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

Fri Oct 30 05:27:51 PDT 2020

Can I ask a naive question?  If SCOTUS is telling us that a state court or
other state entity impermissibly deviated from a state statute, isn't
SCOTUS violating Article II by displacing the role of the state
legislature?  I think this Article II theory logically cannibalizes
itself.  Not that logic means anything, especially.

On Fri, Oct 30, 2020, 8:25 AM Lori A Ringhand <ringhand at uga.edu> wrote:

> It is striking to me how much these opinions (and the debate surrounding
> them) have surpassed even the three-justice plurality in *Bush v. Gore*.
> Justice Rehnquist's opinion in that case decidedly did not say that
> decisions of the state supreme court, the secretary of state, or the
> Florida canvassing boards were invalid simply because these bodies are not
> "the legislature." Instead, the opinion rested on the idea that the state
> supreme court's interpretation of state law was unreasonable and therefore
> exceeded its authority, *not *that the Constitution requires that it or
> any other of these entities need to be cut out of the regular state law
> process as a matter of course. The opinion even talks (approvingly) of how
> state law vests discretion over recounts in the canvassing boards, and how
> the state supreme court opinion deviated from established practice
> "prescribed by the Secretary."
>
> Lori A. Ringhand
> Fulbright Scotland Visiting Professor, University of Aberdeen
> J. Alton Hosch Professor of Law, University of Georgia
> Athens, GA 30601
>
> ringhand at uga.edu
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414
>
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Schultz, David <dschultz at hamline.edu>
> *Sent:* Thursday, October 29, 2020 9:29 PM
> *To:* Levitt, Justin <justin.levitt at lls.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] 8th Circuit 2-1 decision cuts back Minnesota
> deadline; more news and commentary
>
> [EXTERNAL SENDER - PROCEED CAUTIOUSLY]
>
> Hi all:
> Justin basically gets the analysis right for Minnesota and it sets up a
> potential duality between state and federal races.  There is state law that
> mandates the requirements for absentee ballots and early voting that
> require signature requirements and as the Frankencase stipulated, strict
> compliance.
>
> It should also be noted that many of the ballots already in are from DFL
> areas and that any of ballots still to come in may be from Republican
> areas.  This decision may well hurt GOP voters more than Democrats,
> especially with the delays in mail especially from  rural areas.
>
> On Thu, Oct 29, 2020 at 7:59 PM Levitt, Justin <justin.levitt at lls.edu>
> wrote:
>
> In the Coleman-Franken contest, as I recall, the Minnesota Supreme Court
> said that Minnesota law required *that the voter* maintain “strict”
> compliance with all statutory requirements (for absentee ballots).  In
> contrast, the court traced a 144-year history of finding that if a voter
> complies with the law, his vote “should not be rejected because of
> irregularities, ignorance, inadvertence, or mistake, or even intentional
> wrong on the part of the election officers.”  767 N.W.2d 453, 462 (2009).
>  The original 1865 case refused to invalidate an election when certain
> pollworkers didn’t take an oath, despite facially plausible arguments based
> on the statutory structure that by declaring that elections shouldn’t be
> invalidated for X and Y reason, the legislature implied elections *should*
> be invalidated based on a failure of the oath.  That logic was based on the
> state constitution … and seems (I’d hope) uncontroversial.
>
>
>
> The Eighth Circuit today, citing SCOTUS dicta, says that the legislature’s
> power in Presidential elections can’t be modified by state constitutions.
> And the Coleman-Franken court didn’t cite a state statute for its
> interpretation (maybe a Minnesota expert will let me know if one exists).
> So barring a state statute on point, I presume that that line of caselaw in
> Minnesota is now invalid in the Eighth Circuit for federal elections.  I’d
> hope that the principle is still a part of federal law.  But as a matter of
> state law under the Eighth Circuit’s decision, when the ballots go to be
> counted in Minnesota, doesn’t this mean that election-official mistakes in
> statutes that purport to be mandatory, however minor, don’t invalidate a
> ballot for state races, but maybe might invalidate a ballot for federal
> races?  Does that latter conclusion depend on an interpretation of the
> state statutory structure based on something other than background state
> legal principles (and if so, where does it come from?), for rules that
> state statutes purport to make mandatory?
>
>
>
> There’s still an oath requirement in Minnesota law – 204B.24 requires
> “each” poll worker to sign a very specific oath and attach that statement
> to the election returns of the precinct, which implies that the oath is of
> some significance specifically related to the validity of the returns.  If
> there’s a printing error on the oath paper so that the oath isn’t exactly
> as prescribed in statute, or if one of several poll workers fails to sign
> the oath, I certainly hope that doesn’t invalidate the election-day
> precinct returns for all of the federal candidates on the ballot there.
>
>
>
> And yes, that conclusion would be absurd.
>
>
>
> But would it be absurd based on the actual text of the state statutes
> passed by the state Legislature, or based on something else?
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Rick Hasen
> *Sent:* Thursday, October 29, 2020 4:05 PM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117784&title=In%20Outrageous%202-1%20Decision%20Ignoring%20Reliance%20Interests%20and%20Rejecting%20the%20Purcell%20Principle%2C%208th%20Circuit%20Panel%20Orders%20Segregation%20of%20Late%20Arriving%20Ballots%20in%20Minnesota%2C%20With%20Strong%20Hints%20Late%20Arriving%20Ballots%20Will%20Be%20Excluded%20from%20The%20Count>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117781&title=%E2%80%9CHow%20a%20fake%20persona%20laid%20the%20groundwork%20for%20a%20Hunter%20Biden%20conspiracy%20deluge%E2%80%9D>
>
> 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.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117779&title=%E2%80%9CRuling%20Revision%20%E2%80%98Doesn%E2%80%99t%20Go%20Far%20Enough%E2%80%99%2C%20Vermont%20Secretary%20of%20State%20Tells%20Justice%20Kavanaugh%E2%80%9D>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117777&title=%E2%80%9CHow%20The%202020%20Election%20Could%20End%20Up%20In%20The%20Courts%E2%80%9D>
>
> 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>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117775&title=Ariane%20de%20Vogue%20and%20I%20Joined%20John%20King%20on%20CNN%20to%20Talk%20About%20Latest%20Supreme%20Court%20Rulings%20on%20Voting%20(Video)>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117773&title=%E2%80%9CSo%2C%20Russia%2C%20You%20Want%20to%20Mess%20With%20Our%20Voting%20Machines%3F%20The%20United%20States%20should%20threaten%20to%20retaliate%20%E2%80%94%20and%20I%E2%80%99m%20not%20talking%20about%20economic%20sanctions%20or%20legal%20indictments.%E2%80%9D>
>
> 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?
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117766&title=Why%20Did%20Justice%20Alito%20Not%20Address%20the%20Huge%20Standing%20Issue%20in%20Yesterday%E2%80%99s%20Pennsylvania%20Case%3F>
>
> 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
>
>
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>
>
> --
> David Schultz, Distinguished University Professor
> Hamline University
> Department of Political Science and
> Department of Legal Studies
> 1536 Hewitt Ave
> MS B 1805
> St. Paul, Minnesota 55104
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> http://davidschultz.efoliomn.com/
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> Twitter:  @ProfDSchultz
> My latest book:  Presidential Swing States:  Why Only Ten Matter
>
> https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
> FacultyRow SuperProfessor, 2012, 2013, 2014
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