[EL] ELB News and Commentary 3/16/21

Tue Mar 16 10:10:13 PDT 2021

Are Democrats going to blow it again on voting rights? It sure looks like they could by selling H.R. 1 as the only way to combat new Republican voter suppression.<https://electionlawblog.org/?p=121202>
Posted on March 16, 2021 10:09 am<https://electionlawblog.org/?p=121202> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this oped <https://www.washingtonpost.com/outlook/2021/03/16/hr-1-voting-reforms/> for the Washington Post (Post Outlook). It begins:

Are Democrats in Congress and their good government allies going to blow it again on voting rights? It sure looks like they could — by portraying the 791-page<https://democracyreform-sarbanes.house.gov/sites/democracyreform.house.gov/files/BILL-TEXT_H.R.-1-Introduction_FINAL.pdf> For the People Act, or H.R. 1, as the only hope to save American democracy from a new wave of Republican voter suppression.

This mammoth bill has little chance of being enacted. But a more pinpointed law, including one restoring a key part of the Voting Rights Act, could make it out of the Senate to guarantee voting rights protections for all in the 2022 and 2024 elections….

But potential unconstitutionality of some provisions is not the main problem with H.R. 1. Instead, the problem is that the bill contains a wish list of progressive proposals that make it unlikely to survive debate in the Senate. In addition to sensible provisions protecting voting rights, the bill also contains controversial rules on campaign financing, including the creation of a public financing program for congressional candidates, new ethics rules for the Supreme Court, and a requirement that most candidates for president and vice president publicly disclose their tax returns.

Not only is H.R. 1 unlikely to survive a filibuster led by Republican senators such as Minority Leader Mitch McConnell (Ky.), who has directed most of his opposition to the campaign finance aspects of H.R. 1; it is not clear it could even get 50 votes from the Senate’s Democrats and their independent allies. That makes it an unlikely vehicle for convincing Democrats to abandon the filibuster requirement for voting rights bills, as I<https://slate.com/news-and-politics/2018/10/democrats-2020-election-voting-reform-nuclear-option.html> and others have advocated. Why would Democrats such as Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.), who say they want to keep the filibuster in place, vote to abolish it for a bill that might not even have majority support?…

In 2006, I and others testified<https://www.judiciary.senate.gov/meetings/time-change_an-introduction-to-the-expiring-provisions-of-the-voting-rights-act-and-legal-issues-relating-to-reauthorization> before the Senate Judiciary Committee that Congress needed to change the coverage formula of the preclearance provision of the Voting Rights Act because without a change, the Supreme Court could strike the measure down as exceeding congressional power. But Congress and good government groups decided to roll the dice, believing the Supreme Court would never strike down a crown jewel of the civil rights movement. The gamble did not pay off, and Shelby County has made things far worse.

We are at a similar moment now. H.R. 1 is unlikely to make it out of the Senate. It should be swapped out for a measure more directly targeted at the voter suppression to come that could actually be signed by President Biden and upheld in full by the courts.

Holding out for a perfect bill, in the end, will just prevent enactment of a good one. At the moment, it seems more likely that nothing will become law before the 2022 elections than that H.R. 1 will. And then Democrats will look back at yet another missed opportunity to protect voters.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Judge rips Arizona GOP for ‘groundless’ lawsuit challenging Biden’s win, orders it to pay legal fees”<https://electionlawblog.org/?p=121199>
Posted on March 16, 2021 7:07 am<https://electionlawblog.org/?p=121199> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.usatoday.com/story/news/politics/2021/03/16/arizona-republican-party-ordered-pay-legal-fees-election-lawsuit/4714062001/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=usatodaycomwashington-topstories>

Calling its lawsuit challenging 2020 election procedures “groundless” and “disingenuous,” a judge has ordered the Arizona Republican Party — and its lawyers — to pay the state thousands of dollars in legal fees.

In his ruling, Maricopa County Superior Court Judge John Hannah contended the GOP’s team acted in “bad faith” when it questioned the process for auditing voting machines and sought to delay certification of election results last November.

Instead of living up to the “privileged position in the electoral process” afforded to it by state law, Hannah said, the party sought to undermine Arizonans’ confidence in election results.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Coca-Cola, Home Depot come out in opposition to Georgia voting restrictions”<https://electionlawblog.org/?p=121197>
Posted on March 16, 2021 7:00 am<https://electionlawblog.org/?p=121197> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/business/2021/03/15/georgia-voting-business/>

Civil liberties groups are ratcheting up pressure on major corporations based in Georgia — including Coca-Cola, Aflac, Delta Air Lines, Home Depot and UPS — to oppose a Republican-led effort to make it harder to vote in the Peach State.

It’s a continuation of a dynamic that emerged after the Jan. 6 insurrection, when a violent mob stormed the U.S. Capitol on the erroneous belief that widespread fraud handed the 2020 election to President Biden: Facing intractable opposition from lawmakers determined to restrict voting, voting-rights advocates are taking their case directly to Republican lawmakers’ allies in the business community<https://www.washingtonpost.com/business/2021/03/06/capitol-riot-chamber-of-commerce/?itid=lk_inline_manual_4>.

On Friday, the advocates scored a win when the Georgia Chamber of Commerce issued a statement<https://www.gachamber.com/votingrights/> expressing “concern and opposition” to the measures under consideration in the legislature, which would end no-excuse absentee voting, limit early voting hours, restrict drop-boxes for mail ballots, and curtail early voting on Sundays.

Representatives from Coca-Cola and Home Depot told The Washington Post that their companies are “aligned” with the Chamber’s comments. But the activists want the Chamber’s individual member companies to do more — and they say the state’s Black voters, who make up 30 percent of the state’s electorate<https://www.washingtonpost.com/politics/2021/01/29/new-georgia-runoffs-data-finds-that-more-black-voters-than-usual-came-out-trump-voters-stayed-home/?itid=lk_inline_manual_8> and have billions in collective spending power, are watching.

Update<https://twitter.com/srl/status/1371833663067983880>:
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

ALI Podcast: “Challenges to the 2020 Election: the Solicitors’ Perspective”<https://electionlawblog.org/?p=121195>
Posted on March 15, 2021 3:32 pm<https://electionlawblog.org/?p=121195> by Rick Hasen<https://electionlawblog.org/?author=3>

Look forward to listening to this<https://www.ali.org/news/podcast/episode/election-2020-election-litigation/?utm_source=Informz&utm_medium=Email&utm_campaign=Email&_zs=Dg0kb1&_zl=SMQT7>:

ALI President David F. Levi is joined by three former Solicitors General, Walter E. Dellinger, Donald B. Verrilli, and Seth P. Waxman, to discuss the topic of election litigation and reflect upon the unconventional challenges faced in the 2020 presidential election.

This episode is part of the podcast and video series “Beyond COVID,” produced by ALI and the Bolch Judicial Institute at Duke Law School.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Michigan: “Judge rules Benson’s ballot signature verification guidance ‘invalid'”<https://electionlawblog.org/?p=121193>
Posted on March 15, 2021 3:29 pm<https://electionlawblog.org/?p=121193> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/politics/2021/03/15/judge-rules-secretary-state-bensons-ballot-signature-verification-guidance-invalid/4699927001/>

State Court of Claims Judge Christopher Murray has ruled invalid Secretary of State Jocelyn Benson’s guidance issued to Michigan clerks in early October that instructed them to presume the accuracy of absentee ballot signatures.

Because Benson did not go through the proper rule-making process when issuing the guidance, clerks do not need to comply with it for future elections, Murray ruled last week.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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http://electionlawblog.org<http://electionlawblog.org/>

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