[EL] Supreme Court rules on another NC petition/Laches in post-election litigation/PA mess

[Levitt, Justin]

Yep – that’s a sound decision.  Just meant to help people understand that the election case remaining on the Court’s emergency docket isn’t really of the same character as some of the other requests for injunctions or stays or vacating existing stays that we’ve seen in the last few weeks.

From: Rick Hasen <rhasen at law.uci.edu>
Sent: Thursday, October 29, 2020 12:12 PM
To: Levitt, Justin <justin.levitt at lls.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: Supreme Court rules on another NC petition/Laches in post-election litigation/PA mess

I’m going to safely ignore that one. Thanks Justin.

From: "Levitt, Justin" <justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>>
Date: Thursday, October 29, 2020 at 12:08 PM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: Supreme Court rules on another NC petition/Laches in post-election litigation/PA mess

There’s one more emergency case<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\20a75.html> pending at SCOTUS: a challenge to private donations to fund election administration based on [insert very confusing jumble of claims that don’t really amount to a viable federal protest here].

To call it a Hail Mary is to radically overstate the chance that it gets any serious consideration by any Justice, much less 5.

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Rick Hasen
Sent: Thursday, October 29, 2020 11:50 AM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Supreme Court rules on another NC petition/Laches in post-election litigation/PA mess

Supreme Court, With At Least 3 Justices Dissenting and No Participation by Justice Barrett, Rejects Remaining Challenge to North Carolina Ballot Extension Deadline<https://electionlawblog.org/?p=117762>
Posted on October 29, 2020 11:48 am<https://electionlawblog.org/?p=117762> by Rick Hasen<https://electionlawblog.org/?author=3>

Given yesterday’s developments <https://electionlawblog.org/?p=117694> at the Supreme Court out of North Carolina, this result is expected. The same three Justices (Alito, Gorsuch, and Thomas) noted their dissents. From the Supreme Court press office: “Justice Barrett did not participate in the consideration of this application because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”

That’s all for the emergency election cases pending before the Supreme Court, for now, and so far as I know.
[cid:image001.png at 01D6ADED.146201B0]
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117762&title=Supreme%20Court%2C%20With%20At%20Least%203%20Justices%20Dissenting%20and%20No%20Participation%20by%20Justice%20Barrett%2C%20Rejects%20Remaining%20Challenge%20to%20North%20Carolina%20Ballot%20Extension%20Deadline>
Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Trump’s Ballot-Counting Demand Would Disenfranchise Overseas Troops”<https://electionlawblog.org/?p=117760>
Posted on October 29, 2020 11:41 am<https://electionlawblog.org/?p=117760> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost:<https://www.huffpost.com/entry/trump-disenfranchising-troops_n_5f99e125c5b6c265d8f01a3d>

President Donald Trump<https://www.huffpost.com/news/topic/donald-trump>, in social media posts and remarks, is demanding that all ballots be counted by election night, even though federal law permits states to count ballots from troops stationed outside the United States, diplomats and other Americans abroad to have their ballots counted days later, as long as they were sent no later than Election Day.

In Trump’s new home state of Florida, the deadline for this election is Nov. 13. So, for example, his attempt to skew the counting in his favor could prevent service members deployed overseas from the Naval Air Station in Jacksonville or from Southern Command headquarters in Doral from having their votes matter.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117760&title=%E2%80%9CTrump%E2%80%99s%20Ballot-Counting%20Demand%20Would%20Disenfranchise%20Overseas%20Troops%E2%80%9D>
Posted in military voting<https://electionlawblog.org/?cat=48>


Laches and Post-2020 Election Challenges: Why Many of the Republican Gambits Challenging Election Laws Will Come Too Late<https://electionlawblog.org/?p=117751>
Posted on October 29, 2020 11:39 am<https://electionlawblog.org/?p=117751> by Rick Hasen<https://electionlawblog.org/?author=3>

There’s been much talk about what kinds of claims might be brought post-election if the election is close that could allow Trump to try to stop or delay counting, or otherwise seek to mess with the election. In this post, I want to talk about a key issue about timing that could mean many such gambits come too late under the doctrine of “laches.” Laches is a remedial defense that says that when there is unreasonable delay and it prejudices the other party, then the claim comes too late. (Unlike the Purcell principle, which is aimed at when courts make election changes close to the election, laches is about when plaintiffs in court wait too long to sue.)

The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it. Here’s how I explained the point in a 2005 law review article, Beyond the Margin of Litigation:<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=698201>

Allowing more pre-election review is not a recipe for more overall election
litigation. Courts should make clear that a willingness to reach issues before
the election will be accompanied by a strict application of laches after the
election. “[L]aches is unreasonable delay by the plaintiff in prosecuting a claim or protecting a right of which the plaintiff knew or should have known, and under circumstances causing prejudice to the defendant.” But it is subject to some exceptions, including an exception that prevents its application ‘to defeat the public interest. This exception threatens to swallow the rule in election law litigation, because the public has an interest that election law disputes get their day in court.

Courts should see it as in the public interest in election law cases to aggressively apply laches so as to prevent litigants from securing options over election administration problems. This rule will promote the public interest by insuring public confidence in the election process.

We saw this today<https://twitter.com/Stowydad/status/1321843843524907013?s=20> in the Minnesota Supreme Court’s response to a late GOP attempt in Minnesota to try to get a reopening of a consent decree, potentially trying to take advantage of an independent state legislature argument should the election go into overtime:

To be clear, a laches argument would not help in Pennsylvania as to the late counted ballots; Republicans there tried early on to get a stay from the Supreme Court. And it does not and should not apply to problems that crop up at the last minute (such as seeking a court order for a problem that unexpectedly materializes on election day).

But an attempt to try to complain about ballot deadlines or other longstanding problems for the first time now or after the election should be seen as coming too late.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117751&title=Laches%20and%20Post-2020%20Election%20Challenges%3A%20Why%20Many%20of%20the%20Republican%20Gambits%20Challenging%20Election%20Laws%20Will%20Come%20Too%20Late>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pennsylvania struggles with how — or if — to help voters fix their mail ballots”<https://electionlawblog.org/?p=117749>
Posted on October 29, 2020 10:03 am<https://electionlawblog.org/?p=117749> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Lai<https://fusion.inquirer.com/politics/election/pennsylvania-flawed-mail-ballots-cure-20201029.html> for the Philly Inquirer:

Officials across Pennsylvania are trying to help voters fix mail ballots that would otherwise be disqualified because of technical mistakes in completing them, creating a patchwork of policies around how — or even whether — people are notified and given a chance to make their votes count.

Some counties are marking those ballots as received, the same as any other ballot, which gives voters no indication there’s a problem. Some are marking them as canceled, as the state says to do, which sends voters warning emails and updates the online ballot status tool, but doesn’t notify voters without email addresses on file.

Still others try to reach voters directly, including by mail, phone, or email — and at least one county mails the actual flawed ballots back to voters.

The Pennsylvania Department of State, which oversees elections, provided some direction Sunday, telling counties to mark ballots as canceled if they have clear flaws, such as missing voters’ signatures, or are “naked ballots”<https://www.inquirer.com/politics/election/pennsylvania-naked-ballots-supreme-court-philadelphia-20200921.html> without the required inner secrecy envelopes<https://www.inquirer.com/politics/election/pennsylvania-naked-mail-ballot-what-to-do-20201023.html>. Those ballots have to be rejected when votes are counted beginning on Election Day.

But the state left it to counties to decide how aggressive to be in trying to contact voters to help them fix their ballots — or “cure” them, in election jargon. And some counties aren’t planning to follow the state’s instructions. Officials in Montgomery and Centre Counties, for example, won’t cancel flawed ballots because they want voters to be able to fix them. Allegheny County mails flawed ballots right back to voters, never canceling them nor marking them in the system at all.

The state also fumbled how canceled ballots are handled in the system, which initially led to voters receiving emails with inaccurate information.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117749&title=%E2%80%9CPennsylvania%20struggles%20with%20how%20%E2%80%94%20or%20if%20%E2%80%94%20to%20help%20voters%20fix%20their%20mail%20ballots%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Pennsylvania: “Potentially thousands of requested mail ballots lost in Butler County, official says”<https://electionlawblog.org/?p=117747>
Posted on October 29, 2020 9:59 am<https://electionlawblog.org/?p=117747> by Rick Hasen<https://electionlawblog.org/?author=3>


<https://newsinteractive.post-gazette.com/coronavirus/>Spotlight PA:<https://www.post-gazette.com/news/politics-nation/2020/10/29/thousands-requested-mail-ballots-lost-butler-county-pennsylvania-election-2020/stories/202010290124>

Potentially thousands of mail ballots requested by Butler County voters appear to be lost, a county official said Wednesday, and the U.S. Postal Service has been asked to immediately investigate what happened to them.

A USPS spokesperson, meanwhile, said the agency is “unaware of any significant delays or issues and is in regular contact with the Board of Election as we work to locate and deliver ballots as they are presented to us.”

As of Tuesday, Pennsylvania voters are no longer able to apply for an absentee or mail-in ballot.

Nearly 40,000 registered voters in the county requested mail ballots. So far, only 24% of them have been returned to the county, by far the lowest rate among the state’s 67 counties. The county with the next-lowest return rate, Fayette, has received 50% of requested ballots.

“At first we thought that maybe it just was a delay in the postal system” due to high volume, Leslie Osche, chair of the Butler County commissioners, told Post-Gazette news partner KDKA-TV. “And that could still be the case. But nonetheless, when we realized that, we changed our strategy and now have begun to tell folks that if they haven’t received a ballot, they still have multiple options.”

But this week, county call centers and email addresses set up to handle elections issues were flooded with messages. By Tuesday morning, officials abandoned any hope that the ballots would arrive and launched plans to get new ballots out to voters, Osche said.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117747&title=Pennsylvania%3A%20%E2%80%9CPotentially%20thousands%20of%20requested%20mail%20ballots%20lost%20in%20Butler%20County%2C%20official%20says%E2%80%9D>
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201029/0323762d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 147581 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201029/0323762d/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 2022 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201029/0323762d/attachment-0001.png>