[EL] ELB News and Commentary 9/4/20

[Rick Hasen]

“Barr claims a man collected 1,700 ballots and filled them out as he pleased. Prosecutors say that’s not what happened.” (Oops. Barr Blames Bad Summary He Was Given of the Case)<https://electionlawblog.org/?p=114771>
Posted on September 3, 2020 8:01 pm<https://electionlawblog.org/?p=114771> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/national-security/barr-claims-a-man-collected-1700-ballots-and-filled-them-out-as-he-pleased-prosecutors-say-thats-not-what-happened/2020/09/03/923aafac-ee2e-11ea-ab4e-581edb849379_story.html>

In his latest warning about the dangers of mass mail-in voting, Attorney General William P. Barr pointed to a case in Texas that he said highlighted the risk of fraud.

“Elections that have been held with mail have found substantial fraud and coercion,” Barr told CNN on Wednesday. “For example, we indicted someone in Texas, 1,700 ballots collected, he — from people who could vote, he made them out and voted for the person he wanted to. Okay?”

Federal prosecutors brought no such indictment. And while a Justice Department spokeswoman said Barr was referring to a local prosecution involving suspected mail-in voting fraud in a city council election<https://www.dallasobserver.com/news/dallas-county-grand-jury-indicts-one-for-west-dallas-voter-fraud-9646968>, the assistant district attorney on that case said Barr’s description doesn’t match the facts.

“That’s not what happened at all,” said Andy Chatham, who is now in private practice.

“Unfortunately, it speaks volumes to the credibility of Attorney General Barr when he submits half-truths and alternative facts as clear evidence of voter fraud without having so much as even contacted me or the district attorney’s office for an understanding of the events that actually occurred,” he added later.

After being asked about Chatham’s account, Kerri Kupec, a Justice Department spokeswoman, said in a statement: “Prior to his interview, the Attorney General was provided a memo prepared within the Department that contained an inaccurate summary about the case which he relied upon when using the case as an example.”…

Mike Snipes, the No. 2 prosecutor in the office then, said investigators initially suspected there were “potentially 1,700 fraudulent ballots, but we did not uncover that, at all.”

“We actually thought there was voter fraud initially, and we couldn’t find it except that little tiny case,” he said. Snipes said he could not address Barr’s comments specifically.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“After Trump’s remarks, election officials warn that trying to vote twice is a crime and could undermine the system”<https://electionlawblog.org/?p=114769>
Posted on September 3, 2020 7:55 pm<https://electionlawblog.org/?p=114769> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/after-trumps-remarks-election-officials-warn-that-trying-to-vote-twice-is-a-crime-and-could-undermine-the-system/2020/09/03/689ac880-edfc-11ea-99a1-71343d03bc29_story.html>

A chorus of election officials, legal analysts and social media companies on Thursday rushed to condemn and counter President Trump’s suggestion this week that his supporters attempt to vote more than once, warning that doing so could constitute a crime and expressing fear that he was undermining the election system.

The pushback included pointed statements<https://www.washingtonpost.com/politics/trump-vote-twice-wilmington/2020/09/02/d5633260-ed73-11ea-ab4e-581edb849379_story.html?itid=lk_inline_manual_3> from an array of federal and local officials as well as direction action from Facebook and Twitter to attempt to limit the spread of the president’s misinformation.

Trump had urged supporters during an official White House event in North Carolina on Wednesday to send in a ballot through the mail and then attempt to cast another one at polling sites on Election Day in an effort to test the system. He has stated repeatedly that universal mail-in voting would lead to rampant fraud, despite evidence to the contrary.

Karen Brinson Bell, executive director of the North Carolina State Board of Elections, issued a lengthy statement emphasizing that attempting to cast multiple ballots would constitute a Class 1 felony and that soliciting someone to vote twice is also a crime. Michigan Attorney General Dana Nessel and Secretary of State Jocelyn Benson, both Democrats, vowed to prosecute those caught trying to vote more than once.

“It is illegal in all 50 states and under federal law to vote twice,” said Ellen Weintraub, chairwoman of the Federal Election Commission. “As any federal officeholder or law-enforcement official should know. And there’s still no basis for the conspiracy theory that #VoteByMail will lead to a rigged election.”

Facebook announced it would remove a video of Trump’s initial remarks, and Twitter appended a notice to two of the president’s tweets, ruling that they violated the site’s rules about “civic and election integrity.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Campaign Running Photo Ads Edited To Make Joe Biden Appear Older”<https://electionlawblog.org/?p=114767>
Posted on September 3, 2020 7:50 pm<https://electionlawblog.org/?p=114767> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost:<https://www.huffpost.com/entry/trump-biden-older-facebook-ads_n_5f515dcfc5b6946f3eaf3fbe>

President Donald Trump<https://www.huffpost.com/news/topic/donald-trump>’s campaign launched a series of Facebook<https://www.huffpost.com/impact/topic/facebook> ads on Thursday featuring a manipulated photo of his presidential opponent Joe Biden<https://www.huffpost.com/news/topic/joe-biden> edited to make the former vice president appear older.

The ads, which label Biden “Sleepy Joe,” show him gazing out against a dark background with his mouth slightly agape. The Trump campaign is also running near-identical Facebook ads featuring the same text along with the original, unedited photo of Biden, in which his skin looks much brighter and healthier.

It’s among the latest examples of Trump officials circulating imagery that has been deceptively altered or pulled out of context to attack Biden.
[An original photo of Joe Biden in one Trump campaign Facebook ad, left, and a manipulated image, right.]An original photo of Joe Biden in one Trump campaign Facebook ad, left, and a manipulated image, right.

On Su
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


Exchange of the Day (Between Zack Stanton and Justin Levitt)<https://electionlawblog.org/?p=114765>
Posted on September 3, 2020 7:43 pm<https://electionlawblog.org/?p=114765> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico Q and A<https://www.politico.com/news/magazine/2020/09/03/2020-election-lawsuits-trump-voting-coronavirus-408631> (on Justin’s ELB Covid-Election litigation list)<https://electionlawblog.org/?p=111962>:

Stanton: You track the number of election-related lawsuits that have been filed. I understand that we’re now well above 150 cases?

Levitt: It was 226 the last time I checked. It’s moving very quickly.

Stanton: In terms of the number of voters potentially affected by these lawsuits, what are we talking about?

Levitt: Actually, I have to apologize: It’s 228 cases, and I haven’t added a couple, so it’s probably 230. It’s difficult to track. How many voters does this affect? I don’t honestly know. The better way to measure is this: There’s litigation now in 43 states, D.C. and Puerto Rico. And in a way, the litigation affects all of the voters in each of those states, not because it’s contesting the conditions that every voter will use to cast their ballots, but because it alters the framework under which the elections are held. Even a case that’s about just one candidate getting on the ballot affects the choices of who people will be able to vote for.

By the way, I’m tracking the pandemic-related election cases. But there are other cases, including a big one in Florida, that aren’t about the pandemic. So that is not to suggest that the states that aren’t on this particular list are free of election litigation; they just happen to be free of litigation based around the pandemic.

The second category has to do with mail-in ballots. Some of these lawsuits would’ve been brought in nonpandemic times. There is a string of litigation about how people get notified of mistakes in the absentee process—mismatches in signatures that voters sign to their absentee envelopes, which are then matched against their signatures in elections officials’ records—and whether they have a chance to fix those mistakes. Litigation about the absentee process picked up speed considerably when it became clear that far more of the public is going to vote by mail this year than normal. In 2016, I think about a quarter of ballots nationwide were cast by mail. So you see litigation over deadlines for mail-in ballots, or provisions about assisting people with ballots, or opportunities for voters to correct mistakes, or the excuse you may need to provide to vote absentee, or postage on absentee ballots, or the witnesses and notaries required by some states.

The third category has to do with in-person voting. Even in states that are “universal” vote-by-mail, you almost always have an option to go down to the county office and drop off a ballot in person or fill out a ballot in person. It’s not truly universal vote-by-mail; it just means everybody has the option. The fight this election cycle has never been about moving literally everybody to vote by mail; it’s about increasing the opportunities to vote by mail to mitigate serious capacity constraints for those who have to vote in person. Just like there are people who are hard to count in the Census, there are people who are hard to mail, and populations that really depend on in-person voting—very rural and very urban, minority communities, those who face issues like language access, people with disabilities. So there’s litigation over the hours of early voting, over curbside voting opportunities, over the availability of dropboxes and other in-person places to return the ballot. And those lawsuits are almost entirely pandemic-related.

And then the fourth category is pushback back against all the other three: that the administration of the election shouldn’t change. The other three categories have to do with people asking the courts to change or modify the rules for this election because of the pandemic and because of changed circumstances. Sometimes, elected officials or legislatures have changed the rules, and this litigation is pushing back against those changes, mostly under the notion that the officials or legislatures have overstepped and may not have the authority to make the changes they’ve made.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Trump skewers Biden, suggests again supporters vote twice in Pennsylvania”<https://electionlawblog.org/?p=114763>
Posted on September 3, 2020 7:37 pm<https://electionlawblog.org/?p=114763> by Rick Hasen<https://electionlawblog.org/?author=3>

The Hill:<https://thehill.com/homenews/administration/515081-trump-skewers-biden-suggest-again-supporters-vote-twice-in>

Speaking to a crowd during a campaign stop in Latrobe, Pa., Trump expanded on remarks that caused a firestorm on Wednesday, when he urged supporters to vote by mail and then attempt to vote in person.

The president reiterated that this is necessary to ensure that their vote is tabulated.

“Sign your mail-in ballot, OK? You sign it and send it in and then you have to follow it. And if on election day or early voting, that is not tabulated and counted, you go vote,” Trump told the crowd. “And if for some reason after that — it shouldn’t take that long — they’re not going to be able to tabulate it because you would have voted.”

“But you have to make sure your vote counts, because the only way they are going to be able to beat us is by doing that kind of stuff,” Trump continued.

It is illegal for voters to intentionally vote twice in an election. After Trump made remarks in North Carolina on Wednesday encouraging voters to vote twice to test the system, the executive director of the state’s board of elections issued a statement making clear that voting twice is illegal.

White House press secretary Kayleigh McEnany said Thursday that Trump was not suggesting people “do anything unlawful” but that he was telling voters to verify that their ballots are counted in the November election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Will Americans Accept the Election’s Outcome?”<https://electionlawblog.org/?p=114761>
Posted on September 3, 2020 7:29 pm<https://electionlawblog.org/?p=114761> by Rick Hasen<https://electionlawblog.org/?author=3>

Latest episode<https://soundcloud.com/freeandfair/will-americans-accept-the-elections-outcome> of the Free & Fair with Franita and Foley podcast.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s false claims on mail-in voting do more to harm elections than threat of fraud, experts say”<https://electionlawblog.org/?p=114759>
Posted on September 3, 2020 7:26 pm<https://electionlawblog.org/?p=114759> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/2020/09/03/politics/election-threat-trump-mail-in-voting-claims-invs/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>
The Poll Watcher Site for The Trump Campaign Has the URL ArmyForTrump.com<https://electionlawblog.org/?p=114753>
Posted on September 3, 2020 3:53 pm<https://electionlawblog.org/?p=114753> by Rick Hasen<https://electionlawblog.org/?author=3>
[cid:image003.png at 01D6822D.7DF86BA0]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Princeton Gerrymandering Project Is Hiring<https://electionlawblog.org/?p=114751>
Posted on September 3, 2020 3:16 pm<https://electionlawblog.org/?p=114751> by Rick Hasen<https://electionlawblog.org/?author=3>

Links to the Legal & Policy Analyst posting<https://docs.google.com/document/d/1VdidCXyXujiE9pRriN4RylfwcIxpPABtLTNkh9QycTM/edit?usp=sharing> and the Senior Legal Strategist posting<https://docs.google.com/document/d/1rkIYkGxgFpzJSUmshSubgpdJ8lPTw1oL67v5sNrxgqM/edit?usp=sharing>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Donald Trump’s Encouragement to Vote Twice Could Cause Election Day Chaos”<https://electionlawblog.org/?p=114749>
Posted on September 3, 2020 1:05 pm<https://electionlawblog.org/?p=114749> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/09/donald-trump-vote-twice-election-day-chaos.html> for Slate. A snippet:

Another possible defense is that Trump was “joking” or not being serious about his comments and this was typical Trumpian hyperbole. Perhaps so, and I do not expect Trump to be prosecuted, but I think many people may hear his comments and think he is serious. This is particularly true given that he repeated the comments the very next day and his attorney general, William Barr, refused to acknowledge<https://twitter.com/atrupar/status/1301299333938151424> that double voting is illegal.

And this is the much more important point than whether Trump violated North Carolina law with his statement to WECT. Supporters of his, in North Carolina and elsewhere, could follow his advice and try to vote twice. Those people face potential prosecution for a felony, as the North Carolina State Board of Elections made clear in a Thursday statement<https://twitter.com/NCSBE/status/1301527393799213056/photo/1>, and it is awful for the president to be encouraging illegal conduct.

What’s worse, the comments are going to put a strain on an election system stretched to its limits by trying to conduct a presidential election in the midst of a pandemic and with one of the candidates constantly casting doubt on the election’s legitimacy. Again, this is probably Trump’s real intent. North Carolina, like other states, has systems in place<https://twitter.com/NCSBE/status/1301527393799213056/photo/1> to prevent double voting, such as electronic poll books that let poll workers know if someone showing up to vote has already cast an absentee ballot that has been returned. (It is these checks that slow down the processing of absentee ballots and explain why we might not have results on election night in a close election.)

But these systems are designed under the sensible premise that few people are going to risk felonies and vote twice. It’s the same design for police departments, which would look very different if people were trying to rob every 7-Eleven every day.

Lines are already going to be long in some places on Election Day. The pandemic means it is harder to find poll workers and so there will be polling place consolidations and fewer workers, all contributing to a longer queue. Trump’s suggestion for his supporters to go to a polling place to try to vote twice—and via a complex procedure of trying to get a poll worker to confirm that an absentee ballot has been tabulated, which in some cases it will not have been—will add to those long lines. The lines will be even longer if the voter insists on casting a provisional ballot after having voted by mail. (That provisional ballot won’t be counted if the voter has already voted.) Those long lines will do real damage to an Election Day infrastructure that is already looking stretched to the limits—the ensuing chaos will benefit the candidate claiming that the whole process is rigged no matter what the outcome: Donald Trump.

Trump has cast doubt on the legitimacy of the election, claiming that voter fraud is widespread in the United States when it is rare. These new statements seem calculated to create more confusion and chaos at the polls—and possibly more actual fraud. It will also cause more people potentially with COVID to congregate at the polls, exactly the opposite of what we need for a safe and fair election during November.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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