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

Tue Sep 8 19:49:29 PDT 2020

***Absolute Must Read:*** Ben Ginsberg, Noted Conservative Republican Election Lawyer, Calls Out Unsupported Republican Claims of Widespread Voter Fraud<https://electionlawblog.org/?p=114924>
Posted on September 8, 2020 7:40 pm<https://electionlawblog.org/?p=114924> by Rick Hasen<https://electionlawblog.org/?author=3>

When I linked to news last week that super lawyer Ben Ginsberg was retiring from Jones Day I wrote:<https://electionlawblog.org/?p=114608>

Superstar election lawyer Ben, who served as national counsel for the Romney 2012 campaign, has been an important voice in recent years in bipartisan approaches to improving elections. (He and Bob Bauer headed a bipartisan commission that issued a key report<http://web.mit.edu/supportthevoter/www/the-commission/> on improving American elections.)

I hope that with him no longer working for Jones Day (which has represented President Trump’s campaign—though I don’t think ben had anything to do with that), he will be free to speak his mind on important election integrity issues of the day. In any case I look forward to what he has to say and to in coming years.

Now Ben has spoken and he does not disappoint. He’s no liberal—he’s a hardcore conservative who has worked tirelessly as a lawyer for Republican political causes for decades. He writes in the Washington Post, in an oped entitled Republicans have insufficient evidence to call elections ‘rigged’ and ‘fraudulent’<https://www.washingtonpost.com/opinions/2020/09/08/republicans-have-insufficient-evidence-call-elections-rigged-fraudulent/>:

The president’s words make his and the Republican Party’s rhetoric look less like sincere concern — and more like transactional hypocrisy designed to provide an electoral advantage. And they come as Republicans trying to make their cases in courts must deal with the basic truth that four decades of dedicated investigation have produced only isolated incidents of election fraud.

These are painful conclusions for me to reach. Before retiring from law practice last month, I spent 38 years in the GOP’s legal trenches. I was part of the 1990s redistricting that ended 40 years of Democratic control and brought 30 years of GOP successes in Congress and state legislatures. I played a central role in the 2000 Florida recount and several dozen Senate, House and state contests. I served as counsel to all three Republican national party committees and represented four of the past six Republican presidential nominees (including, through my law firm, Trump 2020).

Each Election Day since 1984, I’ve been in precincts looking for voting violations, or in Washington helping run the nationwide GOP Election Day operations, overseeing the thousands of Republican lawyers and operatives each election on alert for voting fraud. In every election, Republicans have been in polling places and vote tabulation centers. Republican lawyers in every state have been able to examine mail-in/absentee ballot programs.

The president has said<https://www.cnn.com/2016/08/12/politics/donald-trump-pennsylvania-cheating/index.html?sr=twCNN081316donald-trump-pennsylvania-cheating1218AMVODtopVideo&linkId=27626713> that “the only way we can lose … is if cheating goes on.” He has asserted<https://abcnews.go.com/US/elections-officials-push-back-voter-fraud-claims/story?id=72657373> that mail-in voting is “very dangerous” and that “there is tremendous fraud involved and tremendous illegality.”AD

The lack of evidence renders these claims unsustainable. The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged. Absentee ballots use the same process as mail-in ballots — different states use different labels for the same process.

The Trump 2016 campaign, of which I was not a part, could produce no hard evidence of systemic fraud. Trump established a Presidential Advisory Commission on Election Integrity<https://www.whitehouse.gov/articles/presidential-advisory-commission-election-integrity/> in 2017 to expose all the fraud he maintains permeates our elections. He named the most vociferous hunters of Democratic election fraud to run the commission. It disbanded<https://apnews.com/f5f6a73b2af546ee97816bb35e82c18d/Report:-Trump-commission-did-not-find-widespread-voter-fraud> without finding anything.

The Heritage Foundation Election Fraud Database<https://www.heritage.org/voterfraud> has compiled every instance of any kind of voter fraud it could find since 1982. It contains 1,296 incidents, a minuscule percentage of the votes cast. A study<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?itid=lk_inline_manual_22> of results in three states where all voters are mailed actual ballots, a practice at the apex of the president’s outrage, found just 372 possible cases of illegal voting of 14.6 million cast in the 2016 and 2018 general elections — 0.0025 percent.

The president’s rhetoric has put my party in the position of a firefighter who deliberately sets fires to look like a hero putting them out. Republicans need to take a hard look before advocating laws that actually do limit the franchise of otherwise qualified voters. Calling elections “fraudulent” and results “rigged” with almost nonexistent evidence is antithetical to being the “rule of law” party.

We need more responsible Republicans speaking out like Ben.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>

Ninth Circuit Unanimously Rejects Challenge to California’s “Winner-Take-All” System for Allocating State’s Electoral College Votes<https://electionlawblog.org/?p=114922>
Posted on September 8, 2020 5:48 pm<https://electionlawblog.org/?p=114922> by Rick Hasen<https://electionlawblog.org/?author=3>

No surprise.<https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/08/18-56281.pdf>
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Texas ordered to immediately fix flaws in method used to reject some mail-in ballots”<https://electionlawblog.org/?p=114920>
Posted on September 8, 2020 5:46 pm<https://electionlawblog.org/?p=114920> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2020/09/08/texas-mail-in-voting-lawsuit/>

As Texas prepares for an expected deluge of mail-in votes in November, a federal judge has found that one facet of the state’s signature verification rules for those ballots is unconstitutional and must be reworked for the upcoming election.

U.S. District Judge Orlando Garcia on Tuesday ruled<https://static.texastribune.org/media/files/05d3ef513119cd0f856324e2e9d38cc4/96c28e6d-7fb4-45b6-b1f3-0080a6a653fa.pdf> the state’s process for determining whether there is a mismatch between a voter’s signature on their ballot envelope and the signature the voter used on their application to vote by mail “plainly violates certain voters’ constitutional rights.”

In his order, Garcia ordered the Texas secretary of state to inform local election officials within 10 days that it is unconstitutional to reject a ballot based on a “perceived signature mismatch” without first notifying the voter about the mismatch and giving the voter a “meaningful opportunity” to correct the issue.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Federal judge dismisses lawsuit that sought sweeping changes to Texas’ in-person voting rules”–Another Court Troublingly Finding Issues Nonjusticiable<https://electionlawblog.org/?p=114918>
Posted on September 8, 2020 5:45 pm<https://electionlawblog.org/?p=114918> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2020/09/08/texas-voting-rules-lawsuit/>

Continuing to fend off attempts to alter its voting processes, Texas has convinced a federal judge to dismiss a lawsuit that sought sweeping changes to the state’s rules for in-person voting during the coronavirus pandemic.

U.S. District Judge Jason Pulliam dismissed a legal challenge<https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/usdistrictcourtsanantonioorder.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=> Monday from Mi Familia Vota, the Texas NAACP and two Texas voters who claimed the state’s current polling place procedures — including rules for early voting, the likelihood of long lines and Gov. Greg Abbott<https://www.texastribune.org/directory/greg-abbott/>‘s decision to not require voters to wear masks — would place an unconstitutional burden<https://www.texastribune.org/2020/07/17/texas-voting-coronavirus-lawsuit/> on voters while the novel coronavirus remains in circulation.

In his order, Pulliam noted that the requests were not unreasonable and could “easily be implemented to ensure all citizens in the State of Texas feel safe and are provided the opportunity to cast their vote in the 2020 election.” But he ultimately decided the court lacked jurisdiction to order the changes requested — an authority, he wrote, left to the state.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Without Noted Dissent, Arizona Supreme Court Keeps Kanye West off AZ Ballot for President<https://electionlawblog.org/?p=114915>
Posted on September 8, 2020 3:08 pm<https://electionlawblog.org/?p=114915> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona’s Law reports.<https://arizonaslaw.blogspot.com/2020/09/breaking-kanye-loses-arizona-supreme.html>
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Posted in ballot access<https://electionlawblog.org/?cat=46>

September 25 Event for University Students and Faculty: “Voting & Electoral Manipulation”<https://electionlawblog.org/?p=114912>
Posted on September 8, 2020 3:05 pm<https://electionlawblog.org/?p=114912> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to participating in this:

Voting and Electoral Manipulation<https://watson.brown.edu/events/2020/voting-and-electoral-manipulation>

Friday, September 25, 2020
3 p.m. – 4:30 p.m.
[cid:image002.jpg at 01D68619.295EA060]

This virtual event is a cross-university collaboration and is intended for University students and faculty only.  Please use only your University email to register.  Register here <https://brown.zoom.us/webinar/register/WN_uwlJhjWvSc2nTfiZi1LzOQ> to join the webinar, or tune in to the talk live at watson.brown.edu/live<http://watson.brown.edu/live>

What are the most important political threats to voting rights and equal representation in American politics today? Why are we seeing such intense partisan fights over voting rights now? How is the coronavirus exacerbating these institutional battles? How do the dynamics of the upcoming US elections compare to past American elections and other elections around the world?

Moderators:
Robert Blair, Brown University
Gretchen Helmke, University of Rochester, Bright Line Watch

Commentators:
Richard Hasen, UC Irvine
Susan Hyde, UC Berkeley
Jennifer McCoy, Georgia State and Former Carter Center
Susan Stokes, University of Chicago
Charles Stewart, MIT

This event is co-sponsored by the Watson Institute for International and Public Affairs, Democratic Erosion Consortium, University of Rochester and Bright Line Watch
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Sept. 21 UCI Event: “Are U.S. Elections Rigged, Broken or Dependable? Lessons from Canada and Australia Offer Insights for Improvement”<https://electionlawblog.org/?p=114906>
Posted on September 8, 2020 1:35 pm<https://electionlawblog.org/?p=114906> by Rick Hasen<https://electionlawblog.org/?author=3>

Very much looking forward to this event (registration link<https://docs.google.com/forms/d/e/1FAIpQLSdWzi32I2rYV9eY4Uk15d01q6o8AdwwrvbXRLu8ek5aTepPjw/viewform>):
[cid:image003.png at 01D68619.295EA060]
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Posted in comparative election law<https://electionlawblog.org/?cat=107>, Election Meltdown<https://electionlawblog.org/?cat=127>

Introducing the Covid-Related Election Litigation Tracker<https://electionlawblog.org/?p=114904>
Posted on September 8, 2020 1:29 pm<https://electionlawblog.org/?p=114904> by Rick Hasen<https://electionlawblog.org/?author=3>

Great news:

A team at the Stanford-MIT Healthy Elections Project<https://healthyelections.org/> has just launched the COVID-Related Election Litigation Tracker<https://healthyelections-case-tracker.stanford.edu/search>, a free, searchable, litigation tracker to help the interested public find, sort and better understand the flood of COVID-related litigation. The pandemic has spawned an avalanche of litigation regarding how to adapt, apply and administer election rules to ensure safe and fair elections. The database tracks more than 300 COVID-related election cases and appeals in federal and state courts across 44 states.

Users can search the cases tracked in the database by primary or subsidiary issues the team has assigned from its Issue Key<https://docs.google.com/document/d/1bpBELOYqNHRmLlZl429oxwJFxygeKVXs-1EB1qisOXA/edit>, as well as by state, state vs. federal court, federal circuit, case status and party name. The tracker provides brief summaries of the issues and facts for each case and links to key court documents such as complaints and dispositive legal rulings.

The database was developed and is maintained by a dedicated team of undergraduates, law students and recent graduates, led by Zahavah Levine<https://www.linkedin.com/in/zahavahlevine/>, co-coordinator of the Healthy Elections Project, in partnership with Justin Levitt<https://www.lls.edu/faculty/facultylistl-r/justinlevitt/>, Professor of Law and Gerald T. McLaughlin Fellow, Loyola Law School, whose list<https://electionlawblog.org/?p=111962> of pandemic-related election law cases we have been publishing on this blog here<https://electionlawblog.org/?p=111962>.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Thurs., 9/10, at Noon ET: Media Experts on Covering the 2020 Election; Panel with ProPublica, CNN”<https://electionlawblog.org/?p=114902>
Posted on September 8, 2020 1:27 pm<https://electionlawblog.org/?p=114902> by Rick Hasen<https://electionlawblog.org/?author=3>

What:  Getting “Election Night” Right<https://www.brennancenter.org/events/getting-election-night-right>, a panel conversation with journalists about the challenges in covering the 2020 election and ensuring fair, accurate reporting

Hosts: Brennan Center for Justice at NYU Law<https://www.brennancenter.org/>, ProPublica<https://www.propublica.org/>, and New York University’s John Brademas Center<http://www.nyu.edu/community/government-affairs/study-of-congress.html>

When: Thursday, September 10, 12:00-1:00pm ET

Where: Online. Please RSVP here<https://zoom.us/webinar/register/5315990677615/WN_GXzz-K_7QjiS5qg9E9n3xQ>.

Who:
·         Stephen Engelberg<https://www.propublica.org/people/stephen-engelberg>, Editor-in-Chief, ProPublica
·         Amy Walter<https://cookpolitical.com/about/staff/amy-walter>, National Editor, The Cook Political Report; host, The Takeaway: Politics with Amy Walter
·         Abby Phillip<https://www.cnn.com/profiles/abby-phillip-profile>, Political Correspondent, CNN
·         Moderator: Michael Waldman<https://www.brennancenter.org/experts/michael-waldman>, President, Brennan Center for Justice; author: The Fight to Vote

 Background:

Journalists are facing factors in this year’s election that complicate reporting, including the coronavirus pandemic and the ongoing changes in voting to keep people safe, false claims about voting being spread by the White House, and disinformation spread online by foreign actors. The panelists will discuss ways the media can account for these challenges and deliver fair, accurate information to the public, particularly by preparing their audiences for the likelihood that election results may take days or weeks to process after November 3 and by combating election-related misinformation. The panel will also explore how the press can inform the public if the results are contested, without inflaming tensions or heightening mistrust.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Helping Students Vote During a Pandemic; New advice for college administrators on how they can advocate for laws and conditions to encourage student voting during and after the pandemic.”<https://electionlawblog.org/?p=114900>
Posted on September 8, 2020 1:22 pm<https://electionlawblog.org/?p=114900> by Rick Hasen<https://electionlawblog.org/?author=3>

Important resource<https://www.insidehighered.com/news/2020/08/25/preventing-decline-student-voting-during-pandemic> from Inside Higher Ed.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114900&title=%E2%80%9CHelping%20Students%20Vote%20During%20a%20Pandemic%3B%20New%20advice%20for%20college%20administrators%20on%20how%20they%20can%20advocate%20for%20laws%20and%20conditions%20to%20encourage%20student%20voting%20during%20and%20after%20the%20pandemic.%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“We’re at risk of not getting the message out about how important it is for people to vote in person”<https://electionlawblog.org/?p=114887>
Posted on September 8, 2020 9:59 am<https://electionlawblog.org/?p=114887> by Richard Pildes<https://electionlawblog.org/?author=7>

Princeton’s magazine ran that statement from me as the lead to an interview<https://paw.princeton.edu/article/law-professor-rick-pildes-79-how-make-your-vote-count> I recently did with them on voting issues for this fall. As I’ve said, I intend to keep hammering away at this issue, which I see as the most important message to get across to voters at this stage of the election cycle, particularly in potential battleground states.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Double Voting or Data Error in Georgia Allegations of Double Voting in Primary?<https://electionlawblog.org/?p=114893>
Posted on September 8, 2020 9:21 am<https://electionlawblog.org/?p=114893> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael McDonald cautions<https://twitter.com/ElectProject/status/1303346365456621570>:

More:<https://twitter.com/ElectProject/status/1303346915485069314>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Facebook Need Not Remove ‘Russia State-Controlled Media’ Label from Maffick’s ‘In the Now,’ ‘Waste-Ed,’ and ‘Soapbox’ Pages”<https://electionlawblog.org/?p=114888>
Posted on September 8, 2020 9:12 am<https://electionlawblog.org/?p=114888> by Rick Hasen<https://electionlawblog.org/?author=3>

Eugene Volokh blogs.<https://reason.com/2020/09/04/facebook-need-not-remove-russia-state-controlled-media-label-from-mafficks-in-the-now-waste-ed-and-soapbox-pages/>
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, Uncategorized<https://electionlawblog.org/?cat=1>

“In battlegrounds, absentee ballot rejections could triple”<https://electionlawblog.org/?p=114884>
Posted on September 8, 2020 8:17 am<https://electionlawblog.org/?p=114884> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/881c098ab2847dea9d87604bab9568d6?utm_source=Twitter&utm_campaign=SocialFlow&utm_medium=AP>

Thousands of absentee ballots get rejected in every presidential election. This year, that problem could be much worse and potentially pivotal in hotly contested battleground states.

With the coronavirus creating a surge in mail-in balloting and postal delays reported across the country, the number of rejected ballots in November is projected to be significantly higher than previous elections.

If ballots are rejected at the same rate as during this year’s primaries, up to three times as many voters in November could be disenfranchised in key battleground states when compared to the last presidential election, according to an Associated Press analysis of rejected ballots. It could be even more pronounced in some urban areas where Democratic votes are concentrated and ballot rejection rates trended higher during this year’s primaries.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“How a ‘blue shift’ in U.S. mail ballots might set off Election Week chaos”<https://electionlawblog.org/?p=114882>
Posted on September 8, 2020 8:11 am<https://electionlawblog.org/?p=114882> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters reports.<https://www.reuters.com/article/us-usa-election-delay/how-a-blue-shift-in-u-s-mail-ballots-might-set-off-election-week-chaos-idUSKBN25Z1I1>
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Meltdown<https://electionlawblog.org/?cat=127>

“Mail-in Ballot Spike Will Make Vote Counting a Delayed Affair”<https://electionlawblog.org/?p=114880>
Posted on September 8, 2020 8:08 am<https://electionlawblog.org/?p=114880> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Government reports.<https://about.bgov.com/news/mail-in-ballot-spike-will-make-vote-counting-a-delayed-affair/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“If You Can Grocery Shop in Person, You Can Vote in Person”<https://electionlawblog.org/?p=114875>
Posted on September 8, 2020 7:52 am<https://electionlawblog.org/?p=114875> by Richard Pildes<https://electionlawblog.org/?author=7>

And here’s the subtitle from this must-read piece<https://www.theatlantic.com/politics/archive/2020/09/voting-during-pandemic-pretty-safe/616084/> in The Atlantic from Russell Berman: “Experts now say the health risk of casting an in-person ballot is relatively low. Will Democrats tell their voters that?”

I’m thrilled to see this piece. As readers here know, I have been arguing<https://www.washingtonpost.com/opinions/2020/06/23/absentee-ballots-will-be-critical-this-fall-in-person-voting-is-even-more-essential/> for months, along with others, that voters should be encouraged to vote in person, unless they have exceptional health-risks (such as the elderly). This is especially important in MI and PA, where the law currently prohibits election officials from processing absentees before Election Day. In-person voting includes early voting.

I intend to raise this issue as often and in as many forums as I can between now and Election Day. I consider it one of the most important voting issues to address, given where we now are in the election process. I hope Berman’s piece gets wide circulation. An excerpt:

Yet with the start of in-person early voting just weeks away in some states, [Zeke] Emanuel is back with an update. Public-health officials have learned a lot about the transmission of COVID-19 since the spring, Emanuel told me, and the message around voting must change. “There’s a legitimate concern, but I do think we can make it much safer by following the precautions,” he said. “You don’t want people to be disenfranchised by the pandemic, and you should encourage people that it’s safe. It’s like shopping.”

In-person voting is no more risky than going to the grocery store, Emanuel argues, as long as certain safeguards are in place, the same measures many Americans have become accustomed to since the spring: Wear a mask and line up at least six feet apart. Voting locations should have plexiglass barriers separating poll workers from voters, as well as disinfectant to wipe down commonly used surfaces and objects. (In the risk-assessment chart—which Emanuel created with James P. Phillips, the chief of disaster medicine at George Washington University, and Saskia Popescu, an epidemiologist at the University of Arizona—voting would also go in the same low-medium risk category as playing golf or tennis.)

Emanuel told me he hopes to correct perceptions about voting that, for many people, haven’t changed since early this spring. In April, state courts forced Wisconsin to go forward<https://www.theatlantic.com/politics/archive/2020/04/wisconsin-election-coronavirus/609496/> with an in-person election, siding with the GOP over the objections of the Democratic governor. Dozens of COVID-19 cases were linked to<https://www.jsonline.com/story/news/2020/05/18/research-suggests-election-linked-coronavirus-rise-questions-linger/5199181002/> that election, and the Wisconsin experience helped galvanize a nationwide movement toward expanded voting by mail that Trump has ferociously opposed and denigrated. At the time, the state’s Democratic Party chairman, Ben Wikler, told me that the GOP’s insistence on in-person voting was a “moral atrocity.”

But the Wisconsin election happened just days after the Centers for Disease Control and Prevention advised the public to wear a face covering, and at a time when protective equipment and sanitizer for poll workers was still in short supply. In the months since, millions of Americans have voted in person in primary elections across the country, and no major outbreaks have been linked to the polls, Emanuel told me.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114875&title=%E2%80%9CIf%20You%20Can%20Grocery%20Shop%20in%20Person%2C%20You%20Can%20Vote%20in%20Person%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Sept. 9 NCSL Event: Lessons Learned From the 2020 Primaries<https://electionlawblog.org/?p=114876>
Posted on September 8, 2020 7:44 am<https://electionlawblog.org/?p=114876> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://www.ncsl.org/research/elections-and-campaigns/lessons-learned-from-2020-primaries.aspx> looks good:

Now, before we’re in the thick of November’s election fever, is an excellent time to pause and reflect on this year’s primary season. What did we learn from the states, starting from Iowa’s caucuses in February all the way through September’s state primaries? We’ll discuss the timing for primaries, whether state and presidential primaries are best run jointly or as two separate events, how ranked-choice voting performed this year, independent voters’ role in political party decisionmaking and more. Expect to take away ideas for 2022 or 2024.

Sept. 9, 2020 | 2 p.m. ET / 1 p.m. CT / Noon MT / 11 a.m. PT

REGISTER NOW<https://ncsl.zoom.us/meeting/register/tJEscOyopj4vG9H6fMPMPvIvPno5iUNuYUGr>

Moderator:
·         Wendy Underhill, director, Elections and Redistricting, NCSL

Speakers:
·         Paul Pate, secretary of state, Iowa
·         Rob Richie, president and CEO, FairVote
·         Scott Saiki, speaker of the House and NCSL president-elect, Hawaii
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Must Read from Larry Diamond and Ned Foley: “The Terrifying Inadequacy of American Election Law; The country has narrowly averted catastrophic deadlocks over the presidential-election outcome before. We may not be so fortunate in 2020.”<https://electionlawblog.org/?p=114873>
Posted on September 8, 2020 7:38 am<https://electionlawblog.org/?p=114873> by Rick Hasen<https://electionlawblog.org/?author=3>

Atlantic ideas piece<https://www.theatlantic.com/ideas/archive/2020/09/terrifying-inadequacy-american-election-law/616072/>:

In that event, who ought to be obeyed as commander in chief starting at noon on January 20: a reelected President Trump, or an Acting President Pelosi?

The best time to act to avert this disaster scenario is now—well before the November election. The sooner preventive steps are taken, the easier it is to separate them from immediate partisan calculations. In particular, two important steps can be taken immediately.

One good idea<https://thehill.com/opinion/campaign/511816-how-congress-could-diminish-the-risks-with-electoral-college-count>, advanced by Senator Marco Rubio, is to give states three and a half more weeks to count their popular vote and resolve any disputes. He has introduced a bill<https://www.floridadaily.com/marco-rubio-looks-to-extend-period-for-casting-electoral-college-votes/> that would extend the federal “safe harbor” deadline for certifying electors, from December 8 to January 1. This would reduce the chances of a state submitting two conflicting slates of electoral votes.

Second, we support the idea of a bipartisan commission<https://www.usatoday.com/story/opinion/2020/08/07/george-bush-al-gore-help-us-prevent-trump-biden-nightmare-column/3310060001/> to help guide the resolution of a dispute if the joint session of Congress becomes deadlocked during the two weeks between January 6 and 20. The bipartisan commission could emerge from civil society or be a creation of Congress. But its membership<https://www.washingtonpost.com/opinions/president-trump-wants-to-undermine-the-election-heres-one-way-to-stop-him/2020/08/04/66e3366e-d5c7-11ea-9c3b-dfc394c03988_story.html> would need to be persuasive to a divided Congress in need of guidance, which would be much more likely if it were appointed by Congress. Moreover, if congressional Republican and Democratic leaders could agree on the structure and composition of such a commission—even if its writ were purely advisory—that agreement could ease the intense atmosphere of anxiety and animosity that suffuses the election.

The scenarios we have sketched here may seem improbable, but they are too risky to ignore. Better to create the commission now and have it be unnecessary than to have January arrive with it needed but nonexistent. And better, in this uniquely challenging election year, to give the states more time to count and certify their votes than to rush the electoral process, at risk of gravely damaging its legitimacy—and that of our entire democratic system.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114873&title=Must%20Read%20from%20Larry%20Diamond%20and%20Ned%20Foley%3A%20%E2%80%9CThe%20Terrifying%20Inadequacy%20of%20American%20Election%20Law%3B%20The%20country%20has%20narrowly%20averted%20catastrophic%20deadlocks%20over%20the%20presidential-election%20outcome%20before.%20We%20may%20not%20be%20so%20fortunate%20in%202020.%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, electoral college<https://electionlawblog.org/?cat=44>

--
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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