[EL] more news and commentary 10/28/20

[Rick Hasen]

Breaking and Analysis: Supreme Court, Over at Least 3 Dissents, Refuses to Roll Back North Carolina Extension Date for Receipt of Absentee Ballots [Updated headline]<https://electionlawblog.org/?p=117694>
Posted on October 28, 2020 4:37 pm<https://electionlawblog.org/?p=117694> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the Court’s order, along with Justice Gorsuch’s dissent, at this link<https://beta.documentcloud.org/documents/20400331-20a72-order>. Justice Alito joined Gorsuch’s dissent; Justice Thomas noted his disagreement with the majority but did not sign the dissent. Justice Barrett again did not participate.

The Gorsuch dissent primarily argues that a North Carolina election board settlement approved by a state court usurped the power of the state legislature, although he also analogizes the holding to the one in the Wisconsin case, which involved a federal court and totally different issues (i.e., the power of a federal court, close to the election, to alter election rules to protect constitutional rights). Justice Gorsuch seems to be trying to move the Purcell principle to apply to state agency actions, and that would be an even bigger problem than applying it to federal court decisions.

There are a few reasons to explain why this position did not attract the votes of CJ Roberts or J. Kavanaugh. First, the issue is messier; to some extent the legislature delegated the power to the state agency to enter into settlements. There’s also the timing and reliance issue; many, many voters have already made their voting plans dependent on the deadlines announced in the settlement, and now we are just days away from the election and there would be no other recourse for some of those voters to vote.

Unlike Justice Alito’s statement <https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> in today’s Pennsylvania ruling, Justice Gorsuch’s statement does not talk about any post-election action or any segregation of ballots. But segregation of those late arriving ballots might still make sense, for reasons I explained here<https://electionlawblog.org/?p=117640> in the context of Pennsylvania: it would make it harder for the NC General Assembly to declare the election somehow void and try to get around with the appointment of separate presidential electors.

UPDATE: A few people have pointed out to me that it is possible that this was a 4-4 vote, as it would take 5 to grant the injunction, and J. Kavanaugh (or another Justice) did not note his (or her) dissent. Possible.

[This post has been updated.]
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Trump announces intention to nominate two individuals to serve as FEC members”<https://electionlawblog.org/?p=117692>
Posted on October 28, 2020 4:17 pm<https://electionlawblog.org/?p=117692> by Rick Hasen<https://electionlawblog.org/?author=3>

The Hill<https://thehill.com/homenews/administration/523241-trump-announces-intention-to-nominate-two-individuals-to-serve-as-fec>:

President Trump<https://thehill.com/people/donald-trump> on Wednesday announced his intent to nominate Sean Cooksey and Shana Broussard to serve as members of the Federal Election Commission (FEC).

The potential nominations come four months after Republican FEC Commissioner Caroline Hunter resigned, leaving the agency<https://thehill.com/policy/cybersecurity/504767-fec-commissioner-resigns-leaving-agency-without-a-quorum-again> without a necessary quorum of at least four commissioners, thereby barring the FEC from voting on enforcement actions in the months leading up to the presidential election.

Cooksey currently serves as general counsel to Sen. Josh Hawley<https://thehill.com/people/joshua-josh-hawley> (R-Mo.), previously having served as Hawley’s lead staffer on the Senate Judiciary Committee. Cooksey also previously served as deputy chief counsel for Sen. Ted Cruz<https://thehill.com/people/ted-cruz> (R-Texas), has worked as a litigation associate at Washington, D.C., law firm Gibson, Dunn and Crutcher, and served as a law clerk for Judge Jerry Smith of the U.S. Court of Appeals for the 5th Circuit.

Broussard currently serves as counsel to FEC Vice Chair Steven Walter, an independent. Broussard previously served as an attorney-adviser at the Internal Revenue Service and as deputy disciplinary counsel at the Louisiana Attorney Disciplinary Board, along with previously serving as a New Orleans assistant district attorney.

Broussard, if confirmed, would be the first Black FEC commissioner.
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Posted in federal election commission<https://electionlawblog.org/?cat=24>


“Ratcliffe went off script with Iran remarks, officials say”<https://electionlawblog.org/?p=117690>
Posted on October 28, 2020 4:10 pm<https://electionlawblog.org/?p=117690> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/28/john-ratcliffe-iran-433375>:

Director of National Intelligence John Ratcliffe went off script when he alleged during a press conference last week that Iran was sending intimidating emails to Americans in order to “damage President Trump,” according to two senior administration officials with knowledge of the episode.

The reference to Trump was not in Ratcliffe’s prepared remarks about the foreign election interference, as shown to and signed off by FBI Director Chris Wray and senior DHS official Chris Krebs, the director of the department’s Cybersecurity and Infrastructure Agency.

Wray and Krebs stood behind Ratcliffe as he addressed the public, supportive of the general intention to alert voters to a malicious influence operation. But they were surprised by Ractliffe’s political aside, which had not appeared in the prepared text, the officials said.

The press conference centered around menacing emails that had been sent to Democratic voters<https://www.washingtonpost.com/technology/2020/10/20/proud-boys-emails-florida/> warning them to vote for Trump “or we will come after you.”

Ratcliffe attributed the emails to Iran but said they were “designed to intimidate voters, incite social unrest, and damage President Trump,” raising immediate questions about how threatening Democrats to vote for Trump could be aimed at damaging the president’s re-election bid — and how the intelligence community had made that determination within 24 hours of the messages.

Ractliffe also contrasted Iran’s actions with those of Russia, adding, “although we have not seen the same actions from Russia, we are aware that they have obtained some voter information just as they did in 2016.”

This Politico piece answered some important questions (such as whether there was evidence Iran was helping Trump (no) and why this press conference was done so quickly (so as not to overlap with a Trump rally!).) But it doesn’t answer a key question I still have: why did the press conference not mention the Russian probing of state voter registration databases which was described by election officials the next day<https://www.nytimes.com/2020/10/22/us/politics/russia-election-interference-hacks.html?action=click&module=Top%20Stories&pgtype=Homepage> in the NY Times?
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Breaking: Federal District Court Won’t Roll Back the PA Ballot Receipt Deadline, Despite Finding a (Strange) Equal Protection Violation, Because of Timing/the Purcell Principle<https://electionlawblog.org/?p=117688>
Posted on October 28, 2020 3:46 pm<https://electionlawblog.org/?p=117688> by Rick Hasen<https://electionlawblog.org/?author=3>

No time for a full analysis<https://www.courtlistener.com/recap/gov.uscourts.pawd.272579/gov.uscourts.pawd.272579.77.0.pdf>, but this one is very strange.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking and Analysis: Supreme Court (with Justice Barrett Not Participating) Refuses Again Emergency Relief in Pennsylvania Ballot Deadline Case; At Least 3 Justices See Constitutional Issues Ahead<https://electionlawblog.org/?p=117673>
Posted on October 28, 2020 2:27 pm<https://electionlawblog.org/?p=117673> by Rick Hasen<https://electionlawblog.org/?author=3>

The Supreme Court<https://www.supremecourt.gov/opinions/20pdf/20-542_i3dj.pdf> (with Justice Barrett not participating) has refused to expedite consideration of the cert. petition in the Pennsylvania voting case. Justices Alito, Gorsuch, and Thomas issued a separate statement saying that time was too late to review things now, but strongly stating a belief that counting the later ballots would be unconstitutional and that there could well be review after the election of the consideration of these ballots.

The result is not surprising, nor is the lineup. Indeed I predicted that Chief Justice Roberts and Justice Kavanaugh would not go along with an attempt to relitigate this issue given the very strong reliance arguments<https://electionlawblog.org/?p=117382> (coming from the Court’s earlier refusal to grant a stay) and the likely lack of standing <https://electionlawblog.org/?p=117413> of the PA GOP which brought this latest request (without the GOP legislature).

The big headline out of this decision is the very strong version of the “independent state legislature” doctrine that appears in the separate Alito statement: “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

To translate this a bit: there are now at least four Justices (if you count Justice Kavanaugh’s views on the merits of this expressed in this week’s Wisconsin case) who believe that when a state Supreme Court applies a state constitution’s protection for voting rights and does so in a way that alters a statute done by the legislature, that act is presumptively illegitimate. That is going to have some very bad ramifications for voting rights going forward and also raises questions about whether states will be able to pass redistricting and other reforms by voter initiative going forward. (Reaching initiatives would require overturning the 2015 Arizona case, but that seems to be well within the realm of future possibilities.)

But what does this mean for a future challenge in the Pennsylvania case and other potential 2020-election related litigation? First, I continue to believe, as I’ve been saying, that given the reliance interests whereby PA voters knew from a few weeks ago that the Supreme Court was not changing the deadline, it’s too late to give a different remedy now. PA voters simply cannot return their ballots in time under the old deadlines and even TODAY the PA website <https://www.votespa.com/Voting-in-PA/Pages/Mail-and-Absentee-Ballot.aspx#return> is telling voters to mail their ballots by election day.
[cid:image002.png at 01D6AD4C.7BEC45D0]

Without Roberts and Kavanaugh going along, even if Justice Barrett participated in future cases there would not be 5 Justices to throw out those ballots. It is still a theoretical possibility however, especially with ballots now being segregated<https://electionlawblog.org/?p=117640> between those arriving by the original statutory deadline and later ballots. Hopefully the election will not be close enough in either PA or the electoral college and the issue becomes moot in this election.

But if the issue of the power of state legislatures against state courts comes up again in the 2020 election cycle, and if Justice Barrett participates, then there could well be a different result. As I explained yesterday in the Washington Post:<https://www.washingtonpost.com/outlook/2020/10/27/brett-kavanaugh-election-opinion/>

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 new 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.

And what to make of Justice Barrett sitting this one out? Did she simply decide there was not enough time to get up to speed on this (a perfectly reasonable conclusion given when she joined the Court!) or is she going to recuse in all 2020-election related litigation? There is no way to know yet.

[This post has been updated.]

Further update. From the Public Information Office statement: “Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Here’s How the 2020 U.S. Elections Resemble Those of Fragile Democracies”<https://electionlawblog.org/?p=117671>
Posted on October 28, 2020 2:21 pm<https://electionlawblog.org/?p=117671> by Rick Hasen<https://electionlawblog.org/?author=3>

Eric Bjornlund for Foreign Policy<https://foreignpolicy.com/2020/10/24/u-s-elections-struggling-democracy/>:

As the co-founder and president of Democracy International, I now see the United States exhibiting many of the same kinds of problems with elections that we in the international election monitoring community have long criticized in countries where democracy is less established. In genuine, established democracies, political competitors generally do not attack the rules or the fairness of the process, accuse the opposing candidate or the election authorities of cheating, intimidate voters, or threaten them with violence. In less than fully democratic countries, on the other hand, complaints about fraud and fairness are routine, and violence—or the threat of it—is often involved. This tends to undermine public confidence in the elections and in democracy itself.

In the struggling democracies and autocracies where I have observed elections, much of the argument is about the integrity of the rules and process. Losing candidates routinely attack the fairness of the electoral process, whether or not they have a basis for their attacks. In fact, you can tell that a country is not (or not yet) a successful democracy when the losers of its elections blame fraud for their loss and attack the legitimacy of the process.
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Posted in comparative election law<https://electionlawblog.org/?cat=107>


“How the rest of the world avoided Covid election chaos”<https://electionlawblog.org/?p=117669>
Posted on October 28, 2020 2:18 pm<https://electionlawblog.org/?p=117669> by Rick Hasen<https://electionlawblog.org/?author=3>

Kevin Johnson<https://thefulcrum.us/election-dissection/coronavirus-election> for The Fulcrum.
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Posted in comparative election law<https://electionlawblog.org/?cat=107>


“How Likely is an Election Meltdown? The Importance of Down-Ballot Races”<https://electionlawblog.org/?p=117667>
Posted on October 28, 2020 2:16 pm<https://electionlawblog.org/?p=117667> by Rick Hasen<https://electionlawblog.org/?author=3>

Stephen Griffin<http://balkin.blogspot.com/2020/10/how-likely-is-election-meltdown.html> at Balkinization.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Pennsylvania Will Segregate Ballots Received After Election Day with SCOTUS Case Pending: Why This Was a Smart Move by the State, and Why This Doesn’t Solve the Reliance Problem or Standing Issue<https://electionlawblog.org/?p=117640>
Posted on October 28, 2020 11:48 am<https://electionlawblog.org/?p=117640> by Rick Hasen<https://electionlawblog.org/?author=3>

As ELB readers well know, the Pennsylvania GOP has gone back to the Supreme Court seeking to reverse a state supreme court order which extended the deadline for receipt of absentee ballots from 8 pm on Election day until 5 pm on Nov 6 (3 days later). The first attempt to get this order failed with the Supreme Court deadlocked 4-4 on the question. This new second bite at the apple via a request to expedite a cert. petition and consideration of the case is currently pending before the Supreme Court. No doubt the petition was filed because the Court now has a new ninth Justice.

In the PA GOP’s most recent filing, the party indicated they’d be moving separately for an order to segregate ballots received after election day so that if a court later holds that the PA Supreme Court order was wrong, they should not be counted. But the GOP no longer needs to move for that. This letter<https://www.supremecourt.gov/DocketPDF/20/20-542/158993/20201028140119174_2020-10-28%20-%20Letter%20to%20the%20Court.pdf> indicates that the state is ordering those ballots separated.

Why would Democratic state officials do this? The most logical answer I can think of is that they want to prevent a situation where the later ballots are commingled with the earlier ballots, and in response the Republican state legislature says that the election was fundamentally unfair and the legislature tries to appoint its own state of electors by claiming that the state “failed to make a choice” for president under the Electoral Count Act. the logic is that it is far better to take that potential argument away than to allow those additional ballots to be counted in the event they are found to be illegally accepted.

I continue to think that the Court is unlikely to grant expedited consideration of the case on this question on both reliance and standing grounds, even if new Justice Barrett would agree on the merits in the abstract of the Article II challenge. Here’s what I wrote<https://electionlawblog.org/?p=117382> about the reliance question, with the point even clearer as we are six days from the election:

We are now just 9 days away from the election. The GOP’s motion to expedite in the Supreme Court suggests that briefing<https://electionlawblog.org/wp-content/uploads/Republican-Party-of-Pennsylvania-v.-Boockvar-Motion-to-Expedite.pdf> in the case be put on a lightning docket and end on October 28. That suggests a Supreme Court order no earlier than October 29, which is 5 days before election day. By then, millions of voters in Pennsylvania would have heard about the new deadline of a postmark by election day rather than receipt by that day.

The reliance interests of voters at that point would be tremendous; think of the Purcell Principle on steroids if the U.S. Supreme Court announces a rule change just a few days before the election about the deadline for the election, and doing so after the Supreme Court had a full opportunity to block the late receipt of ballots and failing to do so. How would word get out to Pa. voters who heard about the extension with enough time to mail the ballots to arrive by election day, especially with a postal service that says you need to give at least a week for mailing right now?

We’ve had a similar reliance situation to this in the recent South Carolina case. The Supreme Court held that the district court was wrong to eliminate the witness signature requirement for absentee ballots in the state, BUT it held that any ballots already returned without the signature and arriving within two days of the courts order without the witness signature should still be accepted. The reason for such a grandfathering in of the ballots is the reliance interest of voters on valid court orders. In that South Carolina case, only three Justices—Alito, Gorsuch, and Thomas—would have thrown out those ballots and made voters vote again. Kavanaugh and Roberts did not go along with that<https://electionlawblog.org/?p=117264>.

In this case, the reliance interests are much stronger because there would be no way for voters to vote again in time. It seems that the equities are clearly on the side of the Pennsylvania voters in this context.

And here’s what I wrote on the standing question<https://electionlawblog.org/?p=117413>:

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 absentee ballots<https://electionlawblog.org/?cat=53>, Supreme Court<https://electionlawblog.org/?cat=29>


“As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore”<https://electionlawblog.org/?p=117552>
Posted on October 28, 2020 10:22 am<https://electionlawblog.org/?p=117552> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak<https://www.nytimes.com/2020/10/28/us/supreme-court-bush-gore-kavanaugh.html> in the NYT.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, Supreme Court<https://electionlawblog.org/?cat=29>


When Voters Request Absentee Ballots, What Percentage are Typically Actually Used?<https://electionlawblog.org/?p=117549>
Posted on October 28, 2020 9:32 am<https://electionlawblog.org/?p=117549> by Richard Pildes<https://electionlawblog.org/?author=7>

Short answer: around 80%.

As we discuss the numbers that are emerging each day of absentee ballots that have been returned already in various states, I went back to look at the final tallies on this issue from 2016. From the US Election Assistance Commission<https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf>:

Nationally, by-mail voting constituted 23.7 percent of all votes cast in the 2016 election. Approximately 80.1 percent of absentee ballots that were transmitted to voters were returned and processed, with 1.4 percent of transmitted ballots returned as undeliverable and 2 percent reported as spoiled (e.g., the voter returned the ballot and asked for a replacement).
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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
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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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