[EL] more news 9/30/20

Wed Sep 30 15:01:10 PDT 2020

“Fight over Wisconsin mail vote deadline may head to Supreme Court”<https://electionlawblog.org/?p=116024>
Posted on September 30, 2020 1:39 pm<https://electionlawblog.org/?p=116024> by Rick Hasen<https://electionlawblog.org/?author=3>

John Kruzel:<https://thehill.com/regulation/519013-fight-over-wisconsin-mail-vote-deadline-may-head-to-supreme-court>

A federal appeals court on Wednesday rebuffed Wisconsin Republicans who had asked the court to temporarily halt a ruling that pushed back the battleground state’s mail-vote due date, possibly teeing up a GOP bid for review by the U.S. Supreme Court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Supreme Court Expedites Review of Trump Appeal Over Census Count”<https://electionlawblog.org/?p=116021>
Posted on September 30, 2020 1:17 pm<https://electionlawblog.org/?p=116021> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Stohr:<https://www.bloomberglaw.com/exp/eyJjdHh0IjoiTElOVyIsImlkIjoiMDAwMDAxNzQtZTAxZS1kNmQwLWFmZjctZjdiZTFkMDQwMDAwIiwic2lnIjoiN0JiWFpsMzlMYjhwYzg2dVFhVHNkNG1qWGxBPSIsInRpbWUiOiIxNjAxNDk2MzUwIiwidXVpZCI6ImRrcitDUENBS3NCak82dk1SYzd4MWc9PU1DZHAydVdRT3o4cDVFRWRhSmo2TXc9PSIsInYiOiIxIn0=?usertype=External&bwid=00000174-e01e-d6d0-aff7-f7be1d040000&qid=6987201&cti=LSCH&uc=1320041183&et=CURATED_HIGHLIGHTS&emc=blwnw_hlt%3A1&context=email&email=00000174-e084-d2cd-a1fe-ec8736130000>

The U.S. Supreme Court put a clash over undocumented immigrants and the census on a fast track, granting a request by President Donald Trump’s administration to expedite handling of his appeal.

Trump is trying to exclude undocumented immigrants from the 2020 census count, which will determine the allocation of congressional seats and federal dollars. A three-judge federal panel ruled on Sept. 10 that Congress didn’t give the president authority to do that.

The Supreme Court ordered opponents of Trump’s plan to file a brief by Oct. 7. That would let the justices determine in October whether they will hear arguments. Trump is seeking an argument session in late November or early December.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“Court Permanently Strikes Down Montana Law That Restricts Native Voting Rights”<https://electionlawblog.org/?p=116019>
Posted on September 30, 2020 1:09 pm<https://electionlawblog.org/?p=116019> by Rick Hasen<https://electionlawblog.org/?author=3>

Native American Rights Fund<https://www.narf.org/montana-bipa/>:

On September 25, 2020, a Montana court permanently struck down a state law that severely restricted the right to vote for indigenous people<https://narf.org/nill/documents/20200925mt-ballot-order.pdf> living on rural reservations.

Western Native Voice v. Stapleton, filed in March of this year by Native American Rights Fund , the American Civil Liberties Union, and ACLU of Montana, challenged the so-called Montana Ballot Interference Prevention Act (BIPA), a law that imposed severe restrictions on ballot collection efforts that are critical to Native American voters living on rural reservations.

The law set an arbitrary limit on the number of ballots an individual could collect and also restricted the categories of individuals who were permitted to collect ballots. These limitations were intended to suppress turnout on rural reservations, where geographic and socioeconomic barriers to voting make ballot collection even more critical.

Update:<https://twitter.com/marceelias/status/1311401512686571520?s=20>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“To Avoid an Election Meltdown, Officials Must Stockpile Backup Paper Ballots”<https://electionlawblog.org/?p=116017>
Posted on September 30, 2020 12:55 pm<https://electionlawblog.org/?p=116017> by Rick Hasen<https://electionlawblog.org/?author=3>

New Brennan Center report<https://www.brennancenter.org/our-work/research-reports/avoid-election-meltdown-officials-must-stockpile-backup-paper-ballots>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Federal Court Rules Alabama Must Take Steps to Better Protect Voters During COVID-19 Pandemic”<https://electionlawblog.org/?p=116015>
Posted on September 30, 2020 12:51 pm<https://electionlawblog.org/?p=116015> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

A federal court issued a decision today that will help protect the health and right to vote of medically vulnerable Alabamians.

The ruling<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATUURTROxIEyGquq1smnAPN-2FgO4-2FVrFQp9q8OaIpoGgE329aiahPg-2F-2F44hMTmaJ8ccaA-3D-3DZ2Gi_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9X61CCPOqOMhLrhZG2LPxPZsE1bjayUqypxGyIMkG-2Bl3ZAMygjxiTNtc9J-2BKXvcEXDbkAGqHd8Bx5q9VDmQpbdfN31-2FX7Th-2Bi3-2BYp6rwg1RWTJ62FyYhGQMGLoST66uqdB2wfSBeQDyds41ZYzLD9yDd78P1Ox5VI7K0vDKh-2Fhf1quOH1OR84ERrahDEHDerciTu5mnfx-2BlSwbDPjlC37k15WgiNsjNVsLIUE-2B1XOU0Ui85A0fVeMzHAJtZ4K-2BioGk-3D> in People First of Alabama v. Merrill<https://u7061146.ct.sendgrid.net/ls/click?upn=4tNED-2FM8iDZJQyQ53jATURqONLA5UTVR0dh970DAl5jqlFhO-2Bxz1VW0g7P9-2BcUb1N1KsQ6zyTctrs35xS0XroYeGxbcMFVMFoYwxxQz6UxvDsJNLhdqDEzzWZGEAEAkhveNjaknk1yuN85bO4To4ug-3D-3D4ZCI_LYw3uDP5U2cmeBBe07KqI8AzZYA0AXw8fCnkHEVTP6CkfRLHjg1cuOsDjSq4rOK2frZFOU9MKjFaw4dPHVdUzeE1pYlmhF6fDBaKBZuSK9X61CCPOqOMhLrhZG2LPxPZsE1bjayUqypxGyIMkG-2Bl3ZAMygjxiTNtc9J-2BKXvcEXDbkAGqHd8Bx5q9VDmQpbdfLjddimHJr4rW3IPdUmYQegsUFSlN5i2sVt9X-2FueLaiJoiEQgKkXMiotscsm-2Fmj72h3hC5xH3hYntS270hMuGNAj-2Bag-2FhFUST8qJ1KBoMIPdovqwHZlCeam32B908JgdoSHiRnKoFQxw-2FVKVY9iBGSGa-2Ftx-2BJyqgeh7NkHJTUsNo-3D> means Alabama voters will not need a witness or notary to vote by mail if they have an underlying medical condition and provide a statement.

The decision also stipulates that voters 65 and older with an underlying medical condition won’t need an ID so long as they provide other identifying information such as their driver’s license number or last four digits of their Social Security number. In addition, it lifts Secretary John Merrill’s ban on curbside voting.

The lawsuit was filed by the NAACP Legal Defense and Educational Fund (LDF), Southern Poverty Law Center, American Civil Liberties Union, ACLU of Alabama, and Alabama Disabilities Advocacy Program.
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Posted in election administration<https://electionlawblog.org/?cat=18>

Republicans in Pennsylvania House Push Resolution That Would Give House Committee Investigatory and Subpoena Power on Election Issues; Potential Prelude to Use of Powers to Appoint Presidential Electors?<https://electionlawblog.org/?p=116013>
Posted on September 30, 2020 12:45 pm<https://electionlawblog.org/?p=116013> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the proposed resolution<https://www.legis.state.pa.us/cfdocs/billInfo/billInfo.cfm?sYear=2019&sInd=0&body=H&type=R&bn=1032> at this link<https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2019&sessInd=0&billBody=H&billTyp=R&billNbr=1032&pn=4432>. Governor Wolf (a Democrat) has condemned<https://www.governor.pa.gov/newsroom/gov-wolf-condemns-resolution-that-undermines-election-integrity/> the move (via Ryan Grim<https://twitter.com/ryangrim/status/1311381160317136898>).

I’m not saying that the Pa legislature would use the power, but this is a first step toward trying to potentially appoint electors directly.

Keep an eye on this.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The growing concerns over Trump and a peaceful transition, explained; It’s unlikely that Trump will steal the election. But unlikely doesn’t mean impossible.”<https://electionlawblog.org/?p=116010>
Posted on September 30, 2020 12:03 pm<https://electionlawblog.org/?p=116010> by Rick Hasen<https://electionlawblog.org/?author=3>

Zack Beauchamp for Vox<https://www.vox.com/policy-and-politics/2020/9/30/21454325/trump-2020-peaceful-transition-election-stealing>:

The general sense among experts<https://twitter.com/rickhasen/status/1309146704344690702> on American politics is that the nightmare scenarios — an outright stolen election, each party attempting to inaugurate a different president on January 20, or clashes between armed supporters of each side — are only plausible if the election is close, and even then, they remain unlikely.

“Unless there’s a catastrophic failure on Election Day … then the election only goes into overtime if the election is close enough to litigate in a state that is essential to the Electoral College outcome. That’s unlikely if the polls are even close to accurate,” Rick Hasen, a law professor at the University of California Irvine and author of the recent book Election Meltdown<https://www.amazon.com/dp/B0849NPC95/ref=dp-kindle-redirect?ots=1&tag=curbedcom06-20&linkCode=w50&_encoding=UTF8&btkr=1>, tells me.

But Trump’s 2016 win and the emergence of a pandemic earlier this year were both “unlikely,” too. If we’ve learned anything from the past few years of politics, it’s that this kind of low-probability, high-impact event can happen — and needs to be planned for if the worst is to be avoided.

“In my mind, the worst-case scenario is the possibility of dueling inaugurations … a situation where we’re facing the end of the republic as we know,” says Franita Tolson, an election law expert at the University of Southern California.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“The Attack on Voting; How President Trump’s false claim of voter fraud is being used to disenfranchise Americans.”<https://electionlawblog.org/?p=116007>
Posted on September 30, 2020 11:52 am<https://electionlawblog.org/?p=116007> by Rick Hasen<https://electionlawblog.org/?author=3>

Jim Rutenberg in the New York Times Magazine<https://www.nytimes.com/2020/09/30/magazine/trump-voter-fraud.html?smtyp=cur&smid=tw-nytmag>:

The strategy was now in full view: Flood every state, every television news network, every newspaper and news feed with manufactured evidence of fraud to suppress Democratic votes before Election Day — and to knock them out of state-by-state tallies in the courts and counting rooms afterward. In September, Trump’s power to affect the outcome reached a new level when Justice Ruth Bader Ginsburg died and Mitch McConnell lined up the votes for a fast confirmation of the Supreme Court’s sixth conservative member. Increasingly, longtime election experts were seeing “a pathway for something other than voters choosing the next president,” said Richard Hasen, a professor at the University of California-Irvine School of Law who writes the widely read Election Law Blog.<https://electionlawblog.org/>

The movement to convince the country that voter fraud is a present danger to democracy has itself become a present danger to democracy. It has melded fully into the president’s re-election campaign. The argument is now that the only way Trump can lose this election is through sweeping voter fraud that benefits his opponent; any outcome in which he doesn’t win, therefore, can be considered illegitimate. This, Trump says, is why he refuses to commit to a peaceful transfer of power: Only fraud can beat him, and fraud is everywhere.

But unlike four years ago, when his campaign laid the groundwork for a similar argument, Trump is now aiming the full force of the United States government — its lawyers, its Postal Service, even its armed officers — at a false threat that has been used to disenfranchise American citizens since the darkest days of the republic. He is doing it in the service of one goal: to maintain his own grip on power.

“When you see them cheating with those ballots, all of those unsolicited ballots, those millions of ballots, you see them, any time you do, report them to the authorities,” he said at a late September election rally in Toledo, Ohio. “The authorities are waiting, and watching.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

Charles Zelden on Florida 2000: “Guest opinion: Legislatures picking electors to the Electoral College: It could not only happen, it almost did”<https://electionlawblog.org/?p=116005>
Posted on September 30, 2020 11:35 am<https://electionlawblog.org/?p=116005> by Rick Hasen<https://electionlawblog.org/?author=3>

Op-ed<https://www.news-press.com/story/opinion/2020/09/28/electoral-college-presidential-election-2020-trump-biden-charles-zelden/3537063001/>:

On December 7, 2000, in the midst of the Florida recount crisis, Florida Senate President John McKay and Speaker of the House Tom Feeney announced that, “the Legislature would choose the electors, as permitted by the U.S. Constitution, if the court disputes were continuing and there was not yet ‘finality’ on December 12.”  When the Florida Supreme Court announced a statewide recount order, the stage was set for a confrontation. So long as there was a chance for the December 12 “safe harbor” to be violated, the Republican legislators were set to act.

On Tuesday, December 12th, the Florida House did just this, voting in George W. Bush’s electors as the state’s official slate to the Electoral College. The next day the Florida Senate was prepared to do the same. It was at this point that the U.S. Supreme Court made the whole matter largely moot by issuing its ruling in Bush v. Gore.  With Gore’s quick concession, the need for the Florida Senate to act disappeared.

And check out Zelden on this podcast,<https://legalhistorypodcast.podbean.com/e/episode-23-charles-zelden/> talking about the third edition of his Bush v. Gore book<https://kansaspress.ku.edu/978-0-7006-2967-1.html>.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>

“Inconsistent Ballot Application Data Leads to Undercount of Disenfranchised Voters in Ohio”<https://electionlawblog.org/?p=116003>
Posted on September 30, 2020 11:32 am<https://electionlawblog.org/?p=116003> by Rick Hasen<https://electionlawblog.org/?author=3>

CityBeat reports<https://www.citybeat.com/news/blog/21144923/inconsistent-ballot-application-data-leads-to-undercount-of-disenfranchised-voters-in-ohio>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Record $13 Billion Raised for 2020 Elections Spurs Ad Avalanche”<https://electionlawblog.org/?p=116001>
Posted on September 30, 2020 11:28 am<https://electionlawblog.org/?p=116001> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg Government:<https://about.bgov.com/news/record-13-billion-raised-for-2020-elections-spurs-ad-avalanche/>

The 2020 election has generated a record $13.3 billion in federal campaign contributions, funding a barrage of political advertising that strategists say risks blurring candidate messaging.

The unprecedented outpouring of campaign cash raised through Sept. 28 is more than 75% above what was donated during the same period in the 2016 election, according to a cumulative total of disclosure reports<https://www.fec.gov/data/browse-data/?tab=raising> filed with the Federal Election Commission. It comes amid a high-stakes fight for control of the White House and the Senate that has been intensified by the battle over the replacement of the late Supreme Court Justice Ruth Bader Ginsburg.

Support for and opposition to President Donald Trump is driving both small-dollar donors enabled by the internet and big donors empowered through a largely deregulated campaign finance system, said Sarah Bryner, a campaign finance researcher at the Center for Responsive Politics. The donors seem unfazed by the pandemic and economic downturn, Bryner said in a phone interview.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“In 2020 Election, Florida Felon Voting Limits Could Sway State Outcome”<https://electionlawblog.org/?p=115999>
Posted on September 30, 2020 11:26 am<https://electionlawblog.org/?p=115999> by Rick Hasen<https://electionlawblog.org/?author=3>

Wall Street Journal:<https://www.wsj.com/articles/in-2020-election-florida-felon-voting-limits-could-sway-state-outcome-11601467381?mod=hp_lead_pos6>

New data from researchers at Georgetown University Law Center shows the law could mean a large share of registered voters with felony records still face hurdles. The researchers identified about 14,000 people within this group who have registered to vote since the end of 2018, and among them at least 9,700, or 69%, still owed money, according to a Journal analysis of the researcher’s data.

Criminal-justice advocates sued the state and argued that adding a requirement to pay legal and financial obligations, like fees and court costs, were an illegal barrier to the ballot box. They won a favorable U.S. District Court ruling <https://www.wsj.com/articles/florida-law-declared-unconstitutional-paving-way-for-felons-to-vote-11590366054> in May, but a federal appeals court ruling <https://www.wsj.com/articles/federal-court-says-florida-felons-cant-vote-until-they-pay-fines-11599849285> this month reversed that decision.

These would-be voters, who likely number in the hundreds of thousands, have faced difficulties in accurately figuring out what they owe with the registration deadline looming on Monday, advocates say.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Tuesday’s Debate Made Clear the Gravest Threat to the Election: The President Himself”<https://electionlawblog.org/?p=115997>
Posted on September 30, 2020 11:22 am<https://electionlawblog.org/?p=115997> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/09/30/us/politics/trump-debate-election.html?action=click&module=Spotlight&pgtype=Homepage>

President Trump’s angry insistence in the last minutes of Tuesday’s debate<https://www.nytimes.com/2020/09/29/us/politics/trump-biden-debate.html> that there was no way the presidential election could be conducted without fraud amounted to an extraordinary declaration by a sitting American president that he would try to throw any outcome into the courts, Congress or the streets if he was not re-elected.

His comments came after four years of debate about the possibility of foreign interference in the 2020 election and how to counter such disruptions. But they were a stark reminder that the most direct threat to the electoral process now comes from the president of the United States himself.

His unwillingness to say he would abide<https://www.nytimes.com/2020/09/23/us/politics/trump-power-transfer-2020-election.html> by the result, and his disinformation<https://www.nytimes.com/spotlight/disinformation> campaign about the integrity of the American electoral system, went beyond anything President Vladimir V. Putin could have imagined. All Mr. Putin has to do now is amplify the president’s message<https://www.nytimes.com/2020/09/29/us/politics/mail-in-voting-russian-disinformation.html>, which the Russian leader has already begun to do.

Everything Mr. Trump said in his face-off with Joseph Biden Jr. he had already delivered in recent weeks, in tweets and rallies with his faithful. But he had never before put it all together in front of such a large audience as he did Tuesday night.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Wisconsin GOP tries to stop Racing Sausages from promoting civic participation<https://electionlawblog.org/?p=115995>
Posted on September 30, 2020 11:21 am<https://electionlawblog.org/?p=115995> by Justin Levitt<https://electionlawblog.org/?author=4>

The Wisconsin GOP sent a letter<https://electionlawblog.org/wp-content/uploads/2020-09-29-Milwaukee-Elections-Commission.pdf> yesterday claiming that it would be improper “electioneering” and/or vote buying for MLB and the Brewers’ Racing Sausages<https://townsquare.media/site/721/files/2018/01/GettyImages-81130930.jpg?w=980&q=75> to encourage early voting.

The legal citations in the letter seem … off.

The assertions with respect to campaign finance seem … at odds with the rather emphatic views of the Wisconsin GOP in particular on uninhibited election-related spending as a core component of free speech.

But I’m most baffled by the political calculation. Picking a losing legal fight with MLB and the Racing Sausages seems like an odd late-September strategy.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

October 9 Connecticut Law Review Event: “Empires or Umpires? Political Questions, Separation of Powers, and Judicial Legitimacy.”<https://electionlawblog.org/?p=115993>
Posted on September 30, 2020 10:51 am<https://electionlawblog.org/?p=115993> by Rick Hasen<https://electionlawblog.org/?author=3>

This looks terrific <https://www.eventbrite.com/e/empires-or-umpires-a-connecticut-law-review-symposium-tickets-117443910899> with a wonderful lineup.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“In Senate questionnaire, Barrett won’t pledge to recuse herself from 2020 election cases”<https://electionlawblog.org/?p=115991>
Posted on September 30, 2020 9:55 am<https://electionlawblog.org/?p=115991> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/09/29/amy-coney-barrett-recuse-election-cases-423248>

President Donald Trump’s nominee to the Supreme Court did not commit to recusing herself from cases related to the outcome of the 2020 presidential election, according to her written responses to a Senate Judiciary Committee questionnaire.

Amy Coney Barrett’s responses, obtained<https://www.politico.com/f/?id=00000174-dc0a-dcdc-af74-df6f47570000> by POLITICO on Tuesday night, also provide a window into the breakneck pace at which the White House operated in the aftermath of Justice Ruth Bader Ginsburg’s death, with Barrett revealing that Trump settled on her as his pick just three days after Ginsburg’s death.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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