[EL] ELB News and Commentary 9/18/20

[Rick Hasen]

“As Courts Back Broad Mail-In Voting, DeJoy Apologizes for Missteps”<https://electionlawblog.org/?p=115376>
Posted on September 17, 2020 8:48 pm<https://electionlawblog.org/?p=115376> by Rick Hasen<https://electionlawblog.org/?author=3>

NY Times:<https://www.nytimes.com/2020/09/17/us/politics/usps-louis-dejoy.html>

Courts on both sides of the United States issued rulings on Thursday that could expand mail-in voting in the election in November, as the postmaster general privately apologized to state officials for missteps in his agency’s efforts to educate voters on mail-in ballots.

In Pennsylvania, the state Supreme Court paved the way for more mail-in ballots to be counted by extending the due date they must be received by election officials and allowing expanded use of drop boxes.

In Washington State, a federal judge blocked operational and policy changes<https://www.nytimes.com/2020/08/07/us/politics/postal-service-reorganization-mail-ballots.html> made by the Postal Service in recent months that have slowed mail delivery and amounted to “voter disenfranchisement.”

Postmaster General Louis DeJoy, who instituted those changes, conceded during a video conference with election officials on Thursday afternoon that he had failed to adequately consult with state election officials on a postcard that was sent to addresses nationwide to educate voters about mail-in ballots. The apology came as some state election officials had publicly clashed<https://www.nytimes.com/2020/09/16/us/politics/postal-service-mail-voting.html> with the Postal Service over mail voting, including accusing Mr. DeJoy and his team of deliberately providing misinformation about how to vote by mail.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Trump’s bluster and millions hasn’t stopped universal mail-in voting plans”<https://electionlawblog.org/?p=115374>
Posted on September 17, 2020 8:40 pm<https://electionlawblog.org/?p=115374> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/17/trump-mail-in-voting-plan-417253>

President Donald Trump has spent $20 million of his political war chest to stop it. He riffs about it at rallies. He tweets relentlessly about it.

Yet six months into a crusade to stop universal mail-in voting, Trump hasn’t yet prevented a single state from sending voters the unsolicited ballots he claims, with minimal evidence, are ripe for fraud.

His attempts in Nevada, New Jersey and Montana are tied up in court. His legal challenge in California was circumvented by the state legislature. And he hasn’t challenged the mailing of ballots in the six other states that plan to mail them, including Vermont, the last state that switched to full remote voting this year following the coronavirus outbreak, according to the Trump campaign and the Republican National Committee.

Time is running out. Ballots are already being sent across the country. Some counties in New Jersey began mailing them last week. Both Vermont and Nevada, a battleground state the president campaigned in last weekend, expect to mail ballots within days.

“Once the ballots have gone out, it’s hard to see how the courts could grant meaningful relief on the claims,” said Richard Pildes, a leading expert on election law and a professor of constitutional law at the New York University School of Law. “There would be no way to put the genie back in the bottle, no way to put the toothpaste back in the tube.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“Head of Federal Election Commission calls separation of church and state a ‘fallacy’ and 2020 election a ‘spiritual war’”<https://electionlawblog.org/?p=115372>
Posted on September 17, 2020 8:28 pm<https://electionlawblog.org/?p=115372> by Rick Hasen<https://electionlawblog.org/?author=3>

Religion News Service<https://religionnews.com/2020/09/17/head-of-federal-election-commission-calls-separation-of-church-and-state-a-fallacy-and-2020-election-a-spiritual-war/> reports.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Cash-strapped Trump campaign awaits a bailout from big donors”<https://electionlawblog.org/?p=115370>
Posted on September 17, 2020 8:23 pm<https://electionlawblog.org/?p=115370> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/17/gop-donors-rush-to-rescue-trump-417364>

Republican Party megadonors are racing to bail out President Donald Trump’s cash-strapped reelection campaign, with a newly formed super PAC pouring a further$25 million into battleground states.

Preserve America is set to begin running a trio of TV commercials savaging Democrat Joe Biden as Republicans express growing alarm over the president’s absence from the airwaves. Trump — who went dark for part of August<https://www.politico.com/news/2020/08/26/trump-tv-ads-early-voting-401889> and has since cancelled advertising<https://twitter.com/Ad_Analytics/status/1303432855381475330?s=20> in key states — is being outspent more than 2-to-1 by Biden this week, according to the media tracking firm Advertising Analytics/
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“‘Remember Hanging Chads? That’s Play-Doh!’ Election Night May Be Just the Beginning of the Real 2020 Drama”<https://electionlawblog.org/?p=115368>
Posted on September 17, 2020 8:20 pm<https://electionlawblog.org/?p=115368> by Rick Hasen<https://electionlawblog.org/?author=3>

Joe Pompeo <https://www.vanityfair.com/news/2020/09/election-night-may-be-just-the-beginning-of-the-real-2020-drama> for Vanity Fair.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Federal Court in Michigan Strikes Down MI Law Limiting Free Transportation to Polling Places, Upholds Limits on Third Parties Collecting and Turning in Absentee Ballot Applications<https://electionlawblog.org/?p=115366>
Posted on September 17, 2020 5:32 pm<https://electionlawblog.org/?p=115366> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the decision at this link.<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/07/2020-09-17-ORDER-re-Prelim.-Injunction.pdf>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


What Else Do We Have to Worry About?<https://electionlawblog.org/?p=115360>
Posted on September 17, 2020 2:17 pm<https://electionlawblog.org/?p=115360> by Richard Pildes<https://electionlawblog.org/?author=7>

Edward Luce is one of the best analysts of Western democracy, as reflected in his 2017 book, The Retreat of Western Liberalism. In his piece<https://www.ft.com/content/e77ae441-84db-4d26-a8c3-d40b7846a3d2> in the Financial Times, on the nature of this fall’s election, he ends on this sobering note:

The scene is set for an October surprise. That could be Mr Trump unveiling a Covid-19 vaccine. Or it could be a war with Iran, or even a clash with China. The particular twist is anybody’s guess. But it will be something. Elections like this do not end with a whimper.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Federal judge issues temporary injunction against USPS operational changes amid concerns about mail slowdowns”<https://electionlawblog.org/?p=115362>
Posted on September 17, 2020 2:16 pm<https://electionlawblog.org/?p=115362> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/federal-judge-issues-temporary-injunction-against-usps-operational-changes-amid-concerns-about-mail-slowdowns/2020/09/17/34fb85a0-f91e-11ea-a275-1a2c2d36e1f1_story.html>:

A federal judge in Washington state on Thursday granted a request from 14 states to temporarily block operational changes within the U.S. Postal Service that have been blamed for a slowdown in mail delivery, saying that President Trump and Postmaster General Louis DeJoy are “involved in a politically motivated attack on the efficiency of the Postal Service” that could disrupt the 2020 election.

Stanley A. Bastian, chief judge of the U.S. District Court for the Eastern District of Washington, said that harm to the public “has already taken place” by changes put in place under DeJoy. Bastian ruled from the bench Thursday afternoon after a two-and-a-half hour hearing.

“The states have demonstrated that the defendants are involved in a politically motivated attack on the efficiency of the Postal Service. They have also demonstrated that this attack on the Postal Service is likely to irreparably harm the states’ ability to administer the 2020 general election,” he said….

The scope and duration of the injunction were not immediately clear. In response to a question from defendants’ counsel, Bastian said he would provide more detail in the written order, which the judge said he plans to issue later Thursday or Friday.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“How Republicans Undermined Ex-Felon Voting Rights in Florida: It’s a cautionary tale about the messy process of citizen-led ballot initiatives and how a dominant political party can exert its power”<https://electionlawblog.org/?p=115359>
Posted on September 17, 2020 2:13 pm<https://electionlawblog.org/?p=115359> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/09/17/us/florida-felons-voting.html>:

When voters passed the referendum, known as Amendment 4, civil rights groups celebrated what was billed as a potentially game-changing expansion of the electorate in the nation’s biggest battleground state. White people like Mr. Gruver represent a majority of the state’s former felons. But Black residents are disproportionately represented: More than one in five potential Black voters in Florida were barred from casting a ballot.

Nearly two years later, most former felons remain shut out of the ballot box over their inability to pay legal financial obligations. Of the about one million former felons in Florida — a conservative estimate — at least three-quarters owe court debt. Between 70 and 80 percent are indigent and unable to pay.

And even those who can pay face a Catch-22: Because there is no central database of court fines and fees, it is difficult or impossible to establish how much anyone owes. As of May, the state had failed to process any of the more than 85,000 voting registration applications submitted by former felons since Amendment 4 passed in late 2018.

“It has been a very long slog to change public opinion on the re-enfranchisement of felons, and it took millions of dollars and a lot of effort to get that initiative passed,” said Nathaniel Persily, a Stanford University law professor. “The idea that felons would then have to pay money in order to vote after being enfranchised is depressing.”
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“FBI director Wray says Russia is actively interfering in 2020 election to ‘denigrate’ Biden”<https://electionlawblog.org/?p=115357>
Posted on September 17, 2020 2:11 pm<https://electionlawblog.org/?p=115357> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2020/09/17/politics/fbi-director-wray-russia-election-interference/index.html>:

According to Wray, Russia is using social media, proxies, state media and online journals to sow “divisiveness and discord” and “primarily to denigrate Vice President Biden and what the Russians see as kind of an anti-Russian establishment.”

Intelligence officials have said they have uncovered evidence that Russia is currently interfering in the election to hurt Biden’s campaign. Separately, some evidence has already emerged about Moscow’s efforts, including Facebook’s announcement<https://edition.cnn.com/2020/09/01/tech/russian-troll-group-facebook-campaign/index.html> earlier this month that a troll group that was part of Russia’s attempt to interfere in the 2016 election is trying to target Americans again.

But while the intelligence community has assessed that China and Iran prefer Trump to lose in November, officials have offered no indication, to date, that either country is acting on that preference in the same way as Russia, according to public statements issued by the intelligence community and sources familiar with the underlying evidence.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Watch Archived Video of My Constitution Day Conversation with U Cincinnati Law Dean Verna Williams on Voting Rights, Election Meltdown, and the U.S. Constitution<https://electionlawblog.org/?p=115355>
Posted on September 17, 2020 2:02 pm<https://electionlawblog.org/?p=115355> by Rick Hasen<https://electionlawblog.org/?author=3>

Great conversation that you can view here<https://ucincinnati.webex.com/recordingservice/sites/ucincinnati/recording/play/5bc6e886862b44d489269776f7625fde>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Trump Is Waging A Multistate, Multimillion-Dollar Legal Battle Against Mail-In Voting During The Pandemic”<https://electionlawblog.org/?p=115353>
Posted on September 17, 2020 1:59 pm<https://electionlawblog.org/?p=115353> by Rick Hasen<https://electionlawblog.org/?author=3>

Zoe Tillman<https://www.buzzfeednews.com/article/zoetillman/trump-republican-party-lawsuits-mail-in-voting-covid> for BuzzFeed:

President Donald Trump’s campaign and the Republican Party are devoting millions of dollars to wage a state-by-state legal battle against mail-in voting during the coronavirus pandemic<https://www.buzzfeednews.com/collection/coronavirus>, not only suing state officials but also intervening in cases where they aren’t a party to limit how Americans can vote from home.

BuzzFeed News identified at least 11 cases where the Trump campaign has asked judges for permission to intervene to defend state and local policies that voting rights advocates argue will make it harder for people to safely vote during the pandemic. That’s in addition to more than half a dozen lawsuits the campaign has filed with the Republican National Committee contesting efforts by Democratic governors and other state and local officials to expand mail-in voting.

It’s unusual to see a presidential campaign take such an active role in court leading up to an election, but the pandemic has made for an extremely unusual — and highly litigious — election year. As the US death toll continues to rise, Trump is throwing the weight of his campaign behind legal challenges in court and using his platform as president to try to dissuade Americans from voting by mail. At the White House, on the campaign trail, and on Twitter, Trump has repeated debunked<https://votingrights.news21.com/article/about/> and unsupported<https://www.brookings.edu/blog/fixgov/2020/06/02/low-rates-of-fraud-in-vote-by-mail-states-show-the-benefits-outweigh-the-risks/> claims that the practice is tainted by widespread fraud and the specter of foreign interference.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, The Voting Wars<https://electionlawblog.org/?cat=60>


The Pennsylvania Supreme Court Decision<https://electionlawblog.org/?p=115350>
Posted on September 17, 2020 1:14 pm<https://electionlawblog.org/?p=115350> by Richard Pildes<https://electionlawblog.org/?author=7>

I want to highlight one intriguing aspect of this decision.  The state adopted no-excuse absentee voting in a law passed in 2019, before the pandemic.  That meant that the surrounding laws were not written for the volume of absentees likely this fall.

The state-constitutional law issue emerged out of conflict between three elements:  state law that permits voters to request an absentee ballot as late as 7 days before Election Day; state law that requires those ballots to be received by 8pm on Election Night; and the US Postal Service’s representations to the Secretary of the Commonwealth – in a letter from the USPS General Counsel – that it takes 2-5 days to deliver mail.

You can add those numbers up yourself:  that means there is no guarantee that a voter who lawfully requests a ballot 7 days before the election, fills it out immediately and mails it back, would have their ballot delivered by Election Night and thus be able to cast a valid vote.  Given these circumstances, the majority concluded the state constitution required PA to treat absentees as valid if received up to 3 days after Election Day.

The circumstances required 3 more days in the election calendar.  Those days could have come at the back end but they could also have come at the front end.  And three judges on the court – one a Democrat, the other two Republicans (PA has partisan judicial elections) – agreed that the current laws were unconstitutional, but that the right remedy was to capture those 3 extra days at the front end of the process.  They would have held that the state constitutional violation should have been remedied by requiring voters to request an absentee 10 days (not 7) in advance of the election, and that the court should have preserved the state law requiring receipt by 8pm Election Night.

The argument of these judges was that the number of days in advance that a ballot has to be requested is fairly arbitrary.  There is nothing “magical” about 7 days in advance rather than 10.  Many states require the request to be made 10 or more days in advance, though many permit 7 days.  But this group of concurring/dissenting judges concluded that there was a more compelling legal reason for the state policy that all votes be in by Election Night – that is when the election is over.  So as between which of the two dates should be judicially changed, this group of 3 judges believed the request date, rather than the receipt date, should be changed.

I think many judges would believe that moving up the request deadline would seem like a policy choice that only the legislature could make, while moving back the receipt deadline was a more appropriate form of judicial remedy.  But whether there should be such a big perceived difference between these two options for courts is part of what makes this decision a rich one.

From a policy (not a legal) perspective, I have always been particularly concerned this election about late-counted ballots (maybe the issue won’t matter in the end, because few Pennsylvania voters will mail ballots back at the last minute).  That’s also why I thought this separate opinion for 3 judges raises such an interesting, alternative remedy.
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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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