[EL] more news and commentary 9/26/20

Sat Sep 26 11:40:44 PDT 2020

“Previously secret documents revealed on NC mail-in voting settlement opposed by GOP”<https://electionlawblog.org/?p=115787>
Posted on September 26, 2020 11:32 am<https://electionlawblog.org/?p=115787> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer:<https://www.newsobserver.com/news/politics-government/election/article246001290.html>

The Republican members of the state elections board who resigned in protest earlier this week gave the public false information, the board’s leader said in an emergency meeting Friday.

He and the other Democrats who remain on the board released documents they claim should prove their version of events.

“Two members of our board resigned their seats, claiming they were misled and did not have all the information,” said Damon Circosta, chair of the N.C. State Board of Elections, adding: “This is not true.”

For example, one of the <https://www.newsobserver.com/news/local/article246017325.html> GOP board members who resigned<https://www.newsobserver.com/news/politics-government/election/article245964685.html>, Ken Raymond, said he did so because attorneys from the office of Attorney General Josh Stein, a Democrat, had withheld key information from him and the rest of the board. However, one of the formerly confidential documents released Friday shows that that information was actually on the first page of a legal memo Stein’s office sent to board members nearly two weeks ago.

After the elections board waived its attorney-client privilege on those documents Friday to make them public, Stein tweeted <https://twitter.com/JoshStein_/status/1309506051415379968> that Republican leaders “are lying” about the elections board’s actions “to create mistrust in our elections.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115787&title=%E2%80%9CPreviously%20secret%20documents%20revealed%20on%20NC%20mail-in%20voting%20settlement%20opposed%20by%20GOP%E2%80%9D>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Madison poll workers will accept absentee ballots in parks this weekend, raising GOP concerns”<https://electionlawblog.org/?p=115785>
Posted on September 26, 2020 11:28 am<https://electionlawblog.org/?p=115785> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/elections/2020/09/25/madison-poll-workers-accept-absentee-ballots-parks/3533090001/>:

Madison’s parks have become the latest fronts in Wisconsin’s voting wars.

The liberal stronghold is hosting “Democracy in the Park<https://www.cityofmadison.com/clerk/calendar/democracy-in-the-park>” events on Saturday at more than 200 locations across the city, where poll workers wearing yellow vests will assist voters in numerous ways.

They plan to help people register to vote, help them request absentee ballots, serve as witnesses for those who already have absentee ballots and accept those absentee ballots once they’re completed.

To Republicans, that risks looking too much like in-person early voting, which isn’t allowed under state law until Oct. 20.

Republicans and Democrats in Wisconsin have long fought over the state’s voter ID law and early voting, but their battles have intensified this year as voters turn to absentee voting in record numbers because of the coronavirus pandemic.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115785&title=%E2%80%9CMadison%20poll%20workers%20will%20accept%20absentee%20ballots%20in%20parks%20this%20weekend%2C%20raising%20GOP%20concerns%E2%80%9D>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Bob Bauer as Trump in Biden Debate Prep<https://electionlawblog.org/?p=115783>
Posted on September 26, 2020 11:25 am<https://electionlawblog.org/?p=115783> by Rick Hasen<https://electionlawblog.org/?author=3>

That I’d love<https://apnews.com/article/election-2020-virus-outbreak-joe-biden-campaigns-michael-pence-ee021beed099a2cf8cbd1e28161740a1> to see.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115783&title=Bob%20Bauer%20as%20Trump%20in%20Biden%20Debate%20Prep>
Posted in election law biz<https://electionlawblog.org/?cat=51>

“How Amy Coney Barrett Would Reshape the Court — And the Country”<https://electionlawblog.org/?p=115780>
Posted on September 26, 2020 8:42 am<https://electionlawblog.org/?p=115780> by Richard Pildes<https://electionlawblog.org/?author=7>

Politico<https://www.politico.com/news/magazine/2020/09/26/amy-barrett-scotus-legal-experts-422028> asked more than two dozen “legal experts” their views on this question. Here’s my contribution:

The authority and legitimacy of public institutions takes decades to build up — but can unravel far more quickly. We have been in the midst of a blood feud over the Supreme Court for some years now, which is increasingly likely to cause great damage to an institution the country needs. Like in all blood feuds, each side has its own story of how it all began, which goes back nearly 40 years: You blocked Bork. You denied Garland a hearing. We had to get rid of the filibuster for lower court judges. We had to get rid of it for the Supreme Court. Overwhelmed by the politics of the moment when in power, neither side can stop, making it inevitable that when the worm turns, the other side will up the ante all the more.

To talk about what Amy Coney Barrett would mean for this issue or that issue is to miss the true historical significance of this appointment and what it will mean for the court. If Democrats capture the Senate and White House this fall, the pressures to pack the court will become more formidable than at any time since Franklin D. Roosevelt’s disastrous 1937 attempt (the political backlash against that effort<https://conlaw.jotwell.com/the-court-and-politics-what-is-the-lesson-of-fdrs-confrontation-with-the-court/> brought about the end of the New Deal). That effort might press to add four new justices, to create a 13-member court with seven Democratic appointees. As soon as the Republicans regain power, they will then take their turn at refashioning the court to serve their aims.

A bespoke court, custom designed and redesigned to serve the interests of the party in power, would lose much of the institutional capital it has built up over two centuries. Perhaps Judge Barrett’s nomination will eventually lead the warring tribes to forge a treaty that reduces the stakes in these appointments (through mechanisms scholars have discussed<http://epstein.wustl.edu/research/courses.judpol.Calabresi.pdf> for years). Or perhaps the stakes in Supreme Court appointments will diminish because one political party gains complete control of government for decades, thus making the court less relevant, as Republicans did after the Civil War and Democrats did during the New Deal. Of course, each side’s firm belief that it is (always) on the cusp of doing that is part of what propels the feud forward.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115780&title=%E2%80%9CHow%20Amy%20Coney%20Barrett%20Would%20Reshape%20the%20Court%20%E2%80%94%20And%20the%20Country%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Michigan: “Republican Party sues to stop late ballot ruling; high court considers case”<https://electionlawblog.org/?p=115778>
Posted on September 25, 2020 8:41 pm<https://electionlawblog.org/?p=115778> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit:<https://www.detroitnews.com/story/news/politics/2020/09/25/michigan-national-republican-parties-sue-stop-late-ballot-ruling/3531322001/>

Three GOP-led groups are making urgent appeals in state court to gain the legal standing needed to appeal and overturn a recent ruling requiring clerks to count late ballots and making changes to the rules governing ballot collection.

The Michigan Supreme Court on Friday issued an order that expedites consideration of the requests to intervene and ordered a ruling in at least one of the cases by Wednesday.

The potential challenges from the GOP-led Legislature, the Republican National Convention and the Michigan Republican Party stemmed from a Sept. 18 ruling by state Court of Claims Judge Cynthia Stephens, an appointee of Democratic former Gov. Jennifer Granholm.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115778&title=Michigan%3A%20%E2%80%9CRepublican%20Party%20sues%20to%20stop%20late%20ballot%20ruling%3B%20high%20court%20considers%20case%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Arizona: “Fontes asks court to allow virtual voting in care facilities after Ducey raises concerns”<https://electionlawblog.org/?p=115776>
Posted on September 25, 2020 8:36 pm<https://electionlawblog.org/?p=115776> by Rick Hasen<https://electionlawblog.org/?author=3>

AZ Central:<https://amp.azcentral.com/amp/3537672001?utm_campaign=snd-autopilot&cid=twitter_azcentral&__twitter_impression=true>

Voters confined to hospitals and nursing homes during the COVID-19 pandemic should be allowed to cast ballots in the November election via video call, Maricopa County Recorder Adrian Fontes said in a court complaint<https://drive.google.com/file/d/1JAbbBJstGWklmusRSeSVlnRAkKBd6B9l/view> filed in Arizona Superior Court on Friday.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115776&title=Arizona%3A%20%E2%80%9CFontes%20asks%20court%20to%20allow%20virtual%20voting%20in%20care%20facilities%20after%20Ducey%20raises%20concerns%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“On-again, off again: Court nixes SC witness requirement on absentee ballots — for now”<https://electionlawblog.org/?p=115774>
Posted on September 25, 2020 8:34 pm<https://electionlawblog.org/?p=115774> by Rick Hasen<https://electionlawblog.org/?author=3>

The State:<https://www.thestate.com/news/politics-government/election/article246022720.html>

The 4th Circuit Court of Appeals in Richmond has, at least temporarily, reinstated a ruling by a South Carolina federal judge that would allow S.C. voters who vote absentee to do it without having a witness signature.

The ruling was the latest major turn of the screw in a voting rights issue that ultimately could affect up to an estimated 1 million voters in the state who the S.C. Election Commission has said may vote absentee. South Carolina has approximately 3 million eligible voters.

The reversal and reinstatement of U.S. District Judge Michelle Childs’ Sept. 18 order<https://www.thestate.com/news/coronavirus/article245850245.html> came shortly after 8 p.m. Friday. Its effect was to waive the voter witness signature requirement and came over the heated written objections of two 4th Circuit judges, J. H. Wilkinson and Steven Agee.

In any case, the matter is likely to be dealt with speedily. Under existing law, judges are not supposed to issue decisions that could interfere with rapidly approaching elections — a point made by Judges Wilkinson and Agee in their dissent.

“The Supreme Court has repeatedly cautioned us not to interfere with state election laws in the “weeks before an election,” wrote Wilkinson and Agee. “The district court (Judge Childs) failed to give this command proper weight.”

Underscoring their displeasure with the full 4th Circuit court’s decision to overturn their panel, Wilkinson and Agee wrote, “The majority’s disregard for the Supreme Court is palpable.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115774&title=%E2%80%9COn-again%2C%20off%20again%3A%20Court%20nixes%20SC%20witness%20requirement%20on%20absentee%20ballots%20%E2%80%94%20for%20now%E2%80%9D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“How to Preserve American Elections”<https://electionlawblog.org/?p=115772>
Posted on September 25, 2020 8:28 pm<https://electionlawblog.org/?p=115772> by Rick Hasen<https://electionlawblog.org/?author=3>

I did this New Yorker Q and A<https://www.newyorker.com/news/q-and-a/how-to-preserve-american-elections?utm_source=twitter&utm_medium=social&mbid=social_twitter&utm_brand=tny&utm_social-type=owned> with Isaac Chotiner.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115772&title=%E2%80%9CHow%20to%20Preserve%20American%20Elections%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Video of My Appearance on AC 360 with Anderson Cooper on the Election’s Legitimacy<https://electionlawblog.org/?p=115770>
Posted on September 25, 2020 8:24 pm<https://electionlawblog.org/?p=115770> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here:<https://www.youtube.com/watch?v=I-UpRTgvxZc&feature=youtu.be>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115770&title=Video%20of%20My%20Appearance%20on%20AC%20360%20with%20Anderson%20Cooper%20on%20the%20Election%E2%80%99s%20Legitimacy>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Don’t fall for claims of voter fraud. Error is more likely the case, and errors don’t swing elections”<https://electionlawblog.org/?p=115768>
Posted on September 25, 2020 5:20 pm<https://electionlawblog.org/?p=115768> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://www.latimes.com/opinion/story/2020-09-25/absentee-ballots-luzerne-county-pennsylvania-william-barr-department-of-justice> for the LA Times. It begins:

Let’s admit this now: We are not going to have a perfect election in November. We never have perfect elections.

There will be reports of ballots sent to voters that end up in the trash or in a ditch<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cbs42.com%2Fnews%2Fbox-of-mail-absentee-ballots-found-in-wisconsin-ditch%2F&data=02%7C01%7CSusan.Brenneman%40latimes.com%7Cab923265978a476c1b8608d86195f0d4%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366643911083774&sdata=%2FGC1O7JYJkW97IojHGLSla3pxauZyvyLFwkBRJZojyE%3D&reserved=0>. We may hear about a box of ballots never delivered to voters or election officials by the post office. There may be isolated instances of fraud, or of things that initially look like fraud but turn out to be election administrator error.

This doesn’t mean we won’t have a fair election overall, and we should not allow cynical political operatives to parlay small-bore errors into a full-scale attack on the integrity of the November vote.

The controversy that bubbled up on Thursday over nine mishandled ballots in Luzerne County, Pa., illustrates the danger ahead. Even before<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cnn.com%2F2020%2F09%2F24%2Fpolitics%2Fdoj-trump-ballots-pennsylvania%2Findex.html&data=02%7C01%7CSusan.Brenneman%40latimes.com%7Cab923265978a476c1b8608d86195f0d4%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366643911083774&sdata=ZlfsRFl8lI%2Fi25Yv1U9gAHYIqa76f2gbswOYOdVAXdg%3D&reserved=0> the Department of Justice issued its announcement, President Trump and his team were complaining that mail-in ballots from military voters cast for him were being thrown into the trash, a claim fitting into his narrative — unsupported by the facts<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nytimes.com%2F2020%2F08%2F19%2Fopinion%2Ftrump-usps-mail-voting.html&data=02%7C01%7CSusan.Brenneman%40latimes.com%7Cab923265978a476c1b8608d86195f0d4%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366643911093732&sdata=tfFsyAezc%2F0azcWeICLWsU5spEfyaH7rVG9kphqX5oA%3D&reserved=0> — that massive voter fraud will be used to take a November victory away from him. ABC News reported<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fabcnews.go.com%2FPolitics%2Fbarr-briefed-trump-investigation-discarded-pennsylvania-ballots%2Fstory%3Fid%3D73244344&data=02%7C01%7CSusan.Brenneman%40latimes.com%7C65b3674409c74ce4047b08d861a11a34%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366692463343290&sdata=Ba4L7i65TAzKq5iNHiKdlQu9LK3zs9zFT%2BweFRBo2nc%3D&reserved=0> that Atty. Gen. William Barr briefed Trump on the case before it was publicly announced.

The Justice Department bungled the facts with premature announcements. Nine Trump votes were not tossed. That news release was rescinded and replaced: Seven of the ballots had been marked for Trump; two were unopened. Then came yet more information<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.pahomepage.com%2Fwp-content%2Fuploads%2Fsites%2F91%2F2020%2F09%2FPress-Release-County-UMOVA-ballots.pdf&data=02%7C01%7CSusan.Brenneman%40latimes.com%7C65b3674409c74ce4047b08d861a11a34%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637366692463353285&sdata=QqALfn78L7yln9NcXyrB%2Ft7PHy%2FVdspTq0dOa8bgUbQ%3D&reserved=0>: A memo from Luzerne County that suggested there was no criminal activity related to the ballots, just administrative error. A temporary contract election worker on the job for only three days may have believed the envelopes contained applications for absentee ballots, not votes. The worker was fired when the error was discovered.

The clarifications did not stop a flood of conservative media stories blowing up the situation as some kind of evidence of a massive conspiracy to throw the election. The Luzerne County story is troubling, but not because it showed deliberate tampering. Instead it showed how political operatives — this time acting through the Justice Department — could try to give mistakes the aura of a stolen election for political gain. Whatever one thinks about the department announcing an ongoing political investigation in the midst of the election season (which goes against the DOJ’s own standards and practices), there is no non-political reason for releasing information about how the ballots were marked. This was an in-kind contribution to the Trump campaign by the Justice Department….
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115768&title=%E2%80%9CDon%E2%80%99t%20fall%20for%20claims%20of%20voter%20fraud.%20Error%20is%20more%20likely%20the%20case%2C%20and%20errors%20don%E2%80%99t%20swing%20elections%E2%80%9D>
Posted in Department of Justice<https://electionlawblog.org/?cat=26>, Election Meltdown<https://electionlawblog.org/?cat=127>

--
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200926/cc343064/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200926/cc343064/attachment.png>