[EL] ELB News and Commentary 5/12/21

[Rick Hasen]

“Senate Panel Deadlocks on Voting Rights as Bill Faces Major Obstacles”<https://electionlawblog.org/?p=122089>
Posted on May 11, 2021 7:41 pm<https://electionlawblog.org/?p=122089> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/11/us/politics/voting-rights-bill-senate.html>

A key Senate committee deadlocked on Tuesday over Democrats’ sweeping proposed elections overhaul<https://www.nytimes.com/2021/03/24/us/politics/democrats-voting-rights.html>, previewing a partisan showdown on the Senate floor in the coming months that could determine the future of voting rights and campaign rules across the country.

The tie vote in the Senate Rules Committee — with nine Democrats in favor and nine Republicans opposed — does not prevent Democrats from moving forward with the 800-page legislation, known as the For the People Act. Proponents hailed the vote as an important step toward adopting far-reaching federal changes to blunt the restrictive new voting laws emerging in Republican-led battleground states like Georgia<https://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html> and Florida<https://www.nytimes.com/article/florida-voting-law.html>.

But the action confronted Democrats with a set of thorny questions about how to push forward on a bill that they view as a civil rights imperative with sweeping implications for democracy and their party. The bill as written faces near-impossible odds in the evenly divided Senate, where Republicans are expected to block it using a filibuster and at least one Democrat, Senator Joe Manchin III of West Virginia, remains opposed.

With their control in Washington potentially fleeting and Republican states racing ahead with laws to curtail ballot access, Democrats must reach consensus among themselves on the measure, and decide whether to attempt to destroy or significantly alter the Senate’s filibuster rules — which set a 60-vote threshold to overcome any objection to advancing legislation — to salvage its chances of becoming law.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Cheney Embraces Her Downfall, Warning G.O.P. of Trump in a Fiery Speech”<https://electionlawblog.org/?p=122087>
Posted on May 11, 2021 7:37 pm<https://electionlawblog.org/?p=122087> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/11/us/politics/liz-cheney.html?action=click&module=Top%20Stories&pgtype=Homepage>

In the hours before facing a vote that will almost certainly purge her from House Republican leadership, Representative Liz Cheney of Wyoming remained unrepentant on Tuesday, framing her expulsion as a turning point for her party<https://www.nytimes.com/2021/05/05/us/politics/liz-cheney-elise-stefanik.html> and declaring in an extraordinary speech that she would not sit quietly by as Republicans abandoned the rule of law.

Delivering the broadside from the House floor on Tuesday night, Ms. Cheney took a fiery last stand, warning that former President Donald J. Trump had created a threat that the nation had never seen before: a president who had “provoked a violent attack” on his own Capitol “in an effort to steal the election,” and then continued to spread his election lies.

“Remaining silent and ignoring the lie emboldens the liar,” Ms. Cheney said. “I will not participate in that. I will not sit back and watch in silence while others lead our party down a path that abandons the rule of law and joins the former president’s crusade to undermine our democracy.”

Her defiant exit — and unmistakable jab at the House Republican leaders working to oust her — illustrates Ms. Cheney’s<https://www.nytimes.com/2021/05/08/opinion/sunday/liz-cheney-republicans.html?searchResultPosition=1> determination to continue her blunt condemnation of Mr. Trump<https://www.nytimes.com/2021/02/07/us/politics/liz-cheney-trump.html> and her party’s role in spreading the false election claims that inspired the Jan. 6 attack on the Capitol. On the precipice of the vote to remove her on Wednesday, she has embraced her downfall rather than fight it, offering herself as a cautionary tale in what she is portraying as a battle for the soul of the Republican Party.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, The Voting Wars<https://electionlawblog.org/?cat=60>


“The Trump G.O.P.’s Plot Against Liz Cheney — and Our Democracy”<https://electionlawblog.org/?p=122085>
Posted on May 11, 2021 7:35 pm<https://electionlawblog.org/?p=122085> by Rick Hasen<https://electionlawblog.org/?author=3>

Tom Friedman NYT column:<https://www.nytimes.com/2021/05/11/opinion/liz-cheney-gop.html?action=click&module=Opinion&pgtype=Homepage>

I didn’t want to write again<https://www.nytimes.com/2021/05/04/opinion/gop-trump-2020-election.html> about the House Republicans ousting Liz Cheney<https://www.nytimes.com/2021/05/11/us/politics/liz-cheney-speech-house.html> from their leadership for calling out Donald Trump’s Big Lie. I was going to make this my week for happy news. But to write about anything else on the verge of Trump’s G.O.P. moving to formally freeze out Cheney would be like writing a column about the weather the day after Watergate exploded or about Ford Theater’s architecture after Lincoln was shot. This is a big moment in American history.

One of America’s two major parties is about to make embracing a huge lie about the integrity of our elections — the core engine of our democracy — a litmus test for leadership in that party, if not future candidacy at the local, state and national levels.

In effect, the Trump G.O.P. has declared that winning the next elections for the House, Senate and presidency is so crucial — and Trump’s ability to energize its base so irreplaceable — that it justifies both accepting his Big Lie about the 2020 election and leveraging that lie to impose new voter-suppression laws and changes in the rules of who can certify elections in order to lock in minority rule for Republicans if need be.

It is hard to accept that this is happening in today’s America, but it is.

If House Republicans follow through on their plan to replace Cheney, it will not constitute the end of American democracy as we’ve known it, but there is a real possibility we’ll look back on May 12, 2021, as the beginning of the end — unless enough principled Republicans can be persuaded to engineer an immediate, radical course correction in their party.

If someone tried a dishonest power play at the P.T.A. of your child’s school like the one in the House, you’d be on the phone in a flash, organizing the other parents to immediately denounce and stop it. If you read about something like this happening in another pillar of democracy, like Britain or France, you’d be sick to your stomach and feel like the world was a little less safe. If you heard that a banana republic dictator had forced such a Big Lie on his sham parliament, you’d want to picket his embassy in Washington.

But this is us — today, right now. And I fear that we’ve so defined down political deviance in the Trump years that we’ve lost the appropriate, drop-everything, Defcon 1, man-the-battle-stations sense of alarm that should greet the G.O.P. crossing such a redline.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Over 100 Republicans, including former officials, threaten to split from G.O.P.”<https://electionlawblog.org/?p=122083>
Posted on May 11, 2021 7:33 pm<https://electionlawblog.org/?p=122083> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/11/us/politics/republicans-third-party-trump.html>

More than 100 Republicans, including some former elected officials, are preparing to release a letter this week threatening to form a third party if the Republican Party does not make certain changes, according to an organizer of the effort.

The statement is expected to take aim at former President Donald J. Trump’s stranglehold on Republicans, which signatories to the document have deemed unconscionable.

“When in our democratic republic, forces of conspiracy, division, and despotism arise, it is the patriotic duty of citizens to act collectively in defense of liberty and justice,” reads the preamble to the full statement, which is expected to be released on Thursday.

The effort comes as House Republican leaders are expected on Wednesday to oust Representative Liz Cheney of Wyoming from their ranks because of her outspoken criticism of Mr. Trump’s election lies.

“This is a first step,” said Miles Taylor, an organizer of the effort and a former Trump-era Department of Homeland Security official who anonymously wrote a book condemning the Trump administration. In October, Mr. Taylor acknowledged he was the author of both the book and a 2018 New York Times Op-Ed article<https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html>.

“This is us saying that a group of more than 100 prominent Republicans think that the situation has gotten so dire with the Republican Party that it is now time to seriously consider whether an alternative might be the only option,” he said.

The list of people signing the statement includes former officials at both the state and national level who once were governors, members of Congress, ambassadors, cabinet secretaries, state legislators and Republican Party chairmen, Mr. Taylor said.

Mr. Taylor declined to name the signers. Reuters reported earlier that the former governors Tom Ridge of Pennsylvania and Christine Todd Whitman of New Jersey will sign it, as will former Transportation Secretary Mary E. Peters and former Representatives Charlie Dent of Pennsylvania, Barbara Comstock of Virginia, Reid Ribble of Wisconsin and Mickey Edwards of Oklahoma.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Arizona Republicans Enact Sweeping Changes To State’s Early Voting List”<https://electionlawblog.org/?p=122081>
Posted on May 11, 2021 7:27 pm<https://electionlawblog.org/?p=122081> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2021/05/11/995998370/arizona-republicans-enact-sweeping-changes-to-states-early-voting-list>

Shortly after Arizona Republican lawmakers approved it, GOP Gov. Doug Ducey on Tuesday quickly signed a bill into law that could remove tens of thousands of voters from the state’s early ballot mailing list.

Voters who sign up for the state’s Permanent Early Voting List — PEVL for short — are automatically sent a ballot for every election in which they’re eligible to vote.

The PEVL has grown increasingly popular with each passing election in Arizona. And whether voters actually use their early ballot or not has — to date — been irrelevant.

But Senate Bill 1485<https://legiscan.com/AZ/bill/SB1485/2021>, sponsored by Republican Sen. Michelle Ugenti-Rita, takes the “permanent” out of the PEVL.

Her legislation rebrands the PEVL as the “Active” Early Voting List, a name that highlights the main purpose of the measure — to remove voters from the list if they don’t use their early ballot at least once in two straight two-year election cycles, and if they don’t respond to a notice from county officials, warning them of the removal. Voting the old-fashioned way, in person at a polling site, wouldn’t count, either.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Do Democrats Have a Realistic Path Forward on Their Voting Bills?”<https://electionlawblog.org/?p=122079>
Posted on May 11, 2021 5:20 pm<https://electionlawblog.org/?p=122079> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2021/05/11/us/politics/democrat-voting-rights-bills.html?referringSource=articleShare> on HR 1.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Inside Arizona’s election audit, GOP fraud fantasies live on”<https://electionlawblog.org/?p=122076>
Posted on May 11, 2021 7:01 am<https://electionlawblog.org/?p=122076> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.washingtonpost.com/politics/inside-arizonas-election-audit-gop-fraud-fantasies-live-on/2021/05/10/1b1152f0-b147-11eb-bc96-fdf55de43bef_story.html>:

On the floor of Veterans Memorial Coliseum, where NBA stars like Charles Barkley and Michael Jordan once dunked basketballs and Hulk Hogan wrestled King Kong Bundy, 46 tables are arrayed in neat rows, each with a Lazy Susan in the middle.

Seated at the tables are several dozen people, mostly Republicans, who spend hours watching ballots spin by, photographing them or inspecting them closely. They are counting them and checking <https://apnews.com/article/fact-checking-905235586266> to see if there is any sign they were flown in surreptitiously from South Korea. A few weeks ago they were holding them up to ultraviolet lights, looking for a watermark rumored to be a sign of fraud.

This is Arizona’s extraordinary, partisan audit of the 2020 election results<https://apnews.com/article/elections-election-2020-business-government-and-politics-arizona-a56ee7c8214ecc876424ee3428e3ab72> in the state’s most populous county — ground zero for former President Donald Trump and a legion of his supporters who have refused to accept his loss in Arizona or in other battleground states. These ballots have been counted before and certified by the Republican governor<https://apnews.com/article/joe-biden-donald-trump-arizona-phoenix-elections-9638adedbe826b31b5d172ba3a1c7c3a>. Much of the country has moved on.ADVERTISING

And yet, in this aging arena, Republicans are searching for evidence to support claims they already believe.

The effort has alarmed voting rights advocates, election administrators and civil rights lawyers at the U.S. Department of Justice<https://apnews.com/article/arizona-election-recounts-election-2020-government-and-politics-ef60fc349bed3296c44fa158210da3e6>, who this past week demanded confirmation that federal security and anti-intimidation laws are being followed. Senate President Karen Fann<https://apnews.com/article/donald-trump-arizona-senate-elections-election-2020-election-recounts-8bdd0a6a31441ed4b39068c5bd8d06dd>, a Republican, responded Friday by telling the department it had nothing to worry about.

“They lost, and they can’t get over it,” said Grant Woods, a former Republican Arizona attorney general who became a Democrat during Trump’s presidency. “And they don’t want to get over it because they want to continue to sow doubt about the election.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Democrats’ election overhaul is expected to clear a major Senate hurdle, but the road ahead is unclear.”<https://electionlawblog.org/?p=122074>
Posted on May 11, 2021 6:59 am<https://electionlawblog.org/?p=122074> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2021/05/11/us/politics/democrats-election-overhaul-senate.html>
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“Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism”<https://electionlawblog.org/?p=122072>
Posted on May 10, 2021 7:35 am<https://electionlawblog.org/?p=122072> by Rick Hasen<https://electionlawblog.org/?author=3>

New Ned Foley paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3843029> that is worth your time:

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that anti-democracy extremism currently poses in America.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Watch Archived Video of the AALS Election Law Conference: “Rebuilding Democracy and the Rule of Law”<https://electionlawblog.org/?p=122070>
Posted on May 10, 2021 7:34 am<https://electionlawblog.org/?p=122070> by Rick Hasen<https://electionlawblog.org/?author=3>

It is available here<https://www.aals.org/events/rebuilding-democracy/live-stream/>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Republicans aren’t just making it harder to vote. They’re going after election officials, too.”<https://electionlawblog.org/?p=122068>
Posted on May 10, 2021 7:18 am<https://electionlawblog.org/?p=122068> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas WaPo oped.<https://www.washingtonpost.com/opinions/2021/05/09/republicans-arent-just-making-it-harder-vote-theyre-going-after-election-officials-too/>
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“The For the People Act’s Missing Piece”<https://electionlawblog.org/?p=122066>
Posted on May 10, 2021 7:08 am<https://electionlawblog.org/?p=122066> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

I wrote this column<https://www.democracydocket.com/2021/05/the-for-the-people-acts-missing-piece/> for Democracy Docket about a provision I think should be part of any electoral reform legislation: an “Anderson-Burdick fix,” enacted under Congress’s Elections Clause authority, that instructs courts to apply heightened scrutiny to voting restrictions. In recent years, the existing Anderson-Burdick doctrine has become increasingly unfavorable to plaintiffs. Congress should change that unsatisfactory regime and so guard against whatever new measures would-be vote suppressors manage to think up.

But the For the People Act wouldn’t invalidate all of Georgia’s new restrictions. It wouldn’t reach the ban on mobile voting centers. Nor would it reverse the criminalization of helping hungry or thirsty voters. Left standing, too, would be the legislature’s takeover of the elections board. The reason for these omissions is the Act’s underlying strategy. It specifies many steps that states must take to make voting easier, and it outlaws many policies that hinder voting. But it doesn’t include any catch-all provision applicable to all voting limits—including ones Congress hasn’t yet imagined. The Act thus leaves open the door to novel barriers erected by wily vote suppressors.

How could the Act slam this door shut? The most promising proposal is an amendment<https://www.democracydocket.com/wp-content/uploads/sites/45/2021/05/HR1-Amendment-62-Judicial-Protection-of-the-Right-to-Vote.pdf> drafted by Rep. Mondaire Jones (D-NY). Under this amendment, any regulation that imposes a “severe or discriminatory burden” on voting in federal elections would be unlawful unless a jurisdiction could prove that the rule is the least restrictive way to further a compelling state interest. (Lawyers call this strict scrutiny.) Any regulation that imposes a milder voting burden would also be invalid unless it significantly furthers an important state interest. (This is intermediate scrutiny in legalese.)

Rep. Jones’s amendment would eliminate the For the People Act’s blind spot with respect to new kinds of voting restrictions. Take the elements of Georgia’s law that would be unaffected by the Act as it currently stands. Rep. Jones’s amendment would reach those policies. All of them burden voting to some degree—potentially to an extreme degree if Georgia’s legislature uses its new powers to discard lawfully cast ballots. So the policies would be upheld only if Georgia could convince a court that they’re sufficiently linked to a vital enough interest. . . .

Is it constitutional, though, for Congress to require heightened judicial scrutiny for all burdensome regulations of federal elections? Without a doubt<https://poseidon01.ssrn.com/delivery.php?ID=345071025031103099096002085004067066105031089055030062103113125025003110106095016124126000024009054122012125126094116075126110018038048082088078091097017077010006077017055082115071117106065123092070021085115126121070093079111031112104125099127087096&EXT=pdf&INDEX=TRUE>. The Elections Clause grants Congress essentially plenary power over the “Manner of [congressional] elections.” Even the Roberts Court—no friend of expansive congressional authority—has conceded<https://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf> that, under the Clause, Congress could “provide a complete code for congressional elections.” It’s also unremarkable for Congress to use the Clause to create new bases for lawsuits. Earlier electoral statutes in the 1990s<https://www.justice.gov/crt/national-voter-registration-act-1993-nvra> and 2000s<https://www.justice.gov/crt/help-america-vote-act-3> did exactly that. . . .

[D]issatisfaction with the constitutional rule is certainly a driver of Rep. Jones’s amendment. In the runup to the 2020 election, the Roberts Court upheld<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720065> one voting restriction after another. Over its entire history, the Roberts Court has never<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483321> ruled in favor of a plaintiff alleging an undue burden on her right to vote. Rep. Jones’s amendment is necessary, then, because today’s courts all too often fail to protect the franchise. Their dismal record is the impetus for congressional intervention.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



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/>

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