[EL] ELB News and Commentary 9/21/20

Sun Sep 20 21:50:38 PDT 2020

“In the Most Litigated Election Ever, Early Democratic Wins but Few Clear Signals”<https://electionlawblog.org/?p=115491>
Posted on September 20, 2020 9:32 pm<https://electionlawblog.org/?p=115491> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/18/us/2020-voting-litigation-election.html?searchResultPosition=1>

Ahead of an election that seems certain to have the most litigated voting rules ever, Democrats won important cases over the past week in the critical states of Michigan, Wisconsin and Pennsylvania.

But appearances can be fleeting. Even with only six weeks of campaigning left, experts say some of the most pivotal rulings are yet to come. And what may look like convincing legal victories may be overturned on appeal.

“Voting rights victories are the best outcome, but only if they last until the election,” said Nathaniel Persily, a Stanford University political scientist and the co-director of the Stanford-M.I.T. Healthy Elections Project<https://healthyelections.org/>.

That project tracks more than 300 legal battles<https://healthyelections-case-tracker.stanford.edu/> over voting, involving issues like absentee ballots and assistance to voters that are broadly related to the coronavirus pandemic. But there are dozens more, over questions like placing third-party candidates on the fall ballot, whose rulings could also prove crucial in state or national races in November….

The Republican organizations argue that Democrats are trying to relax voting rules to make it easier to cast bogus Democratic votes. So far, that argument has not been persuasive, said Richard L. Hasen, an election law scholar and law professor at the University of California, Irvine.

Republicans have offered two arguments against making voting easier, he said — that relaxing rules violates state law, and that it violates the Constitution by promoting fraud, which dilutes the value of legitimate votes.

The fraud argument “has fallen flat in the courts so far,” he said, “because the Trump campaign has not been able to produce evidence to support that claim.” Republican lawyers were unable to document systemic fraud risks in hundreds of pages of documents<https://www.theguardian.com/us-news/2020/aug/21/trump-campaign-voter-fraud-pennsylvania> submitted to a federal judge in a Pennsylvania lawsuit. A federal judge in Chicago ruled<https://www.msn.com/en-us/news/politics/federal-judge-rules-against-cook-county-gop-e2-80-99s-effort-to-prevent-expanded-vote-by-mail/ar-BB199YVY> last month that Republican arguments that expanded absentee voting would abet fraud were “conjecture.”

But legal decisions often depend on who decides. The argument is likely to be tested again in the Michigan and Pennsylvania cases won by Democratic lawyers. The Michigan ruling, by a lower court, can be appealed in a state where the Supreme Court leans Republican. In Pennsylvania, a federal district judge nominated in 2019 by President Trump is expected to soon hear a Republican challenge to expanded mail balloting, based on the threat of fraud, that parallels the one rejected by the State Supreme Court this week.

That Pennsylvania case, with potentially crucial ramifications for mail-in voting, could race through the appeals process and to the Supreme Court in a matter of weeks, Dr. Hasen said.

The death of Justice Ruth Bader Ginsburg on Friday could complicate things further, removing one of the four liberal votes from the court and increasing the likelihood that conservatives would prevail on appeals that go to the court.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

Important Advice from Persily and Stewart: “With Six Weeks to the Election, Six Ways to Protect It”<https://electionlawblog.org/?p=115489>
Posted on September 20, 2020 9:22 pm<https://electionlawblog.org/?p=115489> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT oped <https://www.nytimes.com/2020/09/20/opinion/2020-election-security-voting.html> from Nate Persily and Charles Stewart. “Step 1: Know how and when you’re going to vote.”
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Fact check: Echoing Trump, Barr misleads on voter fraud to attack expanded vote-by-mail”<https://electionlawblog.org/?p=115487>
Posted on September 20, 2020 9:20 pm<https://electionlawblog.org/?p=115487> by Rick Hasen<https://electionlawblog.org/?author=3>

Jane Timm <https://www.nbcnews.com/politics/2020-election/fact-check-echoing-trump-barr-misleads-voter-fraud-attack-expanded-n1240144> for NBC News.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Democrats See a Glimmer of Hope Over Supreme Court Fight in Arizona’s Senate Race”<https://electionlawblog.org/?p=115485>
Posted on September 20, 2020 9:18 pm<https://electionlawblog.org/?p=115485> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/19/us/politics/martha-mcsally-mark-kelly-arizona.html>

Democrats have almost no power to stop a pre-election vote on President Trump’s nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court, but they see a glimmer of hope in a bank-shot scenario if they capture a Senate seat in Arizona in the November election.

If Mark Kelly, the Democratic nominee, wins, he could be seated in the Senate as early as Nov. 30, six weeks before the other winners are sworn in, according to elections experts from both parties. Mr. Kelly currently leads Senator Martha McSally, a Republican, in the polls.

There are many ifs: If the Arizona results can be rapidly certified, and if Senate Republicans hold a confirmation vote in the postelection lame-duck session and if three Republicans defect, Mr. Kelly could cast the deciding vote to defeat Mr. Trump’s as-yet unnamed pick to the high court.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Trump Supporters Disrupt Early Voting in Virginia” (And the Virginia GOP Troublingly Gloats About It in a Tweet)<https://electionlawblog.org/?p=115483>
Posted on September 20, 2020 9:15 pm<https://electionlawblog.org/?p=115483> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/09/19/us/politics/trump-supporters-early-voting-virginia.html>:

A group of Trump supporters waving campaign flags disrupted the second day of early voting in Fairfax, Va., on Saturday, chanting “four more years” as voters entered a polling location and, at one point, forming a line that voters had to walk around outside the site.

County election officials eventually were forced to open up a larger portion of the Fairfax County Government Center to allow voters to wait inside<https://twitter.com/Jonesnj/status/1307388238588510208> away from the Trump enthusiasts.

Election officials said that the group stayed about 100 feet from the entrance to the building and, contrary to posts on social media, were not directly blocking access to the building. But they acknowledged that some voters and polling staff members felt intimidated by what some saw as protesters.

Virginia GOP on Twitter<https://twitter.com/VA_GOP/status/1307504349120262144?s=20>:
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“Voting Alone”<https://electionlawblog.org/?p=115481>
Posted on September 20, 2020 9:08 pm<https://electionlawblog.org/?p=115481> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/09/20/us/politics/bowling-alone-robert-putnam.html> visits with Robert Putnam (author of the famous “Bowling Alone” book) to talk about voting during a panedmic.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Why Couldn’t It Be a State with Better Election Administration? (Axios: “Trump campaign goes all in on Pennsylvania”)<https://electionlawblog.org/?p=115479>
Posted on September 20, 2020 9:00 pm<https://electionlawblog.org/?p=115479> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/trump-campaign-pennsylvania-c59661ce-fb7e-4c96-b423-0af1ca11231d.html>
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Posted in campaigns<https://electionlawblog.org/?cat=59>, election administration<https://electionlawblog.org/?cat=18>

“Biden Has $466 Million in Bank, and a Huge Financial Edge on Trump”<https://electionlawblog.org/?p=115477>
Posted on September 20, 2020 8:56 pm<https://electionlawblog.org/?p=115477> by Rick Hasen<https://electionlawblog.org/?author=3>

Shane Goldmacher<https://www.nytimes.com/2020/09/20/us/politics/20biden-trump-election-finance.html> for the NYT:

Joseph R. Biden Jr.’<https://www.nytimes.com/topic/person/joe-biden>s campaign said on Sunday that it entered September with $466 million in the bank together with the Democratic Party, providing Mr. Biden a vast financial advantage of about $141 million over President Trump<https://www.nytimes.com/topic/person/donald-trump> heading into the intense final stretch of the campaign.

The money edge is a complete reversal from this spring, when Mr. Biden emerged as the Democratic nominee and was $187 million behind<https://www.nytimes.com/2020/04/21/us/politics/biden-2020-fundraising.html> Mr. Trump, who began raising money for his re-election shortly after he was inaugurated in 2017. But the combination of slower spending<https://www.nytimes.com/2020/05/13/us/politics/joe-biden-donald-trump-2020.html> by Mr. Biden’s campaign in the spring, his record-setting<https://www.nytimes.com/2020/09/01/us/politics/biden-trump-fundraising-election.html> fund-raising over the summer — especially after he named Senator Kamala Harris of California as his running mate — and heavy early spending by Mr. Trump has erased the president’s once-formidable financial lead.

Mr. Trump and his joint operations with the Republican National Committee entered September with $325 million, according to Mr. Trump’s communications director, Tim Murtaugh<https://twitter.com/TimMurtaugh/status/1307056633948897280>.

The Trump campaign pulled back on its television spending in August to conserve money, as some campaign insiders fretted about a cash crunch<https://www.nytimes.com/2020/09/07/us/politics/trump-election-campaign-fundraising.html> in the closing stretch of the campaign. But other officials argued that the Trump campaign would continue to raise heavily from small donors and that the cutbacks over the summer were shortsighted.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Census Could Look ‘Manipulated’ If Cut Short By Trump Officials, Bureau Warned”<https://electionlawblog.org/?p=115475>
Posted on September 20, 2020 8:53 pm<https://electionlawblog.org/?p=115475> by Rick Hasen<https://electionlawblog.org/?author=3>

Hansi Lo Wang <https://www.npr.org/2020/09/20/914692254/census-could-look-manipulated-if-cut-short-by-trump-officials-bureau-warned?utm_source=dlvr.it&utm_medium=twitter> for NPR:

Weeks before the Trump administration announced it was cutting the 2020 census schedule short, career officials at the Census Bureau attempted to send signal flares about how that last-minute decision would lead to “fatal” data problems with the national head count and the perception of “politically-manipulated results.”

Internal emails and memos, which were released this weekend as part of a federal lawsuit in California, show career officials trying to hold the integrity of the once-a-decade count together in the last weeks of July amid mounting pressure from the administration<https://www.npr.org/2020/09/18/911960963/how-trump-officials-cut-the-2020-census-short-amid-the-pandemic> to abandon the extended timeline it had previously approved in response to the coronavirus pandemic.

Shortening that schedule, a draft document dated July 23 warned<https://www.documentcloud.org/documents/7213773-Census-Bureau-Elevator-Speech-Draft-7-23-2020-v4.html>, “will result in a census that has fatal data quality flaws that are unacceptable for a Constitutionally-mandated national activity.”

With counting now set to end on Sept. 30, the revelations come shortly before federal courts are expected to decide whether to order the administration to keep tallying the country’s residents through Oct. 31.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“Supreme Court is shorthanded but could play role in election”<https://electionlawblog.org/?p=115473>
Posted on September 20, 2020 8:51 pm<https://electionlawblog.org/?p=115473> by Rick Hasen<https://electionlawblog.org/?author=3>

Richard Wolf reports <https://www.usatoday.com/story/news/politics/2020/09/20/supreme-court-ginsburgs-gone-but-election-lawsuits-headed-court/3483490001/> for USA Today.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

Your Two Must-Reads About Justice Ginsburg’s Life as a Justice: Nina Totenberg and Joan Biskupic<https://electionlawblog.org/?p=115471>
Posted on September 20, 2020 7:42 pm<https://electionlawblog.org/?p=115471> by Rick Hasen<https://electionlawblog.org/?author=3>

Nina Totenberg<https://www.npr.org/2020/09/19/896733375/a-five-decade-long-friendship-that-began-with-a-phone-call>: A 5-Decade-Long Friendship That Began With A Phone Call

Joan Biskupic<https://www.cnn.com/2020/09/19/politics/rbg-biskupic-ruth-bader-ginsburg-interviews/index.html?utm_term=1600646353707b3e1f10a4185&utm_source=Reliable+Sources+-+Sept+20%2C+2020&utm_medium=email&utm_campaign=244992_1600646353709&bt_ee=JIOaiqEvsqDRH1MwCOdGA8%2F08RpU7Qah3BObIIOPkBborcufgrFTbgS5LmxR6h4z&bt_ts=1600646353709>: 20 years of closed-door conversations with Ruth Bader Ginsburg
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

“Vote-by-mail meltdowns in 2020?”<https://electionlawblog.org/?p=115468>
Posted on September 20, 2020 7:24 pm<https://electionlawblog.org/?p=115468> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew Appel blogs.<https://freedom-to-tinker.com/2020/09/20/vote-by-mail-meltdowns-in-2020/>

Probable election meltdown states

What would be really dysfunctional would be to encourage vote-by-mail, but then to wait until November 3 (or November 2) to start processing those envelopes. That’s a recipe for election meltdown. The states that are heading for this disaster are MI, VT, WI. Iowa, Michigan, and Wisconsin are mailing absentee-ballot-request forms to every voter; but waiting until the last minute to process them after they’re returned. Vermont is even worse: the state is mailing a ballot to every voter, but won’t start processing the returned envelopes until November 2nd.

The Michigan State Senate recently approved a bill<https://www.freep.com/story/news/politics/elections/2020/09/15/michigan-absentee-ballot-law/5802084002/> to start processing on November 2nd instead of November 3rd. If passed into law, that’s better than nothing — it will certainly help — but it may turn out to be inadequate.

Voters in these states should strongly consider taking this advice: vote in person<https://www.cnn.com/2020/09/14/opinions/election-2020-vote-by-mail-absentee-pildes/index.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Mail-in ballot law in Pennsylvania has driven out nearly a quarter of state’s top election officials”<https://electionlawblog.org/?p=115466>
Posted on September 20, 2020 7:21 pm<https://electionlawblog.org/?p=115466> by Rick Hasen<https://electionlawblog.org/?author=3>

Very worrying story:<https://www.yahoo.com/news/mail-ballot-law-pennsylvania-driven-153200659.html>

More than a dozen counties in Pennsylvania have seen election directors or deputy directors leave in the last year since a new law was passed to accommodate no-excuse mail-in voting across the state, three county officials familiar with the movement tell NBC News.

“The general assembly, the courts, and the governor have created a s—show of an election. Nobody truly understands what’s what,” one county election official said, “nobody has a grasp.”

The heightened concern comes after the Keystone State took weeks to report its primary results in June and as local election officials face ever-changing demands on the election process this year. With less than 45 days to go until the general election, the race in the battleground state is expected to be tight and top Pennsylvania elections officials have already said not to expect results on election night.

An email among a group of Pennsylvania directors of elections, provided to NBC News, shared that nearly one in four counties across the state has seen leaders in their election offices leave.

At least one, in Mifflin County, left for a promotion to the Pennsylvania Department of State and has since been replaced. Others though, left after the new state law around mail-in ballots was passed last fall, or retired — and some of these positions are still left unfilled.

“The loss of so many county election officials in a single year, more than anything else, should be a canary in the coal mine for state-level stakeholders to recognize that the current paradigm is unsustainable,” the email reads in part, also warning that there’s a potential for more officials to leave before November 3rd….
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Best practices for journalists covering the 2020 election: A report from the Poynter Institute”<https://electionlawblog.org/?p=115462>
Posted on September 20, 2020 7:12 pm<https://electionlawblog.org/?p=115462> by Rick Hasen<https://electionlawblog.org/?author=3>

This from Politifact<https://www.politifact.com/article/2020/sep/20/best-practices-journalists-covering-2020-election-/> is very important and well done.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Swing State Hurdle: Returning Absentee Ballots to Election Day Polls”<https://electionlawblog.org/?p=115460>
Posted on September 20, 2020 7:07 pm<https://electionlawblog.org/?p=115460> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld<https://votingbooth.media/swing-state-hurdle-returning-absentee-ballots-to-election-day-polls/>:

Across the country, the past week has seen the Democratic Party and voting rights groups win legal victories to make it easier to vote in the presidential election. But no victory addresses what some experienced election officials say may be a foreseeable trend that could delay polling place voting on Election Day in many swing states.

What may trigger voter confusion and traffic jams are rules that do not allow voters to drop off an absentee ballot at a poll on Nov. 3. In some states, those voters can wait in line and after some completing some paperwork, they will get to vote with a regular or provisional ballot. Or those voters can go to a government election office to return their absentee ballot, or find a drop box if that option is offered.

“It looks like a little tiny thing, but it is a major thing,” said Jan BenDor<http://www.michiganelectionreformalliance.org/council.shtml>, a former election official and Michigan Election Reform Alliance statewide coordinator, speaking of voters not being able to simply return an absentee ballot at any Election Day precinct. “One reason we worked so hard to get these drop boxes is so that people don’t get caught in these traps.”

In Michigan<https://2020voterscalendar.org/michigan/>, Pennsylvania<https://www.mcall.com/news/elections/mc-nws-election-faq-mail-in-ballot-application-20200826-jvpmars5bnehdj32tmdpgbomze-story.html>, Ohio<https://2020voterscalendar.org/ohio/>, Florida<https://2020voterscalendar.org/florida/>, Georgia<https://2020voterscalendar.org/georgia/>, North Carolina<https://2020voterscalendar.org/northcarolina/> and Wisconsin<https://2020voterscalendar.org/wisconsin/>, there are varying scenarios awaiting voters who might think that they can quickly return an absentee ballot on Election Day. Those voters face hurdles that they may not anticipate. This snafu was previewed in some 2020 primary elections.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Postal Service says voter registration, vote-by-mail materials permitted in Houston post offices”<https://electionlawblog.org/?p=115458>
Posted on September 20, 2020 6:54 pm<https://electionlawblog.org/?p=115458> by Rick Hasen<https://electionlawblog.org/?author=3>

Houston Chronicle<https://www.houstonchronicle.com/news/houston-texas/houston/article/Postal-Service-says-voter-registration-materials-15578862.php?utm_source=newsletter&utm_medium=email&utm_campaign=HC_DailyHeadlines&utm_term=news&utm_content=headlines&sid=599cec122ddf9c6a35e351f9#article-comments>:

There’s been a breakthrough in the weeks-long standoff over the availability of voter registration materials in Houston post offices with just weeks to go before the election.

Word came in a letter Friday to two Houston Democrats from the U.S. Postal Service government relations official in Washington, clarifying that postmasters are now explicitly authorized to allow voter registration and vote-by-mail applications to be on hand in post office lobbies as long as there is room to stash them.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“‘The Most Important Woman Lawyer in the History of the Republic’”<https://electionlawblog.org/?p=115425>
Posted on September 20, 2020 10:55 am<https://electionlawblog.org/?p=115425> by Richard Pildes<https://electionlawblog.org/?author=7>

Politico<https://www.politico.com/news/magazine/2020/09/18/tktk-418191>:<https://electionlawblog.org/>

Politico Magazine asked more than a dozen legal thinkers — law professors, litigators and constitutional scholars — to tell us how RBG’s life and work reshaped America. Many pointed to her work as a champion of women and voting rights. “Her deep and abiding commitment to justice and equality drove her analytic rigor, not the other way round,” Columbia University’s Gillian Metzger wrote. Others argued that she embodied a “sense of moderation and strategy,” as the Cato Institute’s Ilya Shapiro put it, that perhaps went overlooked.
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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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