[EL] ELB News and Commentary 9/24/20

[Rick Hasen]

Our “Fair Elections During a Crisis” Report Portion About “Peaceful Transitions of Power”<https://electionlawblog.org/?p=115654>
Posted on September 23, 2020 8:45 pm<https://electionlawblog.org/?p=115654> by Rick Hasen<https://electionlawblog.org/?author=3>

From our cross-ideological, cross disciplinary April report<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>:

Although laws govern the conduct of democratic elections, they are also shaped by a set of informal norms. We should strive for a system that upholds democratic principles that are embodied in both law and norms, one in which all eligible voters, and only eligible voters, can easily cast a vote that can be fairly and accurately counted.

Striking a reasonable balance between competing values of full participation and fraud prevention is a necessary and critical goal, one that must be evidence-based, resolved in good faith, and favoring no party over another.

There are increasing signs of erosion of these norms. A winner-take-all mentality in a time of high political polarization contributes to claims of stolen and rigged elections. Elected officials, political leaders, and others should embrace basic democratic principles abouf fair election contestation, and should continue to ensure the peaceful transition of
power and acceptance of election results when on the losing end of a hard-fought, butfair, election. Once fair election decisions are final, losers should concede rather than raise unsubstantiated claims of fraud or incompetence.

The ongoing COVID-19 crisis has already disrupted the 2020 primary elections. Upholding the norms of ballot access for all eligible voters, while respecting election integrity and public health imperatives, will be especially crucial if these challenges persist through November.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Won’t Commit to ‘Peaceful’ Post-Election Transfer of Power”<https://electionlawblog.org/?p=115652>
Posted on September 23, 2020 8:40 pm<https://electionlawblog.org/?p=115652> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/09/23/us/politics/trump-power-transfer-2020-election.html>:

President Trump declined an opportunity on Wednesday to endorse a peaceful transfer of power after the November election, renewing his baseless warnings about extensive voting fraud<https://www.nytimes.com/article/mail-in-voting-explained.html> before saying there would be no power transfer at all.

Asked whether he would “commit here today for a peaceful transferral of power after the November election,” Mr. Trump demurred, passing on a chance to call for a calm and orderly election process.

“We’re going to have to see what happens,” he told a reporter during a news conference at the White House. “You know that I’ve been complaining very strongly about the ballots, and the ballots are a disaster.”

“I understand that, but people are rioting,” responded the reporter, Brian Karem of Playboy magazine, who repeated the question.

“Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation,” the president said. That was an apparent reference to mail-in ballots, which for months he has railed against<https://www.nytimes.com/2020/06/24/us/politics/trump-vote-by-mail.html?action=click&module=RelatedLinks&pgtype=Article>, without evidence, as rife with fraud and likely to produce a delayed, tainted or outright illegitimate election result.

Mr. Trump’s refusal — or inability — to endorse perhaps the most fundamental tenet of American democracy, as any president in memory surely would have, was the latest instance in which he has cast grave uncertainty around the November election and its aftermath. Democrats are growing increasingly alarmed as Mr. Trump repeatedly questions the integrity of the vote and suggests that he might not accept the results if he loses.

Earlier on Wednesday, Mr. Trump said he needed to swiftly confirm a successor<https://www.nytimes.com/2020/09/23/us/elections/trump-supreme-court-election-day.html> for Justice Ruth Bader Ginsburg<https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html> because he expected disputes over the election result to be resolved by the Supreme Court, which could split 4-to-4 if a ninth justice is not seated.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“The Election Is Already Under Way in America’s Courts; And the two parties—and the judges they have appointed—are on completely divergent legal paths.”<https://electionlawblog.org/?p=115650>
Posted on September 23, 2020 8:33 pm<https://electionlawblog.org/?p=115650> by Rick Hasen<https://electionlawblog.org/?author=3>

Leah Litman <https://www.theatlantic.com/ideas/archive/2020/09/election-litigation/616439/> in the Atlantic:

The case captions tell much of the story. Republican Party officials, including those in President Trump’s reelection campaign, are trying to stop states’ efforts to expand voting—they are suing to prevent mail-in voting, extensions for counting ballots, and drop-box voting, and intervening in lawsuits in order to defend Republican-led states’ ability to enforce voting restrictions in the midst of the pandemic. The Democratic Party and its voters and interest groups, by contrast, are using litigation to make voting easier for more people to do safely, and not in person, in the midst of the pandemic.

Many of the rulings also break down along these lines. Two district court judges who were appointed by President Barack Obama issued rulings in the Alabama<https://www.splcenter.org/sites/default/files/documents/055_-_memorandum_opinion.pdf> and Wisconsin<https://www.democracydocket.com/wp-content/uploads/sites/41/2020/04/2020-04-02-Order-on-Motion-for-Preliminary-Injunction.pdf> cases that would have prevented states from enforcing some of their voting restrictions during the coronavirus crisis. In the Florida case, a district judge appointed by President Bill Clinton<https://www.politico.com/states/f/?id=00000172-48d3-dc3e-aff6-4cdf397b0000> invalidated the state’s requirement that recently released persons pay court fines and fees before voting when the state would not tell them how much they owed. In the Alabama<https://www.supremecourt.gov/orders/courtorders/070220zr_n7io.pdf> and Wisconsin<https://casetext.com/case/republican-national-committee-v-democratic-national-committee> cases, the five Republican-appointed justices on the Supreme Court allowed the states to enforce voting restrictions, but the Democratic-appointed justices would not have. In the Florida case, the Republican-controlled U.S. Court of Appeals for the Eleventh Circuit upheld<https://www.scotusblog.com/wp-content/uploads/2020/09/9-11-20-Jones-v-Florida-11th-Opinion.pdf> Florida’s pay-to-vote scheme. A majority of the Republican-appointed justices on the Supreme Court<https://www.supremecourt.gov/opinions/19pdf/19a1071_4h25.pdf> also allowed Florida to enforce the scheme in the primary election, whereas a majority of Democratic-appointed justices would have prohibited the state from doing so. In the Texas case, a Democratic-appointed district judge invalidated Texas’s law<https://www.courthousenews.com/wp-content/uploads/2020/05/TexasvotebymailrulingfedMay19.pdf> prohibiting voters under the age of 65 from voting without an excuse, but a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit<https://law.justia.com/cases/federal/appellate-courts/ca5/20-50407/20-50407-2020-06-04.html>, with two Republican-appointed judges, put that opinion on hold and allowed Texas to enforce the law, because they concluded that the law was likely constitutional. The Pennsylvania Supreme Court, which has a majority of justices elected as Democrats, rejected an attempt<https://www.nytimes.com/2020/09/18/us/2020-voting-litigation-election.html> to limit late ballots and drop boxes, and a Michigan state-court judge appointed by a Democratic governor expanded the period for counting mail ballots.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“GOP appeals ruling that extended time to count Wisconsin absentee ballots”<https://electionlawblog.org/?p=115648>
Posted on September 23, 2020 8:30 pm<https://electionlawblog.org/?p=115648> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/09/23/gop-appeals-ruling-extended-absentee-ballot-count-wisconsin/3504361001/>

Republicans who control the state Legislature appealed a court decision Wednesday to try to make sure absentee ballots aren’t counted if clerks receive them after election day.

The filing with the 7th Circuit Court of Appeals came two days after U.S. District Judge William Conley ruled absentee ballots should be counted if they are postmarked by Nov. 3<https://www.jsonline.com/story/news/politics/elections/2020/09/21/wisconsin-absentee-ballots-postmarked-november-3-counted-delay-presidential-election-results/5808975002/> — election day — and received by clerks by Nov. 9.

Ordinarily, absentee ballots in Wisconsin are counted only if they are in clerks’ hands by election day. Conley provided the extension because of the coronavirus pandemic, a surge in mail voting and recent problems with delivering mail on time.

There is precedent for his decision. The U.S. Supreme Court in April allowed ballots to be counted that were postmarked by election day in the race for state Supreme Court.

The case is being watched closely because Wisconsin is a battleground in the race between Republican President Donald Trump and Democratic nominee Joe Biden. Trump won Wisconsin in 2016 by less than a percentage point.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


North Carolina: “State Board of Elections’ only two Republicans resign after lawsuit settlement drops”<https://electionlawblog.org/?p=115646>
Posted on September 23, 2020 8:27 pm<https://electionlawblog.org/?p=115646> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL:<https://www.wral.com/state-board-of-elections-only-two-republicans-resign-after-lawsuit-settlement-drops/19301991/>

A pair of State Board of Elections members resigned from the board Wednesday, less than two months ahead of a presidential election, complaining of the details in a lawsuit settlement that may rewrite absentee voting rules in the weeks ahead.

Ken Raymond and David Black were the only two Republican members on a board that has been split 3-2, with Democrats in control. Notice of their resignations went out shortly after 10 p.m.

In his resignation letter,<https://www.wral.com/news/state/nccapitol/document/19302008/> Raymond said Attorney General Josh Stein’s office kept him in the dark on key details of a lawsuit the board voted – unanimously – to empower State Board counsel to settle.

“It is impossible to have true bipartisanship when both sides of the political aisle do not have the important and vital information needed to make the right decisions,” Raymond said in his letter.

WRAL News has reached out to Stein’s office for comment, but in a statement announcing the resignations, State Board spokesman Patrick Gannon said all board members heard from attorneys representing the board in this lawsuit and others. The board held a closed session on the matter last week.

Joe Bruno<https://twitter.com/JoeBrunoWSOC9/status/1308949251284758530> thread:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Democratic Voter Registration Lagging Republican Registration in Key Midwestern States<https://electionlawblog.org/?p=115644>
Posted on September 23, 2020 8:22 pm<https://electionlawblog.org/?p=115644> by Rick Hasen<https://electionlawblog.org/?author=3>

Tom Edsall:<https://www.nytimes.com/2020/09/23/opinion/joe-biden-donald-trump-2020.html?action=click&module=Opinion&pgtype=Homepage>

A Democratic strategist — who requested anonymity because his employer does not want him publicly identified talking about the election — analyzed the implications of the most recent voter registration trends for me.

In Michigan, Pennsylvania and Wisconsin, he said, overall

registration is up by 6 points through August compared to the 2016 cycle, but net Democratic registrations are down by 38 percent. That’s about 150,000 fewer additional Democrats than were added in 2016.

In addition, he continued, registration among whites without college degrees

is up by 46 percent while registration by people of color is up by only 4 percent. That gap is made more stark when you realize that over the last four years, the WNC (white non-college) population has increased by only 1 percent in those states, while the number of people of color increased by 13 percent.

The pattern was more pronounced in Pennsylvania and Wisconsin than it was in Michigan.

On its own, increased registration among non-college whites would have only a negligible effect on total state voting, my source pointed out, but

it becomes troubling if it reflects greater interest more generally for these voters in those states. And there are good reasons to believe that if that is the case, those additionally energized voters are very underrepresented in surveys now.

Even if white non-college turnout reached the highest expectations, he cautioned, it would not “erase Biden’s current polling leads. But it does make the races much closer.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


In Alarming Answer at Press Conference President Trump Refuses to Commit to Peaceful Transition of Power (Assuming He Loses) Because of Claimed (But Nonexistent) “Problems” with the Ballots<https://electionlawblog.org/?p=115642>
Posted on September 23, 2020 4:15 pm<https://electionlawblog.org/?p=115642> by Rick Hasen<https://electionlawblog.org/?author=3>

Chilling<https://twitter.com/chris_biow/status/1308906776755142658?s=20>:
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Voting Rights Groups Fight Against Fulton County Voter Purge<https://electionlawblog.org/?p=115640>
Posted on September 23, 2020 4:04 pm<https://electionlawblog.org/?p=115640> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://lawyerscommittee.org/voter-roll-purge-in-fulton-county-is-illegal-must-be-immediately-dismissed/>:

The Georgia NAACP and the Georgia Coalition for the People’s Agenda are moving to stop 14,000 voters from being purged from the rolls before November’s general election, after a lawsuit was filed by two Fulton County voters which seeks to force the Fulton County Election Board to convene challenge hearings and purge the voters. The Georgia NAACP’s and Georgia Coalition’s motion to dismiss<https://lawyerscommittee.org/wp-content/uploads/2020/09/FULTONCOUNTYUSE.pdf>, which was filed today, asserts that the voter purges requested by the lawsuit would violate both state law and the National Voter Registration Act, and that the lawsuit must therefore be dismissed immediately.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


I was KC Star’s 4Star Politics Video Talking About the Supreme Court and Election Issues<https://electionlawblog.org/?p=115638>
Posted on September 23, 2020 4:00 pm<https://electionlawblog.org/?p=115638> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<https://www.kansascity.com/opinion/opn-columns-blogs/dave-helling/article245957080.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“I’ve Never Been More Worried About American Democracy Than I Am Right Now; The pre-emptive attack on the vote count is a five-alarm fire.”<https://electionlawblog.org/?p=115635>
Posted on September 23, 2020 12:24 pm<https://electionlawblog.org/?p=115635> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/09/trump-plan-supreme-court-stop-election-vote-count.html> for Slate. It begins:

With less than six weeks to go before Election Day, and with over 250 COVID-related election lawsuits filed across 45 states<https://electionlawblog.org/?p=115508>, the litigation strategy of the Trump campaign and their allies has become clear: try to block the expansion of mail-in balloting whenever possible and, in a few key states, create enough chaos in the system and legal and political uncertainty in the results that the Supreme Court, Congress, or Republican legislatures can throw the election to Trump if the outcome is at all close or in doubt. It’s a Hail Mary, but in a close enough election we cannot count the possibility out. I’ve never been more worried about American democracy than I am right now….

The Trump strategy of fighting the expansion of mail-in balloting appears to be two-fold. To begin with, the campaign appears to have made the calculation that lower turnout will help the president win reelection. This may explain why Pennsylvania Republicans are planning on going to the U.S. Supreme Court<https://electionlawblog.org/?p=115580> to argue against a state Supreme Court ruling allowing the counting of ballots arriving soon after election day without a legible postmark. They argue that doing so unconstitutionally extends Election Day beyond November 3 and takes power away from the Pennsylvania Legislature to choose presidential electors.

The first argument is not a particularly strong one: a decision to accept ballots soon after election day without a legible postmark does not extend election day as much as it implements how election officials determine if a mailed ballot was timely mailed. It recognizes the reality that many ballots have been arriving without postmarks and uses proximity to the election as a proxy for timely voting. Virginia and Nevada recently adopted similar rules,<https://www.npr.org/2020/08/18/903490612/another-post-office-election-challenge-makings-sure-ballots-are-postmarked> in light of pandemic-related mail delays. The Trump-allied Honest Elections Project is fighting a consent decree<https://www.honestelections.org/news/voters-file-new-lawsuit-against-minnesota-to-restore-election-safeguards/> over a similar extension in Minnesota.

The argument about the state Supreme Court’s ruling usurping legislative power to set federal election rules echoes a parallel claim that was made during the disputed election in 2000. The question is whether a state supreme court usurps legislative power when it interprets election rules in line with both state statutes and the state Constitution. The argument that a state Supreme Court applying a state constitution in a voting case usurps legislative power is weak to me, but it was convincing enough for the more conservative members of the Supreme Court that decided Bush v. Gore.

The fighting over things like postmark rules are fights on the edges, the kind of trench warfare that will only matter if the election comes down to hundreds of ballots in a key swing state essential for the electoral college outcome. But there’s a second play here as well, one that is far more worrisome.

The idea is to throw such much muck into the process and cast so much doubt on who is the actual winner in one of those swing states because of supposed massive voter fraud and uncertainty about the rules for absentee ballots that some other actor besides the voter will decide the winner of the election. That could be the RBG-less Supreme Court resolving a dispute over a group of ballots. Indeed, on Tuesday, Vice President Mike Pence suggested<https://www.thenewcivilrightsmovement.com/2020/09/pence-suggests-unnamed-trump-scotus-nominee-should-skip-committee-and-just-be-confirmed-before-election-issues-arise/> that Justice Ruth Bader Ginsburg’s replacement needs to be seated, possibly without so much as a hearing, in order to decide “election issues [that] may come before the Supreme Court in the days following the election” including questions involving “universal unsolicited mail” and states “extending the deadline” for ballot receipt. (Never mind that a 4-4 split on the Court on an election issue is unlikely.)<https://electionlawblog.org/?p=115503> It could be a Republican legislature in a state saying it has the right under Article II of the Constitution to pick the state’s winner in the face of uncertainty. Bart Gellman in The Atlantic<https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/> recently quoted a Republican operative imagining these state legislatures saying, “‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state.” And it could be Republicans in the Senate—if they keep their majority—not counting electoral college votes that were cast for Biden based upon manufactured uncertainty. This would lead to a dispute with the Democratic House and lead to a political struggle over the presidency<https://slate.com/news-and-politics/2020/09/electoral-college-tie-democrats.html?via=recirc_recent>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, The Voting Wars<https://electionlawblog.org/?cat=60>
--
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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