[EL] ELB News and Commentary 5/28/21

[Rick Hasen]

Brennan Center: 14 States Have Enacted 22 Laws Restricting the Right to Vote, and More Restrictions on the Way<https://electionlawblog.org/?p=122353>
Posted on May 28, 2021 7:25 am<https://electionlawblog.org/?p=122353> by Rick Hasen<https://electionlawblog.org/?author=3>

Details.<https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-may-2021>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Opinion: Imagine 2020 in Georgia with an election-denier in charge. That could happen in 2024.”<https://electionlawblog.org/?p=122351>
Posted on May 28, 2021 7:23 am<https://electionlawblog.org/?p=122351> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo lead editorial<https://www.washingtonpost.com/opinions/election-deniers-are-running-for-a-key-role-in-swing-states-it-could-lead-to-a-scary-2024/2021/05/27/ab22809a-be61-11eb-83e3-0ca705a96ba4_story.html>:

Republicans of conscience must reject these extremists. Yet polls show that alarming numbers of GOP voters believe their lies. If a Jody Hice or a Mark Finchem were to win, it would become all the more important for other elected officials to defend democracy. In many places, the nuts-and-bolts election administration and vote-counting occur at the county level; local officials would have to resist undue intrusion.

These candidacies also underline the need to reform the office of state secretary of state. Empowering partisan elected officials to run voting systems is an unusual and questionable practice; at the least, states should consider barring them from seeking higher office, imposing stricter ethics rules or creating accreditation processes for top elections officials.

It is seductive to imagine that the danger to U.S. democracy passed with Mr. Trump’s departure. In fact, it may have only begun.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“U.S. judge says Trump’s election falsehoods still pose security risk”<https://electionlawblog.org/?p=122349>
Posted on May 28, 2021 7:22 am<https://electionlawblog.org/?p=122349> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters<https://www.yahoo.com/news/u-judge-says-trumps-election-125614090.html>:

A U.S. judge said there is a risk that Donald Trump’s supporters could still carry out attacks similar to the deadly Jan. 6 assault on the U.S. Capitol, noting the former president’s “near-daily fulminations” about his election loss have not subsided.

U.S. District Judge Amy Berman Jackson made the remark in a written decision on Wednesday explaining why she would continue to jail Cleveland Meredith Jr. while he awaits trial on charges that he texted about “putting a bullet” in U.S. House Speaker Nancy Pelosi’s head.

“The steady drumbeat that inspired defendant (Meredith) to take up arms has not faded away; six months later, the canard that the election was stolen is being repeated daily on major news outlets and from the corridors of power in state and federal government, not to mention in the near-daily fulminations of the former President,” Jackson said in her partially redacted ruling.

Jackson noted that the charges against Meredith were particularly serious.

“Not only did defendant threaten to wreak mayhem in general in the nation’s capital, he used graphic and misogynistic language to threaten to kill particular public figures in the District in specific and violent ways,” Jackson said.
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“QAnon Now as Popular in U.S. as Some Major Religions, Poll Suggests”<https://electionlawblog.org/?p=122347>
Posted on May 28, 2021 7:20 am<https://electionlawblog.org/?p=122347> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/27/us/politics/qanon-republicans-trump.html?action=click&module=Spotlight&pgtype=Homepage>

But it’s not just the notion that the election was stolen that has caught on with the former president’s supporters. QAnon, an outlandish and ever-evolving conspiracy theory<https://www.nytimes.com/2021/03/04/us/politics/qanon-capitol-washington.html> spread by some of Mr. Trump’s most ardent followers, has significant traction with a segment of the public — particularly Republicans and Americans who consume news from far-right sources.

Those are the findings of a poll released today<https://www.prri.org/research/qanon-conspiracy-american-politics-report/> by the Public Religion Research Institute and the Interfaith Youth Core, which found that 15 percent of Americans say they think that the levers of power are controlled by a cabal of Satan-worshiping pedophiles, a core belief of QAnon supporters. The same share said it was true that “American patriots may have to resort to violence” to depose the pedophiles and restore the country’s rightful order.

And fully 20 percent of respondents said that they thought a biblical-scale storm would soon sweep away these evil elites and “restore the rightful leaders.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Ballot inspection seeks elusive proof of fraud in Georgia election”<https://electionlawblog.org/?p=122345>
Posted on May 28, 2021 7:18 am<https://electionlawblog.org/?p=122345> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/ballot-inspection-seeks-elusive-proof-of-fraud-in-georgia-election/OEQEOPIY4FDC3KPN3W47MNMKEU/?utm_source=Iterable&utm_medium=email&utm_campaign=campaign_2398003>

Aided by a treasure hunter, the tea party and an unshakable belief that the presidential election was rigged, a group of skeptics may soon inspect Georgia absentee ballots in an attempt to find counterfeits.

The court-ordered review<https://www.ajc.com/politics/georgia-headed-toward-another-presidential-election-audit/O6WU557RGZACJL3PUHVNKIP57M/> is the latest attempt to question results that have repeatedly withstood scrutiny, with no evidence of widespread fraud. Georgia election officials counted ballots three times<https://www.ajc.com/politics/election/georgia-recount-confirms-biden-win-again-but-trump-still-battling/OZGAOQCMKVFG7G43L5PSF3BNHM/>, audited voter signatures<https://www.ajc.com/politics/no-fraud-georgia-audit-confirms-authenticity-of-absentee-ballots/QF2PTOGHLNDLNDJEWBU56WEQHM/>, opened dozens of investigations<https://www.ajc.com/politics/georgia-officials-overstated-election-investigations/RROMDM3YHBHGTB5XUXH4JN622Y/> and certified<https://www.ajc.com/politics/georgia-recount-shows-verdict-of-the-people-says-elections-head/7ARKVPQM3VAXJOEFZYQTV477II/> Democrat Joe Biden’s 12,000-vote win over Republican Donald Trump.

But prior investigations didn’t go far enough, according to the plaintiffs and many other Georgians who doubt the integrity of the election after Trump lost and blamed “fraud.” They say malfeasance hasn’t been proven because the government hasn’t looked hard enough.

The upcoming review of about 147,000 absentee ballots in Fulton County could put concerns to rest — or fuel more suspicions by those who refuse to believe Trump lost. No matter its outcome, the ballot review won’t change last year’s election results.ADVERTISINGSupport local journalismYour donation helps provide serious local journalism about Georgia’s immigrant communities. We press on together.DONATE TODAY<https://checkout.fundjournalism.org/memberform?org_id=reportforamerica&campaign=7015G000001Z0ez&theme=The+Atlanta+Journal-Constitution&installmentPeriod=once&G2I_ActionId=100882&returnUrl=https%3A%2F%2Fwww.ajc.com%2Fpolitics%2Fballot-inspection-seeks-elusive-proof-of-fraud-in-georgia-election%2FOEQEOPIY4FDC3KPN3W47MNMKEU%2F%3FclearUserState%3Dtrue>

A judge had planned to consider procedures for the ballot inspection on Friday, but the meeting was postponed as he considers motions by Fulton County to dismiss the case.

Unlike an ongoing review in Arizona<https://www.azcentral.com/story/news/politics/elections/2021/05/25/cyber-ninjas-subcontractor-strattech-solutions-takes-over-arizona-election-audit-hand-count/7429980002/>, the original paper ballots would remain in Fulton County’s possession, and there’s no public recount. Instead, Fulton election officials would create high-resolution digital images of ballots for the plaintiffs to scrutinize and later present their findings in court.
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“Another election audit coming? Arizona Senate considers using new technology for digital recount”<https://electionlawblog.org/?p=122343>
Posted on May 28, 2021 7:16 am<https://electionlawblog.org/?p=122343> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona Republic:<https://www.azcentral.com/story/news/politics/elections/2021/05/28/arizona-senate-considers-using-new-technology-2nd-audit-maricopa-county-election/7478902002/?gnt-cfr=1>

The Arizona Senate, apparently not satisfied with one recount, is close to signing a deal for its second review of Maricopa County’s 2020 general election ballots.

The effort would expand the ongoing audit and is expected to use a new and largely untested technology.

This second recount of all 2.1 million ballots would be done electronically, running the original digital images of ballots through a program that would count all votes cast for every race on the ballot. This is a different approach from the ongoing recount, which is being done by hand.

Senate Republican leaders are negotiating with Citizens Oversight, a California-based election transparency nonprofit, according to Senate liaison Ken Bennett.

Adding a second count is important for comparison purposes, Bennett said. The cost of such a deal is unknown at this point.

The organization’s founder told The Arizona Republic this week that his company has never been hired to audit an election, and the technology has never been used in an official election audit.
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“Democrats Are Running Out of Time; Voting-rights advocates are scared that the White House isn’t taking Republican threats to the ballot seriously enough.”<https://electionlawblog.org/?p=122341>
Posted on May 27, 2021 1:52 pm<https://electionlawblog.org/?p=122341> by Rick Hasen<https://electionlawblog.org/?author=3>

Ron Brownstein<https://www.theatlantic.com/politics/archive/2021/05/biden-manchin-gop-voting-rights/619003/> for The Atlantic:

Still, it’s clear that the White House is operating at a more tempered level of concern than other Democrats about the threats to small-d democracy emerging in the aftermath of Donald Trump’s attacks on the 2020 election. Based on my conversations with them, officials there seem to take a more nuanced and restrained view of what’s happening. They do not believe that more assertive public denunciation from Biden would dissuade any of the Republican governors or legislators who have moved to restrict voting rights. And although White House officials consider the laws offensive from a civil-rights perspective, they do not think most of those laws will advantage Republicans in the 2022 and 2024 elections as much as many liberal activists fear.

The senior official noted that the Biden campaign repeatedly adjusted its tactics as the electoral rules changed throughout the 2020 election, and that Biden ultimately won more votes than any president in either party ever has. Looking ahead to 2022 and 2024, “I think our feeling is, show us what the rules are and we will figure out a way to educate our voters and make sure they understand how they can vote and we will get them out to vote,” the official told me. Through on-the-ground organizing, “there are work-arounds to some of these provisions,” said a senior Democrat familiar with White House thinking, who also spoke with me on the condition of anonymity to discuss internal deliberations.

Contrast their comments with those of Fred Wertheimer, the president of the reform group Democracy 21 and former president of Common Cause, who told me that Republicans’ actions since Biden’s election constitute “the greatest attack on the democratic process in the 50 years I’ve been working on these issues.” Or with those of Ian Bassin, the executive director of Protect Democracy, a nonpartisan group studying threats to the electoral system: “I think we are in a far more precarious place just five months later than we were even from November through January. If that trajectory continues, you can see where it’s headed by November 2022 or November 2024.”

The White House does see a risk in the possibility that Republicans—whether local election officials, GOP-controlled state legislatures, or a potential Republican majority in the U.S. House or Senate—will refuse to certify clear Democratic wins in the 2022 and 2024 elections. The senior Democrat told me, “Given how things have developed since January 6, if the situation is not brought under some control and this isn’t countered effectively, then I think there is a significant risk” that “Republican officials, unlike the ones we saw standing up to pressure in 2020, are going to decline to certify Democratic victories.” If Republicans hold the House, Senate, or both after the 2024 election, that could allow Congress to try to install a GOP president even if clear evidence exists that the Democrat won.

The senior White House official told me Biden aides believe that the best way to overcome Republicans’ undermining of upcoming elections is to maintain Democratic control of the House and Senate. And the best way to achieve that is for Biden to pass the agenda he ran on, which includes working to mitigate political conflict and compromising with Republicans where possible. “We have to go win elections in 2022, so we keep control of the House and Senate, which is the single most critical thing to protecting us for 2024,” the official said.
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“You’ve Heard of the 300+ Bills to Limit Voting Rights, But Have You Heard of the 700+ Bills Expanding Rights?”<https://electionlawblog.org/?p=122339>
Posted on May 27, 2021 10:06 am<https://electionlawblog.org/?p=122339> by Rick Hasen<https://electionlawblog.org/?author=3>

New<https://www.sightline.org/2021/05/26/youve-heard-of-the-300-bills-to-limit-voting-rights-but-have-you-heard-of-the-700-bills-expanding-rights/> at Sightline.
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“On Voting Rights, Biden Prefers to Negotiate. This Time, It Might Not Be Possible.”<https://electionlawblog.org/?p=122337>
Posted on May 27, 2021 7:43 am<https://electionlawblog.org/?p=122337> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2021/05/27/us/politics/biden-voting-rights.html>

Yet even with his decades of work on the topic, he faces especially wrenching decisions when it comes to the voting rights legislation. Known as the For the People Act, the bill is the professed No. 1 priority of Democrats this year. It would overhaul the nation’s elections system, rein in campaign donations and limit partisan gerrymandering. But after passing the House<https://www.nytimes.com/2021/03/03/us/politics/house-voting-rights-bill.html>, it hit a wall of Republican opposition in the Senate.

With little likelihood of the measure winning enough Republican support to meet the 60-vote threshold necessary for passage, Mr. Biden now faces a choice: Scale back his ambitions for addressing voting rights or abandon hopes of a bipartisan compromise and instead seek to jam it through on a partisan vote in the equally divided chamber by further rolling back one of the foundations of Senate tradition, the filibuster.

Along with his push for a bipartisan compromise on his infrastructure proposal<https://www.nytimes.com/2021/05/25/us/politics/infrastructure-republicans.html>, it is the clearest choice he has faced yet between his instinct to negotiate and confronting the realities of Senate partisanship in 2021….

Faced with such slim odds over the more ambitious piece of legislation, Mr. Biden has privately reminded members of his own party in White House meetings that, with any bill, there are must-haves and like-to-haves.

In a recent meeting with members of the Congressional Black Caucus in the Oval Office, Mr. Biden urged them to consider the pieces of the bill they could live without.

He stressed to the group that the measure’s chances were low without compromise.

“He was really concerned about navigating through the Senate,” said Representative Brenda Lawrence, Democrat of Michigan. “He said that in a number of situations: ‘We have to get this done.’”

Mr. Biden has yet to say publicly how he intends to proceed. He has avoided getting involved in negotiations over the legislation. But the president has also been reluctant to come out in public support of eliminating the filibuster, especially since Mr. Manchin — a vital vote for nearly all of the president’s priorities<https://www.nytimes.com/2021/03/27/us/politics/joe-manchin.html> — has so far opposed doing so, effectively taking that option off the table for now.
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“Democrats are wasting time pursuing their dream elections reform bill. Here’s a better path.”<https://electionlawblog.org/?p=122334>
Posted on May 27, 2021 7:17 am<https://electionlawblog.org/?p=122334> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley<https://www.washingtonpost.com/opinions/2021/05/27/democrats-are-wasting-time-pursuing-their-dream-elections-reform-bill-heres-better-path/> for WaPo:

It’s become increasingly clear that Democrats lack the votes in the Senate to pass their dream elections bill, the behemoth known as S. 1. Before time runs out, they would be wise to come up with a backup plan that would not do as much but could still achieve significant progress in protecting the right to vote.

Frankly, it’s less important what specific election reforms Democrats can negotiate than that the Democrats find some common ground with Republicans. What the country needs now is a genuinely bipartisan statement of shared commitments on how electoral competition is supposed to operate.

Is it possible for a measure to attract the support of 10 Republicans? That’s a tall order in the current environment. But the universe includes the five who are retiring — Roy Blunt (Mo.), Richard Burr (N.C.), Rob Portman (Ohio), Richard C. Shelby (Ala.) and Patrick J. Toomey (Penn.) — plus Bill Cassidy (La.), Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah) and Ben Sasse (Neb.).

I’d strive for agreement on these four pillars of a workable democracy:
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“Top Wisconsin Republican Robin Vos hires former cops to investigate November election”<https://electionlawblog.org/?p=122332>
Posted on May 27, 2021 6:55 am<https://electionlawblog.org/?p=122332> by Rick Hasen<https://electionlawblog.org/?author=3>

Patrick Marley<https://www.jsonline.com/story/news/politics/elections/2021/05/26/wisconsin-republican-robin-vos-hires-ex-cops-investigate-election/7455034002/>:

Assembly Speaker Robin Vos is hiring retired police officers to investigate aspects of the November election, joining with Republicans from around the country who have questioned President Joe Biden’s victory.

Vos, of Rochester, said he recognizes Biden narrowly won Wisconsin and is not trying to change the results with his taxpayer-funded investigation.

He said he hopes the investigators can get to the bottom of issues Republicans have raised unsuccessfully in court, such as how the state’s largest cities used more than $6 million in grants from a private group<https://www.jsonline.com/story/news/politics/2021/05/11/wisconsin-gop-seeks-limit-private-donations-help-run-elections/5036724001/> to run their elections.

Vos in a Wednesday interview said he was giving the investigators a broad mandate to spend about three months reviewing all tips and following up on the most credible ones. In addition to the grant spending, he said they may look into claims of double voting and review how clerks fixed absentee ballot credentials.

“Is there a whole lot of smoke or is there actual fire? We just don’t know yet,” Vos said.

Ann Jacobs, a Democrat who leads the Wisconsin Elections Commission, said she was worried the investigation would undermine confidence in an election that was conducted properly.
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“Restoring Trust in the Voting Process”<https://electionlawblog.org/?p=122330>
Posted on May 27, 2021 6:49 am<https://electionlawblog.org/?p=122330> by Rick Hasen<https://electionlawblog.org/?author=3>

I earlier posted a link to the video<https://register.liebertpub.com/elj-roundtable-restoring-trust> of an Election Law Journal roundtable on this topic, featuring Guy-Uriel Charles<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl>, Edward Foley<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl>, Richard Hasen<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl>, Lisa Manheim<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl>, Charles StewartIII<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl>, and Daniel Tokaji<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl>, and moderated by ELJ editor-in-chief, David Canon.

You can now read<https://www.liebertpub.com/doi/abs/10.1089/elj.2021.29000.rtl#utm_source=FastTrack&utm_medium=email&utm_campaign=elj> an edited transcript of the remarks.
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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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