[EL] Very sad news: Justice Ginsburg has died; more election news and commentary

[Rick Hasen]

Breaking: “Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87”<https://electionlawblog.org/?p=115421>
Posted on September 18, 2020 4:31 pm<https://electionlawblog.org/?p=115421> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2020/09/18/100306972/justice-ruth-bader-ginsburg-champion-of-gender-equality-dies-at-87?utm_source=dlvr.it&utm_medium=twitter>

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural, and feminist icon has died. The Supreme Court announced her death, saying the cause was complications from cancer.

Architect of the legal fight for women’s rights in the 1970s, Ginsburg subsequently served 27 years on the nation’s highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that i I will not be replaced until a new president is installed.”

There will be time to discuss Justice Ginsburg’s legacy later as well as the political implications.

At this point, it is enough to express condolences to her family and friends and all who knew her. May her memory be a blessing.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



“Mississippi justices: No broad absentee voting amid COVID-19”<https://electionlawblog.org/?p=115419>
Posted on September 18, 2020 4:27 pm<https://electionlawblog.org/?p=115419> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.meridianstar.com/region/mississippi-justices-no-broad-absentee-voting-during-covid/article_a3858ed4-2269-576e-a927-88faf431c25a.html#utm_campaign=blox&utm_source=twitter&utm_medium=social>:

Mississippi law does not allow absentee voting by all people who have health conditions that might make them vulnerable to COVID-19, the state Supreme Court ruled Friday.

A majority of justices reversed a Sept. 2 decision by Hinds County Chancery Judge Denise Owens, saying she too broadly interpreted some changes that legislators made to state law this year.

“Having a preexisting condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purposes,” justices<https://courts.ms.gov/Images%5COpinions%5CCO149350.pdf> wrote.

Rob McDuff is a Mississippi Center for Justice attorney who sued the state on behalf of people with conditions including kidney disease and diabetes. He said Friday that the Supreme Court ruling does allow absentee voting by people with conditions that are serious enough to be considered a physical disability….

Other voting rights groups filed a similar lawsuit<https://apnews.com/426023d479fe9149a407ea30e46f5c6e> Aug. 27 in federal court, arguing Mississippi’s absentee voting restrictions put people at risk amid the pandemic. They filed additional papers<https://apnews.com/f167264ead55538f527219819a7116f8> Thursday asking a judge to block two requirements — that a voter have absentee ballot forms notarized and that people have an excuse to vote absentee, such as being out of town on Election Day. Waiving the excuse would open absentee voting to many more people.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, court decisions<https://electionlawblog.org/?cat=129>


“Long lines and hand sanitizer on the first day of early voting for general election”<https://electionlawblog.org/?p=115417>
Posted on September 18, 2020 4:07 pm<https://electionlawblog.org/?p=115417> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/long-lines-and-hand-sanitizer-on-the-first-day-of-early-voting-for-general-election/2020/09/18/a87969f6-f9bf-11ea-89e3-4b9efa36dc64_story.html>:

Early voting for the November election kicked off Friday in four states as voters showed up in person to cast their ballots, driven by a sense of urgency about the divisive presidential election, growing unease over the timely delivery of mail ballots, and fear of exposure to the novel coronavirus at the polls on Election Day.

By this weekend, as many as 20 states will have begun some form of general election voting by mailing out absentee ballots or allowing people to cast them in person, giving Americans an opportunity to make their selections for president and other offices long before Nov. 3.

In Minnesota and Virginia, election officials described long lines in some places<https://www.washingtonpost.com/local/virginia-politics/virginia-early-voting/2020/09/18/7adaec3a-f79f-11ea-be57-d00bb9bc632d_story.html?itid=lk_inline_manual_8> as people queued up even before voting sites opened, standing on stickers glued six feet apart for social distancing.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Yahoo News/YouGov poll: Only 22% of Americans think the 2020 presidential election will be ‘free and fair'”<https://electionlawblog.org/?p=115415>
Posted on September 18, 2020 4:04 pm<https://electionlawblog.org/?p=115415> by Rick Hasen<https://electionlawblog.org/?author=3>

Yahoo<https://news.yahoo.com/new-yahoo-news-you-gov-poll-less-than-a-quarter-of-americans-think-the-2020-election-will-be-free-and-fair-193758996.html>:

Just 22 percent of Americans believe this year’s presidential election will be “free and fair,” according to a new Yahoo News/YouGov poll<https://docs.cdn.yougov.com/4r3essc4sq/20200918_yahoo_coronavirus_tabs.pdf> — a disturbing loss of confidence in the democratic process that could foreshadow a catastrophic post-election period with millions of partisans refusing to accept the legitimacy of the results.

The survey, which was conducted from Sept. 15 to 17, found that both Republicans and Democrats harbor grave and growing doubts about whether the upcoming election will accurately reflect the will of the people.

Half of Trump supporters (50 percent) say the election will not be free and fair; more than a third of Biden supporters (37 percent) agree. Overall, the number of Americans who say the election will not be free and fair (46 percent) is more than twice the number who say the opposite. Another third (32 percent) say they’re not sure what to expect.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Texas Appeals Court Says Harris County Can Send Out Absentee Ballot Applications to Voters (But There’s A Stay in Place as This Works Its Way to State Supreme Court)<https://electionlawblog.org/?p=115413>
Posted on September 18, 2020 1:23 pm<https://electionlawblog.org/?p=115413> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion.<http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f30b7ff9-c214-43ad-9baa-796c297c04b9&coa=coa14&DT=Opinion&MediaID=dbab9558-16ff-467a-a052-1d44e1a7f410>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Alabama Senate Candidate Tommy Tuberville Struggles To Discuss Voting Rights Act”<https://electionlawblog.org/?p=115410>
Posted on September 18, 2020 12:38 pm<https://electionlawblog.org/?p=115410> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost<https://www.huffpost.com/entry/tommy-tuberville-alabama-senate-voting_n_5f63c8b5c5b6c6317d019acc?guccounter=1&guce_referrer=aHR0cHM6Ly9wb2xpdGljYWx3aXJlLmNvbS9wYWdlLzIv&guce_referrer_sig=AQAAAIrgYVk4ShfmveGnRrFowuM1x5K6R4hRZIKlq2XVCd_7K1E2lK_wI3dGF-20g3rMR-5xih9HY9lmvyQcRb4UNwN4ISP75_oBEGt2zdGYEVSXjzSbyV_VRWBtI4kwkyJzG63N_uUW1DYxBXXxGMhBYGwTkmQFs242pKGgv6pucKcz>:

“You know, the thing about the Voting Rights Act it’s, you know ― there’s a lot of different things you can look at it as, you know, who’s it going to help? What direction do we need to go with it? I think it’s important that everything we do we keep secure. We keep an eye on it. It’s run by our government. And it’s run to the, to the point that we, it’s got structure to it. It’s like education. I mean, it’s got to have structure. Now for some reason, we look at things to change, to think we’re gonna make it better, but we better do a lot of work on it before we make a change.”
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“The Conservative Voter Fraud Swarm; Interlocking sets of legal organizations comprise what amounts to a marketing campaign for the false narrative of stolen elections.”<https://electionlawblog.org/?p=115408>
Posted on September 18, 2020 12:21 pm<https://electionlawblog.org/?p=115408> by Rick Hasen<https://electionlawblog.org/?author=3>

TAP<https://prospect.org/civil-rights/the-conservative-voter-fraud-swarm/>:

Several more-established conservative legal groups mask themselves with the branding of well-known pro–voting rights organizations. There’s the American Constitutional Rights Union (ACRU; formerly the American Civil Rights Union), which could easily be confused with the American Civil Liberties Union (ACLU). There’s also the Public Interest Legal Foundation (PILF), not to be mistaken for the Public Interest Law Fund. And there’s the Lawyers Democracy Fund, which often refers to itself in emails as LDF, the same nickname for the NAACP’s Legal Defense Fund.

“This is consistent with a naming trend where we see conservative anti-voter groups trying to co-opt the names of existing pro-voting groups,” said Eliza Sweren-Becker, counsel at the Brennan Center for Justice, in an interview with the Prospect. “There is a concerted effort among these organizations … And they are bringing the same types of claims across the country.”…

While these groups do not technically work together, they share similar views about mass voter fraud in their rhetoric and legal arguments, inside and outside of the courtroom. For instance, in December 2019, PILF filed a lawsuit pushing for the City of Detroit to “properly clean its voter rolls<https://publicinterestlegal.org/blog/lawsuit-detroit-isnt-properly-cleaning-voter-rolls/>,” which could be interpreted as purging people’s names from the official registered-voters list. It claimed, based on census data, that about 2,500 people were dead, almost 5,000 names were doubled or tripled, and about 16,500 should be removed because the date of registration was missing.

PILF voluntarily dismissed<https://publicinterestlegal.org/blog/lawsuit-detroit-isnt-properly-cleaning-voter-rolls/> the case on June 30. But that didn’t stop the Honest Elections Project from supporting<https://www.honestelections.org/news/honest-elections-project-files-lawsuit-against-the-state-of-michigan-to-compel-it-to-clean-up-its-voter-rolls/> a suit filed on June 9<https://www.courtlistener.com/recap/gov.uscourts.miwd.97990/gov.uscourts.miwd.97990.1.0_1.pdf> against the Michigan secretary of state based on the same premise, with a press release using the same language, asking Michigan to “clean up” the voter rolls. The plaintiff in this case is Tony Daunt, whose legal team includes William S. Consovoy, the personal attorney to President Donald Trump, along with two other lawyers<https://consovoymccarthy.com/team/> from his practice, as well as Jason Torchinsky, who is a contributor to the Federalist Society and a member of the Republican National Lawyers Association.

It’s also not unusual for these organizations to rescind their claims when a win on the merits appears unlikely. Often the evidence isn’t clear when it’s presented in court, according to several experts. In one Wisconsin case from 2014, the judge wrote<https://caselaw.findlaw.com/us-7th-circuit/1681256.html> in his decision that “[s]ome of the ‘evidence’ of voter-impersonation fraud is downright goofy, if not paranoid.” In this case over voter IDs, Frank v. Walker, the defense argued that voter ID laws would stop buses from transporting foreigners to vote in U.S. elections, though there was no proof provided. More to the point, there is little to no evidence that there are people trying to vote under a false identity, the kind of fraud that would be prevented with an ID law.

“Whether it’s PILF, or the Honest Elections Project, or the ACRU, there’s a pattern that is repeated across these jurisdictions to try to bully or compel these underfunded, under-resourced local officials into purging their rolls when that is not necessary and it’s certainly not what’s required by the National Voter Registration Act,” Sweren-Becker explains.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Considering all the risks you take on a day-to-day basis, voting at your polling place is going to be low risk”<https://electionlawblog.org/?p=115406>
Posted on September 18, 2020 11:59 am<https://electionlawblog.org/?p=115406> by Richard Pildes<https://electionlawblog.org/?author=7>

That’s a quote from Dr. Annabelle de St. Maurice<https://www.uclahealth.org/annabelle-de-st-maurice>, MPH, an assistant professor of pediatrics in the division of infectious diseases who leads the Pediatric Infection Control and is the co-chief infection prevention officer for UCLA Health. That’s from this Healthline story<https://www.healthline.com/health-news/how-to-vote-safely-in-person-this-november#8>, titled “How to Vote Safely in Person This November,” which includes interviews with several public-health experts. Hopefully this will help get the word out more broadly that in-person voting — which includes early in-person voting — will be safe for most people.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Prepare for the Worst and Fight for the Best: A Citizen’s Guide to 2020 Electoral Interference”<https://electionlawblog.org/?p=115404>
Posted on September 18, 2020 11:46 am<https://electionlawblog.org/?p=115404> by Rick Hasen<https://electionlawblog.org/?author=3>

Just Security.<https://www.justsecurity.org/72491/prepare-for-the-worst-and-fight-for-the-best-a-citizens-guide-to-2020-electoral-interference/>
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>


Pam Fessler in PA: “‘We’re Rolling With It’: Election Workers Scramble To Adjust To Changing Voting Rules”<https://electionlawblog.org/?p=115402>
Posted on September 18, 2020 8:33 am<https://electionlawblog.org/?p=115402> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen.<https://www.npr.org/2020/09/18/913968659/we-re-rolling-with-it-election-workers-scramble-to-adjust-to-changing-voting-rul?utm_medium=social&utm_campaign=politics&utm_source=twitter.com&utm_term=nprnews>
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Posted in election administration<https://electionlawblog.org/?cat=18>


“New York Expands Options for Absentee Voters to Have Their Vote Counted”<https://electionlawblog.org/?p=115399>
Posted on September 18, 2020 8:10 am<https://electionlawblog.org/?p=115399> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.selendygay.com/news/general/2020-09-18-new-york-expands-options-for-absentee-voters-to-have-their-vote-counted>:

Today, a settlement agreement<https://campaignlegal.org/document/league-women-voters-v-kosinski-settlement> for the November election has been reached between attorneys representing New York voters and state attorneys with the New York State Board of Elections and Office of the New York Attorney General, addressing issues brought by Selendy & Gay and Campaign Legal Center (CLC) in their July case<https://campaignlegal.org/cases-actions/lawsuit-challenging-new-yorks-signature-match-procedure> over the process by which the state counts absentee ballots. The League of Women Voters of New York State and an individual, Carmelina Palmer<https://campaignlegal.org/story/i-hope-vote-absentee-confidence-november>, are plaintiffs in the case.

Terms of the settlement<https://campaignlegal.org/document/league-women-voters-v-kosinski-settlement> specify how voters will be contacted if their ballot is rejected and how they can fix the problem. The state has expanded who will benefit from this “cure” process to include other types of errors beyond their signature, including defects with their envelope. It will also, for the first time, provide a clear list of technical issues – such as use of pencil or extraneous marks on the ballot – that do not trigger ballot rejection and do not require any further voter action. Counties had previously used many of these reasons to disqualify ballots, leading to alarming ballot rejection rates, including in this year’s primary elections. More than 84,000 ballots were rejected in New York City alone. The settlement builds off the suite of voter protections<https://www.governor.ny.gov/news/governor-cuomo-signs-law-sweeping-election-reforms#_blank> addressed by Governor Andrew Cuomo and the New York State Legislature in August.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>
“The Election’s Biggest Threat Is No Longer the Postal Service”<https://electionlawblog.org/?p=115397>
Posted on September 18, 2020 8:03 am<https://electionlawblog.org/?p=115397> by Rick Hasen<https://electionlawblog.org/?author=3>

The Atlantic reports.<https://www.theatlantic.com/politics/archive/2020/09/postal-service-election-2020/616390/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The challenges of the 2020 election — What we’re reading; A reading list about election returns; debunking misinformation; television coverage on election night, and reporting from key swing states.”<https://electionlawblog.org/?p=115395>
Posted on September 18, 2020 7:58 am<https://electionlawblog.org/?p=115395> by Rick Hasen<https://electionlawblog.org/?author=3>

Very helpful<https://www.poynter.org/reporting-editing/2020/the-challenges-of-the-2020-election-what-were-reading/> from Poynter.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Michigan Court Allows Third Party Collection of Absentee Ballots (So-Called “Ballot Harvesting”) in the Weekend Before Election Day, and Requires States To Accept Ballots Arriving Up to 2 Weeks After Election Day if Postmarked the Day Before<https://electionlawblog.org/?p=115393>
Posted on September 18, 2020 7:52 am<https://electionlawblog.org/?p=115393> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion here<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/07/20-000108-MM-Opinion-and-Order.pdf>.

I expect this will be appealed as have other Michigan fights over the ballot rules.

One notable finding:

One of the issues in this case concerns evidence—or lack thereof—of voter fraud and threats to election integrity associated with absent voter ballots. Plaintiffs produced largely unrefuted expert testimony and documentary materials from Dr. Michael C. Herron, who concluded that literature on voter fraud consistently concluded that incidences of fraud were “rare.” In addition, he concluded that there was “no evidence of significant voter fraud in [Michigan] associated with absentee voting and voter assistance.” Nor were there significant incidences of fraud reported with the May 2020 election, in which nearly all ballots were cast by mail or at a ballot drop-box….

Plaintiffs’ likelihood of success on this matter is not affected by the amici’s concerns about election integrity. The documentary evidence in this case reveals that the incidences of voter fraudand absentee ballot fraud are minimal and that the fears of the same are largely exaggerated.

Moreover, there is little evidence to suggest that fraud would increase with a larger pool of persons eligible to assist absentee voters. Nor, for that matter, is there a compelling case to be made on this record that a voter’s neighbor, who otherwise would not be able to help her return a ballot, would be more likely to induce fraud than an individual who is approved to render assistance by MCL 168.932(f), such as a voter’s brother-in-law. Furthermore, as plaintiffs point out, the remaining provisions of MCL 168.932 already prohibit interference with the absentee voting process and are much more tailored to that purpose than the voter assistance ban. The fraudfighting role of the voter assistance ban is debatable, at best. As explained in League of Women Voters of Mich I, _ Mich App at _, slip op at 11, legislation supplementary to a self-executing constitutional provision such as art 2, § 4 “must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it more available, and such law must not curtail the rights reserved or exceed the limitations specified.” (Citation and quotation marks omitted; emphasis added). Under the circumstances and timeframe identified in this case, the voter assistance ban curtails the self-executing rights set forth in art 2, § 4 in a way that cannot survive constitutional scrutiny.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“Senate Republicans renounce Trump’s claim that election results ‘may never be’ determined”<https://electionlawblog.org/?p=115391>
Posted on September 18, 2020 7:44 am<https://electionlawblog.org/?p=115391> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico with a very good set of responses from Republican Senators:<https://www.politico.com/news/2020/09/17/senate-republicans-renounce-trumps-election-claim-417036>

Senate Republicans on Thursday forcefully rejected President Donald Trump’s suggestion that the 2020 election results might not be accurately determined, but largely declined to address previous bipartisan conclusions that such rhetoric aids foreign adversaries.

Trump, who has frequently made comments that undermine confidence in the electoral process and once suggested delaying the election, tweeted on Thursday morning that the “result may never be accurately determined, which is what some want.”

The president’s assertions have been based on unsubstantiated claims about mail-in voting, which is expected to be widespread this year because of the coronavirus pandemic. U.S. intelligence officials have also warned that foreign actors, including the Russian government, have amplified similar claims in order to instill doubt in the process.

Twitter officials flagged<https://twitter.com/TwitterSafety/status/1306616796976472065> Trump’s tweet as “potentially misleading statement regarding the process of mail-in voting” — and many GOP senators agreed.

“It’s just not accurate,” Sen. Marco Rubio (R-Fla.), acting chair of the Senate Intelligence Committee, said when asked whether Trump’s comment was inappropriate.

“I don’t think we’ll have inaccurate election results,” Rubio added. “They may take a lot longer than they ever have because of the amount of mailed ballots that are going to come in and so forth. But I don’t have any concerns about the accuracy of the election.”…
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Frank LaRose needs to stand firm for voting access”<https://electionlawblog.org/?p=115389>
Posted on September 18, 2020 7:40 am<https://electionlawblog.org/?p=115389> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland Plain Dealer editorial:<https://www.cleveland.com/opinion/2020/09/frank-larose-needs-to-stand-firm-for-voting-access.html>

Contrary to LaRose’s own pledges to do everything possible to help county elections officials prepare for an election in which record numbers are choosing to vote absentee, LaRose has used the power of his office improperly to make it harder for voters in Cuyahoga County and the state’s other urban counties to cast their ballots.

This week, Franklin County Common Pleas Judge Richard Frye confirmed what our editorial board wrote at the time<https://www.cleveland.com/opinion/2020/08/frank-larose-allow-multiple-ballot-drop-boxes-ohio-needs-to-make-it-easier-to-vote-not-harder.html> — that LaRose’s August order forbidding county election boards from providing secure ballot drop boxes in more than one location was based on an incorrect reading of Ohio law<https://www.cleveland.com/open/2020/09/ohio-judge-rules-against-secretary-of-state-frank-laroses-arbitrary-and-unreasonable-one-ballot-drop-box-per-county-rule.html>.

The judge in his initial ruling this week left it up to LaRose to lift his prohibition based on LaRose’s statement that he would follow the law once a finding was issued. But when LaRose failed to lift the order, Frye the next day ordered him to do so<https://www.cleveland.com/open/2020/09/franklin-county-judge-orders-ohio-to-allow-multiple-ballot-drop-boxes-per-county-larose-expected-to-appeal.html?outputType=amp> — and LaRose appealed.

Equally troubling, when the Ohio Republican Party issued a scurrilous attack on Frye, an attack that was so over the top that Ohio Supreme Court Chief Justice Maureen O’Connor felt compelled to issue a sharp rebuke<https://www.cleveland.com/open/2020/09/ohio-chief-justice-maureen-oconnor-blasts-her-party-ohio-gop-for-irresponsible-criticism-of-judge.html>, LaRose was silent.

Jon Keeling, director of communication for LaRose’s office, told the editorial board that LaRose had made clear he sought a final verdict from the courts before acting, hence his appeal. Keeling said LaRose typically refrains from commenting on a pending legal matter.

But with less than three weeks to go before early voting starts, LaRose needs to explain actions that make it harder for elections officials — by law, two Republicans and two Democrats running election boards in every county in Ohio — to plan ahead and do their jobs.
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Posted in election administration<https://electionlawblog.org/?cat=18>

--
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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