Latest from Bleeding Heartland.
This is exactly what I’ve been worried about:
Philadelphia election officials stopped counting mail ballots Thursday and may not start again for days, warning that the outcomes of a number of races in Tuesday’s primary won’t be known for several weeks and that the city may miss a legal deadline for certifying the results.
The delay is due to the large number of mail ballots voters requested in the last week before the deadline, Deputy City Commissioner Nick Custodio said. He said the commissioners, who run Philadelphia elections, stopped counting them so workers can check poll books to ensure nobody voted twice.
Almost half of the votes cast Tuesday in Pennsylvania’s largest city will remain uncounted until next week.
“The outcomes of some races will not be known for weeks, and the candidates and campaigns should be prepared for that,” Custodio said Friday during a meeting of the city commissioners.
State law requires all votes be counted and certified to the state within 20 days of an election. That might not happen, Custodio said. He said at the meeting that the commissioners would look for ways to improve the process over the next several months “so that we are able to timely certify the November general election.”
Latest episode of Franita and Foley podcast:
In response to the Black Lives Matter protests, some are calling for people of color to “just vote.” But in a country with a history of voter suppression and disenfranchisement, is voting enough? Franita Tolson (USC Gould School of Law) responds to the hypocrisy of this suggestion in her American Constitution Society blog post, “Democracy as a Slogan.” In this episode, she and Ned Foley (OSU Moritz College of Law) discuss racial equality as an ongoing commitment, using the lessons from history that Tolson touches on in her essay, which can be read at bit.ly/DemSlogan.
The SF Chronicle reports.
Eliahyu Kamisher reports for The Appeal:
But a ban on direct campaign contributions will have relatively little effect on the influence of police unions, said Robert Stern, a former attorney who has worked extensively on California campaign finance reform. He noted that the majority of their money is funneled through political action committees, or PACs, that are not subject to contribution limits.
The Los Angeles police union (LAPPL), through two PACs, spent $1 million toward defeating Gascón, who is opposing incumbent Jackie Lacey in a November runoff election for district attorney. Law enforcement groups also spent over $650,000 to oppose Boudin’s contentious run for San Francisco’s top prosecutor role.
On Monday, the LAPPL focused its anger on Boudin and Gascón, accusing them in a statement of “exploiting the tragic and horrific death of George Floyd.” The union said there is no similar proposal to eliminate contributions from other special interest groups, including defense and civil attorneys. …
Stern said the bar is unlikely to regulate union spending or political support and a move to do so could run afoul of the First Amendment if taken to court.
“It’s more of moral suasion than it would be law, I just don’t see how the unions would be stopped from doing it,” said Stern, who served as the first general counsel of California’s Fair Political Practices Commission.
You can find the opinion here. We will see if the state appeals.
One interesting aspect of the opinion is the discussion of the supposed antifraud benefits of requiring in person voting: “The court notes that voters will be able to wear face masks when voting. These conditions obscure identity and undercut the defense that in-person voting during the pandemic poses less of a threat of voter fraud.”
Sue Halpern in The New Yorker:
A few weeks ago, when I asked the legal scholar Rick Hasen about a scenario, then circulating, that laid out a “legal” way for the Trump Administration to bypass elections and keep Trump in power, he said it would lead to rioting in the streets. That was before there was rioting in the streets, which has given the Trump Administration an opportunity to mobilize U.S. soldiers to police U.S. citizens, and local governments to deploy militarized police forces that have shown little respect for constitutional rights as they fire rubber bullets, deploy tear gas, and charge and beat peaceful protesters. The spectre of violence in the streets, which horrifies most Americans, appears to energize our self-declared “law-and-order President.” Certainly, it gives cover for greater surveillance and the thwarting of dissent. On Tuesday, as voters went to the polls in eight states and the District of Columbia, with many citizens under curfew orders, we saw a whole new way to keep citizens from voting.
New report from Tova Wang at the Ash Center.
You can read the court’s opinion by Judge Jerry Smith, along with separate concurrences by Judge Ho and Costa at this link.
The result is no surprise; see my May 19 post, Breaking: Federal District Court, in Sweeping Opinion, Holds That Texas Must Allow Voters Who Wish to Vote by Mail to Do So In Light of COVID, But The Opinion is Vulnerable to Reversal by 5th Circuit.
Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.
Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.
Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.
Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.
This would be a disaster for the general election. Our cross-ideological, cross-disciplinary committee report, Fair Elections During a Crisis, is unequivocal: “Online return of ballots should not be contemplated for the November 2020 elections.”
A consortium of scholars and groups has released this report. Here is the summary:
Seven states currently discriminate on the basis of age in their vote-at-home (also known as absentee ballot) systems. Specifically, Texas, South Carolina, Indiana, Tennessee, Mississippi, Louisiana, and Kentucky allow older voters to vote at home for any reason, but younger voters need specific excuses. Missouri may soon join this group of states if the Governor signs a pending bill to modify voting procedures during the COVID-19 pandemic.
In this novel report, a coalition including Equal Citizens, The Andrew Goodman Foundation, UCLA Voting Rights Project, Vote at Home Institute, and Stris & Maher LLP explains why these laws are unconstitutional under the Twenty-Sixth Amendment, which prohibits age discrimination in voting.
Today, a federal judge ruled that North Dakota’s process for absentee ballot verification will include a notification and remedy method for voters whose ballots are flagged for rejection due to signature mismatch. The decision comes in time for the state’s primary election on June 9 and will also apply to the November 3 general election.
The legal fight over the next round of redistricting in Wisconsin kicked off Wednesday, a full year before lawmakers begin drawing election maps.
The filing of a request to change state court rules by a former Republican legislative leader reflects the enormity of the political stakes. And it tacitly recognizes that it is all but certain to be courts that have the final say on what legislative and congressional districts look like for the next decade.
Where the lines are drawn plays a major role in determining who controls the Legislature and has an upper hand in the state’s congressional delegation. Republican lawmakers established maps in 2011 that handed them large majorities in the Statehouse and an advantage in five of the state’s eight congressional districts.
The move to keep any litigation in state court was brought by former Assembly Speaker Scott Jensen with the help of the conservative Wisconsin Institute for Law & Liberty. It seeks to put in place new rules to try to ensure the state Supreme Court — instead of federal courts — decides any redistricting litigation.
Both sides believe state court is a better forum for Republicans because conservatives control the Wisconsin Supreme Court. Litigation over the current maps played out before a panel of federal judges that dealt Republicans setbacks until the U.S. Supreme Court set a precedent in their favor in a pair of lawsuits from other states.
UPDATE: This hearing has been postponed until June 11.
The Philly Inquirer reports.
Ciara Torres-Spelliscy has posted this draft on SSRN (forthcoming, American University Law Review). Here is the abstract:
This piece discusses how the case Kelly v. United States, which was pending before the Supreme Court when this piece was written, was likely to expand two different developments in the Roberts Court’s jurisprudence: (1) expanding the constitutional protections for lying under the First Amendment and (2) narrowing the definition of corruption. This Piece describes how lower courts ruled in the Kelly case as well as arguments deployed by Kelly’s lawyers at the Supreme Court to try to exonerate their client Bridget Anne Kelly for her role in the Bridgegate scandal.
Epilogue: As this piece was being printed, the Supreme Court decided Kelly v. United States, 590 U. S. ____ , No. 18-1059 (U.S. May. 7, 2020). As predicted by the piece, the Supreme Court in Kelly expanded the Skilling case and narrowed what counts as corruption concluding “not every corrupt act by state or local officials is a federal crime.”
I’m very pleased to share the news that my friend, co-author, and co-blogger Dan Tokaji has been named the new dean of the University of Wisconsin Law School. Wisconsin is lucky to have Dan, who is so smart, judicious, patient, and modest.
President Trump has relentlessly attacked mail voting, calling it a free-for-all for cheating and a Democratic scheme to rig elections.
None of the charges are true.
But as eight states and the District of Columbia vote on Tuesday in the biggest Election Day since the coronavirus forced a pause in the primary calendar, it is clear that Mr. Trump’s message has sunk in deeply with Republicans, who have shunned mail ballots.
Republican officials and strategists warned that if a wide partisan gap over mail voting continues in November, Republicans could be at a disadvantage, an unintended repercussion of the president’s fear-mongering about mail ballots that could hurt his party’s chances, including his own.
In Pennsylvania, Iowa, Indiana and New Mexico, all states voting on Tuesday that broadly extended the option to vote by mail this year, a higher share of Democrats than Republicans have embraced mail-in ballots.
See also my April 20 NY Daily News oped, GOP War on Mail Ballots May Backfire.