[EL] Breaking census decision case/more news and commentary

[Rick Hasen]

Breaking: Three-Judge Court Unanimously Enjoins Trump Order to Report Non-Citizen Numbers for Apportionment Purposes from the Census Count; Case Likely Headed to SCOTUS<https://electionlawblog.org/?p=114997>
Posted on September 10, 2020 2:27 pm<https://electionlawblog.org/?p=114997> by Rick Hasen<https://electionlawblog.org/?author=3>

From the court decision<https://www.courtlistener.com/recap/gov.uscourts.nysd.540927/gov.uscourts.nysd.540927.164.0.pdf>:

For the reasons that follow, Plaintiffs are entitled to summary judgment. The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects. First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary is mandated to report a single set of numbers — “[t]he tabulation of total population by States” under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme. Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.

On those bases, we declare the Presidential Memorandum to be an unlawful exercise of the authority granted to the President by statute and enjoin Defendants — but not the President himself — from including in the Secretary’s report to the President any information concerning the number of aliens in each State “who are not in a lawful immigration status under the Immigration and Nationality Act.” Presidential Memorandum, 85 Fed. Reg. at 44,680. Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself.

This will no doubt be appealed directly to the Supreme Court itself, likely on an accelerated timeline, and the Court may decide it with or without setting it for oral argument.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


“The Latest On Republican Efforts To Make It Harder To Vote”<https://electionlawblog.org/?p=114995>
Posted on September 10, 2020 1:40 pm<https://electionlawblog.org/?p=114995> by Rick Hasen<https://electionlawblog.org/?author=3>

Perry Bacon for 538.<https://fivethirtyeight.com/features/the-latest-on-republican-efforts-to-make-it-harder-to-vote/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Twitter expands rules against election-related misinformation, setting up showdown with Trump”<https://electionlawblog.org/?p=114993>
Posted on September 10, 2020 10:25 am<https://electionlawblog.org/?p=114993> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/10/tech/twitter-rules-trump-misinformation-election/index.html>:

Twitter announced Thursday that it is expanding its policies <https://blog.twitter.com/en_us/topics/company/2020/civic-integrity-policy-update.html> against election-related misinformation, setting new rules that will likely force the platform to more aggressively fact-check President Donald Trump during the final months of the 2020 campaign.

The social media giant rolled out the new policies in a blog post, which said that Twitter (TWTR<https://money.cnn.com/quote/quote.html?symb=TWTR&source=story_quote_link>) will either add fact-check labels to or hide altogether tweets that contain “false or misleading information that causes confusion” about election rules, or posts with “unverified information about election rigging.”

Twitter’s porous and subjective policies<https://www.cnn.com/2020/07/15/politics/twitter-trump-election-misinformation/index.html> have enabled Trump to spread a steady stream of misinformation about the election to millions of Americans. The company led the way for Big Tech when it rebuked Trump for a misleading tweet in May<https://www.cnn.com/2020/05/26/tech/twitter-trump-fact-check/index.html>, but that watershed moment has ended up looking more like an outlier. Twitter only rarely applies fact-check labels to Trump’s tweets containing false information about voting, and it’s unclear how much labeling achieves.

The new rules, which Twitter says will go into effect next week, explicitly prohibit a lot of the material Trump is prone to posting, putting the company on a collision course with Trump while it tries to help steer the country through an unprecedented voting and post-election process.

The new rules include policies geared toward reducing potential post-election chaos<https://www.cnn.com/2020/07/20/politics/disputed-election-crisis-trump/index.html>, a major concern this year because of Trump’s rhetoric and the influx of mail-in ballots, which will slow down vote-counting. Twitter will now prohibit “misleading claims about the results,” premature claims of victory, or “inciting unlawful conduct” that prevents a peaceful transition of power.

The company says it will “label or remove” posts that break the rules, but didn’t spell out what process will be used to determine what is egregious enough to get removed instead of labeled.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“How Greater Vote-by-Mail Influences California Voter Turnout”<https://electionlawblog.org/?p=114991>
Posted on September 10, 2020 10:18 am<https://electionlawblog.org/?p=114991> by Rick Hasen<https://electionlawblog.org/?author=3>

New PPIC report<https://www.ppic.org/publication/how-greater-vote-by-mail-influences-california-voter-turnout/?utm_source=ppic&utm_medium=email&utm_campaign=epub>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


New Jersey: “Judge rules Middlesex County gender party posts are unconstitutional”<https://electionlawblog.org/?p=114989>
Posted on September 10, 2020 10:15 am<https://electionlawblog.org/?p=114989> by Rick Hasen<https://electionlawblog.org/?author=3>

My Central Jersey:<https://www.mycentraljersey.com/story/news/politics/2020/09/10/nj-judge-rules-middlesex-county-party-posts-gender-unconstitutional/5758460002/?fbclid=IwAR37xdquvlwuCeqb0wiuuST31BeWjYpFN-7CHO_FbXudR3rZ0LVK3yCV4CA>

In a landmark decision for the progressive movement, a Superior Court judge has ruled that it is unconstitutional for candidates for municipal party committee seats to run on the basis of gender.

Under state law, both Democrats and Republicans have filled seats for municipal party committees with one male and one female for each election district. The committee members are the backbone of the municipal party structure, choosing what candidates receive the party endorsement in primary elections and working for the party in the fall campaign. The committee members are elected in primaries.

Superior Court Judge Mary Jacobson, sitting in Mercer County, ruled Sept. 2 in favor of a lawsuit brought in April 2019 by the Central Jersey Progressive Democrats that a state statute requiring county committee seats be filled by a male and female from each district violated federal and state constitutional rights to equal protection.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“UCI Law Video: Two Months to Election Day – Are We Prepared?”<https://electionlawblog.org/?p=114987>
Posted on September 10, 2020 10:08 am<https://electionlawblog.org/?p=114987> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch archived video <https://www.law.uci.edu/news/videos/hasen-two-months-to-election-day-2020.html> of our event from earlier this week:

This webinar brought together experts in elections and election law to consider whether the United States is prepared to run a fair, safe, and legitimate election process in the midst of the pandemic. Among the topics for discussion are the role of absentee balloting, social media and election misinformation, and voter confidence in the election process. The event featured panelists Julia Azari, Associate Professor and Assistant Chair, Marquette University; Mindy Romero, Founder and Director, Center for Inclusive Democracy; and Martin Wattenberg, Professor of Political Science, UC Irvine. Rick Hasen, Chancellor’s Professor of Law and Political Science, UCI Law, moderated. This event was presented in conjunction with the UCI Jack W. Peltason Center for the Study of Democracy.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Democrats may not trust the results of the election if Trump wins; Here’s what the president could do now to bolster his legitimacy in advance.”<https://electionlawblog.org/?p=114985>
Posted on September 10, 2020 8:34 am<https://electionlawblog.org/?p=114985> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this oped<https://www.washingtonpost.com/outlook/2020/09/10/trump-win-fair-election/> for the Washington Post. It begins:

Concern is rising about what would happen if President Trump loses the November election and refuses to concede, perhaps by claiming victory based on early returns before the mail-in ballots are counted or through some similar maneuver. Would his supporters in this “doomsday scenario<https://www.nytimes.com/2020/09/02/us/politics/voting-election-day.html?referringSource=articleShare>” take to the streets and Trump refuse to leave office?

These are real worries. But there’s another one that looms almost as large and gets far less attention: Would Democrats and others on the left accept the presidential results as legitimate if Trump wins? There’s reason to believe they might not — and there are steps Trump and others could take now to bolster his legitimacy if he wins in November. It starts by making sure we have a fair vote.

It’s easy to come up with a scenario where Trump ekes out a narrow victory in states like Georgia and Florida but Democrats blame Georgia voter suppression<https://www.politico.com/news/2020/06/09/georgia-primary-election-voting-309066> and the fight to keep former felons from voting<https://www.politico.com/states/florida/story/2020/08/18/federal-appeals-court-considers-whether-to-uphold-florida-voting-law-1309985> in Florida as the reason for Trump’s victory. A democracy depends upon the losers believing the election was mostly fair and agreeing to fight another day, rather than engage in protests and attempts to stop an unfairly chosen leader from serving. If one side sees the other side as consistently cheating, the very premise of democracy is undermined.

This year, the grounds for Democrats to fear an illegitimate election have only increased…

To begin with, the best way to create the appearance of a fair election is to run an actually fair election. That means adequate funding for the additional costs of conducting a national election during a pandemic. It means assuring that the Postal Service has sufficient resources to deliver election-related mail quickly. It means encouraging eligible voters to vote (only once!), early if possible, and making sure that systems are in place to protect both the integrity of the vote count and access to the ballot during a pandemic.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Public-Health Experts: In-Person Voting is Safe<https://electionlawblog.org/?p=114971>
Posted on September 10, 2020 8:12 am<https://electionlawblog.org/?p=114971> by Richard Pildes<https://electionlawblog.org/?author=7>

As this piece today<https://electionlawblog.org/wp-admin/post.php?post=114971&action=edit> in the Washington Post notes, 70% of people are “very confident” their vote will be counted accurately if they vote in person, while only 30% say the same if they vote by mail. Many people want to vote in person, but are still concerned about whether there are potential health risks in doing so.

More and more public-health experts have issued statements or published pieces in recent weeks saying that in-person voting poses no significant health risk. With the protocols election officials are putting in place, in-person voting will not pose a significant health risk. Given the importance of this issue, I wanted to collect here some of these recent statements from public-health authorities:

In this August interview<https://www.nationalgeographic.com/science/2020/08/what-anthony-fauci-says-united-states-really-needs-to-reopen-safely-cvd/#close>, Dr. Fauci says “there’s no reason why we shouldn’t be able to vote in person or otherwise,” and provides a fuller explanation.

Dr. Ezekiel Emmanuel — special advisor for health policy to the director of the White House Office of Management and Budget in the Obama administration, currently Vice Provost for Global Initiatives and chair of the Department of Medical Ethics and Health Policy at the University of Pennsylvania — has said<https://www.theatlantic.com/politics/archive/2020/09/voting-during-pandemic-pretty-safe/616084/> in recent days that in-person voting is as safe as going to the grocery store.

Dr. William P. Hanage, associate professor of epidemiology at the Harvard T. H. Chan School of Public Health, and Dr. Annabelle de St. Maurice, assistant professor of pediatric infectious diseases at UCLA’s David Geffen School of Medicine, recently published an article <https://www.politico.com/news/magazine/2020/08/20/cdc-guidelines-polling-places-missing-398583> on the safety of in-person voting.

In addition, many states have expanded early-voting options this year, which means we can “flatten the in-person voting curve.”

I expect many public health authorities to come forward with similar reassurances as we move closer to the election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Great New Resource from The Washington Post: How to Vote in Your State<https://electionlawblog.org/?p=114981>
Posted on September 10, 2020 8:08 am<https://electionlawblog.org/?p=114981> by Rick Hasen<https://electionlawblog.org/?author=3>

Click here<https://www.washingtonpost.com/elections/2020/how-to-vote/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Most Americans want to vote before Election Day, a significant shift from previous years, poll finds”<https://electionlawblog.org/?p=114979>
Posted on September 10, 2020 8:02 am<https://electionlawblog.org/?p=114979> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/poll-americans-plan-early-vote/2020/09/10/4f782536-f037-11ea-bc45-e5d48ab44b9f_story.html>

About six in 10 registered voters nationwide say they want to cast their ballots before Election Day, a significant departure from previous years that will force the candidates to reshape how they campaign in the election season’s final weeks, according to a Washington Post-University of Maryland poll<https://www.washingtonpost.com/context/washington-post-university-of-maryland-poll-by-ipsos-on-voting-issues-aug-24-31/d0ca1dc3-4b85-40b1-92b1-4c91986d0be3/?itid=lk_inline_manual_2> conducted by Ipsos.

Fear of the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_4> and doubts about the reliability of mail voting after months of attacks from President Trump are weighing heavily on Americans as they decide how to safely ensure their vote will be counted in this fall’s presidential election, according to the survey. In 2016, about 4 in 10 ballots were cast early.

The likely surge in early voting and mail ballots will test election systems nationwide, many of which are ill-prepared to contend with an unprecedented volume of early votes or help voters who are struggling to learn the rules around mail ballots.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Exclusive: Russian state hackers suspected in targeting Biden campaign firm – sources”<https://electionlawblog.org/?p=114977>
Posted on September 10, 2020 7:56 am<https://electionlawblog.org/?p=114977> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/us-usa-election-cyber-biden-exclusive-idUSKBN2610I4>

Microsoft Corp (MSFT.O<https://www.reuters.com/companies/MSFT.O>) recently alerted one of Democratic presidential candidate Joe Biden’s main election campaign advisory firms that it had been targeted by suspected Russian state-backed hackers, according to three people briefed on the matter.

The hacking attempts targeted staff at Washington-based SKDKnickerbocker, a campaign strategy and communications firm working with Biden and other prominent Democrats, over the past two months, the sources said.

A person familiar with SKDK’s response to the attempts said the hackers failed to gain access to the firm’s networks. “They are well-defended, so there has been no breach,” the person said.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Sept. 15 Ash Center Event: “Election 2020: What Keeps You Up at Night?”<https://electionlawblog.org/?p=114974>
Posted on September 10, 2020 7:50 am<https://electionlawblog.org/?p=114974> by Rick Hasen<https://electionlawblog.org/?author=3>

Details:<https://ash.harvard.edu/event/election-2020-what-keeps-you-night>

Date:

Tuesday, September 15, 2020, 4:00pm to 5:00pm

Location:

Register for virtual event details

What are the greatest threats to a successful U.S. election in November? Join the Ash Center in discussion with three leading U.S. election practitioners – one litigator, one election official, and one national grassroots organizing leader – as we ask each of them a series of questions about their greatest fears around the voting process, their work to achieve a fully inclusive and well-administered election, and their ideas for the future of U.S. democracy. Panelists include:
·         Janai Nelson, Associate Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.
·         Judd Choate, Director of Elections, Colorado Secretary of State’s Office
·         Karen Hobert Flynn, National President, Common Cause
·         Miles Rapoport (Moderator), Senior Practice Fellow in American Democracy, Ash Center

This event forms part of the “Justice, Democracy, and the 2020 Elections”series hosted by the democracy program at Harvard Kennedy School’s Ash Center for Democratic Governance and Innovation. The series discusses major developments around the election as they unfold, focusing on the democratic process itself, through the lens of conversations with leading practitioners in the field.

Virtual Event Details

This event will be held via Zoom Webinar. Please register below to receive the login as well as an event reminder before the event. Questions for the panelists can be submitted in advance of the discussion via the registration form.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Post-Election Chaos: A Primer”<https://electionlawblog.org/?p=114972>
Posted on September 10, 2020 7:45 am<https://electionlawblog.org/?p=114972> by Rick Hasen<https://electionlawblog.org/?author=3>

Cass Sunstein has posted this draft<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3685392&dgcid=ejournal_htmlemail_u.s.:constitutional:law:interpretation:judicial:review:ejournal_abstractlink> on SSRN. Here is the abstract:

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.
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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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