[EL] ELB News and Commentary 9/29/20

[Rick Hasen]

Justin at Take Care<https://takecareblog.com/blog/pennsylvania-legislators-invite-some-extra-scotus-chaos-this-election-season> on the PA. Republicans going to SCOTUS (soon to be cross posted at ELB):


The state Senate leadership in Pennsylvania, intervenors in litigation over the deadline to receive ballots cast by mail, has just asked the U.S. Supreme Court<https://www.supremecourt.gov/DocketPDF/20/20A53/155043/20200928103631405_No.___EmergencyApplicationForStay.pdf> to stay a Sept. 17 decision of the Pennsylvania Supreme Court<http://www.pacourts.us/assets/files/page-1305/file-10077.pdf>. The Pennsylvania Supreme Court ruled that ballots must be counted if they're received by Nov. 6, unless a preponderance of the evidence shows that those ballots were mailed after Election Day. The stay request<https://www.supremecourt.gov/DocketPDF/20/20A53/155043/20200928103631405_No.___EmergencyApplicationForStay.pdf> asserts that this decision violates the federal law<https://www.law.cornell.edu/uscode/text/2/7> setting November 3 as Election Day, and also that it violates the Elections Clause of the Constitution.

That latter claim is worth a moment. The Elections Clause<https://constitution.congress.gov/browse/article-1/section-4/> says that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ," unless Congress says otherwise.  The U.S. Supreme Court has consistently interpreted this delegation to the "Legislature" to mean a delegation to the state lawmaking process (see, e.g., the 2015 opinion by Justice Ginsburg<https://casetext.com/case/arizona-state-legislature-v-arizona-independent-redistricting-commn> upholding Arizona’s independent redistricting commission).

The stay application filed at the U.S. Supreme Court claims that the Pennsylvania Supreme Court "has substituted its will for the will of the General Assembly, and this substitution usurps the authority vested in the General Assembly by the Elections Clause." The stay application also claims that "denying the requested stay will have a cascading effect on th[e] Court's docket," with a lot of other cases in the hopper.

These are big claims. But I'm not at all sure that the frame is right ... and I'm quite sure that granting the stay on Elections Clause grounds would have a much larger and more disruptive cascading impact….




I Was a Guest on Slate’s “What’s Next” Podcast Talking About the Election and Peaceful Transitions of Power<https://electionlawblog.org/?p=115925>
Posted on September 29, 2020 6:52 am<https://electionlawblog.org/?p=115925> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen:<https://slate.com/podcasts/what-next/2020/09/election-integrity-security-democracy-trump-debate>

The Most Important Question in Tonight’s Debate: President Trump has yet to commit to a peaceful transfer of power if he loses the election.

When you settle in to watch the Presidential debate tonight, maybe you’ll be listening to hear how Trump talks about the New York Times story regarding his tax returns. Maybe you’ll want to hear what Joe Biden has to say about the Supreme Court.

But Rick Hasen, an election law expert at UC-Irvine, says he’ll be listening for something else: how the two candidates talk about the integrity of this election.

Guest: Rick Hasen<https://twitter.com/rickhasen>, an election law expert at UC-Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115925&title=I%20Was%20a%20Guest%20on%20Slate%E2%80%99s%20%E2%80%9CWhat%E2%80%99s%20Next%E2%80%9D%20Podcast%20Talking%20About%20the%20Election%20and%20Peaceful%20Transitions%20of%20Power>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


On the Issues with Michele Goodwin (Ms. Podcast): “Bonus Episode: Can the President Suspend the Elections?”<https://electionlawblog.org/?p=115923>
Posted on September 29, 2020 6:42 am<https://electionlawblog.org/?p=115923> by Rick Hasen<https://electionlawblog.org/?author=3>

On this episode:<https://msmagazine.com/podcast/bonus-episode-can-the-president-suspend-the-elections/>

On today’s show, we focus on the question: Can the president suspend the elections? The short answer: No. But while the law is clear, President Trump’s efforts to delay the elections, sow distrust in our democratic processes, and wreak havoc on the U.S. electoral process are already well underway.

On July 30, President Trump tweeted<https://twitter.com/realdonaldtrump/status/1288818160389558273> mail-in voting will make this year’s elections “the most inaccurate and fraudulent election in history.” (In reality, mail-in voter fraud averages 0.0025 percent.) This, just months after he and others dismissed as ridiculous Democratic presidential nominee Joseph Biden’s warnings in April that Trump might “try to kick back the election somehow” or “come up with some rationale why it can’t be held.”<https://www.nbcnews.com/politics/elections/biden-says-he-thinks-trump-will-try-delay-november-election-n1191506>

The president’s tweets and public comments raise serious questions about the integrity of the upcoming elections. For example, what are the ramifications of Trump suggestions that we suspend the election? Will access to mail-in ballots (or lack thereof) impact voter turnout? Can Trump invoke martial law if he loses the election? What are the possible threats to our democracy come November?

With Guests:
·         Karen J. Greenberg, the director of the Center on National Security at Fordham Law<https://www.centeronnationalsecurity.org/> and a permanent member of the Council on Foreign Relations<https://www.cfr.org/>, specializing in the intersection between national security policy, the rule of law and human rights. She is the host of “Vital Interests Podcast,”<https://www.centeronnationalsecurity.org/vital-interests-podcast> the editor-in-chief of three online publications and has written and edited numerous books including: “Rogue Justice: The Making of the Security State.” <https://bookshop.org/books/rogue-justice-the-making-of-the-security-state/9780804138239>
·         Prof. Rick Hasen, chancellor’s professor of law and political science at the University of California, Irvine and a nationally recognized expert in election law and campaign finance regulation. He is a CNN election 2020 analyst and co-author of leading casebooks in election law.  He has authored over 100 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review.
·         Rep. Mikie Sherrill represents New Jersey’s 11th Congressional District. Congresswoman Sherrill serves as freshman whip for the New Democrat Coalition and sits on the House Armed Services Committee and the House Science, Space and Technology Committee. She is the chairwoman of the Environment Subcommittee for the Science, Space and Technology Committee.
·         Prof. Stephen Vladeck, the A. Dalton Cross professor in law at the University of Texas School of Law and a nationally recognized expert on the federal courts, constitutional law, national security law and military justice. He is also the co-host of the popular and award-winning “National Security Law Podcast.”<https://www.nationalsecuritylawpodcast.com/> He is a CNN Supreme Court analyst and a co-author of Aspen Publishers’ leading national security law and counterterrorism law casebooks.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115923&title=On%20the%20Issues%20with%20Michele%20Goodwin%20(Ms.%20Podcast)%3A%20%E2%80%9CBonus%20Episode%3A%20Can%20the%20President%20Suspend%20the%20Elections%3F%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump vs. Biden on the issues: Election security and integrity”<https://electionlawblog.org/?p=115921>
Posted on September 29, 2020 6:36 am<https://electionlawblog.org/?p=115921> by Rick Hasen<https://electionlawblog.org/?author=3>

ABC News reports.<https://abcnews.go.com/Politics/trump-biden-issues-election-security-integrity/story?id=73244844>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115921&title=%E2%80%9CTrump%20vs.%20Biden%20on%20the%20issues%3A%20Election%20security%20and%20integrity%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“National Data Release Sheds Light On Past Polling Place Changes”<https://electionlawblog.org/?p=115919>
Posted on September 29, 2020 5:17 am<https://electionlawblog.org/?p=115919> by Richard Pildes<https://electionlawblog.org/?author=7>

The Center for Public Integrity and Stateline have performed a valuable public service by putting together a large database on polling place locations, and changes to them, over numerous recent election cycles. This should be a terrific research tool. A brief summary<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/09/29/national-data-release-sheds-light-on-past-polling-place-changes> of the first release of this information, which will come in tranches:

The first installment of a new national data release that will help journalists and researchers analyze polling place accessibility was released Tuesday as part of an investigative series, Barriers to the Ballot Box,<https://publicintegrity.org/topics/politics/elections/ballotboxbarriers/> from The Center for Public Integrity and Stateline.

The data, posted to Github, includes polling place locations and addresses for 30 states for the 2012, 2014, 2016 and 2018 general elections, and is aimed at aiding reporting and research on the impact that polling place closures and changes could have on the 2020 election. Data for additional states will be added in the coming weeks.

Polling place reductions and changes can lower turnout<https://cpb-us-w2.wpmucdn.com/web.sas.upenn.edu/dist/7/538/files/2019/07/Mann-and-Stein-Polling-Place-Effect.pdf> by creating confusion and barriers for voters, potentially disenfranchising them. There is no national public database of polling place locations and addresses for past federal elections.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115919&title=%E2%80%9CNational%20Data%20Release%20Sheds%20Light%20On%20Past%20Polling%20Place%20Changes%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘This is a nightmare’: New Yorkers get absentee ballots with the wrong return envelope”<https://electionlawblog.org/?p=115916>
Posted on September 29, 2020 5:11 am<https://electionlawblog.org/?p=115916> by Richard Pildes<https://electionlawblog.org/?author=7>

From the Washington Post<https://www.washingtonpost.com/nation/2020/09/29/brooklyn-absentee-envelope-election-ny/>:

It’s not clear how many New Yorkers have been affected, but advocates said the issue appeared to be widespread in Brooklyn. “I have heard from dozens of voters individually today, all concentrated in Brooklyn, that they have received return ballot envelopes that are not in their name,” Ali Najmi, a New York elections lawyer, told The Post.

Michael Ryan, executive director of the New York City Board of Elections, <https://gothamist.com/news/brooklyn-voters-receive-absentee-ballot-envelopes-wrong-voter-names-and-addresses> said that he learned of the error on Saturday, Gothamist reported<https://gothamist.com/news/brooklyn-voters-receive-absentee-ballot-envelopes-wrong-voter-names-and-addresses>. Ryan blamed a vendor with a contract to print and mail absentee ballots for voters in Queens and Brooklyn.

Meanwhile, early in-person voting starts Oct. 24, 2020 in New York.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115916&title=%E2%80%9C%E2%80%98This%20is%20a%20nightmare%E2%80%99%3A%20New%20Yorkers%20get%20absentee%20ballots%20with%20the%20wrong%20return%20envelope%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Commerce Secretary Ross says 2020 census will end Oct. 5 despite court order”<https://electionlawblog.org/?p=115913>
Posted on September 28, 2020 10:21 pm<https://electionlawblog.org/?p=115913> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/politics/white-house/commerce-secretary-ross-says-2020-census-will-end-oct-5-n1241298>

U.S. Secretary of Commerce Wilbur Ross says the 2020 census<https://www.nbcnews.com/politics/politics-news/states-best-worst-census-response-rates-n1240493> will end Oct. 5, despite a federal judge’s ruling<https://www.nbcnews.com/politics/2020-election/federal-judge-rules-against-trump-admin-says-2020-census-must-n1241052> last week allowing the head count of every U.S. resident to continue through the end of October, according to a tweet posted on the Census Bureau’s website Monday.

The tweet said the ability for people to self-respond to the census questionnaire and the door-knocking phase when census takers go to homes that haven’t yet responded is targeted to end Oct. 5.

The announcement came as a virtual hearing was being held in San Jose, California, as a follow-up to U.S. District Judge Lucy Koh’s preliminary injunction. The injunction ordered last week suspended the Census Bureau’s deadline for ending the head count on Sept. 30, which automatically reverted the deadline back to an older Census Bureau plan in which the deadline for ending field operations was Oct. 31.

The new Oct. 5 deadline doesn’t necessarily violate the judge’s order because the injunction just suspended the Sept. 30 deadline for field operations, as well as a Dec. 31 deadline the Census Bureau has for turning in figures used for determining how many congressional seats each state gets in a process known as apportionment. The census also is used to determine how to distribute $1.5 trillion in federal spending annually.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115913&title=%E2%80%9CCommerce%20Secretary%20Ross%20says%202020%20census%20will%20end%20Oct.%205%20despite%20court%20order%E2%80%9D>
Posted in census litigation<https://electionlawblog.org/?cat=125>


“Courts view GOP fraud claims skeptically as Democrats score key legal victories over mail voting”<https://electionlawblog.org/?p=115909>
Posted on September 28, 2020 10:06 pm<https://electionlawblog.org/?p=115909> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/courts-voting-fraud-claims-republicans/2020/09/28/ceff1184-fda2-11ea-b555-4d71a9254f4b_story.html>

For six months, the rules for how Americans can vote during the coronavirus<https://www.washingtonpost.com/coronavirus/?itid=lk_inline_manual_2> pandemic have been locked in court battles while states across the country rushed to embrace mail ballots.

Now, with just weeks to go before the Nov. 3 election, voting rights advocates and Democrats have advanced on key fronts in the legal war,scoring victories that make mail voting easier, ensure votes cast by mail are counted and protect the wide distribution of mail ballots in some states.

A review by The Washington Post of nearly 90 state and federal voting lawsuits found that judges have been broadly skeptical as Republicans use claims of voter fraud to argue against such changes, declining to endorse the GOP’s arguments or dismissing them as they examined limits on mail voting. In no case did a judge back President Trump’s view — refuted by experts — that fraud is a problem significant enough to sway a presidential election.

Some of the Democrats’ wins have been preliminary.And in many cases, judges issued split decisions, granting some of the changes sought by liberal plaintiffs and otherwise maintaining the status quo as favored by Republicans.

But The Post found that judges appointed by Republicans and Democrats alike have been dubious of GOP arguments that lowering barriers to mail voting could lead to widespread fraud.

“Do you have any evidence of any voter fraud actually existent in Montana in the last 10 to 20 years?” District Judge Dana L. Christensen, an appointee of President Barack Obama, pressed a GOP lawyer in a Missoula courtroom last week.

“No,” said the lawyer, James Bopp Jr., who is representing Republicans in a suit challenging the state’s decision to allow counties to run all-mail elections this fall. “No. But it is, with all due respect, I understand your question, but, no, it’s irrelevant.”…

Many important rules for voting remain in flux after hundreds of cases were filed in more than 44 states. The decisions will shape the contours of an election already made singular by the public health crisis and Trump’s preemptive declarations that the outcome will be rigged.

So far, GOP lawyers have scored several defensive wins related to mail ballots, such as maintaining North Carolina’s witness requirement and keeping in place limitations on third parties collecting and returning ballots or applications, which Republicans deride as “harvesting,” in Florida, Minnesota and Michigan.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115909&title=%E2%80%9CCourts%20view%20GOP%20fraud%20claims%20skeptically%20as%20Democrats%20score%20key%20legal%20victories%20over%20mail%20voting%E2%80%9D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>, The Voting Wars<https://electionlawblog.org/?cat=60>



Minnesota: “Rep. Angie Craig files lawsuit over delay of Second Congressional District race”<https://electionlawblog.org/?p=115907>
Posted on September 28, 2020 9:52 pm<https://electionlawblog.org/?p=115907> by Rick Hasen<https://electionlawblog.org/?author=3>

Star Tribune<https://www.startribune.com/rep-angie-craig-files-lawsuit-over-delay-of-second-congressional-district-race/572568852/>:

U.S. Rep. Angie Craig filed a lawsuit Monday to block the delay of the Second Congressional District election, which state election officials pushed to February after the death of a third-party marijuana legalization candidate.

Craig, a Democratic freshman incumbent, is competing with Republican Tyler Kistner for the seat that includes suburbs in the south metro and a wide swath of southern Minnesota. Legal Marijuana Now candidate Adam Charles Weeks died last week.<https://www.startribune.com/minnesota-congressional-race-delayed-after-candidate-s-death/572523221/>

Kistner’s campaign said it opposes the suit.

Under state law, the death of a major-party candidate less than 79 days before an election requires a postponement and special election. The Legal Marijuana Now Party narrowly qualified as a major party in Minnesota based on past election results.

Craig filed the suit in federal court along with Apple Valley resident Jenny Winslow Davies, arguing that their goal is to ensure the district is not left without a representative between the end of her term in January and the February special election.

The suit contends that the postponement would violate federal law and result in “direct, concrete, and irreparable injury” to Minnesota voters.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115907&title=Minnesota%3A%20%E2%80%9CRep.%20Angie%20Craig%20files%20lawsuit%20over%20delay%20of%20Second%20Congressional%20District%20race%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Guardrails for the Guardians: Reducing Secretary of State Conflict of Interest and Building More Impartial U.S. Election Administration”<https://electionlawblog.org/?p=115905>
Posted on September 28, 2020 9:47 pm<https://electionlawblog.org/?p=115905> by Rick Hasen<https://electionlawblog.org/?author=3>

New report<https://electionreformers.org/wp-content/uploads/2020/09/Guardrails_Guardians.pdf> from the Election Reformers Network.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115905&title=%E2%80%9CGuardrails%20for%20the%20Guardians%3A%20Reducing%20Secretary%20of%20State%20Conflict%20of%20Interest%20and%20Building%20More%20Impartial%20U.S.%20Election%20Administration%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


“Judge upholds GOP law making absentee voting harder in Iowa”<https://electionlawblog.org/?p=115903>
Posted on September 28, 2020 9:42 pm<https://electionlawblog.org/?p=115903> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.detroitnews.com/story/news/nation/2020/09/28/judge-upholds-gop-law-making-absentee-voting-harder-iowa/3564080001/>

A judge refused to block a new Republican-backed Iowa law that makes it harder for county officials to process absentee ballot applications and more likely that incomplete requests won’t be fulfilled.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115903&title=%E2%80%9CJudge%20upholds%20GOP%20law%20making%20absentee%20voting%20harder%20in%20Iowa%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Does Distance Matter? Evaluating the Impact of Drop Boxes on Voter Turnout”<https://electionlawblog.org/?p=115901>
Posted on September 28, 2020 9:41 pm<https://electionlawblog.org/?p=115901> by Rick Hasen<https://electionlawblog.org/?author=3>

New<https://onlinelibrary.wiley.com/doi/10.1111/ssqu.12853> in Social Science Quarterly: “We find that a decrease of one mile to the nearest drop box increased the probability of voting by 0.64 percent.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115901&title=%E2%80%9CDoes%20Distance%20Matter%3F%20Evaluating%20the%20Impact%20of%20Drop%20Boxes%20on%20Voter%20Turnout%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


CAC October 1 Event: “The 19th Amendment and Our Unfinished Work”<https://electionlawblog.org/?p=115899>
Posted on September 28, 2020 9:39 pm<https://electionlawblog.org/?p=115899> by Rick Hasen<https://electionlawblog.org/?author=3>

Details:<https://www.theusconstitution.org/events/the-19th-amendment-and-our-unfinished-work/>

As our nation mourns the loss of Justice Ginsburg—a stalwart champion for gender equality and voting rights—we continue to mark the 100th anniversary of the ratification of the 19th Amendment, which prohibits the federal government and the states from denying or abridging the right to vote “on account of sex.”  What role does the 19th Amendment play in the arc of constitutional progress?  For whom was this amendment’s promise illusory?  What have the 19th Amendment’s effects been on the health and vitality of our democracy?  And as we prepare for the historic election in November and future elections, what more needs to be done to ensure that the right to vote exists not only on paper, but in the lived reality of women across the nation?  These questions and more will be answered in an online event on Thursday, October 1st, from 5-6pm ET, featuring a keynote address by Catherine E. Lhamon<https://www.usccr.gov/about/bio/Lhamon.php>, Chair of the U.S. Commission on Civil Rights, and then a panel conversation featuring the following experts:

Elizabeth Wydra<https://www.theusconstitution.org/staff/elizabeth-b-wydra/>, President, Constitutional Accountability Center

Jocelyn Frye<https://www.americanprogress.org/person/frye-jocelyn/>, Senior Fellow, Women’s Initiative at the Center for American Progress, and former Policy Director for First Lady Michelle Obama.

The conversation will be moderated by CAC Vice President Praveen Fernandes<https://www.theusconstitution.org/staff/praveen-fernandes/>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115899&title=CAC%20October%201%20Event%3A%20%E2%80%9CThe%2019th%20Amendment%20and%20Our%20Unfinished%20Work%E2%80%9D>
Posted in 19th Amendment<https://electionlawblog.org/?cat=128>


UCI Conversations Podcast: “Fasten Your Seatbelts: The Presidential Election Is Almost Here”<https://electionlawblog.org/?p=115897>
Posted on September 28, 2020 9:33 pm<https://electionlawblog.org/?p=115897> by Rick Hasen<https://electionlawblog.org/?author=3>

OC Registrar and I are on this podcast, interviewed (separately) by UCI Conversations Podcast host, Kevin Bossenmeyer<https://bossenmeyer.tumblr.com/>.

Listen here.<https://www.kuci.org/podcastfiles/1569/Hasen-Kelley%20ELECTION-TUMBLR-Intranet.mp3>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115897&title=UCI%20Conversations%20Podcast%3A%20%E2%80%9CFasten%20Your%20Seatbelts%3A%20The%20Presidential%20Election%20Is%20Almost%20Here%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump’s 2016 Campaign Listed Millions of Black Voters It Wanted to Stop From Voting, Leak Reveals”<https://electionlawblog.org/?p=115895>
Posted on September 28, 2020 9:29 pm<https://electionlawblog.org/?p=115895> by Rick Hasen<https://electionlawblog.org/?author=3>

Daily Beast:<https://www.yahoo.com/news/trump-2016-campaign-listed-millions-170005458.html?guccounter=1>

Over three million Black voters in key states were identified by President Donald Trump’s 2016 campaign<https://www.thedailybeast.com/its-official-the-trump-campaigns-reckless-win-at-all-cost-approach-put-our-democracy-at-risk-in-2016> as people they had to persuade to stay at home on Election Day to help him reach the White House.

The revelation comes from an enormous data<https://www.thedailybeast.com/zuckerberg-maybe-im-in-cambridge-analyticas-files> leak obtained by the British news network Channel 4. It shows that, four years ago, the Trump campaign prepared files on almost 200 million American voters and separated some out into eight different categories. One such category, assigned to 3.5 million Black voters, was titled: “Deterrence.”

The leaked database was reportedly used by Trump’s digital campaign team, which was critical to Trump’s narrow victory. Channel 4 News has a track record of exposing the unethical practices<https://www.thedailybeast.com/cambridge-analytica-bosses-we-secretly-made-ads-for-trump-and-well-never-be-caught> of Cambridge Analytica—the now-defunct British digital black-ops<https://www.thedailybeast.com/trump-data-guru-disqualified-for-shady-campaign-tactics> firm that harvested the Facebook data of tens of millions of voters for the use of Team Trump.

The leaked files show that Black Americans were disproportionately marked ‘Deterrence’ by the 2016 campaign, making up far more of the category when compared to general population stats. For example, in Georgia, Black people make up around a third of the population, but 61 percent of the Trump campaign’s ‘Deterrence’ category there. The same pattern can be seen in data for North Carolina and Wisconsin.

Overall, people of colour—labelled by the campaign as Black, Hispanic, Asian and ‘Other’ groups—made up 54 percent of the people in the ‘Deterrence’ category, according to Channel 4 News. In contrast, the lists of voters that the campaign wanted to encourage to head out to vote were mostly white. It’s impossible to say how effective the tactics were, but research shows<https://www.washingtonpost.com/news/politics/wp/2018/03/12/4-4-million-2012-obama-voters-stayed-home-in-2016-more-than-a-third-of-them-black/> that, in 2016, Black turnout fell by eight points.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115895&title=%E2%80%9CTrump%E2%80%99s%202016%20Campaign%20Listed%20Millions%20of%20Black%20Voters%20It%20Wanted%20to%20Stop%20From%20Voting%2C%20Leak%20Reveals%E2%80%9D>
Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


Watch Archived Video of “Voting and Election Manipulation” Webinar<https://electionlawblog.org/?p=115893>
Posted on September 28, 2020 9:26 pm<https://electionlawblog.org/?p=115893> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch webcast<https://youtu.be/o0M2TKxzTyA>

What are the most important political threats to voting rights and equal representation in American politics today? Why are we seeing such intense partisan fights over voting rights now? How is the coronavirus exacerbating these institutional battles? How do the dynamics of the upcoming US elections compare to past American elections and other elections around the world?

Moderators:

Robert Blair<https://watson.brown.edu/people/faculty/blair>, Brown University

Gretchen Helmke<https://www.sas.rochester.edu/psc/people/view.php?fid=5>, University of Rochester, Bright Line Watch<http://brightlinewatch.org/>

Commentators:

Richard Hasen<https://www.law.uci.edu/faculty/full-time/hasen/>, UC Irvine

Susan Hyde<https://polisci.berkeley.edu/people/person/susan-hyde>, UC Berkeley

Jennifer McCoy<https://cas.gsu.edu/profile/jennifer-mccoy/>, Georgia State and Former Carter Center

Susan Stokes<https://political-science.uchicago.edu/directory/susan-stokes>, University of Chicago
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115893&title=Watch%20Archived%20Video%20of%20%E2%80%9CVoting%20and%20Election%20Manipulation%E2%80%9D%20Webinar>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Voting and Representation Symposium: New Issues and Challenges” (Brennan Center Oct. 1 and Oct. 8 Event)<https://electionlawblog.org/?p=115891>
Posted on September 28, 2020 9:15 pm<https://electionlawblog.org/?p=115891> by Rick Hasen<https://electionlawblog.org/?author=3>

This is quite a lineup for this symposium<https://www.brennancenter.org/events/voting-and-representation-symposium-new-issues-and-challenges-day-1>. Wow!
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115891&title=%E2%80%9CVoting%20and%20Representation%20Symposium%3A%20New%20Issues%20and%20Challenges%E2%80%9D%20(Brennan%20Center%20Oct.%201%20and%20Oct.%208%20Event)>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New Netflix Series, “Whose Vote Counts, Explained”<https://electionlawblog.org/?p=115889>
Posted on September 28, 2020 9:12 pm<https://electionlawblog.org/?p=115889> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch here<https://www.netflix.com/title/81304760>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115889&title=New%20Netflix%20Series%2C%20%E2%80%9CWhose%20Vote%20Counts%2C%20Explained%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Judge orders Georgia to have paper pollbook backups”<https://electionlawblog.org/?p=115886>
Posted on September 28, 2020 9:06 pm<https://electionlawblog.org/?p=115886> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.washingtonpost.com/national/judge-orders-georgia-to-have-paper-pollbook-backups/2020/09/28/3bf01d98-01c1-11eb-b92e-029676f9ebec_story.html>:

A federal judge ruled on Monday that every polling place in Georgia must have at least one updated paper backup list of eligible voters to help keep long lines from forming on Election Day if electronic pollbooks used to check in voters malfunction.

The “narrowly tailored” order directs state election officials to “provide at least a modicum of the voting backup plan tools essential to protecting voters’ constitutionally protected ability and right to cast a ballot that is counted and given the same weight as any other on this coming November 3rd general election day and thereafter,” U.S. District Judge Amy Totenberg wrote in her 67-page order.

Voting integrity activists had asked the judge to order the change, arguing that malfunctioning electronic pollbooks created bottlenecks that resulted in voters waiting in long lines during the primary election in June and runoff election in August….

Totenberg’s ruling follows a three-day hearing earlier this month in a long-running fight over Georgia’s voting machines. The lawsuit filed in 2017 against state and county election officials originally challenged the state’s old, outdated voting machines but has since been amended to target the new machines and election system.

Totenberg’s ruling deals primarily with the issue of paper pollbook backups. She said during an emergency hearing Monday that she needs more time to address the other issues at stake in light of new issues raised by plaintiffs over the weekend, but she wanted to give the state time to begin preparing to provide paper pollbook backups.

The election integrity activists say the new voting machines are unaccountable and unverifiable and have many of the same security vulnerabilities as the old ones. They have asked Totenberg to order the state to ditch the new ballot-marking machines in favor of hand-marked paper ballots for the November election.

State officials have argued that Georgia has made significant improvements in recent years to update and secure its election infrastructure. They had urged Totenberg not to order any changes so close to the election, saying they would be extremely costly and difficult to implement in time.
curling-2020<https://electionlawblog.org/wp-content/uploads/curling-2020.pdf>Download<https://electionlawblog.org/wp-content/uploads/curling-2020.pdf>

I have posted the ruling below:
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115886&title=%E2%80%9CJudge%20orders%20Georgia%20to%20have%20paper%20pollbook%20backups%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>


“Federal judge rules against voting-rights activists’ challenge of Ohio signature-matching rules on absentee ballot applications”<https://electionlawblog.org/?p=115884>
Posted on September 28, 2020 8:48 pm<https://electionlawblog.org/?p=115884> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland.com:<https://www.cleveland.com/open/2020/09/federal-judge-rules-against-voting-rights-activists-challenge-of-ohio-signature-matching-rules-on-absentee-ballot-applications.html>

 A federal judge has ruled Ohio’s system of verifying signatures on absentee ballot applications is not burdensome enough to be struck down as illegal, rejecting arguments made by a coalition of voting-rights groups that sued the state.

U.S. District Judge Michael Watson wrote that while Ohio’s signature-matching requirements impose a “moderate” burden on voters, they have other options to cast a ballot if their vote is improperly rejected, including casting a provisional ballot on Election Day. He agreed with Ohio Secretary of State Frank LaRose that the state has a legitimate interest in promoting an orderly and secure election, justifying that burden.

“Additionally, the Court believes that changing the rules regarding verification of signatures on ballots at this time would be particularly damaging,” Watson, a President George W. Bush appointee, wrote in an order issued Sunday evening that rejected the voting-rights activists’ request to issue what’s called a preliminary injunction. “Some public officials have unfortunately regularly cast doubt on the security and legitimacy of voting by mail. A federal court enjoining part of the State’s procedure for maintaining the security of mail-in voting in the weeks leading up to the election could further undermine public confidence in elections.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115884&title=%E2%80%9CFederal%20judge%20rules%20against%20voting-rights%20activists%E2%80%99%20challenge%20of%20Ohio%20signature-matching%20rules%20on%20absentee%20ballot%20applications%E2%80%9D>
Posted in absentee ballots<https://electionlawblog.org/?cat=53>, court decisions<https://electionlawblog.org/?cat=129>


Freeing Purcell from the Shadows<https://electionlawblog.org/?p=115834>
Posted on September 27, 2020 12:22 pm<https://electionlawblog.org/?p=115834> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Supreme Court observers have begun to pay more attention to the Court’s “shadow docket”<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130>: disputes the Court resolves summarily, without the usual briefing, argument, explanations, or even indications how each Justice voted. Still mostly overlooked, however, is that the Court doesn’t just have a shadow docket; it also has shadow doctrines, rules the Court applies only in its non-merits cases. In my own field of election law, the most prominent of these shadow doctrines is undoubtedly the Purcell principle, named for the 2006 (non-merits) decision of Purcell v. Gonzalez<https://supreme.justia.com/cases/federal/us/549/1/>. In Purcell, the Court strongly disfavored judicial changes to election regulations close to election day. Such changes, according to the Court, “can themselves result in voter confusion and consequent incentive to remain away from the polls.” “As an election draws closer,” moreover, “that risk will increase.”

Since it was announced, the Purcell principle has reared its head every two years as elections have approached. But it has never been as important as this year for one simple reason: There has never been as much litigation in the leadup to an election. According to the COVID-Related Election Litigation Tracker<https://healthyelections-case-tracker.stanford.edu/>, more than three hundred election law cases have been filed in 2020 in more than forty states. Among (many) other issues, these suits have addressed polling place locations and procedures, deadlines for requesting and returning absentee ballots, witness and notarization requirements for absentee ballots, and signature thresholds for qualifying for the ballot. The Supreme Court has already resolved half a dozen disputes on Purcell grounds—an all-time high—three<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> of<https://www.supremecourt.gov/opinions/19pdf/19a1071_4h25.pdf> which<https://www.supremecourt.gov/orders/courtorders/081320zr_8mjp.pdf> included reasons for the Court’s actions or written dissents. And the Court will surely confront Purcell again before this election is over. Lower-court election litigation continues to rage, making it inevitable that more appeals will land on the Court’s doorstep.

Despite all this activity, the Purcell principle remains remarkably opaque. Precisely because it is a shadow doctrine, appearing only in the Court’s shadow docket, its contours have never been clarified. The above quote from Purcell itself was almost all the Court had to say about the rule against late-breaking judicial intervention when the Court first unveiled this policy. Since Purcell, the Court has added only a few more sentences about the doctrine’s operation. In April of this year, the Court praised<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> “the wisdom of the Purcell principle,” and in August, the Court held<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> that the principle carries less weight when “state election officials support the challenged decree.” True, occasional<https://www.supremecourt.gov/opinions/14pdf/14a393_p860.pdf> dissents<https://www.supremecourt.gov/opinions/19pdf/19a1071_4h25.pdf> from the Court’s Purcell jurisprudence have explored in somewhat more detail when courts should and shouldn’t change election regulations close to election day. But these have still been skimpy opinions that didn’t purport to offer a comprehensive analytical framework.

My aim in this piece, then, is to put some meat on Purcell’s bones: to consider more fully when judicial intervention near an election is inadvisable and when, conversely, it’s prudent or even urgent. I make two main points. First, the Purcell principle can’t be an ironclad rule. The Court’s own rationales for the doctrine indicate that judicial revision of election regulations can sometimes be appropriate despite the imminence of an election. Second, the circumstances under which judicial action is warranted, even though an election beckons, are reasonably foreseeable. They include (1) when a court’s remedy will cause little voter confusion; (2) when a court’s remedy will cause little administrator error; (3) when, if a court fails to intercede, significant disenfranchisement will ensue; (4) when plaintiffs have diligently pursued their claim; and (5) when an election is further rather than closer based on Congress’s judgments about election proximity.

Start with the argument that Purcell should be understood as a presumption against—not a prohibition of—judicial intervention near an election. This is the reading most consistent with Purcell’s actual language. In deciding whether to issue injunctions in election law cases, the Court held, lower courts are “required to weigh” the possibility that their orders will cause voter confusion and consequent disenfranchisement. Of course, to weigh a factor is to take it into account, to examine carefully all the evidence that bears on it. To weigh a factor is not to make it dispositive in all cases, to prioritize it over all competing values. So Purcell can’t fairly be construed as a categorical bar on courts amending election regulations close to election day. The decision is more like an admonition that courts considering such amendments take seriously the prospect that the changes will confuse or even disenfranchise certain voters.

With respect to this “voter confusion and consequent incentive to remain away from the polls,” furthermore, it’s plainly variable rather than fixed. As the Court observed in Purcell, injunctions near an election “can themselves result in” this harm. But such orders don’t necessarily do so. It all depends on what exactly is directed, what the law on the books previously said, how much time there is to implement the injunction, and so on. Put another way, courts shouldn’t assume that their interventions close to election day will be confusing or even disenfranchising. Instead, they should analyze whether this will be the case. Sometimes, upon examination, it will turn out that their proposed remedies will not perplex voters or deter them from voting. In this scenario, Purcell doesn’t require judicial abstention.

This discussion all fits within Purcell’s four corners. The point is that, under Purcell’s own logic, courts shouldn’t always refrain from stepping in when an election is nigh. But Purcell doesn’t exhaust the equitable factors that are relevant to shaping a proper remedy. In particular, it doesn’t take into account the potential illegality or impact of a challenged policy. Suppose a state enacts a blatantly unconstitutional law, on the eve of an election, that would disenfranchise many of its citizens—a poll tax, say. Also imagine that judicial nullification of this law, right after it was passed with much fanfare, would confuse some people. Would Purcell really compel a court to sit on its hands in this situation? Surely not. The confusion caused by judicial interference would be outweighed by the policy’s legal invalidity and democratic illegitimacy.

That Purcell isn’t always binding is demonstrated, too, by the Court’s record applying it. Several months prior to the 2018 election—well before Purcell’s concerns could have been triggered—a district court enjoined North Dakota’s requirement that voters show IDs that include their residential addresses. Then, in late September 2018 (and so quite close to the election), the Eighth Circuit stayed the district court’s order. Although “[t]he risk of voter confusion [was] severe here because the injunction against requiring residential-address identification was in force during the primary election,” as Justice Ginsburg argued in dissent, the Court upheld<https://www.supremecourt.gov/opinions/18pdf/18a335_l647.pdf> the Eighth Circuit’s stay. The Court thus gave short shrift to Purcell’s worry about voter confusion, instead prioritizing issues nowhere to be found in the decision (presumably, the Court’s view that ID requirements are lawful).

This sequence just repeated itself in litigation about the re-enfranchisement of ex-felons in Florida. In October 2019, a district court enjoined a Florida law requiring ex-felons to pay their outstanding fines in order to qualify to vote. This injunction remained in place until July 2020, when it was lifted by the Eleventh Circuit less than three weeks before the voter registration deadline. Again, the Court upheld<https://www.supremecourt.gov/opinions/19pdf/19a1071_4h25.pdf> the lifting of the injunction even though, as Justice Sotomayor wrote in her dissent, “the Eleventh Circuit . . . created the very ‘confusion’ and voter chill that Purcell counsels courts to avoid.” Justice Sotomayor then underscored the Court’s inconsistent application of Purcell. “[F]aced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.”

The Court’s own practice, then, confirms that Purcell isn’t an absolute. But if courts sometimes should and sometimes shouldn’t intervene near an election, how are they supposed to distinguish one setting from the other? Most of the factors that should guide courts in making this distinction have already come up. But I now want to describe these considerations in somewhat more detail.

The first relevant factor is the one stressed by Purcell itself: the probability that judicial changes to election regulations close to election day will confuse voters and dissuade some of them from voting. As explained earlier, courts shouldn’t assume that this probability is high; they should assess it based on the best available evidence. In this assessment, much will often hinge on the kind of policy that’s being challenged. Some policies, like a district plan or a jurisdiction’s underlying electoral rule (at-large voting, plurality voting, ranked-choice voting, and so on), affect every aspect of the political process. Candidates choose to run (or not) based on these policies, and the policies also drive candidate fundraising, media attention, voter interest, and the style of the campaign. Such basic building blocks of the election should almost never be upset when time is limited. Significant voter confusion is likely when the electoral environment is transformed shortly before votes are cast.

On the other hand, other policies are incapable of causing voter confusion (whether they shift or stay the same) because they apply only to administrators. Consider a signature-match requirement for absentee ballots, under which voters’ signatures on the ballots must resemble those on the registration rolls. This requirement is enforced exclusively by election officials, and if the rule is amended or waived, they’re the only ones who must modify their behavior. For exactly this reason, a North Dakota district court recently dismissed<https://campaignlegal.org/sites/default/files/2020-06/Order%20Granting%20PI.pdf> Purcell’s concerns when it enjoined the state’s signature-match law. “[T]here is no potential for voter confusion or dissuasion from voting because the process for submitting an absentee ballot will remain unchanged.”

Between these poles, unfortunately, lie most litigated policies. They’re not pillars of the electoral system, but they do apply directly to voters. With respect to these policies, courts should keep in mind that how they craft their remedies can influence how much voter confusion ensues. Take a requirement that voters procure two witnesses for absentee ballots and then have them notarized. If a court struck down the notarization rule but left the two-witness rule in place, then voters might be quite confused. They might be unsure what their new obligations were, and some might throw up their hands and forget about voting. But if a court invalidated both rules, then its ruling might be substantially more understandable. Voters wouldn’t have to interact with any third parties before returning their absentee ballots. That’s a simple message that’s easy for administrators to convey and voters to grasp.

This reference to administrators brings me to a second consideration: Courts should avoid changing election regulations near an election when, by doing so, they would likely cause election officials to make serious mistakes. Pause for a moment to sympathize for election officials. Even in the absence of judicial intervention, they have to comply with labyrinthine election codes, directives from the secretary of state, and local guidelines. When courts step in at the last minute, they can (though they need not) make it still harder to run an election. Court orders can disrupt administrators’ familiar routines, compel them to make determinations for which they lack training or experience, and extend how long each step in the process takes. As a result, the vote count can be slowed or even rendered inaccurate thanks to election officials’ missteps under the new court-imposed rules. Beyond the possibility of voter confusion, then, courts contemplating action close to election day should evaluate the risk of administrator error. When this risk is severe, discretion may be the better part of valor.

Administrator error, though, isn’t equivalent to administrator inconvenience. Almost any judicial revision of election regulations—near or far from an election—will lead to more work for election officials. This extra work is no reason for courts not to remedy legal violations unless it genuinely threatens to delay or distort the vote count. As the Eleventh Circuit recently stated<https://www.naacpldf.org/wp-content/uploads/11th-Cir-Order-DENYING-Emergency-Stay-Motion.pdf> in response to Alabama’s argument that it would be burdensome to abide by judicially amended absentee ballot procedures, “requir[ing] defendants to provide additional training to ballot workers” is “a feat hardly impossible in the allotted time.” Sharpening the point, the court added, “Purcell is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.”

Third, courts should take into account the disenfranchisement that will follow if they decline to intercede. Fear of disenfranchisement is the driver of the previous two factors. When courts change election regulations close to election day, they sometimes cause voter confusion and administrator error. In turn, confused would-be voters sometimes choose not to vote, and harried election officials sometimes fail to count validly cast ballots. Crucially, however, judicial intervention isn’t the only step that can lead to disenfranchisement. Judicial abstention can, too, when it allows an unconstitutional policy that unjustifiably burdens voting to stay in effect. Courts thinking about action near an election should therefore balance the disenfranchisement if they do interfere (from voter confusion and/or administrator error) against the disenfranchisement if they don’t (from the unlawful status quo). When the latter is larger than the former, the judicial calculus should tilt in favor of enjoining or otherwise amending the illegal policy. In this case, Purcell’s own goal of minimizing voters’ “incentive to remain away from the polls” is advanced by courts entering the fray.

Justice Ginsburg twice made this argument in dissents from the Supreme Court’s Purcell rulings. In 2015, the Court stayed<https://www.supremecourt.gov/opinions/14pdf/14a393_p860.pdf> a district court injunction barring Texas from enforcing its photo ID requirement for voting. According to Justice Ginsburg, there was “little risk” that this injunction would “in fact disrupt Texas’s electoral processes.” In contrast, the Court’s stay posed “[t]he greatest threat to public confidence in elections” since it would lead to Texas “denying the right to vote to hundreds of thousands of eligible voters.” In April of this year, similarly, the Court reversed<https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf> a district court order that would have permitted Wisconsin voters to postmark absentee ballots after election day. Justice Ginsburg again criticized the Court’s decision because many more votes would have been enabled by the district court’s remedy than deterred due to voter confusion. “The concerns advanced by the Court . . . pale in comparison to the risk that tens of thousands of voters will be disenfranchised.”

Fourth, it matters whether plaintiffs diligently developed their claim or, conversely, dallied when they should have hurried. Suppose litigants waited to attack an election regulation until an election was imminent, even though the law was on the books for years and its burdens were constant over time. Then a court might sensibly postpone any action until after the election. Pre-election intervention could cause the usual Purcell harms of voter confusion and administrator error. And these harms could have been entirely avoided had the lawsuit only been launched earlier. As the Sixth Circuit held<https://www.casemine.com/judgement/us/5914f431add7b0493498503d> in 2016, Purcell’s worries ring “especially true when a plaintiff has unreasonably delayed bringing his claim.”

Other challenges to election regulations, though, couldn’t have been mounted any sooner. Say a state passes an onerous election law close to election day. Then pre-election litigation is both inevitable and unattributable to any tardiness on plaintiffs’ part. Likewise, circumstances can change when an exogenous shock like a hurricane or a pandemic strikes near an election. Under these new conditions, election rules that are normally unproblematic can become far more burdensome. Here, too, plaintiffs couldn’t have sued any earlier because the event that gave rise to their claim hadn’t yet occurred. In the words<https://www.leagle.com/decision/infdco20200812a94> of a Georgia district court, this is why “a hard-and-fast rule against modifying election regulations close to an election” is untenable. It’s “inherently incompatible with emergencies, which by definition arise unexpectedly and may jeopardize fundamental voting processes.”

Finally, it’s significant just how close the next election is. When it’s very near, it’s more likely that a court order will cause voter confusion and administrator error. “As an election draws closer,” to quote Purcell,“that risk will increase.” By the same token, when an election is less proximate, there’s more time for voters and election officials to adjust to judicially mandated changes to election procedures. Beyond this intuitive point, federal law can provide some guidance as to when Purcell’s concerns are more and less acute. The Bipartisan Campaign Reform Act (BCRA) applies<https://www.congress.gov/bill/107th-congress/house-bill/2356/text> special restrictions to campaign ads aired within 60 days of a general election. The Military and Overseas Voter Empowerment (MOVE) Act requires<https://www.congress.gov/bill/114th-congress/senate-bill/1504/text> absentee ballots to be sent to certain voters at least 45 days before a federal election. These statutes suggest that 60 days and 45 days prior to an election are pertinent dates for courts considering granting relief. After the first, Congress thinks the campaign is proceeding in earnest, and after the second, the actual mechanics of voting are in motion.

It won’t be lost on readers that we’re now within both BCRA’s and the MOVE Act’s windows. This fact should weigh against judicial intervention at this point in the election calendar. But it also shouldn’t be decisive. The central theme of this discussion is that courts should examine a series of factors when contemplating action close to election day, all of which are relevant and none of which is dispositive. So, now or even nearer the election, courts shouldn’t hesitate to step in if their remedies won’t baffle voters, won’t lead administrators to make mistakes, will prevent disenfranchisement, and couldn’t feasibly have been imposed sooner. This is simply the nature of a multifactor standard. It can sometimes lead to a conclusion (judicial relief) even if a particular prong (proximity to the election) points in a different direction.

For some lawyers, of course, that’s precisely the problem: I’m interpreting Purcell as a standard, not a hard-edged rule. To reiterate, though, the Supreme Court doesn’t treat Purcell as a rule either. In at least two recent<https://www.supremecourt.gov/opinions/18pdf/18a335_l647.pdf>cases<https://www.supremecourt.gov/opinions/19pdf/19a1071_4h25.pdf>, the Court has allowed lower courts to disrupt the electoral status quo quite close to election day. Moreover, Purcell is just a part of the broader legal analysis that courts conduct when determining whether to grant or lift a stay. And that broader analysis is—you guessed it—a multifactor standard<https://caselaw.findlaw.com/us-supreme-court/556/418.html> including four distinct elements. So Purcell is an odd hill for proponents of rigid rules to die on. It lies in territory, the fashioning of remedies, that has long been ceded to flexible standards.

Note: This piece is cross-posted at Take Care<https://takecareblog.com/blog/freeing-purcell-from-the-shadows>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115834&title=Freeing%20Purcell%20from%20the%20Shadows>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Ohio Won’t Announce Full Count of Mail-In Ballot Results Until 10 Days After the Election [corrected link]<https://electionlawblog.org/?p=115831>
Posted on September 27, 2020 12:10 pm<https://electionlawblog.org/?p=115831> by Rick Hasen<https://electionlawblog.org/?author=3>

This is something I did not know,<https://www.dispatch.com/story/news/politics/2020/09/27/ohio-democrats-dominating-mail-ballots-election-night-angst-ahead-as-trump-may-not-accept-results/3525808001/> and it increases the chances for uncertainty and problems after the election:

A Fox News Poll released the same day showed that 59% of Ohio voters planning to cast their ballot in person favor Trump, while 67% of those voting by mail support Biden.

Cutting to the chase, here’s what all these numbers likely mean for the Ohio vote, presuming the race between President Donald Trump and former Vice President Joe Biden remains reasonably competitive:

1. Since counties typically release the count from early voting first on election night, and since Democrats are poised to dominate that vote, Biden almost certainly will jump to a quick lead in Ohio.

2. However, the rest of the night will consist of a running accumulation of Election Day votes, which Republicans are expected to dominate. So by the end of the night, Trump could well have taken the lead.

3. Now comes possibly the white-knuckle part. Once the Election Day totals are finalized, the secretary of state’s office will announce how many outstanding mail ballots remain. Under longstanding state law, ballots that are postmarked before Election Day are added to the total if they arrive within 10 days after the election.

No interim counts will be announced during that 10-day period, meaning the nation may not know who won Ohio until mid-November. Even then, the result won’t become official until elections boards certify the results. Roll in the possibility of lawsuits and a recount and you see why elections officials are aging before our eyes.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115831&title=Ohio%20Won%E2%80%99t%20Announce%20Full%20Count%20of%20Mail-In%20Ballot%20Results%20Until%2010%20Days%20After%20the%20Election%20%5Bcorrected%20link%5D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“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>

“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/20200929/df1e7578/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/20200929/df1e7578/attachment.png>