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

[Mark Scarberry]

I was particularly concerned during Bush v. Gore with the Florida Supreme
Court's transformation (or "harmonizing") of two statutes. One provided
that the Sec. of State "may" include certain late-filed returns in the
totals. The other provided that the Sec. of State "may not" do so (or words
to that effect). The Florida Supreme interpreted the statutes to mean that
the Sec. of State was required to include them, except under certain
circumstances narrowly defined by the Florida court. It was hard to believe
that the Florida court was even trying to follow the statutory directive.

That's what prompted me to argue on this list (and in an op-ed that I think
on reflection was badly written) that the Florida court had usurped the
legislature's role.

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Fri, Oct 30, 2020 at 9:54 AM Michael Morley <mmorley at law.fsu.edu> wrote:

> There are different ways in which the independent state legislature
> doctrine can be applied in the context of statutory interpretation, many of
> which reduce - not eliminate - concerns about indeterminacy and good-faith
> disagreements over statutory meaning that have been raised.    Point #3 may
> be most important.
>
> 1.   In my view, contrasting the Florida Supreme Court's ruling prior to
> Bush v. Palm Beach Canvassing Board to the opinion afterwards is
> instructive.  The opinion beforehand (which the Supreme Court vacated)
> discussed the Florida Constitution in addition to the state Election Code,
> and expressly construed that law in light of the values and principles of
> the state constitution.  The state supreme court's replacement opinion
> afterwards, in contrast, was based solely on textualist semantic canons of
> statutory interpretation.  No substantive canons, no considerations of the
> gravitational force of extrinsic state constitutional provisions.
>
> Interestingly, the state supreme court reached the same conclusion after
> remand, even though its analysis and range of pertinent considerations was
> ostensibly different.  So one might object that all of this was just window
> dressing, and the ISLD doesn't really impose a meaningful constraint on
> lower courts.  In other words, in many statutory interpretation cases,
> perhaps it may be more of a formalist constraint on how an opinion's
> written than a substantive constraint on outcome.  But of course there are
> all kinds of contexts - like APA cases and sentencing - where we will
> remand to make sure an entity's reasoning is legally valid even if the
> outcome remains the same.
>
> More interestingly, the ISLD recognizes that state legislatures remain
> constrained by the U.S. Constitution's express limits (I.e., voter and
> candidate qualifications clauses), rights-related provisions (14th
> amendment, rights incorporated through 14th amendment, voting rights
> amendments), and implicit restrictions (i.e., Thornton's interpretation of
> the Elections Clause).  So I think there's a reasonable argument that the
> U.S. CONSTITUTION could be considered in interpreting state election codes
> - including substantive canons based on the U.S. Constitution - in a way
> that state constitutions may not be.  In other words, "pure" textualism
> based just on semantic canons may not be strictly required.  I haven't
> given too much thought to that possibility, but at first blush it may be
> consistent w/ ISLD.
>
>
> 2.  As at least a minimal constraint, if there's no statutory authority
> for something, a state executive or judicial official can't step in to
> provide it.  My forthcoming Bush v. Gore article,
> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3694851, collects
> every case that cited Bush or its concurrence for this principle:
>
> Libertarian Party v. Dardenne, No. 08-582-JJB, 2008 U.S. Dist. LEXIS
> 137402, at *8-9 (M.D. La. Sept. 25, 2008) (holding that, where Hurricane
> Norman forced the Secretary of State’s office to be closed on the statutory
> deadline for political parties to file their presidential candidates’
> ballot-access petitions, the Secretary violated the Presidential Electors
> Clause by unilaterally establishing a new deadline and excluding parties
> that did not meet it); Libertarian Party of Ohio v. Brunner, 567 F. Supp.
> 2d 1006, 1011-12 (S.D. Ohio 2008) (holding that the Secretary of State
> violated the Elections Clause and Presidential Electors Clause  by
> establishing ballot access requirements for minor parties after a federal
> court invalidated the state’s statutory requirements, because the
> legislature had not delegated its authority to promulgate such rules);
> *cf*. Largess v. Supreme Judicial Court, 373 F.3d 219, 227 (1st Cir.
> 2004) (noting the disagreement among the Justices in *Bush v. Gore* over
> whether the Presidential Electors Clause limits “the internal allocation of
> power in a state government”); Moore v. Hosemann, No. 3:08-cv-573
> TSL-JCS, 2008 U.S. Dist. LEXIS 141865, at *4 (S.D. Miss. Sept. 29, 2008)
> (holding that, although “federal courts will review state actions that are
> a significant departure from, or go beyond a fair reading of, state
> election laws, . . .  the Secretary of State’s interpretation of state
> election law and his determination to close his office at the traditional
> time of 5:00 p.m. is reasonable and cannot be said to be inconsistent with
> the state’s election statutes”); Baldwin v. Cortes, No. 1:08-CV-01626,
> 2008 U.S. Dist. LEXIS 72035, at *7-12 (M.D. Pa. Sept. 12, 2008)
> (rejecting Presidential Electors Clause challenge because the Secretary of
> State had statutory authority to execute a consent decree changing the
> deadline for candidates to file ballot-access petitions), *aff’d*, 378 F.
> App’x 135, 138-39 (3d Cir. 2010) (rejecting plaintiffs’ constitutional
> challenge to “the Secretary's 1984 entry into the consent decrees” due to
> “the Pennsylvania legislature’s explicit delegation of authority to the
> Secretary of the Commonwealth to administer the state election scheme”).
>
>
> 3.  I understand the ISLD in the context of statutory interpretation as
> requiring deference to state court interpretations.  Not the type of
> absolute deference (if you'd even call it that) in the general Erie
> context.  But the type of substantial deference accorded in other contexts
> ranging from Chevron to habeas review.  There are all sorts of situations
> where the law calls upon a court to decide not just whether some other
> entity was wrong, but whether it was "clearly" wrong.  That's ostensibly a
> requirement for mandamus relief in many jurisdictions; it's also a key
> element of the qualified immunity test.  In looking at (the admittedly few)
> cases where courts have applied the ISLD as a matter of statutory
> interpretation prior to this election, it's usually from a posture of
> substantial deference.  They're not supposed to be re-interpreting state
> law completely de novo.  Rather, they're policing the outer bounds of the
> reasonable range of interpretation of state statutes that ostensibly have
> at least some limits on their universe of possibly legitimate meanings.
> For example, in addition to the statutory analysis in the cases cited
> above, in Miller v. Treadwell, 736 F. Supp. 2d 1240, 1243 (D. Alaska 2010),
> dealing with the meaning of a state law governing a U.S. Senate race, the
> district court held:
>
>
> Miller argues that "Federal courts have an independent obligation to
> interpret for themselves the actual meaning of a state legislature's
> enactments, without the usual deference to the State's administrative or
> judicial interpretations of them." While this may be true if the
> interpretation given is "contrary to 'the face' of the statute and
> [contrary to] the State's past practice," *the Alaska Supreme Court did
> not make a finding clearly contrary to the face of the statute *and its
> findings were entirely consistent with the State's past practice of making
> voter intent a priority.
>
>
> Of course, as some friends on this list have pointed out, any such
> deference standard is purely subjective, and in other contexts (like
> Chevron) can wind up being pretty weak.  But we trust federal courts to
> apply such deference in other contexts, and a stronger approach akin to
> that which applies for habeas or mandamus seems administrable.
>
> From a purely normative perspective, having some minimal level of outside,
> independent review by unelected judges as a safeguard to prevent at least
> some extreme cases of state courts completely re-writing statutes under the
> guise of interpretation doesn't seem totally unreasonable.  When such
> disputes arise, they often involve highly partisanly charged environments,
> where the candidates who will likely benefit from different rulings are
> known, and having an outside check may deter state courts from adopting
> wholly atextual interpretations based - whether intentionally or
> subconsciously - on partisan political preferences rather than a possible
> reasonable interpretation of the text.
>
>
> Finally, for what it's worth, the fact that the independent state
> legislature doctrine was successfully applied throughout the Nineteenth
> Century provides at least some reason to believe that it would not lead to
> major problems or complete Supreme Court domination of all state law issues
> in federal election disputes.
>
>
> For anyone who hasn't seen my piece, feel free to check out, "Partisan
> Gerrymandering and State Constitutions," forthcoming in the Georgia Law
> Review (though I've been urged to give it a broader new name, to reflect
> the fact that it's really about the Independent State Legislature
> Doctrine), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3530136
>
> Michael
>
> Michael T. Morley
> Assistant Professor of Law
> Florida State University College of Law
> (860) 778-3883
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Samuel Bagenstos <sbagen at gmail.com>
> *Sent:* Friday, October 30, 2020 9:38 AM
> *To:* Jonathan Adler <jha5 at case.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
>
> But where in Article II's use of the word "legislature" do we find the
> principle that state legislation must be read according to a textualist
> methodology?  More generally, what in Article II says that SCOTUS, rather
> than another entity, gets to decide what the "objectively discernible
> meaning" of state legislation is?  It seems to me that the very arguments
> that say that the state courts (or other state entities) can't decide this
> question mean that SCOTUS can't, either.
>
> On Fri, Oct 30, 2020 at 9:20 AM Jonathan Adler <jha5 at case.edu> wrote:
>
> I made no comment about the Eighth Circuit's decision.  I was merely
> responding to Sam's point.
>
> JHA
>
> Jonathan H. Adler
> jha5 at case.edu
>
> On Fri, Oct 30, 2020, 9:18 AM Marty Lederman <
> Martin.Lederman at law.georgetown.edu> wrote:
>
> As it happens, the statute in question *does *have a rather "objectively
> discernible" meaning, and it's one that *supports *the Secretary here.  Section
> 204B.47 provides: “When a provision of the Minnesota Election Law cannot
> be implemented as a result of an order of a state or federal court, the secretary
> of state *shall* adopt alternative election procedures to permit the administration
> of any election affected by the order.”
>
> The statutory receipt deadline here can't be implemented because of an
> order of a state court (the approval and entry of the consent decree), and
> therefore the Secretary was using a Nov. 10 deadline, in conformity with
> that court order, just as Section 204BB.47 *requires *him to do
> ("shall").  For a federal court to conclude that this reasonable (indeed,
> objectively discernible) state judicial and executive reading of a state
> statute is so unreasonable as to require an injunction, well, I'm not even
> sure how to describe that.
>
>
> On Fri, Oct 30, 2020 at 8:48 AM Jonathan Adler <jha5 at case.edu> wrote:
>
> Only if one concludes that the state statute lacks an objectively
> discernible meaning or range of permissible meanings.
>
>
> ----
> Jonathan H. Adler
> Johan Verheij Memorial Professor of Law
> Director, Coleman P. Burke Center for Environmental Law
> Case Western Reserve University School of Law
> 11075 East Boulevard
> Cleveland, OH 44106
> ph) 216-368-2535
> fax) 216-368-2086
> cell) 202-255-3012
> jha5 at case.edu
> SSRN: http://ssrn.com/author=183995
> <https://urldefense.com/v3/__http://ssrn.com/author=183995__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtkBJMzq0$>
> Blog: https://reason.com/people/jonathan-adler/
> <https://urldefense.com/v3/__https://reason.com/people/jonathan-adler/__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtuPwIQyE$>
> Web: http://www.jhadler.net
> <https://urldefense.com/v3/__http://www.jhadler.net__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtcEVta6o$>
>
>
>
>
> On Fri, Oct 30, 2020 at 8:28 AM Samuel Bagenstos <sbagen at gmail.com> wrote:
>
> Can I ask a naive question?  If SCOTUS is telling us that a state court or
> other state entity impermissibly deviated from a state statute, isn't
> SCOTUS violating Article II by displacing the role of the state
> legislature?  I think this Article II theory logically cannibalizes
> itself.  Not that logic means anything, especially.
>
> On Fri, Oct 30, 2020, 8:25 AM Lori A Ringhand <ringhand at uga.edu> wrote:
>
> It is striking to me how much these opinions (and the debate surrounding
> them) have surpassed even the three-justice plurality in *Bush v. Gore*.
> Justice Rehnquist's opinion in that case decidedly did not say that
> decisions of the state supreme court, the secretary of state, or the
> Florida canvassing boards were invalid simply because these bodies are not
> "the legislature." Instead, the opinion rested on the idea that the state
> supreme court's interpretation of state law was unreasonable and therefore
> exceeded its authority, *not *that the Constitution requires that it or
> any other of these entities need to be cut out of the regular state law
> process as a matter of course. The opinion even talks (approvingly) of how
> state law vests discretion over recounts in the canvassing boards, and how
> the state supreme court opinion deviated from established practice
> "prescribed by the Secretary."
>
> Lori A. Ringhand
> Fulbright Scotland Visiting Professor, University of Aberdeen
> J. Alton Hosch Professor of Law, University of Georgia
> Athens, GA 30601
>
> ringhand at uga.edu
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414
> <https://urldefense.com/v3/__http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Ttxgey2Js$>
>
>
> ------------------------------
> *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://urldefense.com/v3/__https://electionlawblog.org/?p=117784__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtjG5iC6A$>
>
> Posted on October 29, 2020 4:03 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117784__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtjG5iC6A$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> It is hard to know where to start with this opinion
> <https://urldefense.com/v3/__https://www.documentcloud.org/documents/7278436-8th-Circuit-Court-of-Appeals-MN-absentee-ballot.html__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Tt6iWEsUc$>.
> 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://urldefense.com/v3/__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__;IyUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJQ!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtstL0pcg$>
>
> Posted in absentee ballots
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=53__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Tt02TO5hI$>
>
>
>
>
> “How a fake persona laid the groundwork for a Hunter Biden conspiracy
> deluge”
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117781__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtE68TIj4$>
>
> Posted on October 29, 2020 3:35 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117781__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtE68TIj4$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> NBC News
> <https://urldefense.com/v3/__https://www.nbcnews.com/tech/security/how-fake-persona-laid-groundwork-hunter-biden-conspiracy-deluge-n1245387__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtVCgV_7k$>
> :
>
> *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://urldefense.com/v3/__https://www.nbcnews.com/tech/tech-news/inside-campaign-pizzagate-hunter-biden-n1244331__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtIk2jQBo$> to
> smear Hunter Biden and weaken Joe Biden’s presidential campaign, which
> moved from the fringes of the internet to more mainstream conservative news
> outlets.*
>
> *An unverified leak of documents including salacious pictures from what
> President Donald Trump’s lawyer, Rudy Giuliani, and Delaware Apple repair
> store owner claimed to be Hunter Biden’s hard drive were published in the
> New York Post on Oct. 14. Associates close to Trump, including Giuliani and
> former White House chief strategist Steve Bannon, have since promised more
> blockbuster leaks and secrets, which have yet to materialize.*
>
> *The fake intelligence document, however, preceded the leak by months and
> helped lay the groundwork among right-wing media for what would become a
> failed October surprise: a viral pile-on of conspiracy theories about
> Hunter Biden.*
>
> [image: Share]
> <https://urldefense.com/v3/__https://www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117781&title=**BHow*20a*20fake*20persona*20laid*20the*20groundwork*20for*20a*20Hunter*20Biden*20conspiracy*20deluge**B__;IyUlJSUlJeKAnCUlJSUlJSUlJSUlJeKAnQ!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtPZZxdhE$>
>
> Posted in cheap speech
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=130__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TttV9iuNw$>
> , chicanery
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=12__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtuFXUcLQ$>
>
>
>
>
> “Ruling Revision ‘Doesn’t Go Far Enough’, Vermont Secretary of State Tells
> Justice Kavanaugh”
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117779__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtdU1D-04$>
>
> Posted on October 29, 2020 3:33 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117779__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtdU1D-04$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> Jess Bravin
> <https://urldefense.com/v3/__https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-29/card/yw4eyads0C0mLKh5tfcJ__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtZc4BA-8$> 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://urldefense.com/v3/__https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-28/card/DPUm2bTc6zMFE7HPfyKS__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtHAUEVNY$> that
> originally said Vermont hadn’t changed its “ordinary election rules” in
> response to the coronavirus pandemic to state that it hadn’t changed its
> “ordinary election deadline rules,” after Mr. Condos complained that the
> justice overlooked a host of other measures the state took to help voters
> limit exposure to Covid-19.*
>
> *“I’m glad he admitted a mistake and modified his opinion, but a one-word
> addition doesn’t go far enough,” Mr. Condos, a Democrat, said Thursday. “I
> will not sit idly by while Justice Kavanaugh uses factually incorrect
> information about the Green Mountain State as cover to erode voting rights
> in the middle of a pandemic-distressed election.”*
>
> [image: Share]
> <https://urldefense.com/v3/__https://www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117779&title=**BRuling*20Revision*20**BDoesn**Bt*20Go*20Far*20Enough**C2C*20Vermont*20Secretary*20of*20State*20Tells*20Justice*20Kavanaugh**B__;IyUlJSUlJeKAnCUl4oCY4oCZJSUl4oCZJSUlJSUlJSXigJ0!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtO3hEQRI$>
>
> Posted in Uncategorized
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=1__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtdCNMaAY$>
>
>
>
>
> “How The 2020 Election Could End Up In The Courts”
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117777__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtijBEj7M$>
>
> Posted on October 29, 2020 3:31 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117777__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtijBEj7M$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> WMFE
> <https://urldefense.com/v3/__https://www.wmfe.org/how-the-2020-election-could-end-up-in-the-courts/167846__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtsUmRUF4$> talks
> to Ciara Torres-Spelliscy.
>
> [image: Share]
> <https://urldefense.com/v3/__https://www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117777&title=**BHow*20The*202020*20Election*20Could*20End*20Up*20In*20The*20Courts**B__;IyUlJSUlJeKAnCUlJSUlJSUlJeKAnQ!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtAd8SY98$>
>
> Posted in Uncategorized
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=1__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtdCNMaAY$>
>
>
>
>
> Ariane de Vogue and I Joined John King on CNN to Talk About Latest Supreme
> Court Rulings on Voting (Video)
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117775__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtbNLjEO4$>
>
> Posted on October 29, 2020 3:23 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117775__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtbNLjEO4$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> You can watch here:
> <https://urldefense.com/v3/__https://www.youtube.com/watch?v=-vKLik6Ptpc&feature=youtu.be__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Tty_pJRsw$>
>
> [image: Share]
> <https://urldefense.com/v3/__https://www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117775&title=Ariane*20de*20Vogue*20and*20I*20Joined*20John*20King*20on*20CNN*20to*20Talk*20About*20Latest*20Supreme*20Court*20Rulings*20on*20Voting*20(Video)__;IyUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSU!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtlhYpjBE$>
>
> Posted in Supreme Court
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=29__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Ttk27Q35Q$>
>
>
>
>
> “So, Russia, You Want to Mess With Our Voting Machines? The United States
> should threaten to retaliate — and I’m not talking about economic sanctions
> or legal indictments.”
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117773__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtkLybZMM$>
>
> Posted on October 29, 2020 2:47 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117773__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtkLybZMM$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> Tim Wu
> <https://urldefense.com/v3/__https://www.nytimes.com/2020/10/29/opinion/election-interference-russia-iran.html__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Tt6rLCYiM$> for
> NYT Opinion.
>
> I made the same point in Election Meltdown. An attack on our election
> infrastructure or power grid on Election Day should be seen as an act of
> war and declared that in advance by the President.
>
> [image: Share]
> <https://urldefense.com/v3/__https://www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D117773&title=**BSo*2C*20Russia*2C*20You*20Want*20to*20Mess*20With*20Our*20Voting*20Machines*3F*20The*20United*20States*20should*20threaten*20to*20retaliate*20**C20and*20I**Bm*20not*20talking*20about*20economic*20sanctions*20or*20legal*20indictments.**B__;IyUlJSUlJeKAnCUlJSUlJSUlJSUlJSUlJSUlJSUl4oCUJSXigJklJSUlJSUlJeKAnQ!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtiarCMf0$>
>
> Posted in Election Meltdown
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=127__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtKqHYBjA$>
>
>
>
>
> Why Did Justice Alito Not Address the Huge Standing Issue in Yesterday’s
> Pennsylvania Case?
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117766__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtphxR9gM$>
>
> Posted on October 29, 2020 12:09 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117766__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtphxR9gM$>
>  by *Rick Hasen*
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=3__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTIx08Bw$>
>
> Yesterday I wrote
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117673__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtGdfSyaI$> about
> the Supreme Court order in the Pennsylvania case and Justice Alito’s
> separate statement strongly suggesting the PA Supreme Court acted
> unconstitutionally in taking power away from the state legislature.
>
> It’s a controversial theory but I want to put that to one side and raise
> the point that the PA Legislature did not file this cert. petition nor did
> legislative leaders (who were on an earlier stay request, but not this
> cert. petition).
>
> Isn’t the lack of standing, which I flagged earlier
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=117413__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Tte4bL9_w$>,
> 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://urldefense.com/v3/__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**Bs*20Pennsylvania*20Case*3F__;IyUlJSUlJSUlJSUlJSUlJSUl4oCZJSUl!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_Tt-gdOgEE$>
>
> Posted in Uncategorized
> <https://urldefense.com/v3/__https://electionlawblog.org/?cat=1__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtdCNMaAY$>
>
> --
>
> 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/
> <https://urldefense.com/v3/__http://www.law.uci.edu/faculty/full-time/hasen/__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtXjJtEqI$>
>
> http://electionlawblog.org
> <https://urldefense.com/v3/__http://electionlawblog.org/__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtcHk2yx4$>
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
> <https://urldefense.com/v3/__https://department-lists.uci.edu/mailman/listinfo/law-election__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtcATV0BY$>
>
>
>
> --
> David Schultz, Distinguished University Professor
> Hamline University
> Department of Political Science and
> Department of Legal Studies
> 1536 Hewitt Ave
> MS B 1805
> St. Paul, Minnesota 55104
> 651.523.2858 (voice)
> http://davidschultz.efoliomn.com/
> <https://urldefense.com/v3/__http://davidschultz.efoliomn.com/__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtXMQd_os$>
> http://works.bepress.com/david_schultz/
> <https://urldefense.com/v3/__http://works.bepress.com/david_schultz/__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtVJy8f4s$>
> http://schultzstake.blogspot.com/
> <https://urldefense.com/v3/__http://schultzstake.blogspot.com/__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTaxb_OU$>
> Twitter:  @ProfDSchultz
> My latest book:  Presidential Swing States:  Why Only Ten Matter
>
> https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
> <https://urldefense.com/v3/__https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtdyXUh1I$>
> FacultyRow SuperProfessor, 2012, 2013, 2014
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
> <https://urldefense.com/v3/__https://department-lists.uci.edu/mailman/listinfo/law-election__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtcATV0BY$>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
> <https://urldefense.com/v3/__https://department-lists.uci.edu/mailman/listinfo/law-election__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtcATV0BY$>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
> <https://urldefense.com/v3/__https://department-lists.uci.edu/mailman/listinfo/law-election__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtcATV0BY$>
>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>
>
> --
> Samuel Bagenstos
> He/Him/His
> sbagen at gmail.com
> Twitter: @sbagen
> University of Michigan homepage:
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
> <https://urldefense.com/v3/__http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen__;!!PhOWcWs!hmIEYJiFyI4-WxllK52kJVo6Qq5kGjeOzNkjhq4lMN5hjdBH-yFiD_TtTFZTck8$>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20201030/9cf4ed32/attachment.html>