[EL] ELB News and Commentary 10/30/20

[Rick Hasen]

“Pa. Democrats enter the homestretch fearing the Supreme Court will throw out votes”<https://electionlawblog.org/?p=117860>
Posted on October 30, 2020 12:00 pm<https://electionlawblog.org/?p=117860> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer:<https://fusion.inquirer.com/politics/election/pennsylvania-mail-ballot-deadline-supreme-court-trump-biden-20201029.html>

Pennsylvania Democrats are increasingly alarmed that the U.S. Supreme Court might intervene to throw out mail ballots that arrive after Election Day, after three conservative justices on the high court this week held open the possibility of reversing a state court ruling<https://www.inquirer.com/politics/election/spl/pa-election-mail-ballots-us-supreme-court-denies-motion-republican-party-20201028.html> that extended the deadline for returning them<https://www.inquirer.com/politics/election/pennsylvania-mail-ballot-deadlines-state-supreme-court-ruling-20200917.html>.

Meanwhile, several Pennsylvania counties have said they won’t begin counting mail ballots until the day after Election Day, increasing the likelihood that early returns that night could give a misleading impression of the vote<https://www.inquirer.com/politics/election/2020-presidential-election-pa-voting-problems-20200628.html>, since Democrats are voting far more heavily by mail. In some counties, their votes may not begin being tallied until Nov. 4.

And the prospect of a long delay before a fuller picture of the results is known, Democrats fear, will open a window for Trump to prematurely declare victory as public perceptions harden around incomplete tallies.

Some Pennsylvania Democrats sound increasingly confident Joe Biden will have the votes to win the battleground state<https://www.inquirer.com/politics/election/pennsylvania-2020-presidential-election-trump-biden-20200908.html> — and with it, likely the presidency<https://fivethirtyeight.com/features/why-pennsylvania-could-decide-the-2020-election/>.

But one of Biden’s closest allies in Pennsylvania worried Thursday that an unrestrained President Donald Trump or a newly reshaped Supreme Court<https://www.inquirer.com/politics/election/amy-coney-barrett-pennsylvania-presidential-election-supreme-court-20201027.html> could dismiss or thwart ballots voters had cast under the current deadline, and potentially secure a second term for the president.

“That’s my number-one concern,” Sen. Bob Casey, one of Pennsylvania’s most senior Democrats and, like Biden, a Scranton native<https://www.inquirer.com/politics/election/joe-biden-scranton-roots-trump-fact-check-20200829.html>, said in an interview. “All of these ballot issues, whether it’s by way of litigation or by way of the president engaging in conduct that might be unlawful. He’s not constrained by the law, he’s not constrained by convention or deference to institutions.”

The U.S. Supreme Court, in deciding Wednesday not to fast-track a Republican effort to strike down the state Supreme Court’s ruling extending the deadline by three days, did not address the merits of the case — only whether it could be decided before Election Day.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Republican Party officials say they’re already looking to Pennsylvania, Minnesota and Nevada as likely battlegrounds for post-election lawsuits if the results are close.”<https://electionlawblog.org/?p=117858>
Posted on October 30, 2020 11:57 am<https://electionlawblog.org/?p=117858> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/republicans-post-election-day-litigation-cfa33b03-e312-479d-8e58-43758a7f2006.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Archived Video of Yesterday’s Terrific Election Law Panel Hosted by Ohio State Looking at What’s Ahead Next Week and What We’ve Been Through This Election Season<https://electionlawblog.org/?p=117856>
Posted on October 30, 2020 11:54 am<https://electionlawblog.org/?p=117856> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here<https://www.youtube.com/watch?v=U-D8AKKCzyw&feature=youtu.be>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Justice Kavanaugh Rejects Supreme Court Petition That Complained About Wisconsin Election Officials Accepting Private Funds to Offset the Cost of Running Elections During a Pandemic<https://electionlawblog.org/?p=117854>
Posted on October 30, 2020 11:52 am<https://electionlawblog.org/?p=117854> by Rick Hasen<https://electionlawblog.org/?author=3>

He did not<https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/20A75.html> refer it to the full Court.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Swing-state voters face major mail delays in returning ballots on time, USPS data shows”<https://electionlawblog.org/?p=117852>
Posted on October 30, 2020 11:49 am<https://electionlawblog.org/?p=117852> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/business/2020/10/30/postal-service-absentee-ballots-2020-election/>:

Over the past five days, the on-time rate for ballots in 17 postal districts representing 10 battleground states and 151 electoral votes was 89.1 percent — 5.9 percentage points lower than the national average. By that measure, more than 1 in 10 ballots are arriving outside the Postal Service’s one-to-three-day delivery window for first-class mail.

Those delays loom large over the election: 28 states will not accept ballots that arrive after Election Day, even if they are postmarked before. Continued snags in the mail system could invalidate tens of thousands of ballots across the country and could factor into whether President Trump or Democratic nominee Joe Biden captures crucial battleground states and, ultimately, the White House.

In Michigan, for example, the Detroit postal district<https://www.washingtonpost.com/politics/usps-detroit-mail-in-voting/2020/10/05/d9be084a-f786-11ea-89e3-4b9efa36dc64_story.html?itid=lk_inline_manual_8> — which includes some of the state’s largest concentrations of Black voters, who are crucial to Biden’s campaign — had delivered only 72.8 percent of ballots on time over the past five days, according to Postal Service data filed in U.S. District Court of the District of Columbia. In the Greater Michigan district, which represents the rest of the state, 84.3 percent of ballots arrived to election officials on time.

In North Carolina, 84.7 percent of ballots in the Greensboro district and 85.1 percent in the Mid-Carolinas district have been delivered on time in the past five days.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“‘It’s getting really bad’: Fake threats trigger fear for Spanish-speaking Trump backers”<https://electionlawblog.org/?p=117850>
Posted on October 30, 2020 11:46 am<https://electionlawblog.org/?p=117850> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/article246799572.html>

In private messaging apps and social media, Spanish-speaking residents in South Florida have been exposed to a barrage of deceptive claims — a voter disinformation tactic that could last until Election Day.

The latest example is an anonymous message that emerged in WhatsApp chats this week that threatens Spanish-speaking supporters of President Donald Trump. The claims have rattled some Hispanics in South Florida even as experts warn of the claims’ falsehoods.

The threat closely mirrors false, often racist and anti-Semitic, narratives peddled in local Spanish media where some hosts and political pundits have suggested a vote for former Vice President Joe Biden would mean supporting a violent takeover of the country.

Alternatively, recent intimidating messages suggest Trump supporters will become the target of crimes by an anonymous groupif the president loses and refuses to concede.

In South Florida, some Hispanic Trump supporters are taking those threats seriously, citing traumatizing violent experiences they’ve had in their home countries. This is concerning family members who are growing worried about the toll fake scams and unsubstantiated threats are taking on their relatives.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“Trump and Biden teams prep for once-outlandish election standoffs”<https://electionlawblog.org/?p=117848>
Posted on October 30, 2020 11:44 am<https://electionlawblog.org/?p=117848> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico reports.<https://www.politico.com/news/2020/10/30/trump-biden-election-scenarios-433663?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Election Day Giveaways Steer Toward the Right Side of the Law”<https://electionlawblog.org/?p=117845>
Posted on October 30, 2020 11:42 am<https://electionlawblog.org/?p=117845> by Rick Hasen<https://electionlawblog.org/?author=3>

Bryon Tau<https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-30/card/Ag7pzgu79eW5Z5ZMSk28> for the WSJ:

Some of America’s largest corporations have finally gotten the memo that election-season giveaways requiring proof of voting are actually illegal under federal law.

It’s an issue that recurs with every election: Companies ranging from national brands to small businesses see an opportunity to both promote themselves and a civic cause by offering discounts or freebies to people with an “I Voted” sticker.

But such giveaways run afoul of federal prohibitions on providing incentives or inducements to vote—a longstanding anticorruption measure designed to facilitate clean elections. Such prohibitions are rarely if ever enforced against corporations offering discounts or freebies to voters doing their civic duty, but they remain on the books.

This year many national chains are keeping their giveaways on the right side of the law by making them available to voters and non-voters alike….

Rick Hasen, a law professor at University of California, Irvine, and perhaps the foremost chronicler of such lawbreaking in recent election cycles, appeared surprised at how many national chains have gotten the message.

“I feel like now I can retire. Looks like all of these Election Day giveaways do *not* require proof of voting (such proof runs into the federal law against inducements to vote, but have been common in earlier elections),” he wrote on Twitter<https://twitter.com/rickhasen/status/1321889235276718081> this week.
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Posted in vote buying<https://electionlawblog.org/?cat=43>


“While it is unlikely you’ll get coronavirus from your polling place, experts have a few tips to avoid transmission”<https://electionlawblog.org/?p=117840>
Posted on October 30, 2020 9:38 am<https://electionlawblog.org/?p=117840> by Richard Pildes<https://electionlawblog.org/?author=7>

Important Salon article, glad to see one of my co-authors <https://www.politico.com/news/magazine/2020/08/20/cdc-guidelines-polling-places-missing-398583> quoted:

“I do think it’s safe to vote in person,” Dean Blumberg, an associate professor in the Department of Pediatrics at the University of California–Davis, told Salon. “I think for most voting situations, the interactions that you’re going to have with people where you’re not gonna be socially distanced will be brief, and then wearing a mask when you are close to other people provides an extra layer of protection for when you have to be close to other people.”

The greatest risk, de  St. Maurice said, is not when you’re actually voting in the polling place, but when you’re waiting in line.

“If that line is indoors, that’s probably the scenario where people might be closer together, and waiting in line for a long amount of time,” she said. “But I think if people can maintain a physical distance, if everyone is wearing a mask, and if ventilation is increased, meaning that people are maybe outdoors or there’s adequate ventilation in the polling place, those risks are really reduced.”

Blumberg said for situations where you have to break social distancing, like when you’re grabbing a ballot from the poll worker, that exchange will be so brief that the risk is low of getting infected even if one of you is asymptomatic—assuming you’re both wearing masks.

Exposure to the coronavirus isn’t a black-and-white situation, scientists say. Specifically, being exposed to the coronavirus is not the sole risk<https://www.salon.com/2020/09/08/people-who-wear-face-masks-become-less-sick-if-they-do-contract-coronavirus-researchers-find/>, but rather how much<https://www.salon.com/2020/09/08/people-who-wear-face-masks-become-less-sick-if-they-do-contract-coronavirus-researchers-find/> of the virus one encounters. Those who inhale more viral particles, either because they’re not masked or are in the presence of an infected person longer, are at higher risk.

Another simulation<https://arxiv.org/pdf/2004.13553.pdf> showed that when at a minimum 80 percent of a population is masked, the risk of transmission is greatly reduced.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The list of COVID-19 election cases hits 325<https://electionlawblog.org/?p=117837>
Posted on October 30, 2020 9:21 am<https://electionlawblog.org/?p=117837> by Justin Levitt<https://electionlawblog.org/?author=4>

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 325<https://electionlawblog.org/?p=111962>. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database<https://healthyelections-case-tracker.stanford.edu/cases> of these cases, with more info. And Josh Douglas<https://twitter.com/JoshuaADouglas/status/1322030414878380032?s=20> is separately tracking just the federal appeals, to see how they shake out.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be a good case or a shoddy one, or a “big” case or a “small” one — and some can be both at the same time. (The Eighth Circuit’s ruling Rick rightly called “outrageous”<https://electionlawblog.org/?p=117784> is probably a small case with respect to the number of ballots it will ultimately impact, and a giant case when it comes to the legal questions at issue). And some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September. and October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for increasingly localized relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have still been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here<https://electionlawblog.org/?p=111962>, please let me know.
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Posted in court decisions<https://electionlawblog.org/?cat=129>, election administration<https://electionlawblog.org/?cat=18>, election law and constitutional law<https://electionlawblog.org/?cat=55>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Lingering Mail Problems Worry Voters in Final Week of Election”<https://electionlawblog.org/?p=117834>
Posted on October 30, 2020 8:26 am<https://electionlawblog.org/?p=117834> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports<https://www.nytimes.com/2020/10/29/us/politics/post-office-mail-voting-2020-election.html>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


I Talked to the LA Review of Books About My Book, Election Meltdown and Our Current Mess<https://electionlawblog.org/?p=117832>
Posted on October 30, 2020 8:23 am<https://electionlawblog.org/?p=117832> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch the interview here<https://lareviewofbooks.org/av/rick-hasen/>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Guy Charles Keynote Speech: “The Vote: Reimagining What It Could Be”<https://electionlawblog.org/?p=117830>
Posted on October 30, 2020 7:40 am<https://electionlawblog.org/?p=117830> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.youtube.com/watch?v=oUrVOgjXDqE>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The unseen machine pushing Trump’s social media megaphone into overdrive”<https://electionlawblog.org/?p=117828>
Posted on October 30, 2020 7:07 am<https://electionlawblog.org/?p=117828> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/technology/2020/10/30/trump-twitter-domestic-disinformation/>

President Trump launched into a tweetstorm in April, banging out nine retweets of the Centers for Disease Control’s account on the dangers of misusing disinfectant and other topics — two days after he himself had suggested that people could inject themselves with bleach to cure covid-19.

But those tweets spread in an odd pattern: More than half the 3,000 accounts retweeting Trump did so in near-perfect synchronicity, so that the 945th tweet was the same number of seconds apart as the 946th, University of Colorado information science professor Leysia Palen found.

The unusual finding underscores some of the little-known ways in which Trump’s social media army — composed of devoted followers and likely assistance from software that artificially boosts his content — has helped him develop one of the world’s most powerful political megaphones, unlike any other in the English-speaking world.AD

That megaphone has become a frequent source of misinformation, some of it so toxic that Harvard researchers recently dubbed<https://www.washingtonpost.com/lifestyle/media/trump-doesnt-need-russian-trolls-to-spread-disinformation-the-mainstream-media-does-it-for-him/2020/10/06/9612d602-07da-11eb-9be6-cf25fb429f1a_story.html?itid=lk_inline_manual_8> attacks on mail-in voting by Trump and right-leaning leaders “a highly effective disinformation campaign with potentially profound effects … for the legitimacy of the 2020 election.”

Trump’s singular ability to spread his messages, often disseminating false or unsubstantiated information, comes from his prominence as president and the relentless clip of his tweeting to his 87 million followers. He is also aided by a vital feedback loop — often discussed but poorly understood — among the president, high-profile influencers and rank-and-file followers that both push messages in his direction and promote every online utterance.

His feedback loop, according to several new and forthcoming studies, has become a leading threat to the integrity of political debate in the United States, with an impact that to date appears far more damaging than the efforts of Russian operatives or other foreign adversaries.

A study released Thursday by the Election Integrity Partnership<https://www.eipartnership.net/rapid-response/repeat-offenders>, a consortium of misinformation researchers, found that just 20 conservative, pro-Trump Twitter accounts — including the president’s own @realDonaldTrump — were the original source of one-fifth of retweets pushing misleading narratives about voting.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


“Texas legal battles highlight how the 2020 election is being fought in the courts”<https://electionlawblog.org/?p=117826>
Posted on October 30, 2020 6:58 am<https://electionlawblog.org/?p=117826> by Rick Hasen<https://electionlawblog.org/?author=3>

Guy Charle<https://www.nbcnews.com/think/opinion/texas-legal-battles-highlight-how-2020-election-being-fought-courts-ncna1244306>s NBC oped:

We turn to courts to help us address deficiencies in voting rules that are really not designed to stand up under any type of pressure, whether it is the pressure of close elections or the pressure of a pandemic, much less the pressure of both a close election and a pandemic. But the courts cannot help us; they are just as divided as we are. If we want elections to be decided at the ballot box and not in the courthouse, we need to save ourselves by passing laws that make it easier for voters to vote — and not harder.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Why there’s so much legal uncertainty about resolving a disputed presidential election”<https://electionlawblog.org/?p=117823>
Posted on October 30, 2020 6:04 am<https://electionlawblog.org/?p=117823> by Richard Pildes<https://electionlawblog.org/?author=7>

I’ve published this essay, which steps back from all the specific legal issues surrounding the election to bring to the surface an underlying question about why our legal system leaves us so much uncertainty about such vital questions.

From The Conversation<https://theconversation.com/why-theres-so-much-legal-uncertainty-about-resolving-a-disputed-presidential-election-146960>:

As I’ve Zoom-traveled the country speaking about legal issues involving the election, I have found myself, as well as audiences, bewildered and frustrated by one underlying question: Why is there so much legal uncertainty about so many critical questions concerning the rules for resolving a disputed presidential election?

If ever a need existed for clear legal rules established in advance, before we know whose ox will be (Al) Gored<https://www.oyez.org/cases/2000/00-949>, that situation is it….

After a decade of deliberations, Congress bequeathed the Electoral Count Act<https://www.law.cornell.edu/uscode/text/3/15> in 1887, designed to provide the framework, which still governs today, for how Congress should deal with a state that certifies two or more slates of electors.

Yet for all that deliberation – or maybe because of it – the Electoral Count Act is still riddled with major legal uncertainties. So are other federal statutes that govern the election….

But what if – more relevant this year, perhaps – a state cannot quickly enough to determine who has won the vote? That means reaching a final resolution, including any litigation that could affect the outcome, by the time the Electoral College must vote on Dec. 18. Can a legislature assert the election has “failed,” step in and directly appoint the electors itself? Yet the act contains no definition or examples of a “failed” election.

That is a rather large question to leave up in the air….

Now the courts enter the picture – or more accurately, this is where you might expect the courts to enter the picture. But they don’t.

If the courts had given a definitive interpretation of what it means for an election to have “failed,” there would be a settled meaning of this term and other unresolved ones, in this law and others, in advance of the election.

The Supreme Court has also never interpreted the Electoral Count Act<https://www.reuters.com/article/us-usa-election-contested-scenarios-expl/explainer-what-happens-if-the-u-s-election-is-contested-idUSKBN2781FS>. Nor will there be any ruling on what a “failed” election means before the moment when Americans actually face potentially explosive political conflicts over exactly that issue.

The reason is that our federal courts, unlike those in some states<https://www.jstor.org/stable/3480723?seq=1> and other constitutional democracies, will not address any legal issue unless it arises in the middle of what’s termed an actual “case or controversy<https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/section/203>.” Though this principle rests on a thin historical foundation<https://www.yalelawjournal.org/pdf/a.1346.Birk-Pfander.1474_kipgyf2m.pdf>, it is as deeply embedded in American legal doctrine as any principle.

In legal terms, the federal courts will not issue advisory opinions.<https://www.law.cornell.edu/wex/controversy> That means federal courts will refuse to answer any question in the abstract about the legal meaning of a statute, including whether the statute is even constitutional, no matter how important it might be to have clear guidance on what those laws mean.

This principle is conventionally described as a way of limiting the role of federal courts in American democracy. Courts will resolve disputes over the meaning of law only when they absolutely must enter the fray. The “case or controversy” constraint<https://www.law.cornell.edu/wex/controversy> is also linked to proper respect for the separation of powers.

But as this election and many other contexts illustrate, this doctrine can also be dangerous for the country, as well as the courts themselves. The last time Americans want to discover the proper meaning of laws like the Electoral Count or Presidential Election Day acts<https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/5/STATUTE-5-Pg721a.pdf> is precisely in the midst of an actual controversy over who will become president.

At that moment, the courts are no longer operating behind a veil of ignorance, which would mean they were blind to any knowledge of who would benefit. They will be aware of which candidate is more likely to benefit from a ruling one way or the other.

Worse than that, even if the courts decide that question in exactly the same way they would behind that veil, the half of the country whose candidate loses will almost certainly perceive the courts as having acted for the purpose of favoring that candidate. That is almost inevitable, as I said at the time<https://www.ucpress.edu/book/9780520235496/the-longest-night#table-of-contents> of Bush v. Gore<https://www.oyez.org/cases/2000/00-949>.

One major purpose of a well-constructed legal regime is to provide a clear framework in advance for resolving contentious issues. Being in conflict about the very content of those rules, at the same time we are trying to apply them to resolve those issues, is sure to make these conflicts all the more divisive.

The country does not want to be debating how long the term of office for a president ought to be at the same time it is choosing a president, which is why the Constitution specifies the four-year term.

But to settle the meaning of many rules on the books, judicial interpretation is required. Yet that is exactly what the “case or controversy” requirement precludes – until we are in the midst of that controversy.

This is why audiences I talk to are frustrated at discovering that legal experts offer conflicting views, or give “on the one hand, on the other hand” answers to questions about exactly how a disputed election might arise and be resolved. In the name of limiting their own power, the federal courts leave us at sea until the boat is nearly capsizing.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Supreme Court shouldn’t decide voting cases. It keeps getting them wrong.”<https://electionlawblog.org/?p=117820>
Posted on October 30, 2020 5:09 am<https://electionlawblog.org/?p=117820> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

This is a piece I’ve written for the Washington Post<http://The%20Supreme%20Court%20shouldn%E2%80%99t%20decide%20voting%20cases.%20It%20keeps%20getting%20them%20wrong./> on the Court’s choice to decide so many “shadow docket” election cases.

But the court didn’t have to resolve any of these voting disputes. And it shouldn’t have resolved them. By intervening so often, the Supreme Court has become a body that corrects perceived lower-court errors, not one that decides major legal issues. By stepping in without explaining its actions, it has tarnished its institutional legitimacy. And by proceeding in haste, the court has made factual and legal mistakes — bad, not just unnecessary, law. . . .

Maybe these sorts of rulings — rushed and unreasoned — could be excused if the court had no choice but to act. But the Supreme Court has complete discretion whether to intervene. No law or rule compels it to grapple with the merits of every emergency application that lands at its doorstep. Just as the court denies thousands of cert petitions each year, it could reject litigants’ requests that it overrule lower-court decisions about electoral matters. Such rejections would carry no precedential weight and would not interfere with the law’s future evolution.

Moreover, the court’s choice to cram its shadow docket with electoral cases has serious negative consequences. One is to reshape the court’s role atop the judicial hierarchy. “We are not . . . a court of error correction,” Justice Antonin Scalia once wrote<https://www.law.cornell.edu/supremecourt/text/13-1412#writing-13-1412_CONCDISS_4>. Rather, as the court’s rules<https://www.supremecourt.gov/ctrules/2019RulesoftheCourt.pdf> confirm, its function is to resolve “important question[s] of federal law.” But no one would say that all of the electoral issues the court has recently addressed are legally important. None have involved disagreements among the federal circuits. Most have focused on the application of the well-established<https://caselaw.findlaw.com/us-supreme-court/460/780.html> standard<https://caselaw.findlaw.com/us-supreme-court/504/428.html> for when electoral regulations unjustifiably burden the right to vote. Whether this standard is violated by early mail-in ballot deadlines, witness requirements for mail-in ballots and so on is practically significant for voters and election officials. But legally, this is just a matter of whether a particular policy fails a test that’s not in dispute. Lower courts make these judgments all the time without anyone thinking their conclusions warrant Supreme Court review. By nevertheless granting review, over and over, the court has become exactly what it professes not to be: a tribunal that fixes the lower courts’ supposed mistakes, even when they implicate no larger legal principle.

The court’s failure to explain itself in many of its pandemic-era cases makes matters worse. Above all, the court owes its legitimacy to the reasons<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1518006> it generally gives for its decisions. These reasons show all sides that their arguments have been carefully considered. These reasons are also what make the court’s decisions law — the product of accepted modes of legal analysis — and not merely acts of will. When the court’s rulings are unreasoned, however, they don’t command the same respect. They don’t demonstrate to litigants that their concerns have been heard. And to the public, they seem more like exercises of political power than of judicial deliberation. This impression is all the more damaging when the court’s rulings almost all come out the same way: in favor of states that make it hard for their citizens to vote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“In Voting Cases, Chief Justice Roberts Is Alone but in Control”<https://electionlawblog.org/?p=117800>
Posted on October 29, 2020 8:03 pm<https://electionlawblog.org/?p=117800> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak<https://www.nytimes.com/2020/10/29/us/john-roberts-supreme-court-voting.html?smid=em-share> for the NYT:

In a little over a week, the Supreme Court issued five sets of orders in election cases. In three of them, Democrats prevailed.

Chief Justice John G. Roberts Jr. wrote an opinion<https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf> in only one of the cases, and it was only a paragraph long. It sketched out a distinction that no other justice endorsed. But that distinction can explain every one of the court’s orders.

The distinction pressed by the chief justice was this: Federal courts should not change voting procedures enacted by state legislatures, and they also should not step in when state courts or agencies change those procedures.

The something-for-both-sides approach is broadly similar to Chief Justice Roberts’s recent record, in which he voted with the court’s liberals in cases on gay rights, immigration and abortion; joined the court’s conservatives in major cases on religion; and wrote the majority opinions in cases on subpoenas seeking President Trump’s financial records that rejected his broadest claims but did not require immediate disclosures.

Chief Justice Roberts’s deft judicial work last term meant that he was in the majority<https://www.nytimes.com/2020/07/10/us/supreme-court-term.html> in divided decisions at a higher rate than any chief justice since at least 1953. Scholars debated whether that was evidence of principle or pragmatism, noting that the chief justice has tried hard to shield the court from charges that it is a political body.

In the election cases, too, the chief justice’s rationale staked out a middle ground, one that was consistent with conservative ideas about federalism even as the court’s other members seemed to take all-or-nothing approaches. The court’s more liberal members said the right to vote was important enough to justify letting federal judges alter state election rules. And its more conservative ones said the Constitution prohibits all changes to voting rules enacted by state legislatures, even ones supported by state courts or state officials.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


Michigan: “Court of Appeals upholds halt to Benson’s open carry ban at Michigan’s polls”<https://electionlawblog.org/?p=117798>
Posted on October 29, 2020 7:58 pm<https://electionlawblog.org/?p=117798> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News reports<https://www.detroitnews.com/story/news/politics/2020/10/29/appeals-court-upholds-halt-bensons-open-carry-ban-michigan-polls/6067966002/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Supreme Court has remained surprisingly centrist on voting rights. That’s a pleasant surprise.” (Ned Foley)<https://electionlawblog.org/?p=117796>
Posted on October 29, 2020 7:55 pm<https://electionlawblog.org/?p=117796> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley in WaPo<https://www.washingtonpost.com/opinions/2020/10/29/supreme-court-has-remained-surprisingly-centrist-voting-rights-thats-pleasant-surprise/>:

The center holds at the Supreme Court in voting cases<https://www.washingtonpost.com/politics/courts_law/supreme-court-pennsylvania-mail-ballots/2020/10/28/fe78439a-1936-11eb-82db-60b15c874105_story.html?itid=lk_inline_manual_2>, at least for now, and that is a very good thing.

In rulings from the presidential battlegrounds of Wisconsin, Pennsylvania and North Carolina, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh held the balance of power between two trios of justices on their left and right. The pair steered the court to a sensible centrist position on the enforcement of voting rules heading into Election Day. (Justice Amy Coney Barrett, the court’s new member, did not participate in any of these decisions.)
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Why Pennsylvania’s Vote Count Could Change After Election Night” (Get Ready for Trump to Be Ahead in PA on Election Night Even if Biden Ultimately Wins)<https://electionlawblog.org/?p=117792>
Posted on October 29, 2020 7:51 pm<https://electionlawblog.org/?p=117792> by Rick Hasen<https://electionlawblog.org/?author=3>

538:<https://fivethirtyeight.com/features/why-pennsylvanias-vote-count-could-change-after-election-night/?ex_cid=story-twitter>

So what would this mean if something similar happened on election night in Pennsylvania? Well, if we use what our presidential forecast currently says about the race in Pennsylvania,<https://projects.fivethirtyeight.com/2020-election-forecast/pennsylvania/> we can game this out a little to understand what the vote count might look like on Nov. 3. We should be clear, though, that this analysis has its limits. We can’t know for sure how many Pennsylvanians will actually vote in November or the pace and trend of the count. Not to mention, counting the votes in two separate primaries is different from counting the votes in one presidential contest.

Right now, our forecast estimates that about 6.8 million votes will be cast in Pennsylvania, on average, and the average popular vote result gives Biden about a 5-point edge over Trump, 52 percent to 47 percent. If that panned out, that means Biden would win about 3.6 million votes to Trump’s 3.2 million (with a few additional votes for other candidates). And if the vote count followed what we saw in the primary, less than half of Biden’s votes would be in by 3 a.m. on election night, whereas around 70 percent of Trump’s would be reported.

That means we could be looking at a situation where Trump has about a 16-point lead, 58 percent to 42 percent, based on approximately 60 percent of the total expected vote. But over the course of the next few days — again, assuming the same pattern we observed in the primary — Biden would win two-thirds of the remaining votes, which would precipitate a 21-point shift in the overall margin from 3 a.m. on election night to the final result, as the chart below shows.

Now, it’s entirely possible the actual shift isn’t as large as the one outlined above. After the primary, local election officials in Pennsylvania now have some experience in handling a huge number of mail ballots. The state has also made investments to expedite the vote count<https://www.inquirer.com/politics/election/counting-pennsylvania-mail-ballots-equipment-20200919.html>. Plus, a sizable share of mail ballots will have already been turned in by Election Day, so administrators could have the majority of all mail votes when they begin processing them on Election Day morning. Pennsylvania officials also want to make sure that voters aren’t surprised by a sizable vote shift so plan to be as transparent as possible. Secretary of State Kathy Boockvar has said she will call on county election officials<https://www.mcall.com/news/elections/mc-nws-pa-election-count-could-take-days-boockvar-20200923-ecku2oqgszgtjapk6oz4vlkpua-story.html> to regularly report the progress in counting mail ballots, instead of reporting them all at once, to avoid a huge swing in the vote that might cause confusion. And she’d also like the state to share how many ballots are left to count, where they are in the counting process and the party affiliation of the voters who cast those remaining votes.

Still, we’re talking about a lot of votes that have to be processed. Just 2.7 million people cast ballots in Pennsylvania’s presidential primary<https://www.electionreturns.pa.gov/Home/SummaryResults?ElectionID=83&ElectionType=P&IsActive=0>, about 40 percent of the total turnout we’re expecting in the general election. In fact, more people have requested mail ballots than voted in Pennsylvania’s presidential primary, period. That means even if officials are better prepared, they will still have far more mail ballots to process than in June. And while they can begin processing at 7 a.m. on Nov. 3, that still means verifying and processing each ballot, and only then counting each vote. This could take days, which could affect how quickly we know who won the election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Trump Plan for Legislatures to Appoint Electors Would Be a Blatant Attack on Democracy”<https://electionlawblog.org/?p=117790>
Posted on October 29, 2020 7:35 pm<https://electionlawblog.org/?p=117790> by Rick Hasen<https://electionlawblog.org/?author=3>

David Gans <https://slate.com/news-and-politics/2020/10/trump-plan-legislature-appoint-electors-end-democracy.html> for Slate.
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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