rampaging furiously at the very moment when people are already voting in record numbers<https://electproject.github.io/Early-Vote-2020G/index.html>.

But, now that the Senate has confirmed<https://www.washingtonpost.com/politics/courts_law/senate-court-barrett-trump/2020/10/26/df76c07e-1789-11eb-befb-8864259bd2d8_story.html?itid=lk_inline_manual_4> Amy Coney Barrett to the Supreme Court — and now that the court just issued a controversial ruling<https://www.washingtonpost.com/politics/courts_law/supreme-court-wisconsin-mail-ballots/2020/10/26/70fa459e-12fc-11eb-ad6f-36c93e6e94fb_story.html?itid=lk_inline_manual_4> in Wisconsin that could help Trump — is it possible the court might save Trump if he’s on track to lose, as he has openly declared he wants<https://abcnews.go.com/Politics/trump-argues-nominee-needed-supreme-court-time-vote/story?id=73192756>?

It’s unlikely. A lot of things would have to line up perfectly for that to happen.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: Luzerne County, PA Files Motion in Supreme Court for Justice Barrett to Recuse from Deciding Case<https://electionlawblog.org/?p=117474>
Posted on October 27, 2020 8:08 am<https://electionlawblog.org/?p=117474> by Rick Hasen<https://electionlawblog.org/?author=3>

Here:<https://www.supremecourt.gov/DocketPDF/20/20-542/158868/20201027105210051_2nd%20REVISED%20Motion%20to%20Recuse.pdf>

Against this backdrop, and in the aftermath of Justice Barrett’s nomination, a public poll reflected significant concern with her presiding over matters related to the presidential election. The poll, conducted by research firm SSRS on behalf of CNN, asked whether Justice Barrett “should or should not promise to recuse herself from any cases which could affect the outcome of this year’s presidential election.”

Of the respondents, 56% said that Justice Barrett should recuse herself from such matters, while 34% said she should not (10% had no opinion).
https://cdn.cnn.com/cnn/2020/images/10/07/rel12c.-.scotus,.aca.pdf (last visited October 27, 2020). While constitutional matters certainly cannot be governed by public polling, this example does offer a glimpse into a concern about the “appearance” which Justice Barrett’s presiding in the present matter entails. So do a variety of editorial and op-ed pieces published in the weeks since her nomination. See, e.g., Mario Nicolais, Barrett must recuse from 2020 election cases, shield Supreme Court from Trump corruption, USA Today, Oct. 12, 2020, https://www.usatoday.com/story/opinion/2020/10/12/barrett-protect-supreme-courtrecuse-2020-election-cases-column/5915556002/ (last visited October 27, 2020); Editorial Board, Judge Barrett must recuse herself in any election case, Newark Star-Ledger, Oct. 18, 2020, https://www.nj.com/opinion/2020/10/judge-barrett-mustrecuse-herself-in-any-election-case-editorial.html (last visited October 27, 2020);
Editorial Board, Booker is right: Barrett should recuse herself on election cases, Newark Star-Ledger, Sept. 29, 2020, https://www.nj.com/opinion/2020/09/booker-isright-barrett-should-recuse-herself-on-election-cases-editorial.html (last visited October 27, 2020); Renee Knake Jefferson,Why Amy Coney Barrett must recuse herself from election-related cases, NY Daily News, Oct. 26, 2020, https://www.nydailynews.com/opinion/ny-oped-why-amy-coney-barrett-must-recuseherself-from-election-relate-20201027-7ey4bf6b2ngd7e2sjm52pwsswestory.html#nt=pf-double%20chain~unnamed-chain-1~feeddriven%20flex%20feature~automated~sub-topic-feed0~7EY4BF6B2NGD7E2SJM52PWSSWE~1~1~2~7~art%20yes (last visited October 27, 2020).

Professor Jonathan Adler of Case Western Reserve University School of Law, who does not believe Justice Barrett’s recusal is necessary, recognizes it may nonetheless be prudent, especially in light of the President’s unfortunate
comments….
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Twitter labels Trump post about mail ballots as ‘disputed’ and ‘misleading’”<https://electionlawblog.org/?p=117472>
Posted on October 27, 2020 7:54 am<https://electionlawblog.org/?p=117472> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/26/twitter-blocks-trumps-post-mail-ballots-432697?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

Twitter blocked a post by President Donald Trump on Monday that claimed, without evidence, there were “problems and discrepancies” with mail-in ballots “all over the USA.”

“Must have final total on November 3rd,” Trump wrote at the end of his post.<https://twitter.com/realDonaldTrump/status/1320873664296804354>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Could the election in Pennsylvania be decided by Amy Coney Barrett? Probably not. Here’s why.”<https://electionlawblog.org/?p=117470>
Posted on October 27, 2020 7:38 am<https://electionlawblog.org/?p=117470> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Lai for the Philadelphia Inquirer.<https://fusion.inquirer.com/politics/election/amy-coney-barrett-pennsylvania-presidential-election-supreme-court-20201027.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Lessig, Equal Citizens, and HLS Students Team Up for Website and Podcast on Electoral College Issues in the Upcoming Election<https://electionlawblog.org/?p=117468>
Posted on October 27, 2020 7:23 am<https://electionlawblog.org/?p=117468> by Rick Hasen<https://electionlawblog.org/?author=3>

Check it out.<https://ec-faqs.us/>
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Posted in electoral college<https://electionlawblog.org/?cat=44>

I Spoke to NPR’s Morning Edition About the Supreme Court’s Wisconsin Ruling, and What It Portends for any Future Post-Election Litigation with a New Justice Barrett<https://electionlawblog.org/?p=117466>
Posted on October 27, 2020 7:03 am<https://electionlawblog.org/?p=117466> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here<https://www.npr.org/2020/10/27/928120890/wisconsins-ballot-extension-plan-blocked-by-u-s-supreme-court>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, Supreme Court<https://electionlawblog.org/?cat=29>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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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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