[EL] ELB News and Commentary 9/15/20

[Rick Hasen]

“Democrats used to rail against ‘dark money.’ Now they’re better at it than the GOP.”<https://electionlawblog.org/?p=115210>
Posted on September 14, 2020 8:26 pm<https://electionlawblog.org/?p=115210> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/politics/2020-election/democrats-used-rail-against-dark-money-now-they-re-better-n1239830>

When allies of former President Barack Obama set up a super PAC to support his 2012 re-election, the White House disowned the group<https://www.politico.com/story/2011/04/wh-distances-obama-from-new-fundraising-group-053934>, The New York Times published a scathing editorial<https://www.nytimes.com/2011/05/08/opinion/08sun1.html> and former Democratic Sen. Russ Feingold of Wisconsin gave a speech warning Democrats would “lose our soul<https://www.huffpost.com/entry/russ-feingold-progressives-democrats-losing-identity_n_878817>” if they allowed big money into the party.

But fears of being outgunned trumped those principled objections and, less than a decade later, Democratic super PACs are spending more<https://www.opensecrets.org/outsidespending/summ.php?chrt=V&type=S> than Republican ones. Liberal “dark money<https://www.nbcnews.com/news/us-news/what-dark-money-why-do-so-many-people-think-it-n499731>” groups, which obscure the source of their funds, outspent conservative ones<https://www.nbcnews.com/politics/2020-election/will-democrats-beat-gop-again-dark-money-donations-2020-despite-n1102666> for the first time in 2018. Even reform hawks like Elizabeth Warren and Bernie Sanders had their own personal big-money groups supporting their presidential campaigns.

“Their mantra of not ‘unilaterally disarming’ was really their justification for learning how to master super PACs and dark money and all that, and they’re doing a better job of it right now than the Republicans,” said Craig Holman, a lobbyist for the good-government group Public Citizen.

Advocates are concerned with super PACs, which can accept donations of unlimited size but have to reveal the names of their donors and regularly disclose their activity. But they’re more worried about dark money groups: nonprofit organizations that can’t be as explicitly political as super PACs, but can keep their donors secret forever and don’t have to reveal much about activities before elections.

While concerns about campaign finance reform that once animated Democratic voters have been eclipsed by the desire to oust President Donald Trump, advocates are left to wonder if the party can really be trusted to follow through on its promises to dismantle a system that may help them get elected.

“If Democrats were to win the Senate and the White House, there is reason to be concerned that they may not carry through with their commitments,” Holman added. “I have no doubt that we are going to have to hold their word over their head.”…

In 2016, conservative dark money dwarfed liberal dark money nearly 4-to-1: $143.7 million to $37.8 million<https://www.opensecrets.org/outsidespending/summ.php?cycle=2016&chrt=V&disp=O&type=U>. But two years later, in the 2018 midterms, the backlash against Trump helped liberal dark money groups outspend their counterparts for the first time, according to an analysis by Issue One<https://www.nbcnews.com/politics/2020-election/will-democrats-beat-gop-again-dark-money-donations-2020-despite-n1102666>, a bipartisan political reform organization. And they’re on track to potentially do it again this year.

It’s impossible to comprehensively track dark money spending in real-time, which is one of the most controversial parts about it. But the limited picture that has emerged so far in 2020 shows $14.2 million in dark money has been spent supporting Democrats or against Republicans versus $9.8 million to support Republicans or attack Democrats, according to Open Secrets<https://www.opensecrets.org/outsidespending/summ.php?cycle=2020&disp=O&type=U&chrt=P>.

“Campaign spending is frequently like an arms race. Once one side develops a new weapon, both sides want to have it in their arsenal,” said Michael Beckel, research director for Issue One.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Federal judge temporarily blocks Postal Service from sending election mailer to more voters in Colorado”<https://electionlawblog.org/?p=115208>
Posted on September 14, 2020 8:10 pm<https://electionlawblog.org/?p=115208> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/colorado-election-mailer-usps/2020/09/14/1b9f7e7a-f696-11ea-a275-1a2c2d36e1f1_story.html>

A federal judge late Saturday temporarily blocked the U.S. Postal Service from sending a notice about the November elections to more people in Colorado, finding that the mailer “provides patently false information” about the state’s voting system that could sow confusion among voters.

The ruling arrived hours after the state filed a lawsuit in response to the national mailer, which urges “postal customers” around the country to “request your mail-in ballot (often called ‘absentee’ ballot) at least 15 days before Election Day.”

Voters in Colorado, eight other states and the District of Columbia do not need to request mail ballots<https://www.washingtonpost.com/graphics/2020/politics/vote-by-mail-states/?itid=lk_inline_manual_4> for November because their states are already sending them out. Those jurisdictions either conduct universal mail elections or are holding them this year because of the coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_4> pandemic.

Attorneys for the Postal Service wrote in a court filing that the flier was intended to help voters seek out information about the rules in their state. The mailer also encourages voters to “contact your election board to confirm” local rules and deadlines, to “add postage to the return envelope if needed” and to “mail your ballot at least 7 days before Election Day,” according to a photocopy included in Colorado’s lawsuit.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“20,000 Mail-in Ballots Didn’t Count in Pa.’s June Primary, Half the 2016 Victory Margin”<https://electionlawblog.org/?p=115206>
Posted on September 14, 2020 8:08 pm<https://electionlawblog.org/?p=115206> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC Philadelphia reports.<https://www.nbcphiladelphia.com/news/politics/decision-2020/mail-in-voting-what-to-know/20000-mail-in-ballots-didnt-count-in-pa-s-june-primary-half-the-2016-victory-margin/2529295/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Introducing the 2020 Election Litigation Tracker”<https://electionlawblog.org/?p=115204>
Posted on September 14, 2020 6:12 pm<https://electionlawblog.org/?p=115204> by Rick Hasen<https://electionlawblog.org/?author=3>

Exciting announcement:<https://www.scotusblog.com/2020/09/introducing-the-2020-election-litigation-tracker/>

Twenty years ago this fall, a hotly contested presidential election led to 36 days of legal turmoil that culminated with the Supreme Court’s ruling in Bush v. Gore<https://casetext.com/case/bush-v-gore>. This year, as America prepares to vote during the coronavirus pandemic, the Supreme Court once again may shape the outcome of a presidential election.

It could do so in a couple of ways. The expected surge in voting by mail increases the chance that the result will be inconclusive on election night, because many ballots may remain untallied. That would set the stage for targeted post-election litigation over ballot-counting procedures – essentially a reprise of Bush v. Gore. But even ignoring the potential for post-election litigation, the lower courts are grappling right now with hundreds of pre-election lawsuits, many of them seeking or challenging modifications to voting procedures in light of the pandemic. A few<https://www.scotusblog.com/2020/04/justices-block-extension-of-absentee-ballot-deadline-in-wisconsin/> of these<https://www.scotusblog.com/2020/06/justices-reject-effort-to-allow-mail-in-voting-for-all-in-texas/> lawsuits<https://www.scotusblog.com/2020/07/court-grants-alabamas-request-to-block-ruling-on-covid-related-accommodations-for-upcoming-runoff-election/> already have reached<https://www.scotusblog.com/2020/08/court-denies-republicans-request-to-reinstate-witness-requirement-for-rhode-island-absentee-ballots/> the Supreme Court on an emergency basis, and more are likely to do so in the coming weeks. The justices’ rulings in these cases could determine how – or whether<https://www.scotusblog.com/2020/07/justices-decline-to-intervene-in-florida-voting-dispute/> – millions of Americans vote this fall.

That is why SCOTUSblog is collaborating with experts from Election Law at Ohio State<https://u.osu.edu/electionlaw/> to provide up-to-date information on significant election-related cases as they progress through the court system. Our 2020 Election Litigation Tracker<https://www.scotusblog.com/election-litigation/>, which we launch today, contains plain-English case summaries, primary documents and links to news coverage at SCOTUSblog and elsewhere. It also includes expert-written explainers on some of the arcane aspects of election law – like the Purcell principle<https://www.scotusblog.com/educational-resources/the-purcell-principle-a-presumption-against-last-minute-changes-to-election-procedures/> and the Anderson-Burdick doctrine<https://www.scotusblog.com/educational-resources/the-anderson-burdick-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/> – that could become part of America’s vocabulary this fall, just as “hanging chads” did in 2000.

This is an unusual project for SCOTUSblog. We don’t normally cover litigation before it reaches the Supreme Court. But in the election law context, cases typically reach the justices in an emergency posture and must be litigated at high speed<https://www.scotusblog.com/educational-resources/emergency-appeals-stay-requests/>. That means these momentous cases often do not get the benefit of oral argument, full briefing and lengthy deliberation by the justices. And because of how quickly the cases arise, the legal community, the press and the public often lack access to reliable, nonpartisan information about how the cases got to the justices and what issues are at stake. That’s the problem our 2020 Election Litigation Tracker aims to solve. It is not a comprehensive database of all election-related lawsuits. Rather, it is a resource on the cases that are most likely to land on the desks of the justices shortly before – or shortly after – Election Day. When they do, they should not come as a surprise.

We thank the team at Election Law at Ohio State – especially Edward Foley, Steven Huefner, Matt Cooper and Gillian Thomson – for their invaluable collaboration. And we want to hear from readers. We’ll be continuously adding new content to the tracker, so if there’s something you’d like to see, or a case you think we should be covering, just email us. SCOTUSblog can be reached at feedback at scotusblog.com<mailto:feedback at scotusblog.com>, and the Ohio State team can be reached at electionlaw at osu.edu<mailto:electionlaw at osu.edu>.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Democracy on a Shoestring”<https://electionlawblog.org/?p=115202>
Posted on September 14, 2020 6:05 pm<https://electionlawblog.org/?p=115202> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Sellers and Roger Michalski have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3685493> on SSRN (forthcoming Vanderbilt Law Review). Here is the abstract:

Democracy is expensive. Voters must be registered, voting rolls updated, election dates advertised, voting technology purchased and tested, poll workers trained, ballots designed, votes counted and verified, and on and on. Despite the importance of election expenditures, we have a shamefully inadequate amount of information about how much our elections cost. This Article, based on a novel and painstakingly hand-coded data set, provides much needed information on election expenditures across multiple years from four states: California, Arizona, Texas, and Florida. These states, given their unique characteristics, provide a compelling sample set.

In what we believe to be a completely novel approach to the collection of election expenditure data, we supplement our hand-coded data with predictive machine learning. This allows us to estimate average annual election spending across multiple government units. Our findings, unsurprisingly, reveal great variation both across and within states. However, our findings also reveal that much of the variation is seemingly unconnected to poverty, race, and other traditional explanations of electoral disadvantage. This brings into question many basic assumptions legislators, courts, and scholars harbor about election expenditures. Our findings implicate not only policy discussions about election funding, but the limitations of doctrinal interventions and judicial remedies that are divorced from issues of resource allocation.

The Article proceeds in five parts: Part I provides background on election funding, including why elections are expensive and what the most common funding sources are. This Part also discusses election law doctrines and how they do not directly consider election expenditures. Part II outlines our data and methods. Our novel methodological advancements permit us to draw conclusions that previous researchers have been unable to support. Part III presents our main findings. Part IV responds to the findings and explores potential doctrines under which election expenditures might be considered. Part V weighs the pros and cons of several non-doctrinal reform proposals.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Breaking: Justice Kagan Denies Another Supreme Court Petition to Put Green Party on the Ballot in Montana<https://electionlawblog.org/?p=115153>
Posted on September 14, 2020 4:02 pm<https://electionlawblog.org/?p=115153> by Rick Hasen<https://electionlawblog.org/?author=3>

The case <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a41.html> is Davis v. Stapleton. Justice Kagan did not ask for a response on this one.

This is the second Green Party case<https://electionlawblog.org/?p=114434> from Montana denied by Justice Kagan.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, Supreme Court<https://electionlawblog.org/?cat=29>


Republican EAC Commissioners Speaking on Zoom Call Organized by “Lawyers Democracy Fund” “to Analyze Effects of Vote-By-Mail Litigation in PA, IA, WI, and Across US”<https://electionlawblog.org/?p=115150>
Posted on September 14, 2020 3:36 pm<https://electionlawblog.org/?p=115150> by Rick Hasen<https://electionlawblog.org/?author=3>

This seems worthy of a deeper dive, particularly what Christy McCormick and Don Palmer should be saying about this topic:
[cid:image002.png at 01D68AD5.C47EF4D0]

Lawyers Democracy Fund<https://lawyersdemocracyfund.org/> (calling itself “LDF”–hmm) seems to have a lot of overlap with RNLA and Honest Elections Project.
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Posted in Election Assistance Commission<https://electionlawblog.org/?cat=34>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


--
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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