[EL] 8th Circuit 2-1 decision cuts back Minnesota deadline; more news and commentary

Thu Oct 29 16:16:59 PDT 2020

This link may work better for the 8th Circuit opinion:
https://ecf.ca8.uscourts.gov/opndir/20/10/203139P.pdf

From: Rick Hasen <rhasen at law.uci.edu>
Date: Thursday, October 29, 2020 at 4:05 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: 8th Circuit 2-1 decision cuts back Minnesota deadline; more news and commentary

In Outrageous 2-1 Decision Ignoring Reliance Interests and Rejecting the Purcell Principle, 8th Circuit Panel Orders Segregation of Late Arriving Ballots in Minnesota, With Strong Hints Late Arriving Ballots Will Be Excluded from The Count<https://electionlawblog.org/?p=117784>
Posted on October 29, 2020 4:03 pm<https://electionlawblog.org/?p=117784> by Rick Hasen<https://electionlawblog.org/?author=3>

It is hard to know where to start with this opinion<https://www.documentcloud.org/documents/7278436-8th-Circuit-Court-of-Appeals-MN-absentee-ballot.html>. The majority suggests that a consent decree extending the deadline for absentee ballots in Minnesota, entered into by the Secretary of State and plaintiffs and approved by a state court, usurps the power of the state legislature under article II of the Constitution (under a theory a majority of the Supreme Court has not endorsed—at least not yet). The court reached this conclusion despite the fact that the Legislature did not object (the court found that Electors have standing, quite a dubious proposition that they could assert the rights of the legislature), that the Legislature delegated the power to the Secretary of State to take these steps, and despite the fact that we are on the eve of the election.

This timing issue is doubly troubling. First, the Supreme Court has said that federal courts should be very wary of changing election rules just before the election. This Purcell Principle is controversial but it has been applied very heavily by the Supreme Court this election season especially.

More importantly, think of the reliance interests of Minnesota voters, who have been told until today that they have extra time to mail their ballots. Now there is the very real chance that those late-arriving ballots won’t count through no fault of their own. Both the plaintiffs and courts could have moved much sooner if they had this concern. It is voters that are going to be on the short end of things.

Whether the state goes to the Supreme Court at this time or not, and whether they are successful at getting a majority to overturn this (I’d give it a fair shot given the reliance interests), things are so uncertain that the only advice to people in Minnesota is not to vote by mail at this point. Do NOT put your ballot in the U.S. Mail. Use official government drop boxes or vote in person.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“How a fake persona laid the groundwork for a Hunter Biden conspiracy deluge”<https://electionlawblog.org/?p=117781>
Posted on October 29, 2020 3:35 pm<https://electionlawblog.org/?p=117781> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/tech/security/how-fake-persona-laid-groundwork-hunter-biden-conspiracy-deluge-n1245387>:

Nine month before a purported leak of files from Hunter Biden’s laptop, a fake “intelligence” document about him went viral on the right-wing internet, asserting an elaborate conspiracy theory involving former Vice President Joe Biden’s son and business in China.

That document, a 64-page composition that was later disseminated by close associates of President Donald Trump, appears to be the work of a fake “intelligence firm” called Typhoon Investigations, according to researchers and public documents.

The author of the document, a self-identified Swiss security analyst named Martin Aspen, is a fabricated identity, according to analysis by disinformation researchers, who also concluded that Aspen’s profile picture was created with an artificial intelligence face generator. The intelligence firm that Aspen lists as his previous employer told NBC News that no one by that name had ever worked for their company, and no one by that name lives in Switzerland, according to public records and social media searches.

One of the original posters of the document, a blogger and professor named Christopher Balding, took credit for writing parts of the document when asked about it by NBC News, and said that Aspen does not exist.

Despite the document’s questionable authorship and anonymous sourcing, its claims that Hunter Biden has a problematic connection to the Communist Party of China have been used by people who oppose the Chinese government, as well as by far-right influencers, to baselessly accuse candidate Joe Biden of being beholden to the Chinese government.

The document and its spread have become part of a wider effort<https://www.nbcnews.com/tech/tech-news/inside-campaign-pizzagate-hunter-biden-n1244331> to smear Hunter Biden and weaken Joe Biden’s presidential campaign, which moved from the fringes of the internet to more mainstream conservative news outlets.

An unverified leak of documents including salacious pictures from what President Donald Trump’s lawyer, Rudy Giuliani, and Delaware Apple repair store owner claimed to be Hunter Biden’s hard drive were published in the New York Post on Oct. 14. Associates close to Trump, including Giuliani and former White House chief strategist Steve Bannon, have since promised more blockbuster leaks and secrets, which have yet to materialize.

The fake intelligence document, however, preceded the leak by months and helped lay the groundwork among right-wing media for what would become a failed October surprise: a viral pile-on of conspiracy theories about Hunter Biden.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>

“Ruling Revision ‘Doesn’t Go Far Enough’, Vermont Secretary of State Tells Justice Kavanaugh”<https://electionlawblog.org/?p=117779>
Posted on October 29, 2020 3:33 pm<https://electionlawblog.org/?p=117779> by Rick Hasen<https://electionlawblog.org/?author=3>

Jess Bravin<https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-29/card/yw4eyads0C0mLKh5tfcJ> for the WSJ:

Vermont Secretary of State Jim Condos isn’t satisfied with Justice Brett Kavanaugh’s revision to a recent voting-rights opinion that Mr. Condos said misstated his state’s election rules.

On Wednesday, Justice Kavanaugh revised a Monday opinion<https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-28/card/DPUm2bTc6zMFE7HPfyKS> that originally said Vermont hadn’t changed its “ordinary election rules” in response to the coronavirus pandemic to state that it hadn’t changed its “ordinary election deadline rules,” after Mr. Condos complained that the justice overlooked a host of other measures the state took to help voters limit exposure to Covid-19.

“I’m glad he admitted a mistake and modified his opinion, but a one-word addition doesn’t go far enough,” Mr. Condos, a Democrat, said Thursday. “I will not sit idly by while Justice Kavanaugh uses factually incorrect information about the Green Mountain State as cover to erode voting rights in the middle of a pandemic-distressed election.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How The 2020 Election Could End Up In The Courts”<https://electionlawblog.org/?p=117777>
Posted on October 29, 2020 3:31 pm<https://electionlawblog.org/?p=117777> by Rick Hasen<https://electionlawblog.org/?author=3>

WMFE<https://www.wmfe.org/how-the-2020-election-could-end-up-in-the-courts/167846> talks to Ciara Torres-Spelliscy.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Ariane de Vogue and I Joined John King on CNN to Talk About Latest Supreme Court Rulings on Voting (Video)<https://electionlawblog.org/?p=117775>
Posted on October 29, 2020 3:23 pm<https://electionlawblog.org/?p=117775> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here:<https://www.youtube.com/watch?v=-vKLik6Ptpc&feature=youtu.be>
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“So, Russia, You Want to Mess With Our Voting Machines? The United States should threaten to retaliate — and I’m not talking about economic sanctions or legal indictments.”<https://electionlawblog.org/?p=117773>
Posted on October 29, 2020 2:47 pm<https://electionlawblog.org/?p=117773> by Rick Hasen<https://electionlawblog.org/?author=3>

Tim Wu<https://www.nytimes.com/2020/10/29/opinion/election-interference-russia-iran.html> for NYT Opinion.

I made the same point in Election Meltdown. An attack on our election infrastructure or power grid on Election Day should be seen as an act of war and declared that in advance by the President.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Why Did Justice Alito Not Address the Huge Standing Issue in Yesterday’s Pennsylvania Case?<https://electionlawblog.org/?p=117766>
Posted on October 29, 2020 12:09 pm<https://electionlawblog.org/?p=117766> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday I wrote<https://electionlawblog.org/?p=117673> about the Supreme Court order in the Pennsylvania case and Justice Alito’s separate statement strongly suggesting the PA Supreme Court acted unconstitutionally in taking power away from the state legislature.

It’s a controversial theory but I want to put that to one side and raise the point that the PA Legislature did not file this cert. petition nor did legislative leaders (who were on an earlier stay request, but not this cert. petition).

Isn’t the lack of standing, which I flagged earlier<https://electionlawblog.org/?p=117413>, reason enough to defeat this claim? That is, how can the party complain about the loss of the Legislature’s purported rights?
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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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