[EL] Breaking 5th Circuit decision on Texas absentee voting; still more news and commentary

[Rick Hasen]

Breaking: 5th Circuit Panel, on 2-1 Vote, Rejects 26th Amendment Age Discrimination Claim Against Texas Law That Allows Only Those Over 65 to Vote by Mail Without Excuse (During the Pandemic and Otherwise)<https://electionlawblog.org/?p=115011>
Posted on September 10, 2020 4:52 pm<https://electionlawblog.org/?p=115011> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion here<http://www.ca5.uscourts.gov/opinions/pub/20/20-50407-CV1.pdf>. The case is up on a preliminary injunction, and the case now goes back to the trial court, which is likely to again find for the plaintiffs (given the trial court’s earlier opinion) triggering another appeal. It is also possible that plaintiffs will try en banc or Supreme Court review of this decision. Although I agree with Judge Stewart’s dissent that the failure to extend the right to vote absentee to those below age 65 likely violates the 26th Amendment (and I’d also say the equal protection clause, though that was not at issue at this stage of the case), I think getting a reversal of this panel ruling from either the full 5th Circuit or the Supreme Court is unlikely.

The discussion of the scope of the 26th amendment and the meaning of abridgment is fascinating, and it will spawn a fair number of law review notes and further thinking about this question no doubt.

(Leah Litman and I pursued similar broad thinking about the scope of the 19th Amendment in Thin and Thick Conceptions of the Nineteenth Amendment and Congress’s Power to Enforce It<https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Thin-and-Thick-Conceptions-of-the-Nineteenth-Amendment-Right-to-Vote-and-Congress%E2%80%99s-Power-to-Enforce-It.pdf>, 108 Georgetown Law Journal 27 (19th Amendment edition 2020).)
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


Federal Court Extends Arizona Deadline until 5 Days After Election Day for State Voters Missing a Signature on Their Mall Ballot to Cure the Error, Equally Rules for Signature Mismatches<https://electionlawblog.org/?p=115009>
Posted on September 10, 2020 4:34 pm<https://electionlawblog.org/?p=115009> by Rick Hasen<https://electionlawblog.org/?author=3>

Court order.<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/07/AZ-Order.pdf>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Russian Intelligence Hackers Are Back, Microsoft Warns, Aiming at Officials of Both Parties”<https://electionlawblog.org/?p=115007>
Posted on September 10, 2020 4:03 pm<https://electionlawblog.org/?p=115007> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/09/10/us/politics/microsoft-election-hacking.html?action=click&module=Top%20Stories&pgtype=Homepage>:

The Russian military intelligence unit that attacked the Democratic National Committee four years ago is back with a series of new, more stealthy hacks aimed at campaign staff members, consultants and think tanks associated with both Democrats and Republicans.

That warning was issued on Thursday by the Microsoft Corporation, in an assessment that is far more detailed than any yet made public by American intelligence agencies.

The findings come one day after a government whistle-blower claimed<https://www.nytimes.com/2020/09/09/us/politics/homeland-security-russia-trump.html> that officials at the White House and the Department of Homeland Security suppressed intelligence concerning Russia’s continuing interference because it “made the president look bad,” and instructed government analysts to instead focus on interference by China and Iran.

Microsoft did find that Chinese and Iranian hackers have been active — but often not in the way President Trump and his aides have suggested.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s campaign jumps into Ohio elections fight, opposing lawsuit over multiple drop boxes in counties”<https://electionlawblog.org/?p=115005>
Posted on September 10, 2020 3:05 pm<https://electionlawblog.org/?p=115005> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com<https://www.cleveland.com/politics/2020/09/trumps-campaign-jumps-into-ohio-elections-fight-opposing-lawsuit-over-multiple-drop-boxes-in-counties.html>:

President Trump’s re-election campaign Thursday jumped into a legal fight over Ohio’s elections, seeking to prevent a push for multiple drop boxes for absentee ballots in counties across the state.

Trump’s campaign, the Republican National Committee and the Ohio Republican Party filed documents to intervene and oppose a lawsuit filed last month<https://www.cleveland.com/court-justice/2020/08/voting-rights-groups-sue-ohio-secretary-of-state-frank-larose-over-drop-boxes-for-voters.html> in U.S. District Court in Cleveland brought by voting-rights groups.

The voting-rights organizations say a directive by Ohio Secretary of State Frank LaRose that permits just one box per county seriously harms larger, metropolitan counties and violates residents’ rights. The groups are pushing for drop boxes to be placed in different parts of communities, such as libraries, to allow greater access for voters.

But attorneys from law firm Jones Day, which represent the Trump campaign and the Republican groups, said in filings that the directive does accommodate voters and “also protects the integrity of Ohio’s elections by requiring that such drop boxes be continually monitored to ensure that they remain secure.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Wisconsin court sets up possible delay in absentee mailing” (4-3 State Supreme Court Vote)<https://electionlawblog.org/?p=115003>
Posted on September 10, 2020 3:03 pm<https://electionlawblog.org/?p=115003> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.detroitnews.com/story/news/nation/2020/09/10/wisconsin-court-sets-up-possible-delay-absentee-mailing/3460172001/>:

The conservative-controlled Wisconsin Supreme Court on Thursday ordered that no absentee ballots be mailed until it gives the go-ahead or makes any future ruling about who should be on the ballot in the critical battleground state.

The order injects a measure of confusion into the voting process in Wisconsin a week before a state’s deadline for absentee ballots to be mailed and less than two months before the Nov. 3 presidential election. Polls show a tight race in the state between President Donald Trump and Democrat Joe Biden.

The ruling came in a lawsuit filed by Green Party presidential candidate Howie Hawkins. He asked the state’s highest court to take up his challenge of a Wisconsin Elections Commission decision keeping him off the ballot.

Rapper Kanye West, in a separate case, is also trying to get on the ballot after the commission rejected him. A Brown County judge said he hoped to rule within days on West’s lawsuit, which could cause further delays in the mailing of ballots.

You can find the court’s 4-3 order at this link.<https://www.documentcloud.org/documents/7205779-Hawkins-v-WEC-order.html>
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Posted in election administration<https://electionlawblog.org/?cat=18>


Business Groups Behind Push to Make It Harder to Pass Constitutional Amendments i Florida<https://electionlawblog.org/?p=115001>
Posted on September 10, 2020 2:59 pm<https://electionlawblog.org/?p=115001> by Rick Hasen<https://electionlawblog.org/?author=3>

The South Florida Sun-Sentinel reports.<https://www.sun-sentinel.com/news/politics/elections/os-ne-amendment-four-keep-our-constitution-clean-money-20200909-6n6ok2vdvnhadcxyk2gdw5b7ey-story.html#nws=true>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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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