[EL] more news and commentary 9/29/20
Rick Hasen
rhasen at law.uci.edu
Tue Sep 29 17:07:18 PDT 2020
7th Circuit Panel (Including J. Easterbrook) Unanimously Upholds Extensions of Wisconsin Ballot Receipt Deadlines, Finding that Republican Party and Republican Legislature to Not Have Injury to Establish Article III Jurisdiction<https://electionlawblog.org/?p=115970>
Posted on September 29, 2020 5:05 pm<https://electionlawblog.org/?p=115970> by Rick Hasen<https://electionlawblog.org/?author=3>
Very interesting way<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/08/Document-8.pdf> that this case got resolved, and it does raise the question if there is anyone with standing to appeal given that Wisconsin’s executive branch is fine with this extension.
Observation from Marty Lederman<https://twitter.com/marty_lederman/status/1311088466013360129>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Federal District Court Orders Indiana to Accept Mail-In Ballots Postmarked by Election Day and Received Nov. 13<https://electionlawblog.org/?p=115968>
Posted on September 29, 2020 3:51 pm<https://electionlawblog.org/?p=115968> by Rick Hasen<https://electionlawblog.org/?author=3>
Under state law the deadline for receipt of the mail-in ballots would have been noon on election day.
Opinion<https://electionlawblog.org/wp-content/uploads/2020-09-29-Order.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump campaign tells elections boards across NC to ignore state guidance on absentee ballots”<https://electionlawblog.org/?p=115964>
Posted on September 29, 2020 3:46 pm<https://electionlawblog.org/?p=115964> by Rick Hasen<https://electionlawblog.org/?author=3>
WRAL<https://www.wral.com/trump-campaign-tells-elections-boards-across-nc-to-ignore-state-guidance-on-absentee-ballots/19311239/#.X3OvoFsCXcc.twitter>:
County boards of elections across North Carolina on Tuesday started the process of determining which absentee ballots could be accepted for the general election and which needed further work by voters.
With record numbers of voters casting ballots by mail this election because of the pandemic – more than 278,000 ballots have already been mailed in, compared with fewer than 200,000 total in the 2016 election – the task is an arduous one that will last past Election Day. A battle between President Donald Trump’s campaign and state elections officials isn’t making it any easier, either.
The Trump campaign sent a letter to all Republicans on county election boards, urging them to disregard new state guidelines for absentee-by-mail ballots….
Judith Kelley, dean of the Sanford School of Public Policy at Duke University and an international expert on election security, said it’s “absolutely not common” for a political campaign to instruct local election officials on which state rules to follow or not follow.
“I don’t recall a similar situation,” Kelley said, adding that the letter is the latest aspect of a national push by the Trump campaign to cast doubt on the outcome of the upcoming elections.
“It’s an effort to sow confusion and to undermine the confidence in the process,” she said. “We should all be able to unite around the process, and this is not – this is not helpful.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>
Oct. 6 Event: Citizenship and Suffrage: Race, Citizenship, and Women’s Right to Vote on the Centennial of the 19th Amendment<https://electionlawblog.org/?p=115961>
Posted on September 29, 2020 3:17 pm<https://electionlawblog.org/?p=115961> by Rick Hasen<https://electionlawblog.org/?author=3>
This event<https://www.wcl.american.edu/secle/registration> looks good:
[cid:image002.png at 01D69682.FABCA430]
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Posted in 19th Amendment<https://electionlawblog.org/?cat=128>
“Trump says poll watchers are being blocked from observing early voting in Philly. He’s wrong.”<https://electionlawblog.org/?p=115959>
Posted on September 29, 2020 3:11 pm<https://electionlawblog.org/?p=115959> by Rick Hasen<https://electionlawblog.org/?author=3>
Philly Inquirer:<https://www.inquirer.com/politics/election/trump-poll-watchers-philadelphia-early-voting-20200929.html>
President Donald Trump wrongly said Tuesday that poll watchers were being improperly blocked from observing the first day of in-person early voting in Philadelphia<https://www.inquirer.com/politics/election/philadelphia-pennsylvania-early-voting-offices-open-20200929.html>.
He made the false claims on Twitter<https://twitter.com/realDonaldTrump/status/1311051647687307264>, first retweeting his son Eric and then going further to accuse city officials of corruption. “Wow. Won’t let Poll Watchers & Security into Philadelphia Voting Places,” he said. “There is only one reason why. Corruption!!! Must have a fair Election.”
But there were several reasons — none is corruption — why elections staff did not allow members of the public to arbitrarily enter their offices. The Trump campaign has no poll watchers approved to work in Philadelphia at the moment. There are no actual polling places open in the city right now. And elections officials are following coronavirus safety regulations such as those limiting the number of people indoors.
It’s true that voters were casting ballots Tuesday, but the locations where they were doing this are satellite elections offices<https://www.inquirer.com/politics/election/philadelphia-early-voting-locations-2020-election-20200918.html> where mail ballots can be requested, completed, and submitted. Poll watchers don’t have the same rights at such locations as they do at traditional polling places on Election Day, officials said.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>
“Trump doesn’t decide who wins the election. We do.”<https://electionlawblog.org/?p=115957>
Posted on September 29, 2020 1:57 pm<https://electionlawblog.org/?p=115957> by Rick Hasen<https://electionlawblog.org/?author=3>
New Vanita Gupta<https://www.washingtonpost.com/opinions/2020/09/29/trump-is-flexing-powers-he-doesnt-have-if-he-loses-he-will-leave/>:
Right now, the polls say Trump is losing the election. Fearful of losing, he is flexing power he doesn’t have to discourage people from exercising the power they do. But Trump succeeds only if voters fall prey to his intimidation tactics and decide not to cast their ballot. We cannot let this happen. Every vote matters. And if in November the people say Trump must go, he will have to go.
Authoritarian regimes take root when citizens give up on their democratic institutions as rigged and illegitimate; voters succumb to their fear of the party in power and choose to sit out. That’s why it’s vital to clarify what a U.S. president can and can’t do.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“How Facebook could help plunge our democracy into chaos on Nov. 4”<https://electionlawblog.org/?p=115955>
Posted on September 29, 2020 1:54 pm<https://electionlawblog.org/?p=115955> by Rick Hasen<https://electionlawblog.org/?author=3>
Greg Sargent:<https://www.washingtonpost.com/opinions/2020/09/29/how-facebook-could-help-plunge-our-democracy-into-chaos-nov-4/>
The threat this time resides in a combustible combination of two factors. The first is what’s known as Facebook’s “Group recommendation engine,” which drives people to private Facebook groups. Experts have long warned that these private groups are festering grounds for disinformation and extremist activity, from QAnon to anti-vaxxers, and that the recommendation engine drives people unwittingly into them.
The second is President Trump himself — or, more specifically, Trump’s ongoing claim<https://www.washingtonpost.com/opinions/2020/07/31/trump-just-told-us-how-mail-delays-could-help-him-corrupt-election/?itid=lk_inline_manual_8> that the election must be decided on or just after Election Day, and that the millions and millions of still-uncounted ballots will inevitably be fraudulent.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, Election Meltdown<https://electionlawblog.org/?cat=127>
“Symposium: Ginsburg was a champion of voting rights, but mostly in dissent”<https://electionlawblog.org/?p=115953>
Posted on September 29, 2020 1:03 pm<https://electionlawblog.org/?p=115953> by Rick Hasen<https://electionlawblog.org/?author=3>
I have written this analysis <https://www.scotusblog.com/2020/09/symposium-ginsburg-was-a-champion-of-voting-rights-but-mostly-in-dissent/> for SCOTUSBlog, part of a symposium<https://www.scotusblog.com/category/special-features/justice-ginsburg-dies-at-87/symposium-on-justice-ginsburgs-jurisprudence/> on Justice Ginsburg’s jurisprudence. It begins:
During her tenure on the Supreme Court, Justice Ruth Bader Ginsburg unfailingly sided with voters in election cases and viewed the Constitution as giving Congress broad power<https://slate.com/news-and-politics/2020/09/can-congress-salvage-rbg-voting-rights-legacy.html> to protect voting rights. Sitting on a mostly conservative Supreme Court (when it came to these issues) from 1993 to 2020, Ginsburg unsurprisingly wrote more often in dissent than as the author of majority opinions in election cases. I count<https://electionlawblog.org/wp-content/uploads/Ginsburg-Election-Law-Opinions.pdf> 14 dissents, six majority opinions and four concurrences — concurrences that proved exceptionally influential.
The most important election case decided while Ginsburg sat on the Supreme Court was Bush v. Gore<https://casetext.com/case/bush-v-gore>, the 2000 case ending the state-court-ordered recount of votes in Florida, effectively handing the presidency to Republican George W. Bush over Democrat Al Gore. Ginsburg’s dissent calling for the Florida recount of ballots to continue was one of four dissenting opinions issued in the case; she told<https://newrepublic.com/article/119578/ruth-bader-ginsburg-interview-retirement-feminists-jazzercise> Professor Jeffrey Rosen in 2014 that issuing four dissents was a tactical error that “confused the press.” She encouraged dissenters to speak in one voice in future cases….
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Oct 7 Mike Alvarez Lecture: “Caltech Watson Lecture: Can America Have a Safe and Secure Presidential Election?”<https://electionlawblog.org/?p=115951>
Posted on September 29, 2020 1:00 pm<https://electionlawblog.org/?p=115951> by Rick Hasen<https://electionlawblog.org/?author=3>
Details.<https://dcpublicity.us2.list-manage.com/track/click?u=f9f80ab7f0256358374b8676e&id=79598253ea&e=a96fdf0d9e>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“‘Russia Doesn’t Have To Make Fake News’: Biggest Election Threat Is Closer To Home”<https://electionlawblog.org/?p=115949>
Posted on September 29, 2020 12:58 pm<https://electionlawblog.org/?p=115949> by Rick Hasen<https://electionlawblog.org/?author=3>
NPR reports.<https://www.npr.org/2020/09/29/917725209/russia-doesn-t-have-to-make-fake-news-biggest-election-threat-is-closer-to-home>
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, chicanery<https://electionlawblog.org/?cat=12>
“There’s a Right and a Wrong Way to Talk About Trump’s Attempts to Rig the Election”<https://electionlawblog.org/?p=115947>
Posted on September 29, 2020 12:56 pm<https://electionlawblog.org/?p=115947> by Rick Hasen<https://electionlawblog.org/?author=3>
Andy Kroll:<https://www.rollingstone.com/politics/politics-features/donald-trump-joe-biden-fear-vote-by-mail-echo-chamber-turnout-2020-election-1066969/?fbclid=IwAR1dAZgs1iGj359MuiiTW14HcejalMiZrQZZ-IPLM_uxfbrA5EOdjP9i-XI>
Lately, she has urged her liberal brethren<https://twitter.com/anatosaurus/status/1308918279675826176?s=20> to stop promoting the idea that the 2020 election<https://www.rollingstone.com/t/2020-election/> will be rigged, stolen, or a coup as a fait accompli. Doing so, she wrote, feeds into Trump’s voter-suppression strategy, which forms the centerpiece of his reelection bid<https://www.rollingstone.com/politics/politics-features/trump-campaign-2020-voter-suppression-consent-decree-1028988/>, and is counterproductive to turning out the low-propensity voters that Democrats need. Instead, they should make clear that Trump is attempting to sabotage the election but in the end the voters have the ultimate power to remove him from office, a subtle but critical distinction, she says.
She isn’t the only one worried about this negative echo chamber: Michael Podhorzer, a senior adviser to the president of the AFL-CIO, told<https://www.nytimes.com/2020/09/24/opinion/trump-election-2020.html> New York Times columnist Michelle Goldberg that the union’s polling data showed “we do Trump’s work for him when we respond to his threats rather than remind voters that they will decide who the next president will be if they vote.”
How should Joe Biden<https://www.rollingstone.com/t/joe-biden/> talk on the campaign trail? In the face of vicious voter intimidation and suppression, how do Democrats best mobilize their voters and persuade undecideds? I spoke twice by phone with Shenker-Osorio, who is based in Oakland, in the last week to try to answer these questions and understand why Democrats have such a persuasion problem.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Three easy steps to help prevent a calamitous election failure”<https://electionlawblog.org/?p=115945>
Posted on September 29, 2020 12:05 pm<https://electionlawblog.org/?p=115945> by Rick Hasen<https://electionlawblog.org/?author=3>
Ned Foley WaPo oped:<https://www.washingtonpost.com/opinions/2020/09/29/three-easy-steps-help-prevent-calamitous-election-failure/>
The first change is a one-sentence addition to a state’s election code. This would provide that all of a state’s ballot-counting procedures, including recounts and judicial contests of results, must be complete by the federal “safe harbor” deadline<https://www.abajournal.com/news/article/dec.-8-safe-harbor-deadline-is-a-critical-date-in-nightmare-election-scenarios>, Dec. 8.
The safe-harbor deadline protects states against having election results second-guessed by Congress, so long as a state finishes all its vote counting by then. Meeting this deadline is a way for states to prevent partisan conflict from subverting the will of the people by having the clock run out on counting ballots. Several states have this kind of provision, and Pennsylvania especially should add one….
Of the battleground states, Pennsylvania seems most vulnerable to running out of time, because of the particular way it permits challenges and appeals to specific ballots. Adding a specific statutory requirement that all these procedures conclude by the safe-harbor deadline would give local administrators and judges leverage to prevent abusive delay tactics.
The Pennsylvania legislature and governor are in the midst of negotiating how much time before Election Day to allow for verifying the eligibility of absentee ballots<https://www.ncsl.org/research/elections-and-campaigns/vopp-table-8-how-states-verify-absentee-ballot-applications.aspx> — an extremely worthwhile change just adopted in Michigan<https://www.freep.com/story/news/politics/elections/2020/08/03/michigan-primary-election-absentee-ballot/5547087002/>. Their negotiations should also include this single sentence on the safe-harbor point.
The second simple measure would be for Congress to extend the safe-harbor deadline from Dec. 8 to Jan. 1. Sen. Marco Rubio (R-Fla.) has already proposed<https://www.rubio.senate.gov/public/index.cfm/2020/8/rubio-warns-of-election-chaos-introduces-extension-of-federal-election-safe-harbor-date> such a measure. It’s the flip side of the previous point: Because states are at risk of running out of time, just give them some more. There’s no reason not to, and the Rubio bill should receive swift bipartisan support.
Finally, two influential state-based groups — the National Governors Association<https://www.nga.org/> and the National Association of Secretaries of State<https://www.nass.org/> — should issue clear bipartisan statements that the presidential election in each state should be based on counting the ballots as existing law requires. No state legislature should intervene to repudiate that result, posing the threat of competing slates of electors submitted to Congress.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“GOP-Led Legal Inquest Into Bloomberg Helping Florida Felons Vote Condemned as Attempted Voter Suppression”<https://electionlawblog.org/?p=115943>
Posted on September 29, 2020 12:01 pm<https://electionlawblog.org/?p=115943> by Rick Hasen<https://electionlawblog.org/?author=3>
Steven Rosenfeld reports.<https://billmoyers.com/story/gop-led-legal-inquest-into-bloomberg-helping-florida-felons-vote-condemned-as-attempted-voter-suppression/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Brook Thomas Guest Post: “Looking Forward: Albion W. Tourgée on Contested Elections and Voter Suppression”<https://electionlawblog.org/?p=115941>
Posted on September 29, 2020 11:18 am<https://electionlawblog.org/?p=115941> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a fascinating guest post by my UC Irvine colleague, Brook Thomas<https://www.faculty.uci.edu/profile.cfm?faculty_id=2519>, Chancellor’s Professor in the English Department:
Albion W. Tourgée is best known as Homer Plessy’s attorney. Less well known is how poignantly he speaks to today’s fears of a contested election, alleged voter fraud, and documented voter suppression.
Also a novelist, in 1887 he published “Eighty-Nine depicting an unresolved election in 1888 engineered by a coalition of the Order of the Southern Cross and northern monopolists, led by a figure based on J.D. Rockefeller. Intent on controlling the labor problem in the North and the labor/race problem in the South, the conspirators manage to have the responsibility for electing a president devolve to Congress and then exploit a loop-hole in the Twelfth Amendment to “prevent a quorum in either branch” (403). In the chaos following the failure to elect a president and a vice-president, the South peacefully secedes and subordinates blacks leaving monopolists to dominate workers in the remaining states.
Tourgée hoped his dystopian romance would help Republicans defeat Democrats in 1888. He especially loathed incumbent president Grover Cleveland who had hired a substitute during the Civil War, opposed Reconstruction, and named a former Confederate to the Supreme Court. But even though Democrats created a home for white supremacists, Tourgée knew that his own party was primarily responsible for the growing disparity of wealth in the country. When Republicans won the presidency and majorities in both houses of Congress, Tourgée addressed the link between racial and economic injustice by advocating legislation designed to combat the suppression of black voters.
As a former carpetbagger judge in North Carolina, Tourgée knew the problems with the February 1871 Enforcement Act. Paradoxically proving impossible to enforce, the act, nonetheless, fed white Southerner complaints about “bayonet rule” and federal interference into local affairs. Thinking pragmatically, Tourgée recommended leaving local elections to the states. But thinking imaginatively, he drew on Article I, section 4, of the Constitution that allows Congress to alter the “Times, Places, and Manner of holding elections for Senators and Representatives” and proposed giving the federal government, not states, control of federal elections.
Undercutting complaints about federal interference in local government, his proposal was designed to keep African Americans voting nationally. He was confident the South would go along, because under Section III of the Fourteenth Amendment failure to comply would lessen representation in Congress and the electoral college.
Tourgée’s plan had the support of the speaker of the House and the Colored Men’s Convention. But Senator Henry Cabot Lodge insisted on his own bill. Some historians praise Lodge’s Federal Election Bill as the last attempt at Reconstruction. But Tourgée pointed to its numerous flaws. First, it was modeled on the failed 1871 act. Second, federal supervision would kick in only if enough locals registered a compliant. Those doing so in the South would risk their lives. Third, Lodge thought that he could overcome southern resistance by arguing that, like the old act, it was national, not sectional, in its reach. In an essay defending his measure, he wrote that it was “designed especially to meet the notorious frauds . . . in the great cities of the North.” (“The Federal Election Bill,” North American Review [Sept 1890]: 257-73.) That was true. Lodge hoped to gain Republican votes from blacks in the South and to reduce Democratic votes by disqualifying allegedly illegal votes of northern immigrants. Today we blame the South for literacy tests, but Lodge was proud of Massachusetts’ literacy requirement enacted in the 1850s to minimize the Irish immigrant vote. Later he sponsored a bill requiring a literacy test for naturalization that passed over Woodrow Wilson’s veto.
Tourgée was also concerned about illiterate voters. But rather than disqualify voters, he proposed wiping out illiteracy through federal aid to education. Over objections to federal interference into states’ control of education, he cited national security. As one of his fictional black characters put it, “The ignorant vote is a source of actual peril.” Nonetheless, Republicans went with Lodge’s bill, which failed in the Senate when eight Republicans traded their votes for Democratic support on economic measures: a steep tariff and currency issues. Although Tourgée was a protectionist, he refused to consider the “American hog of more importance than the American citizen.”
The need to protect the American citizen was especially pressing because 1890 witnessed the Mississippi Constitutional Convention that effectively disenfranchised black voters through a poll tax and an arbitrary literacy test. Tourgée denounced the convention as the worst abuse of state power since secession. As the economist Michael Clemens notes in his forthcoming The Walls of Nations, Tourgée also pointed to the economic motivation of disenfranchisement by quoting a member of the convention: “If the negro is permitted to engage in politics, his usefulness as a laborer is at an end. He can no longer be controlled or utilized and the prosperity of the State will be destroyed.” Tourgée had a different view of what prosperity entailed and reminded Northerners that they would sell more of their products in the South only if workers—black and white—had more purchasing power.
In the midst of this controversy, Tourgée proposed an innovative interpretation of the Fifteenth Amendment’s prohibition on using race to deny or abridge “the right of citizens of the United States to vote.” (“The Right to Vote” The Forum 9 [March 1890]: 78-92.) When the amendment was proposed in 1869, he argued, it could not have applied to non-citizens allowed to vote in thirteen states. Nor was suffrage inherent in US citizenship, since women couldn’t vote. Thus, the phrase must refer to a vested, not an abstract, right. Under Reconstruction measures the right to vote had been conferred to black males in the South. On this basis, he suggested that the Fifteenth Amendment prohibited denying black male citizens a right they had already been granted.
Tourgée’s interpretation did not prevail, but, as another of his fictional characters put it, we should never forget “what the law ought to be, in trying to find out what it was.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“The mail-in voting tech industry can’t keep up”<https://electionlawblog.org/?p=115939>
Posted on September 29, 2020 10:31 am<https://electionlawblog.org/?p=115939> by Rick Hasen<https://electionlawblog.org/?author=3>
Protocol:<https://www.protocol.com/mail-in-voting-technology>
Despite ramping up capacity and working overtime, mail-in ballot vendors like Runbeck have been struggling to meet the needs of every state and county knocking on their doors. Along with COVID-19-related disruption to their supply chains, companies that print and stuff ballots or make ballot inserters, openers, sorters, trackers and scanners have had to grapple with unprecedented demand for postal voting tech, buzzer-beater deadlines and a flurry of court cases deciding who will even be allowed to vote by mail and where and when.
Already, Runbeck has printed more ballots in the last two months than it did in all of 2016. In some cases, it’s been forced to turn business away. Ellington said Runbeck, which stuffs ballots for the entire state of Georgia as well as counties in seven other states, had to pull out of a bid to work with the state of Maryland and didn’t even bother bidding on contracts for New Jersey and South Carolina, which have both faced federal lawsuits over mail-in ballots. “The lawsuits and delays handcuff the counties from making a plan,” Ellington said.
In fact, nearly every vendor Protocol spoke with reported having to turn business down because of demand and delays. “In many jurisdictions, it’s likely too late [to procure machines] at this point,” said Wendy Weiser, director of the Democracy Program at NYU’s Brennan Center for Justice.
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