[EL] ELB News and Commentary 10/31/20

[Rick Hasen]

“In Florida, voters of color and young voters have had ballots flagged for possible rejection at higher rates than others”<https://electionlawblog.org/?p=117921>
Posted on October 31, 2020 3:19 pm<https://electionlawblog.org/?p=117921> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/florida-rejected-ballots/2020/10/30/0bba976a-186f-11eb-befb-8864259bd2d8_story.html>:

As Floridians rush to vote in the presidential election, mail ballots from Black, Hispanic and younger voters are being flagged for problems at a higher rate than they are for other voters, potentially jeopardizing their participation in the race for the country’s largest battleground state.Follow the latest on Election 2020<https://www.washingtonpost.com/elections/?itid=lk_interstitial_hub_election>

The deficient ballots — which have been tagged for issues such as a missing signature — could be rejected if voters do not remedy the problems by 5 p.m. Nov. 5.

As of Friday, election officials had set aside ballots from Black and Hispanic voters at two times the rate of ballots from White voters, according to an analysis by University of Florida political science professor Daniel Smith. For people younger than 24, the rate was more than four times what it was for those 65 and older.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Judges nominated by President Trump play key role in upholding voting limits ahead of Election Day”<https://electionlawblog.org/?p=117919>
Posted on October 31, 2020 3:14 pm<https://electionlawblog.org/?p=117919> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2020/10/31/trump-judges-voting-rights/?arc404=true>

Federal judges nominated by President Trump have largely ruled against efforts to loosen voting rules in the 2020 campaign amid the coronavirus<https://www.washingtonpost.com/coronavirus/> pandemic and sided with Republicans seeking to enforce restrictions, underscoring Trump’s impact in reshaping the judiciary.

An analysis by The Washington Post found that nearly three out of four opinions issued in federal voting-related cases by judges picked by the president were in favor of maintaining limits. That is a sharp contrast with judges nominated by President Barack Obama, whose decisions backed such limits 17 percent of the time….

Trump nominees have not uniformly sided with Republicans. But many have ruled in favor of the GOP in major cases involving rules about mail voting, ballot deadlines and signature requirements that have affected millions of Americans, many of whom are casting votes by mail for the first time<https://www.washingtonpost.com/graphics/2020/politics/vote-by-mail-states/> because of concerns about the health risks of in-person voting….

A Trump nominee also joined the majority in a Tennessee case in October to uphold signature-match rules for mail ballots<https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0331p-06.pdf>. That decision, rejecting a challenge from voting rights groups, drew a sharp dissent from Judge Karen Nelson Moore, a nominee of President Bill Clinton. She broadly criticized her judicial colleagues throughout the country, listing a series of cases in which she said courts “have sanctioned a systematic effort to suppress voter turnout and undermine the right to vote.”

“Many courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts’ foundational role in ensuring democracy’s function, and a betrayal to the persons that wish to participate in it fully,” Moore wrote.

“On its own, today’s ruling may not—likely will not—change the course of this election. But it is another drop in the bucket that is the degradation of the right to vote in this country. … I fear the day we come out from behind the courthouse doors only to realize these drops have become a flood.”

Nationally, the number of election-related lawsuits has nearly tripled in the years since the contested 2000 presidential election and Supreme Court decision in Bush v. Gore, according to Richard L. Hasen, an election law expert and professor at the University of California at Irvine School of Law who has tracked related litigation since 1996. The massive increase in legal action this cycle, more than 300 cases so far<https://healthyelections-case-tracker.stanford.edu/>, is driven largely by coronavirus-related challenges to existing restrictions or to changes in the rules designed to make it easier to vote by mail because of the risks associated with in-person voting during a pandemic.

Trump has repeatedly claimed without evidence<https://www.washingtonpost.com/politics/minuscule-number-of-potentially-fraudulent-ballots-in-states-with-universal-mail-voting-undercuts-trump-claims-about-election-risks/2020/06/08/1e78aa26-a5c5-11ea-bb20-ebf0921f3bbd_story.html> that there is a heightened risk of fraud with mail ballots and wrongly suggested again this week that it would be illegal for states to count ballots received after Election Day.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


GZERO Podcast: “Podcast: What could go wrong in the US Election? Rick Hasen on nightmare scenarios and challenges”<https://electionlawblog.org/?p=117917>
Posted on October 31, 2020 3:05 pm<https://electionlawblog.org/?p=117917> by Rick Hasen<https://electionlawblog.org/?author=3>

Good conversation<https://www.gzeromedia.com/gzero-world-podcast/what-could-go-wrong-in-the-us-election-rick-hasen-on-nightmare-scenarios-and-challenges-podcast> with Ian Bremmer.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“The absurd legal theory conservative judges are using to restrict voting”<https://electionlawblog.org/?p=117915>
Posted on October 31, 2020 3:03 pm<https://electionlawblog.org/?p=117915> by Rick Hasen<https://electionlawblog.org/?author=3>

Neal Katyal and Josh Geltzer for WaPo<https://www.washingtonpost.com/outlook/2020/10/30/conservative-judges-voting-theory/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


North Carolina: “Police use pepper-spray on protesters — including children — marching to Alamance polls”<https://electionlawblog.org/?p=117913>
Posted on October 31, 2020 2:58 pm<https://electionlawblog.org/?p=117913> by Rick Hasen<https://electionlawblog.org/?author=3>

News and Observer:<https://www.newsobserver.com/news/local/article246861942.html>

Alamance County sheriff’s deputies and Graham police pepper-sprayed people — including a 5-year-old girl and other children — who were participating in the “I Am Change” march to the polls on Saturday afternoon.

A racially diverse group of about 200 people walked with a police escort from Wayman’s Chapel AME Church to Court Square, where they held a rally encouraging people to vote. The event was organized by Rev. Greg Drumwright, a Burlington native who leads the the Citadel Church in Greensboro, according to his website<https://www.gregdrumwright.com/about>….

In a statement released Saturday evening, Graham police said Drumwright and the marchers hadn’t followed proper procedures for holding the event. The department said that it warned the group that it would not be allowed to close the road, said Daniel Sisk, a public information officer for the Graham police.

The department defended its use of pepper spraying, by saying, “[T]he assembly reached a level of conduct that led to the rally being deemed unsafe and unlawful by unified command.”

The protests did not appear to disrupt the last day of early voting in the city, according to the State Board of Elections. “We’re still gathering information but it appears that voting has continued and hasn’t been interrupted,” Patrick Gannon, spokesman for the State Board of Elections, told The News & Observer.

But many who were marching may not have reached the polls.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“With Election Day looming, an anxious nation hears rumblings of violence”<https://electionlawblog.org/?p=117911>
Posted on October 31, 2020 2:53 pm<https://electionlawblog.org/?p=117911> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/fear-of-election-violence/2020/10/30/5b4f5314-17a3-11eb-befb-8864259bd2d8_story.html>

On the eve of a presidential election fraught with tension, warning flares are bursting across American skies. From federal and local law enforcement to analysts who track radical groups, concern is high about the possibility that violence could erupt, especially if the vote count drags on for days without a clear winner.

The signals are disturbing: A sharp increase in gun sales. A spike in chatter about civil war in online forums where right-wing extremists gather. An embrace of violent language by President Trump and other leaders. And surveys showing an increased willingness by some Americans to see violence as an acceptable tool against political opponents.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Trump Made It Clear He Wants The Supreme Court To Shut Down Vote Counting After Election Day”<https://electionlawblog.org/?p=117908>
Posted on October 31, 2020 2:51 pm<https://electionlawblog.org/?p=117908> by Rick Hasen<https://electionlawblog.org/?author=3>

BuzzFeed:<https://www.buzzfeednews.com/article/kadiagoba/trump-supreme-court-election-day-votes>

President Donald Trump, in his last sprint of rallies before Election Day, is aggressively accelerating his campaign to spread distrust in the US election and legal systems, laying the groundwork for a potential effort to stop counting votes after Nov. 3.

“The whole world, and our nation, is going to be waiting, and waiting, and waiting to hear who won? You’re going to be waiting for weeks?,” Trump asked a crowd of supporters Saturday morning in Bucks County, Pennsylvania.

There has been a giant spike in early and mail-in voting nationwide because of the coronavirus pandemic, particularly — polls suggest<https://fivethirtyeight.com/features/bidens-supporters-appear-way-more-likely-to-vote-by-mail-than-trumps-that-could-make-for-a-weird-election-night/>, among Democrats. Because of how some key states like Pennsylvania count votes, that might mean that the election winner is not determined on election night<https://www.buzzfeednews.com/article/addybaird/what-will-happen-election-night-results>, and it could mean that some states that count absentee ballots late may show initial results that have Trump winning, only for Joe Biden to overtake him as more votes come in. There’s nothing about that that would suggest fraud or illegality, and it’s not unusual for some states to take days to finalize a vote count. Trump, though, is now loudly insisting otherwise.

He repeatedly blamed the Supreme Court, which earlier this week denied<https://www.buzzfeednews.com/article/zoetillman/supreme-court-pennsylvania-mail-in-ballot-deadline> Pennsylvania Republicans’ request to issue a decision on mail-in ballots before the election, punting the issue. That denial means that Pennsylvania can still count ballots that are postmarked by Election Day as long as they arrive by Nov. 6; Republicans had sued to stop them from counting anything that arrives after Nov. 3.

“This is a terrible thing they’ve done to our country. And that’s the United States Supreme Court I’m talking about. That is a terrible, political, horrible decision that they made. We’re going to be waiting, Nov. 3 is going to come and go and we’re not going to know,” Trump said. “And you’re going to have bedlam in our country, and you’re going to have this period of nine days or seven days or whatever it is, and many bad things — ballots are going to be, ‘oh we just found ten thousand ballots, oh that’s good, we just found another ten thousand.’ This is a horrible thing the United States Supreme Court has done to our country. And I say it, and I say it loud and I say it proud.”

“We have to know who won,” he said. “We have to know who won.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Republicans shift from challenging rules to preparing to challenge individual ballots”<https://electionlawblog.org/?p=117906>
Posted on October 31, 2020 2:48 pm<https://electionlawblog.org/?p=117906> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/republicans-shift-2020-legal-strategy/2020/10/30/339a3054-1a24-11eb-82db-60b15c874105_story.html>:

For months, Republicans have pushed largely unsuccessfully to limit new avenues for voting in the midst of the pandemic. But with next week’s election rapidly approaching, they have shifted their legal strategy in recent days to focus on tactics aimed at challenging ballots one by one, in some cases seeking to discard votes already cast during a swell of early voting.

“It’s not just the rules anymore,” said Myrna Pérez, director of the Voting Rights and Elections Program at the nonpartisan Brennan Center for Justice. “It’s individual voters.”

Republicans said they are just trying to make sure the process runs smoothly and the rules are applied fairly, arguing that Democrats have loosened election rules in ways that could confuse voters and invite fraud.

“We have volunteers, attorneys and staff in place to ensure that election officials are following the law and counting every lawful ballot,” Justin Riemer, chief counsel for the Republican National Committee, said Friday. “If election officials aren’t providing transparency that the law demands or we are unable to resolve disputes over certain ballots or procedures, then we will litigate as necessary.”

But Democrats said there is no evidence that expanded mail balloting and other pandemic-related changes lead to fraud. They accused Republicans of targeting valid votes in Democratic strongholds in a blatant bid to gain an electoral advantage.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Texans Don’t Have To Wear A Mask At The Polls, A Federal Appeals Court Ruled”<https://electionlawblog.org/?p=117904>
Posted on October 31, 2020 2:44 pm<https://electionlawblog.org/?p=117904> by Rick Hasen<https://electionlawblog.org/?author=3>

BuzzFeed News report<https://www.buzzfeednews.com/article/zoetillman/texas-no-masks-required-to-vote-election>s.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Despite polls showing a close race, Lt. Gov. Dan Patrick claims if Democrats win on Election Day, it will be ‘because they stole it”<https://electionlawblog.org/?p=117902>
Posted on October 31, 2020 2:42 pm<https://electionlawblog.org/?p=117902> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2020/10/29/texas-dan-patrick-elections-voting/>

Texas Lt. Gov. Dan Patrick<https://www.texastribune.org/directory/dan-patrick/> repeated unsubstantiated claims in a Thursday interview that the only way Republicans can lose on Election Day is if Democrats cheat.

“The Democrats have just decided this election, Mark, we don’t have to pay attention to any laws. We’re gonna use COVID as an excuse to steal the election, and that’s what they’re trying to do everywhere,” Patrick, a Republican, said during a radio interview on “The Mark Davis Show<https://660amtheanswer.com/radioshow/188>.” “If the president loses Pennsylvania or North Carolina, Mark, or Florida, they’ll lose it because they stole it.”

A spokesman for his office clarified after the interview that Patrick was referring to “reports of ballot irregularities” and “other potential fraud” being seen in Pennsylvania and other battleground states. There have been no credible reports of widespread fraud or irregularities in Pennsylvania. President Donald Trump’s campaign seized on an announcement by federal authorities<https://www.npr.org/2020/09/24/916633925/feds-in-unusual-statement-announce-theyre-investigating-discarded-pa-ballots> that they were investigating why nine military ballots were found in a trash can there, but no arrests have been made and no evidence has been made public that any fraud was involved.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Networks Pledge Caution for an Election Night Like No Other”<https://electionlawblog.org/?p=117897>
Posted on October 31, 2020 2:36 pm<https://electionlawblog.org/?p=117897> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/10/31/business/media/election-night-tv-networks.html>:

Batches of ballots that will be counted at different times, depending on the swing state. Twitter gadflies and foreign agents intent on sowing confusion. A president who has telegraphed for months that he may not accept results he deems unfavorable.

Television executives overseeing this year’s election night broadcasts are facing big challenges. And the world will be watching.

“Frankly, the well-being of the country depends on us being cautious, disciplined and unassailably correct,” said Noah Oppenheim, the NBC News president. “We are committed to getting this right.”

In interviews, the men and women in charge of network news coverage — the platform that tens of millions of Americans will turn to on Tuesday to make sense of a confusing vote count and learn the future of their country — made similar pledges.

Patience. Caution. And constant reassurance to viewers about the integrity of the results. “We have to be incredibly transparent all through the night with what we know and what we don’t know,” said George Stephanopoulos, who will anchor the proceedings for ABC News.

To accommodate the idiosyncrasies of this pandemic-era campaign, networks are planning tweaks to the way some election nights looked in the past.

Real-time results will be displayed in the context of the total expected vote, including the absentee and mail-in ballots that will account for a high proportion of it. The usual metric, “precincts reporting,” is tied to in-person votes on Election Day, which producers expect to be potentially misleading.

The “decision desks,” the teams of data experts at news organizations who project results, say they are not competing over who calls a race first. “We’re preparing the audience that this might not be over in one night,” said Susan Zirinsky, the president of CBS News.

And combating misinformation — be it from online mischief-makers or falsehoods from the commander in chief — is a priority, particularly in educating Americans that any delays in declaring a victor stem from care, not chicanery.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“One Reason So Many People are Voting”<https://electionlawblog.org/?p=117895>
Posted on October 31, 2020 2:28 pm<https://electionlawblog.org/?p=117895> by Rick Hasen<https://electionlawblog.org/?author=3>

Miles Rapoport<https://prospect.org/politics/unsanitized-election-edition-one-reason-so-many-people-are-v/> at TAP:

But one thing we can say with some confidence is that there will be a record turnout in this election. As of this Friday evening, over 86,300,000 people have already voted.  This is measured against 137 million people who voted in 2016, and a Total Voting Eligible Population of 239 million people, according to Professor Michael McDonald and the U.S. Elections Project<https://electproject.github.io/Early-Vote-2020G/index.html>. While it is too early to say that this extraordinary early vote are new voters and not just the same voters voting earlier, it seems clear that turnout this year will almost certainly be over 150 million votes cast; it could well go over 160 million.

There are lots of reasons for this, but I want to highlight one that is not properly credited. So many people are voting early because people have successfully fought to open the process of registration and voting over the last twenty years, building off the trailblazing work of the civil rights movement. Major expansions of opportunities for people to register and vote were increasingly the norm before any of the adjustments because of COVID-19.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


PlanScore Updates<https://electionlawblog.org/?p=117890>
Posted on October 31, 2020 2:23 pm<https://electionlawblog.org/?p=117890> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

With the next redistricting cycle about to begin, I wanted to note some major developments at PlanScore<https://planscore.org/#!2018-ushouse>. First off, the site now includes partisan fairness scores that incorporate the results of the 2018 election. Second, the site now covers state senates<https://planscore.org/#!2018-statesenate> in addition to state houses<https://planscore.org/#!2018-statehouse> and congressional delegations<https://planscore.org/#!2018-ushouse>. Third, Chris Warshaw<https://politicalscience.columbian.gwu.edu/christopher-warshaw>, a political scientist at GW who’s written and testified about partisan gerrymandering, has joined the PlanScore team<https://planscore.org/about/>. Lastly, and most significantly, the site will soon dramatically expand its “Score a Plan”<https://planscore.org/upload.html> feature, allowing users to upload district maps for almost all states and instantly have them evaluated along a number of dimensions. Stay tuned for when that feature goes live.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New Hail Mary Lawsuit Seeks to Disenfranchise 100,000 Texas Voters; Why It Shouldn’t Succeed<https://electionlawblog.org/?p=117889>
Posted on October 31, 2020 2:18 pm<https://electionlawblog.org/?p=117889> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Stern<https://twitter.com/mjs_DC/status/1322602843661021184> flagged this new lawsuit<https://assets.documentcloud.org/documents/20401146/sd-tex-20-cv-03709.pdf> filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim<https://www.courthousenews.com/texas-supreme-court-refuses-to-shut-down-drive-thru-voting/>. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit<https://electionlawblog.org/?p=117784> order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled <https://twitter.com/mjs_DC/status/1322603265322848256> a hearing.

On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively
1.       It’s too late. Under the doctrine of laches,<https://electionlawblog.org/?p=117751> you can’t just sit on a potential lawsuit and wait to see how things are going. Over 100,000 voters have now voted and it would be too late for them to vote otherwise. this lawsuit could have come weeks ago and there’s no excuse to have waited.
2.       Plaintiffs don’t have standing. If the complaint is that the legislature’s power is being usurped, then the legislature needs to sue, not voters, a candidate and one member of the legislature as in this case. The plaintiffs in this suit cannot claim injury and so they should not be able to sue.
3.       The claim relies on an unsupported legal theory, and even accepting the theory this case doesn’t fit as confirmed by the Texas Supreme Court. The Supreme Court majority has never endorsed this theory, and even if the independent state legislature doctrine is adopted by the Supreme Court, it likely would not apply in a situation where the legislature has delegated significant authority to run elections to counties. The state supreme court had a chance to pass on the question of whether the drive-thru voting violated the election code, and on a 6-1 basis rejected the suit. (The equal protection theory advanced by the plaintiffs in this case is even weaker.)
4.       This is a clear, naked partisan attempt to disenfranchise voters at the last minute. This kind of maneuvering is exactly why there are doctrines like laches and respect for voter reliance interests to stop such shenanigans.

More from Michael Morley<https://twitter.com/michaelmorley11/status/1322623874027106304?s=20> on why this claim should be immediately dismissed (despite his disagreement with me on the standing question).
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


Why Maine’s Senate Race Will Likely Not Be Officially Resolved Until A Week or so After Nov. 3rd<https://electionlawblog.org/?p=117884>
Posted on October 31, 2020 8:32 am<https://electionlawblog.org/?p=117884> by Richard Pildes<https://electionlawblog.org/?author=7>

Maine’s Senate race is considered close<https://www.politico.com/news/2020/10/30/the-independent-that-could-decide-the-senate-433629>, and if so, there’s an additional reason it could take longer — maybe several days — to determine who has won. The reason is that Maine now uses ranked-choice voting (RCV), and there is an independent, Green New Deal candidate, Lisa Savage, polling<https://www.fairvote.org/maine_poll_october2020> in the 4-5% range. If the margin between Susan Collins and her Democratic opponent, Sara Gideon is less than that when the initial count is completed, the Senate outcome would then be determined in the second round of the ranked-choice tabulating process, when Savage will be eliminated and the second-ranked choices on those ballots will be distributed either to Collins or Gideon.

The assumption is that most of Savage’s voters will rank Gideon as their second choice, since Savage is the furthest left candidate in the race. But Maine has structured that process, as I understand it, so that it won’t get to that next stage for nearly a week. I’ve been told (maybe someone has a story to link to for this) that the Secretary of State will not turn to the second round until the vote totals from every town in the state are in; since small towns take several days to finish completing that count, that means the RCV process won’t start until the slowest town has finished completing its tallies.

This delay is not at all intrinsic to RCV. That process can be completed quickly, if not for the Secretary of State’s policy choice in Maine to wait in this way.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Correcting Misunderstandings about the Dec. 8th “Safe Harbor” Date in Federal Law<https://electionlawblog.org/?p=117882>
Posted on October 31, 2020 7:23 am<https://electionlawblog.org/?p=117882> by Richard Pildes<https://electionlawblog.org/?author=7>

We are going to see mistakes about this, as in this recent story<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> from an otherwise good Politico journalist.

Normally I would not call something like this out, but this is important and we need journalists and others to get this right now, before misunderstandings sink in: States are not required to certify their results by Dec. 8th, the safe-harbor date. It is wrong to report that States “must” certify their results by this date.

The Dec. 8th date in federal law is an offer, not a requirement: If a State certifies by then, federal law says Congress will then “conclusive[ly]” presume that slate to be valid. But States are free to certify their results after Dec. 8th. The Electoral College does not vote until Dec. 14th. If a State submits a single slate, even after the safe harbor date, Congress is to accept that slate unless both chambers — in the newly elected Congress — vote to reject it.

I blogged<https://electionlawblog.org/?p=113369> about this back in July, referencing a piece that Derek Muller wrote on the issue:

In this short piece<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3620140&dgcid=ejournal_htmlemail_law:society:public:law:constitutional:law:ejournal_abstractlink>, Derek Muller makes an important point: the Supreme Court did not hold, in Bush v. Gore, that the Electoral Count Act mandates that all state counting or recounting processes in the presidential election must end by the so-called “safe harbor” date in the Act. Instead, the Court (rightly or wrongly) interpreted Florida law, as construed by the Florida Supreme Court, as reflecting a state policy that such processes end in Florida by that date. . . .I’ve urged, along with others, that Congress move back this date in light of that. But especially if Congress does not do that, it’s important that Derek has clarified this point well in advance of any context in which it might become significant.

Here is the problematic passage in that Politico story:

All states are under a set time frame to sort through all the anticipated 2020 mail-in ballots.

By Dec. 8, each state must certify its results to Congress, giving each only five weeks to navigate any disputes and recounts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Minnesota Democrats ramp up push for absentee ballot turnout”<https://electionlawblog.org/?p=117880>
Posted on October 30, 2020 5:33 pm<https://electionlawblog.org/?p=117880> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.stamfordadvocate.com/news/article/Minnesota-Democrats-ramp-up-push-for-absentee-15689557.php>

Simon added that the state will not appeal to the U.S. Supreme Court, though there might be cause for litigation later. He noted that while there is currently no court order that invalidates ballots arriving after Nov. 3, his current focus is on making sure voters cast their ballots by the time the polls close on Election Day.

While legal issues were being sorted out, the state’s Democratic Party turned its operation toward alerting people of the issue. Simon, a Democrat, said an ad agency working with the state is redirecting its messaging to inform people about how to make their vote count. Additionally, the state is talking with Facebook to see if a blast can be sent out to notify Minnesotans of the change.

Democratic Party Chairman Ken Martin said officials were reaching out to voters with unreturned absentee ballots, and Democratic Sen. Tina Smith, who is up for re-election Tuesday, is creating a television ad to send the same message. The city of Minneapolis expanded hours for ballot drop-off sites to make voting more accessible….

Simon said voters who still have absentee ballots in hand may drop them off at a designated location before 3 p.m. on Election Day, vote early at an early voting station, or vote in person on Nov. 3. Those who already returned absentee ballots can track them online to see if they’ve been received – and if a ballot is still outstanding, the voter can instead cast a vote in person. Their absentee ballot will be cancelled once the state receives it….

David Schultz, a political science and legal studies professor at Hamline University in St. Paul, said the 8th Circuit ruling sets up “a lot of voters” to claim that they were denied their right to vote.

“They acted in good faith and reliance on a consent decree that gave them sufficient opportunity to postmark their ballot by Election Day, get them in in seven days,” Schultz said. “There could be thousands of voters who lose their right to vote as a result of that. … I just don’t think the 8th Circuit thought this through.”…

Richard Hasen, an election law professor at the University of California Irvine School of Law, said Thursday’s ruling was unusual and could lead to serious voter disenfranchisement. He said voters who have absentee ballot instructions at home are relying on government information about when their ballots are due – and there’s no reliable way to make sure everyone is notified of the change.

“For conservative judges, who supposedly believe in judicial restraint and not overreaching, this is an audacious and unprecedented kind of decision so close to the election,” Hasen said. “It’s the opposite of the kind of restraint that we’ve heard many conservatives preach.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Must-read Ginsberg and Bauer: “Trust our electoral system. It’s built to handle challenges like this.”<https://electionlawblog.org/?p=117878>
Posted on October 30, 2020 4:55 pm<https://electionlawblog.org/?p=117878> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo oped:<https://www.washingtonpost.com/opinions/2020/10/30/trust-our-electoral-system-its-built-handle-challenges-like-this/>

We are members of different parties, but we share a commitment to the health and integrity of our voting system. Based on our time leading the Presidential Commission on Election Administration<https://bipartisanpolicy.org/the-presidential-commission-on-election-administration/> and each of our four decades of work in U.S. elections, we believe our electoral system is strong and will deliver the reliable results required for the peaceful transfer of power that is foundational to our democracy. It is important that the public understand this and that the media strive to depict the election process as working, not as it is portrayed by those seeking to undermine its legitimacy.

Despite all the 2020 rhetoric, this country has a solid system to count votes; to adjudicate allegations of fraud, irregularity or error; to provide avenues for resolving close elections; and to declare winners. When challenging the results, opposing parties are charged with vigorously advocating their positions so that fact-finders can issue determinations that may then be peacefully accepted. No matter how hard the feelings, that is what’s best for the country….

Suspicions are high that the 2020 election will not run smoothly and will be difficult to validate. This is primarily due to President Trump’s characterization<https://www.washingtonpost.com/opinions/2020/09/15/trump-just-repeated-his-ugliest-claim-about-election-why-isnt-it-bigger-news/?itid=lk_inline_manual_9> of the electoral system as “rigged” and his claim that the historic number of mail-in ballots<https://www.washingtonpost.com/politics/2020/10/28/if-theres-conspiracy-swing-election-its-one-alleging-not-committing-voter-fraud/?itid=lk_inline_manual_9> cast because of the pandemic will result in widespread fraudulent voting.

The president has notably failed to produce any evidence of systemic fraud to support his claims. He has ignored the fact that Republican observers have witnessed voting in every election and have discovered fraud only in rare, isolated incidences. Never have they found anything close to the scale of irregularity that would justify the president’s rhetoric.

Moreover, the president has promoted the suggestion<https://www.businessinsider.com/trump-hopes-states-wont-allowed-count-ballots-after-election-day-2020-10> that votes cannot be lawfully counted after midnight on Nov. 3. Some have read an echo<https://www.nytimes.com/2020/10/27/us/kavanaugh-voting-rights.html> of this extraordinary and factually inaccurate claim in Justice Brett M. Kavanaugh’s dissent in the recently decided voting case from Wisconsin and worry that the Supreme Court could be heading in this direction. We do not read the Kavanaugh concurrence to support the Trump argument. In any event, this argument completely lacks merit. Ballots received by the statutory deadline — whether they are physically cast or postmarked by Election Day, depending on each state’s own laws — will be counted no matter how long it takes to count them. The counting can and always has continued past Election Day.

As a result, the president’s attempt to undermine the election is a self-serving assault on a fundamental American system. It should be condemned across party lines.

We believe any candidate (or his supporters) abusing these norms will be unsuccessful for two reasons: First, Americans have a history of rising to the occasion to stop any threat. Local, county and state election officials can typically count on the support of responsible elected officials, federal and state courts, law enforcement and the national security agencies to uphold the law and norms that ensure voters are heard.

Second, the process to overturn an election would require specific evidence proved on a precinct and county level. Blanket challenges won’t work. Bombastic rhetoric at a rally or a television interview is far from sufficient.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Minnesota Won’t Go to Supreme Court for Now on Later-Arriving Ballots<https://electionlawblog.org/?p=117870>
Posted on October 30, 2020 4:19 pm<https://electionlawblog.org/?p=117870> by Rick Hasen<https://electionlawblog.org/?author=3>

So reports<https://twitter.com/Arianedevogue/status/1322308048329805826> Ariane de Vogue.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“COVID-19 and the Most Litigated Presidential Election in Recent U.S. History: How the Lawsuits Break Down”<https://electionlawblog.org/?p=117868>
Posted on October 30, 2020 2:40 pm<https://electionlawblog.org/?p=117868> by Rick Hasen<https://electionlawblog.org/?author=3>

Frontline reports<https://www.pbs.org/wgbh/frontline/article/covid-19-most-litigated-presidential-election-in-recent-us-history/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


I Was on NPR’s “On Point” Talking About the Latest Supreme Court Rulings about the Election Rules<https://electionlawblog.org/?p=117866>
Posted on October 30, 2020 1:19 pm<https://electionlawblog.org/?p=117866> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here.<https://www.wbur.org/onpoint/2020/10/30/week-in-the-news-end-of-voting-nears-supreme-court-coronavirus>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pa. elections chief urges counties to begin counting mail-in ballots early Tuesday morning”<https://electionlawblog.org/?p=117864>
Posted on October 30, 2020 12:56 pm<https://electionlawblog.org/?p=117864> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/10/30/pennsylvania-mail-in-ballots-433705>:

Boockvar’s comments come amid plans by some Pennsylvania counties to postpone counting of any mail-in ballots — whether they arrive before the polls close or after — until late Tuesday or early Wednesday.

Pennsylvania law permits counties to begin counting mail-in and absentee votes beginning at 7 a.m. on Election Day but does not require that they do so immediately. Cumberland County, a Republican-leaning area outside of Harrisburg, indicated Wednesday<https://twitter.com/ccpa_net/status/1321566326494765056?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1321566326494765056%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Fwww.ydr.com%2Fstory%2Fnews%2F2020%2F10%2F29%2Fsome-pa-counties-wont-count-mail-ballots-until-after-election-day-voting-election%2F6067403002%2F> that it would not begin counting mail-in ballots until Wednesday, citing a need to prioritize resources for in-person voting. Several other smaller counties have reportedly indicated <https://www.ydr.com/story/news/2020/10/29/some-pa-counties-wont-count-mail-ballots-until-after-election-day-voting-election/6067403002/> they intend to delay counting of mail-in ballots.

The significance of the push-and-pull between the state and counties could have national significance. Both campaigns see Pennsylvania, with its 20 Electoral College votes, as potentially decisive; Trump won the state by just 44,292 votes in 2016, and Scranton native Joe Biden has stumped there extensively.

The U.S. Supreme Court earlier this week determined opted against<https://www.politico.com/news/2020/10/26/supreme-court-wont-extend-wisconsin-ballot-deadline-432656> expediting a Republican challenge to the state’s high court’s decision to permit ballots arriving up to three days after Election Day to be counted, but Justice Samuel Alito, in a dissent, indicated the court may revisit the issue after the election. Newly confirmed Justice Amy Coney Barrett sat out that court’s move, but could represent a decisive fifth vote in either direction.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How the fight over mail-in ballots threatens to undermine the votes of American troops”<https://electionlawblog.org/?p=117862>
Posted on October 30, 2020 12:34 pm<https://electionlawblog.org/?p=117862> by Rick Hasen<https://electionlawblog.org/?author=3>

Task & Purpose<https://taskandpurpose.com/analysis/military-mail-in-voting-2020-election>:


Twenty-eight states and the District of Columbia<https://counteveryhero.org/research-report/> have extended deadlines for military voters to account for the delays facing overseas ballots.

“Each state establishes clear absentee ballot deadlines, including some extended deadlines for military and overseas citizens to return their ballots after postmarking their ballots by election day,” Lisa Lawrence, a Pentagon spokeswoman, told Task & Purpose. “All ballots that are timely received, pursuant to state law, will be considered by election officials for either acceptance or rejection.”…

“Federal law protects military and overseas voters and many states give extra time for military ballots to arrive and be counted,” Richard Hasen, a professor of Law and Political Science at the University of California-Irvine, told Task & Purpose. “No state has a final or official count on election night; the full counting takes days or weeks. It is true that races are sometimes unofficially called by news organizations on election night or soon thereafter, but those are just predictions of what the official count will likely show.”

“Trump’s calls to stop counting on election night, if followed, would disenfranchise military voters allowed to vote under state and federal law,” Hasen said. “Fortunately, the president has no role to play in dictating which ballots are counted and when.”

That decision is up to the states.

“Traditionally most states even if they are in-hand states, where the ballots have to be in at the close of the polls, have a specific carved out allowance for military and overseas voters to have their ballots come in after the fact,” Tammy Patrick, a senior advisor with the Democracy Fund, told Task & Purpose.

But for voters, it’s growing increasingly difficult to keep up to date on exactly what the rules are, even as the election looms around the corner.
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Posted in military voting<https://electionlawblog.org/?cat=48>


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
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