[EL] ELB News and Commentary 9/16/20

[Rick Hasen]

Ohio SOS LaRose to Appeal Drop Box Decision<https://electionlawblog.org/?p=115263>
Posted on September 15, 2020 9:10 pm<https://electionlawblog.org/?p=115263> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://local12.com/news/local/ohio-judge-derides-restriction-of-1-ballot-box-per-county-cincinnati>:

A directive that restricted Ohio counties to one ballot drop box in November was arbitrary and unreasonable, a county judge ruled Tuesday, delivering the Republican secretary of state in the presidential battleground another in a series of blows to his policies.

The office of Secretary of State Frank LaRose said he would soon appeal the decision by Franklin County Common Pleas Judge Richard Frye, assuming the judge follows through and invalidates the secretary’s drop-box order.

For now, Frye’s ruling doesn’t change anything, LaRose spokesperson Maggie Sheehan said in a written statement, “and the Secretary’s directive remains in place.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Mailed Ballots Can’t Be Discarded Over Signature, Pennsylvania Says”<https://electionlawblog.org/?p=115261>
Posted on September 15, 2020 8:57 pm<https://electionlawblog.org/?p=115261> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.baynews9.com/fl/tampa/news/2020/09/15/mailed-ballots-can-t-be-discarded-over-signature--pennsylvania-says>

With concerns rising in Pennsylvania that tens of thousands of mail-in ballots will be discarded in the presidential election over technicalities, officials in the battleground state told counties that they cannot reject a ballot solely because an election official believes a signature doesn’t match the signature in the voter’s file.

The new guidance from Pennsylvania’s Department of State prompted the League of Women Voters of Pennsylvania and the Urban League of Greater Pittsburgh to drop a lawsuit in federal court Monday.

The groups had sought to ensure that voters have the chance to fix ballots that are either missing signatures or flagged for a perceived signature mismatch.

“As a result of this case, Pennsylvania voters can cast their vote without fear that their ballot could be rejected solely because an election official — who isn’t trained in handwriting analysis — thinks their signatures don’t match,” said Mark Gaber, a Campaign Legal Center lawyer who represented the groups in court.

But, with seven weeks until the Nov. 3 election in the presidential battleground state, a partisan stalemate in Pennsylvania’s Capitol is holding up legislation to fix glitches and gray areas in the state’s mail-in voting law.

Gov. Tom Wolf, a Democrat, and the Legislature’s Republican majorities are clashing over how to prevent vast numbers of ballots from being discarded because of technicalities and how to head off the specter of a presidential election result hanging in limbo on a drawn-out vote count and legal fight in Pennsylvania.

The stalemate over legislation prompted Wolf, at a press conference on Tuesday in York, to press lawmakers anew to act on changes he is seeking.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Pro-Trump youth group enlists teens in secretive campaign likened to a ‘troll farm,’ prompting rebuke by Facebook and Twitter”<https://electionlawblog.org/?p=115259>
Posted on September 15, 2020 5:44 pm<https://electionlawblog.org/?p=115259> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Post:<https://www.washingtonpost.com/politics/turning-point-teens-disinformation-trump/2020/09/15/c84091ae-f20a-11ea-b796-2dd09962649c_story.html>

One tweet claimed coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_2> numbers were intentionally inflated, adding, “It’s hard to know what to believe.” Another warned, “Don’t trust Dr. Fauci.”

A Facebook comment argued that mail-in ballots<https://www.washingtonpost.com/opinions/2020/09/08/republicans-have-insufficient-evidence-call-elections-rigged-fraudulent/?itid=lk_inline_manual_3> “will lead to fraud for this election,” while an Instagram comment amplified the erroneous claim<https://www.politifact.com/factchecks/2020/jun/09/j-christian-adams/misleading-claim-millions-absentee-ballots-end-mis/> that 28 million ballots went missing in the past four elections.

The messages have been emanating in recent months from the accounts of young people in Arizona seemingly expressing their own views — standing up for President Trump in a battleground state and echoing talking points from his reelection campaign.

Far from representing a genuine social media groundswell, however, the posts are the product of a sprawling yet secretive campaign that experts say evades the guardrails put in place by social media companies to limit online disinformation of the sort used by Russia during the 2016 campaign.

Teenagers, some of them minors, are being paid to pump out the messages at the direction of Turning Point Action, an affiliate of Turning Point USA, the prominent conservative youth organization based in Phoenix, according to four people with independent knowledge of the effort. Their descriptions were confirmed by detailed notes from relatives of one of the teenagers who recorded conversations with him about the efforts.

The campaign draws on the spam-like behavior of bots and trolls, with the same or similar language posted repeatedly across social media. But it is carried out, at least in part, by humans paid to use their own accounts, though nowhere disclosing their relationship with Turning Point Action or the digital firm brought in to oversee the day-to-day activity. One user included a link to Turning Point USA’s website in his Twitter profile until The Washington Post began asking questions about the activity.

In response to questions from The Post, Twitter on Tuesday suspended at least 20 accounts involved in the activity for “platform manipulation and spam.” Facebook also removed a number of accounts as part of what the company said is an ongoing investigation.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>


“In ‘Election Meltdown,’ A Legal Scholar Details The Threat To Our Voting System”<https://electionlawblog.org/?p=115257>
Posted on September 15, 2020 5:40 pm<https://electionlawblog.org/?p=115257> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke<https://www.wvxu.org/post/election-meltdown-legal-scholar-details-threat-our-voting-system#stream/0> to Cincinnati Public Radio.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


There He Goes Again Dep’t: AG Barr Raising Wild and Unsubstantiated Claims of Voter Fraud<https://electionlawblog.org/?p=115255>
Posted on September 15, 2020 2:06 pm<https://electionlawblog.org/?p=115255> by Rick Hasen<https://electionlawblog.org/?author=3>

Dangerous:<https://twitter.com/fordm/status/1305952230164619265>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


After Ohio Court Declares Ohio Counties Can Have Multiple Drop Boxes Per County, Ohio SOS LaRose Troublingly Directs Counties Not to Set Up Drop Boxes<https://electionlawblog.org/?p=115253>
Posted on September 15, 2020 2:04 pm<https://electionlawblog.org/?p=115253> by Rick Hasen<https://electionlawblog.org/?author=3>

This is quite odd. The court decision<https://drive.google.com/file/d/1xegtnjwQZQMlZFx01CMt5nL98bDGfAh7/view> was a declaratory judgment that the one drop box per county rule was arbitrary and contrary to law. The court did not back up the declaration with an injunction because SOS LaRose has said he’d stand by a court ruling. But now LaRose is saying<https://twitter.com/rickhasen/status/1305935456865927168?s=20> that counties still cannot add drop boxes.

It’s not clear what the legal basis is for this. As a matter of Remedies law, a declaratory judgment is implicitly coercive. If LaRose won’t follow the declaration, it can be followed by a court order.

Awaiting further clarification here.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Breaking: Texas Supreme Court Orders Green Party Candidates on the Ballot, Necessitating Some Delay in Printing and Mailing Ballots (Court Also Barred Harris County from Sending Absentee Ballot Applications Pending Further Order)<https://electionlawblog.org/?p=115251>
Posted on September 15, 2020 2:00 pm<https://electionlawblog.org/?p=115251> by Rick Hasen<https://electionlawblog.org/?author=3>

Order here<https://www.txcourts.gov/supreme/orders-opinions/2020/september/september-15-2020/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Abridging the Right to Vote in the Fifth Circuit”<https://electionlawblog.org/?p=115247>
Posted on September 15, 2020 1:55 pm<https://electionlawblog.org/?p=115247> by Rick Hasen<https://electionlawblog.org/?author=3>

Travis Crum:<https://takecareblog.com/blog/abridging-the-right-to-vote-in-the-fifth-circuit>

A divided panel of the Fifth Circuit recently held that Texas’s provision of no-excuse absentee ballots to senior citizens does not violate the Twenty-Sixth Amendment<https://www.law.cornell.edu/constitution/amendmentxxvi>. Ratified in 1971<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1649365>, the Twenty-Sixth Amendment provides that the “right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” This litigation was initiated in response to the COVID-19 pandemic, but the flaws in Texas’s absentee ballot law are facial and long-standing. Most disturbingly, the Fifth Circuit’s narrow interpretation of what it means to abridge the right to vote applies to the functionally equivalent Fifteenth<https://www.law.cornell.edu/constitution/amendmentxv>, Nineteenth<https://www.law.cornell.edu/constitution/amendmentxix>, and Twenty-Fourth<https://www.law.cornell.edu/constitution/amendmentxxiv> Amendments, creating new avenues for discriminating based on race, sex, and wealth.

The Fifth Circuit’s decision in Texas Democratic Party v. Abbott<http://www.ca5.uscourts.gov/opinions/pub/20/20-50407-CV1.pdf> makes several missteps. In this post, I’ll flag three of them.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


South Dakota Conference on Voting and Election Law<https://electionlawblog.org/?p=115242>
Posted on September 15, 2020 12:41 pm<https://electionlawblog.org/?p=115242> by Richard Pildes<https://electionlawblog.org/?author=7>

One of the silver linings of Zoom is being able to talk with law students at places that would be logistically difficult if conferences had to be in person. Nick Stephanopolous and I will be speaking tomorrow at this conference “in” South Dakota. The program, and Zoom registration, are here:
LAW REV – ELECTION AND VOTING (003)<https://electionlawblog.org/wp-content/uploads/LAW-REV-ELECTION-AND-VOTING-003.pdf>Download<https://electionlawblog.org/wp-content/uploads/LAW-REV-ELECTION-AND-VOTING-003.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


I Talked About the Upcoming Election and Election Law on the “Thinking Like a Lawyer” Podcast<https://electionlawblog.org/?p=115239>
Posted on September 15, 2020 11:37 am<https://electionlawblog.org/?p=115239> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen here<https://twitter.com/LegalTalkNet/status/1305937783484284937?s=20>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


von Spakovsky Mischief: “No Democrats Allowed: A Conservative Lawyer Holds Secret Voter Fraud Meetings With State Election Officials”<https://electionlawblog.org/?p=115237>
Posted on September 15, 2020 11:29 am<https://electionlawblog.org/?p=115237> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica<https://www.propublica.org/article/no-democrats-allowed-a-conservative-lawyer-holds-secret-voter-fraud-meetings-with-state-election-officials>:

Starting in early spring, as the coronavirus took hold, a conservative lawyer at the forefront of raising alarms about voting by mail held multiple private briefings exclusively for Republican state election officials, according to previously unreported public records.

The lawyer, the Heritage Foundation’s Hans von Spakovsky, is a leading purveyor of the notion that voter fraud is rampant, claims that have been largely discredited.

Among the participants<https://www.documentcloud.org/documents/7208238-Georgia-Covid-1.html> in these meetings has been an official from the office of Georgia’s secretary of state; the secretary, Brad Raffensperger, recently elevated<https://www.nytimes.com/2020/09/08/us/politics/georgia-double-voting.html> concerns about voter fraud by contending that 1,000 Georgians had voted twice in elections this year.

GOP congressional staffers and a Trump administration appointee have also joined in these meetings, which were open to officials from states across the country, including Missouri<https://www.documentcloud.org/documents/7208203-Missouri-Covid.html> and Nevada<https://www.documentcloud.org/documents/7208204-Nevada-Late-Winter-Thru-Summer.html>, the records show. No Democratic state election officials appear to have been invited….

The meetings come as voting access has become one of the central flashpoints of the upcoming presidential election. More Americans are expected to vote by mail this year than ever before because of the health risks posed by COVID-19. President Donald Trump has repeatedly and baselessly asserted that mail-in voting is rife with problems. Echoing von Spakovsky, he asserted<https://twitter.com/realDonaldTrump/status/1288818160389558273> on Twitter in July that the upcoming presidential vote will be the “most INACCURATE & FRAUDULENT Election in history.”

Experts have said<https://www.brennancenter.org/sites/default/files/2019-07/Report_HeritageAnalysis_Final.pdf> voting by mail carries little risk<https://www.propublica.org/article/ignoring-trump-and-right-wing-think-tanks-red-states-expand-vote-by-mail> of fraud. Since it is widely believed<https://www.usatoday.com/story/news/politics/elections/2020/08/18/election-2020-biden-voters-twice-likely-vote-mail-survey-finds/3394795001/> that more Democractic voters will vote by mail than Republicans, von Spakovsky’s proposals, if adopted, could suppress<https://www.nytimes.com/2020/04/08/us/politics/republicans-vote-by-mail.html> Democratic turnout in one of the most consequential presidential elections in a generation.

Secretaries of state, who oversee statewide voting and work with county election officials, have broad leeway to act in ways that can limit or expand the franchise. While most are partisan elected officials, they are expected to carry out policies that benefit everyone.

This bit also caught my eye:

There are indications that von Spakovsky has been influential within the Trump administration as well. During the August virtual briefing, state election administrators were told that Cameron Quinn, a Department of Homeland Security official, would now be their “liaison to the election community<https://www.documentcloud.org/documents/7208248-Cameron-Quinn-at-DHS-Redacted.html>,” according to emails that a participant from Washington state sent to his colleagues.

Quinn has worked<https://www.motherjones.com/politics/2017/09/trump-pick-for-civil-rights-role-is-a-lawyer-whos-pushed-voting-restrictions/> as an elections official in Virginia with von Spakovsky and has co-taught a law school course<https://www.law.gmu.edu/assets/files/academics/schedule/2016/summer/Quinn_382-S.pdf> with him. During the meeting, she provided her cellphone number to the attendees.

The announcement of her role apparently came as a surprise to Washington officials, including the state’s director of elections, the emails show. The director, a member of a five-person committee that regularly interacts with DHS over election security matters, told her colleagues that there is a point of contact<https://www.documentcloud.org/documents/7208257-RE-Cameron-Quinn-at-DHS-Aguino-Redacted.html> within the agency — and it’s not Quinn.

It turned out Quinn participated in the meeting without notifying her new boss beforehand, according to people familiar with the matter. Her appointment to the Cybersecurity and Infrastructure Security Agency, a division within DHS that monitors election systems for foreign hacking attempts and communicates with state officials about them, had only been announced within the agency a day earlier, they said.

It’s not clear whether Quinn is still in contact with state elections officials. A division spokeswoman confirmed Quinn was not yet an employee in the division at the time she participated in the meeting but declined to answer additional questions.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Bring the Masks and Sanitizer: The Surprising Bipartisan Consensus About Safety Measures for In-Person Voting During the Coronavirus Pandemic”<https://electionlawblog.org/?p=115235>
Posted on September 15, 2020 11:26 am<https://electionlawblog.org/?p=115235> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas and Michael Zilis have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3693286> on SSRN. Here is the abstract:

Americans overwhelmingly support various safety measures at polling places for the November 2020 election. Issues like face mask requirements, social distancing, and sanitizing polling equipment after each voter have strong support, regardless of party, even if adopting them might mean longer lines or wait times to vote. For instance, 79 percent of Americans support face mask requirements at the polls, with little difference among the views between Democrats and Republicans.

That surprising statistic comes from a representative, nationwide survey of Americans we conducted in August 2020 about their views of the election during a pandemic. Although beliefs about expanded vote-by-mail have significant partisan overtones, support for safety measures for in-person voting does not.

As of mid-September, six states (Indiana, Louisiana, Mississippi, South Carolina, Tennessee, and Texas) will not allow concerns about COVID-19 to qualify as a valid excuse for absentee voting. These states will therefore likely have a high rate of in-person voting. But the states vary slightly on the safety measures they will employ, with only some requiring poll workers to wear masks and none imposing a mask mandate for voters. Although no voter should be turned away for not wearing a mask, the data in our survey suggests that states can do more to make voters feel more comfortable when voting in person. Given that Americans broadly support some modifications to in-person voting and also express safety concerns about polling places, the failure to adopt them could depress turnout, particularly in states that do not make absentee voting easy.

This paper presents the survey data and offers policy recommendations regarding safety measures states should employ to make Americans more comfortable when voting this fall.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“What Federal Money Can Still Achieve This Election Season”<https://electionlawblog.org/?p=115233>
Posted on September 15, 2020 10:54 am<https://electionlawblog.org/?p=115233> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center analysis.<https://www.brennancenter.org/our-work/research-reports/what-federal-money-can-still-achieve-election-season>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Ohio judge lifts ‘arbitrary’ restrictions on ballot drop boxes”<https://electionlawblog.org/?p=115231>
Posted on September 15, 2020 10:53 am<https://electionlawblog.org/?p=115231> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/us-usa-election-dropboxes-idUSKBN2662V1?taid=5f60fefafeb41b0001a53361&utm_campaign=trueAnthem:+Trending+Content&utm_medium=trueAnthem&utm_source=twitter>

Ohio Judge Richard Frye ruled that local authorities can set up more drop boxes if they wish, saying LaRose’s restrictions were not reasonable. “Wholly arbitrary rules are entitled to no deference,” he wrote.

LaRose’s office did not immediately respond to a request for comment.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pennsylvania’s legislature should protect its presidential vote | Opinion”<https://electionlawblog.org/?p=115229>
Posted on September 15, 2020 10:48 am<https://electionlawblog.org/?p=115229> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley oped<https://www.pennlive.com/opinion/2020/09/pennsylvanias-legislature-should-protect-its-presidential-vote-opinion.html>:

Without wading into the details of Pennsylvania’s procedures for permitting challenges to mailed ballots, and appeals from denials of those challenges, there is a risk that those challenges and appeals could bog the process down to the point of endangering the state’s ability to meet the Dec. 8, or even Dec. 14, deadline.

The best way to reduce this risk is for Pennsylvania’s legislature to enact a law, as other states have (including Indiana<https://law.justia.com/codes/indiana/2017/title-3/article-12/chapter-11/section-3-12-11-19.5/>, Ohio<http://codes.ohio.gov/orc/3515.041v1>, and Virginia<https://law.lis.virginia.gov/vacode/title24.2/chapter8/section24.2-801.1/>), that requires vote-counting procedures in a presidential election to be complete by the federal “safe harbor” date. This kind of explicit law would both obligate and empower officials to expedite challenges and appeals as necessary to finish on time.

Pennsylvania’s legislature is currently considering revisions<https://www.inquirer.com/politics/election/pennsylvania-republicans-propose-election-law-changes-20200824.html> to its ballot-counting rules to speed up the process. One change would permit the “pre-canvassing<https://www.senatorscarnati.com/2020/08/24/senate-leaders-introduce-election-reform-legislation-to-expand-voter-access-maintain-election-security/>” of mailed ballots before election day. That’s a good move, but it’s not sufficient to eliminate the risk of missing the December deadlines. Instead, the legislature should supplement this sensible measure with the added requirement that none of the state’s various vote-counting procedures—not recounts, ballot challenges, or otherwise—may be permitted to deprive Pennsylvania of the congressionally promised “safe harbor” status.

Pennsylvania’s legislature should enact this measure for the sake of the state’s own voters. In doing so, it would make the presidential election go more smoothly for the benefit of the whole nation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump and Biden’s Florida polls highlights stakes of 2020 voting rights for ex-felons”<https://electionlawblog.org/?p=115227>
Posted on September 15, 2020 10:43 am<https://electionlawblog.org/?p=115227> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas <https://www.nbcnews.com/think/opinion/trump-biden-s-florida-polls-highlights-stakes-2020-voting-rights-ncna1240092> at NBC Think.
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Posted in felon voting<https://electionlawblog.org/?cat=66>
“Trump just repeated his ugliest claim about the election. Why isn’t it bigger news?”<https://electionlawblog.org/?p=115225>
Posted on September 15, 2020 10:42 am<https://electionlawblog.org/?p=115225> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Sargent:<https://www.washingtonpost.com/opinions/2020/09/15/trump-just-repeated-his-ugliest-claim-about-election-why-isnt-it-bigger-news/>

Appearing on “Fox & Friends” on Tuesday morning, President Trump again told<https://twitter.com/MattGertz/status/1305845345910431746> his supporters to believe that if the election doesn’t deliver the result they want, the outcome is inherently illegitimate — that there are no democratically legitimate circumstances under which he and his supporters can lose in a fair election.

By my count, this is the third time he has stated this explicitly in recent weeks. Trump will generally say both that the election is likely to be rigged and fraudulent — say, due to vote-by-mail — and that he can only lose if that happens. Yet the political press usually responds by fact checking only the first half of this, by debunking his claims about fraud.

But the political media seem to largely tolerate or avert their eyes from the second underlying idea — that the political system cannot deliver a legitimate outcome in which he loses. He and his top advisers almost never face any tough questioning about that second series of claims.

That can’t be okay. In so doing, we’re letting the entire deception campaign directed at his supporters to fake-justify his efforts to corrupt the election and so much more go largely unexamined.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“What Will Election Night Look Like in a Global Pandemic?”<https://electionlawblog.org/?p=115223>
Posted on September 15, 2020 7:57 am<https://electionlawblog.org/?p=115223> by Rick Hasen<https://electionlawblog.org/?author=3>

Happy to talk about this topic on the ACLU’s “At the Polls” podcast. Listen<https://soundcloud.com/aclu/at-the-polls-what-will-election-night-look-like-in-a-global-pandemic>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Wisconsin elections commission member advised Green Party”<https://electionlawblog.org/?p=115221>
Posted on September 15, 2020 7:39 am<https://electionlawblog.org/?p=115221> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/188348d89dc84f69cb7b4920c6f13209>:

A Republican member of the Wisconsin Elections Commission advised a Green Party representative about who to hire as an attorney after its presidential nominee was denied ballot access in the key battleground state, records obtained by The Associated Press show.

The elections commission deadlocked 3-3 Aug. 20 on whether to put Green Party presidential candidate Howie Hawkins on the ballot. All three Republicans were in favor, while all three Democrats were against. Hawkins asked the Wisconsin Supreme Court to put him on, but the court in a 4-3 ruling Monday rejected that request<https://apnews.com/5f112111c2e3601f8a6cd9987f8e2b21>. The court also lifted an order it issued last week pausing the mailing of absentee ballots while it considered the challenge.

The email string obtained Monday by the AP under an open records request shows that elections commission member Bob Spindell emailed Kevin Zeese, then-press secretary for Hawkins, less than 24 hours after the commission voted to keep him off the ballot. Spindell, a Republican who supported putting Hawkins on the ballot, wrote that he was “very sorry. but not surprised, the three Democrat Commissioners fought hard to keep the Green Party off the Ballot.”

“The Democrat Party obviously believes this action would push your members to vote for Biden — if they could not vote for their own Green Party Candidates,” Spindell wrote.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Trump is trying to sabotage the election. Here’s why it won’t work.”<https://electionlawblog.org/?p=115219>
Posted on September 15, 2020 7:29 am<https://electionlawblog.org/?p=115219> by Rick Hasen<https://electionlawblog.org/?author=3>

Dana Milbank<https://www.washingtonpost.com/opinions/2020/09/14/dont-let-trump-fool-you-united-states-knows-how-hold-an-election/?utm_medium=email&utm_source=newsletter&wpisrc=nl_opinions&utm_campaign=wp_opinions> WaPo column:

Trump has succeeded in sowing confusion about the ability of the United States to hold a free and fair election. His allies in Congress have abetted the sabotage by refusing to give states the funds they need to hold an election during a pandemic while defending against foreign adversaries’ interference. But despite the attempts to incapacitate elections, the United States is on course to give Americans more ways to cast ballots than ever — and more certainty than ever that their ballots will be accurately counted.

“While it’s critical we be clear-eyed about the problems and keep up the pressure to do better, there’s been too much alarmism,” Wendy Weiser, director of the Democracy Program at the New York University Law School’s Brennan Center for Justice<https://www.brennancenter.org/experts/wendy-r-weiser>. “People have the impression that the election is not going to work and they’re going to have problems, which is absolutely not the case for the vast majority of Americans.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s Perverse Campaign Strategy”<https://electionlawblog.org/?p=115217>
Posted on September 15, 2020 7:27 am<https://electionlawblog.org/?p=115217> by Rick Hasen<https://electionlawblog.org/?author=3>

Jamelle Bouie<https://www.nytimes.com/2020/09/15/opinion/caputo-trump-2020.html?action=click&module=Opinion&pgtype=Homepage&utm_source=Sailthru&utm_medium=email&utm_campaign=New%20Campaign&utm_term=First%20Read> in NYT Opinion:

Instead of making a conventional appeal to voters to give him another term in office, Trump is issuing a threat, of sorts: I cannot lose. If I do lose, the election was stolen. Anyone protesting my effort to hold onto power is an insurrectionist. And sometimes, “there has to be retribution.”

You can dismiss Trump’s statements as mere ranting and raving, but remember: This is a president who makes policy with his ranting and raving. And his allies, both in and out of government, have gotten the message. Asked in an interview<https://www.mediamatters.org/roger-stone/roger-stone-calls-trump-seize-total-power-if-he-loses-election> with Alex Jones, the far-right conspiracy theorist, what Trump should do against Democrats who “think they can steal” the election, Roger Stone — a close confidant of the president whose 40-month prison sentence for witness tampering and lying to Congress was commuted by Trump earlier this year — said that “the ballots in Nevada on election night should be seized by federal marshals and taken from the state” because “they are completely corrupted.” He also urged the president to declare “martial law” and invoke the Insurrection Act to arrest political opponents.

It is a little tempting to treat all of this as a distraction from the traditional campaign, from the polls and events and advertisements and general political spectacle. For Trump, however, this is the campaign, and it is laying the groundwork for chaos and violence should the outcome show the slightest ambiguity (and even if it doesn’t). In a half-functioning country, all of the president’s rhetoric on this score would be grounds for removal from office. But we don’t live in a half-functioning country — we live in the United States of America.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Michigan, Pennsylvania and Wisconsin decided the 2016 election. We’ll have to wait on them in 2020.”<https://electionlawblog.org/?p=115215>
Posted on September 15, 2020 7:23 am<https://electionlawblog.org/?p=115215> by Rick Hasen<https://electionlawblog.org/?author=3>

Zach Montellaro for Politico<https://www.politico.com/news/2020/09/15/swing-states-election-vote-count-michigan-pennsylvania-wisconsin-414465?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

Michigan, Pennsylvania and Wisconsin are expecting huge surges in ballots cast by mail in 2020, like most states preparing to vote during the coronavirus pandemic. But all three Midwestern battlegrounds, which President Donald Trump flipped in 2016 to win the White House after years of Democratic presidential victories there, are among the states where local election officials are not allowed to start processing mail ballots until Election Day, according to a POLITICO review of election rules in 13 key states.

Mail ballot processing involves everything from opening envelopes to checking voter signatures to flattening ballots that have been crumpled or creased in transit. The procedures can be time consuming, and that will create a backlog of millions of votes set to draw out the counting process for days after the polls close.

That means that the country may be waiting, along with voters in the three Midwestern states, to see whether Trump or Joe Biden carried their electoral votes — and potentially the presidency.

“People kind of underestimate the enormity of that task,” said Ohio Secretary of State Frank LaRose, a Republican, as he ticked through the long processing checklist that each ballot must go through before it can be counted. LaRose’s state, unlike many of its neighbors, lets election authorities start processing ballots earlier. “God forbid we had to do all of that on election night.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“State Election Chiefs Should Be Umpires, Not Players”<https://electionlawblog.org/?p=115213>
Posted on September 15, 2020 7:08 am<https://electionlawblog.org/?p=115213> by Richard Pildes<https://electionlawblog.org/?author=7>

This is a good piece on an under-discussed election reform issue. One reason it’s good is that it’s not all doom and gloom, and recognizes positive developments in this area. The piece also offers a new institutional reform for this issue.

From Governing<https://www.governing.com/now/State-Election-Chiefs-Should-Be-Umpires-Not-Players.html>:

While the track record of secretaries of state during the last 20 years shows that partisan acts have occurred frequently, it also gives reason for optimism. A growing share of secretaries are entering the position with election-administration backgrounds rather than as career politicians. And this year Republican Spencer Cox of Utah, who as lieutenant governor oversees elections in the state, voluntarily recused himself from managing campaign complaints<https://www.sltrib.com/news/politics/2019/06/20/lt-gov-spencer-cox-will/> while he runs for governor. . . .

Most importantly, many secretaries of state have demonstrated significant impartiality in responding to the coronavirus pandemic. Sixteen out of 23 Republican secretaries pushed to expand voting by mail during primary season, advocating in several states for all registered voters to receive absentee ballot applications.

Some states have considered electing secretaries of state without party affiliation, but the track record of such nominally nonpartisan elections for judges is not encouraging. A better alternative is a multi-stakeholder commission, akin to a judicial nominating committee, to propose chief election official candidates for appointment by the governor and approval by the legislature.

The argument that partisanship cannot be kept out of election administration is refuted by the many democracies around the world that have developed effective impartial systems. For this precarious American election, we are depending on secretaries of state to overcome the bias built into their jobs and perform impartially. And then we should change this system so there’s no longer a bias to overcome.
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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
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http://electionlawblog.org<http://electionlawblog.org/>


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