Breaking: 5th Circuit Stays Lower Court Order on Challenge to Texas Absentee Voting Rules During a Pandemic, Creating Some Bad Law Along the Way

…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 non…

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St. Louis Law University Journal Publishes Election Law Symposium Issue, Including My Keynote Childress Lecture, ” Deep Fakes, Bots, and Siloed Justices: American Election Law in a ‘Post-Truth’ World”

Very excited about this, and grateful to Dan Blair, Chad Flanders and the folks at St. Louis U. that made this happen: Childress Lecture Deep Fakes, Bots, and Siloed Justices: American Election Law in a “Post-Truth” World Richard L. Hasen Truth, Democracy, and the Limits of Law Daniel P. Tokaji Motivated Reasoning, Post-Truth, and Election Law Guy-Uriel E. Charles Election Law Originalism: The Supreme Court’s Elitist Conception of Democrac…

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Yale Student Challenged by Incumbent on Residency Grounds Wins Right to Remain on NY Assembly Ballot

…staying on the ballot for Assembly District 73. Last Month, Assemblymember Dan Quart (D-Murray Hill, Lenox Hill) sued to remove his challenger, 22-year-old Cameron Koffman, from the ballot. The suit alleged that Koffman’s four years at Yale disqualify him from the assembly, which requires that candidates spend five continuous years as New York State residents prior to the election. On May 14, however, the First Department Court officially dismisse…

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Electoral college debate ft. Jamelle Bouie & Kate Shaw vs. Bradley Smith & Tara Ross

…olds its first two-on-two virtual debate, arguing over the motion “The Electoral College Has Outlived Its Usefulness“.New York Times columnist Jamelle Bouie and Cardozo law professor Kate Shaw argue in favor of the motion.Former FEC Chairman Bradley A. Smith and ‘Why We Need the Electoral College’ author Tara Ross argue against it.Audience vote will determine the winner, based on who…

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“Trump attacks decision to add in-person voting center in California House race”

…leading tweets. The race is between Democratic state assemblywoman Christy Smith and Republican businessman and ex-Navy pilot Mike Garcia. They are seeking to fill a seat left vacant by former congresswoman Katie Hill (D), who resigned in the fall. Whoever wins on Tuesday will hold the California seat through the end of the year. Regardless of the outcome, the two will face each other again in November for a full two-year term. Because of the coro…

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California: “Democrats Say Black Voters Are Being Disenfranchised In The Special Election To Replace Katie Hill In Congress”

…g,” said Kunal Atit, a spokesperson for Democratic candidate Christy Smith in a statement. “[We] call upon the Los Angeles County Registrar-Recorder/County Clerk to review and rectify this oversight.” Mark J. Gonzalez, who chairs the L.A. County Democratic Party, agreed. “Lancaster is the single most diverse part of the district, and yet the nearest voting center is nine miles away,” he said. “Registrar Logan&#8…

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May 6 U. Denver Event: Election Safety: A Panel Discussion

…ce and the best ways for elections to go forward in this challenging environment.Moderated by Seth Masket, director of DU’s Center on American Politics. The panelists are:–Rick Hasen, law professor, UC Irvine, with a specialty in election law–Dana Singiser, counsel at Keefe Strategies in Washington, DC, and election reform advocate–Dan Thompson, political scientist, Stanford University Wednesday, May 6, 2020 Noon…

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“Double-office seeker Dan Quart tries to get 22-year-old challenger thrown off Assembly ballot”

…Already hedging his bets by running for two offices this year, Assemblyman Dan Quart is looking to boot one of his challengers from the Democratic primary ballot. Quart — who’s seeking re-election to the Assembly at the same time he’s running for Manhattan DA — says his Assembly challenger, 22-year-old Yale grad Cameron Koffman, hasn’t been a New York resident long enough to qualify for the job…. State law requires Assembly members to have l…

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“Voting by Mail and Ballot Rejection: Lessons from Florida for Elections in the Age of the Coronavirus”

Anna Baringer, Michael C. Herron, and Daniel A. Smith have posted this draft. Here is the abstract: The coronavirus and its concomitant need for social distancing have increased the attractiveness of voting by mail (VBM). VBM voting is nonetheless not a panacea for election administration in the time of a pandemic, and this is because a widespread move to this form of voting risks exacerbating existing inequities in mail-in ballot rejection rate…

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Today’s Must-Read on True the Vote: “Conservative Operatives Float Plan to Place Retired Military, Police Officers as GOP Poll Watchers on Election Day

…is where the fraud happens,” said England. “We have to find people.” Brad Smith, a former Federal Election Commission member under President George Bush, echoed Engelbrecht’s warnings and called for participants to seek training from the Republican National Lawyers Association. “We need poll workers and we need good ones,” Smith added. Later during the discussion, Morton Blackwell, a member of the RNC, praised Engelbrecht’s proposal and said he w…

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“Spotlight turns to absentee voting in Wisconsin as reports surface of undelivered ballots”

…eadline for getting their ballots postmarked. “I learned today that the (state Elections Commission) received a call from a postal service worker informing them 3 large tubs of absentee ballots from Oshkosh and Appleton, were just located,” Republican Sen. Dan Feyen of Fond du Lac said on Twitter. Meagan Wolfe, the administrator of the Elections Commission, said she had been talking to the U.S. Postal Service about the situation but so…

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Florida Settles Voting Rights Suit Over Student Voting

…Early Voting on College Campuses in Florida, Professors Enrijeta Shino and Daniel A. Smith found: “[A] broad increase in the turnout of 18-22 year-olds who were exposed to the new opportunity to vote early in-person in facilities on the campuses of public universities and colleges. There is little question that after the eight SOEs and the participating college and university administrations built the new early voting locations, young voters came…

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“National Task Force on Election Crises Releases Guidance on How to Protect Elections in the Age of COVID-19”

…of Law and Director of the Center for Civil Rights, UNC School of Law Paul Smith, Vice President for Litigation and Strategy, Campaign Legal Center Wendy Weiser, Vice President and Director, Democracy Program, Brennan Center for Justice at NYU School of Law Robert Weissman, President, Public Citizen Lawrence Wilkerson, Former Chief of Staff to the U.S. Secretary of State *Organizational and academic affiliations are for identification purposes onl…

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“Wisconsin voter purge case appealed to state Supreme Court”

…that decision after the election. The court deadlocked 3-3 without Justice Dan Kelly’s participation when asked to take the case earlier, so he could be a deciding vote. The Wisconsin Institute for Law and Liberty, which is representing three voters, asked the state Supreme Court to expedite its consideration of the case so it can be resolved before the November presidential election. Wisconsin is a narrowly divided state that is expected to be on…

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“Symposium on Richard L. Hasen, Election Meltdown: Collected Posts”

…-Spelliscy, The Easy and Not So Easy Fixes to an Election Meltdown 4. Dan Tokaji, The Centrifugal Forces of Democracy 5. Stephen Griffin, Hasen’s Timely Warning 6. Franita Tolson, The Default of American Politics: The Perpetual and Never-ending Prospect of an Election Meltdown 7. Tabatha Abu El-Haj, Too Little Hope, Not Enough Gloom 8. Nate Persily, The Paradox of Political Problem Perception (or if you will, Pe…

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“Voting in the Time of Coronavirus: Gloves, Rumors and Disinfectant”; NYT Quoting Me on Need for Congressional Legislation to Deal with Possible Delays in Election 2020 Vote

…gued by issues nationwide involving quarantines and emergency measures. Al Smith, running as a Democrat for governor of New York, accused local Republican officials of calling last-minute bans on public gatherings to tamp down his support, rather than to prevent the spread of flu, according to a 2010 study of that election year. The outcome of a local judicial race in Idaho was eventually overturned in part because special arrangements were made t…

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“The Election Meltdown Paradox, and Broader Questions About the Health, Stability, and Future of American Elections and Democracy” (My Response to Balkinization Symposium on Election Meltdown)

…nistration In somewhat different ways, Tabatha Abu El-Haj, Franita Tolson, Dan Tokaji, Steve Griffin, and Guy Charles make the point that some of the pathologies described in Election Meltdown are better viewed as a crisis in American democracy than as simply a problem with the system used for the casting and counting of votes. In this reading, election maladministration is part of a larger story about systemic political and economic inequality in…

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Tokaji: “The Centrifugal Forces of Democracy” (Balkinization Symposium on Election Meltdown)

Dan Tokaji: Rick Hasen’s Election Meltdown tells a story of democracy in decline. Americans are riven by conflict, distrustful of one another, and bitterly divided over how we should run our elections. His book identifies four main culprits: vote suppression, administrative incompetence, dirty tricks, and overheated rhetoric about stolen or rigged elections. This constellation of problems, he contends, has diminished public faith in elections an…

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“N.C. Democrat frustrated with both parties after establishment backs her rival, GOP meddles in Senate primary”

…d Afghanistan wars who had run unsuccessfully for the Senate a decade ago. Smith was disappointed but didn’t bow out, despite struggling to raise money and snare endorsements. Then, a few weeks ago, Smith got an unexpected and unwelcome benefactor: a Republican-affiliated political action committee that started running ads touting Smith as the “true progressive,” while suggesting Cunningham does not support addressing climate change and LGBTQ righ…

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“Secretary of State Agrees to Settle Voter ID Lawsuits by Entering Into Consent Decree with North Dakota Tribes”

…up for the right to vote.” “We are pleased with the result of the settlement. It was a breakthrough for the state to recognize its responsibility to ensure that Native Americans have access to the identification needed to exercise their voting rights,” said Paul Smith, vice president at CLC. “In order to have a successful 2020 election, the state must follow through with a robust voter and poll worker education campaign to ensure…

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“GOP-affiliated group intervenes in Democratic primary for US Senate seat in North Carolina”

…endorsed by progressives and unions? Erica Smith,” says the ad’s narrator. “Who’s got the courage to vote for ‘Medicare for All’? Erica Smith. The number one supporter of the Green New Deal? Erica Smith again.””Erica Smith is one of us — a high school educator, engineer, state senator and ordained minister,” adds the narrator. “Vote Democrat Erica Smith for US Senate, the only prove…

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“‘A Systemwide Disaster’: How the Iowa Caucuses Melted Down”

…people and many of them might be newer to apps and that kind of stuff, it might have been worth doing a couple months’ worth of testing to make sure it is working correctly,” said Mr. Bagniewski, the Polk County chairman. Or, as Dan Callahan, the chair in Buchanan County, put it, “Some of our chairs use flip phones.” Unlike a primary run by the state government, caucuses are party affairs and they are powered by the dedication of a small army of v…

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“Taking Stock Of The Supreme Court’s Citizens United Decision, 10 Years Later”

…en 10 years since the Supreme Court’s landmark decision on Citizens United. We’ll look back at the last decade and take stock of the fallout. Guests Carrie Levine, senior reporter at the Center for Public Integrity. (@levinecarrie) Bradley Smith, professor of law at Capital University Law School. (@CommishSmith) Rick Hasen, professor of law and political science at the University of California, Irvine. (@rickhasen) John S. Adams, editor-in-chief o…

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“The Administration of Federal Campaign Finance Laws”

…discussed two new papers: Capital University Law School Professor Bradley Smith’s paper, “Feckless: A Critique of Criticism of the Federal Election Commission Structure, and Possible Lessons for the Administration of Campaign Finance and Election Law,” and George Washington University Law Professor Richard Pierce’s paper, “A Realistic Version of Campaign Finance Reform and Two Essential Steps Toward a Return to Effective Governance.” Pierce is af…

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Thank You to Justin Levitt and Dan Tokaji; And a Note About Election Meltdown Events to Come

I want to offer my huge thanks to Justin and Dan for filling in for me over the last 16 days. It is a lot of work for them because there is no off season in election law anymore. I think this is the longest I’ve been away from the blog since its inception in 2003. We were away on an adventure in Argentina (you can see pictures I’ve posted from the trip in the thread beginning here). It was great to recharge before the launch of my ne…

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Good night, and good luck

And now, I give you the inimitable Dan Tokaji, a national treasure. He’s at the helm for the next week. I can’t leave without thanking Rick, again, for keeping this forum so vigorously alive. It’s like drinking from a fire hose even over the holidays, when people really should have better things to do with their time. And every time I help for a short stretch, I’m reminded how staggering it is that he manages to do this d…

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“Voters in town once run by polygamous sect probably broke the law when they cast ballots, prosecutor says, but charges are unlikely”

…y. She still lives in Colorado City in what she says is temporary housing. Smith and Mohave County, Barlow said, have failed to appreciate the housing challenges in Colorado City, where many people loyal to imprisoned FLDS President Warren Jeffs have chosen to be evicted rather than deal with a local land trust that owns many of the homes. “I did not change my address,” Barlow said, “because I had nothing to change it to.” The story doesn’t state…

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“SEC Proposed Proxy Rules Changes—A Risk to Companies, Corporate Political Disclosure and Accountability”

…Bruce Freed, Dan Carroll, and Karl Sandstrom, at the Harvard Law School Forum on Corporate Governance, connect proposed SEC rule changes, raising ownership thresholds and limiting repeat attempts for shareholder proxy fights, to the battle over disclosure of corporate political spending….

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“Cash, claims of illegality already flying in Michigan’s Senate race”

…Here come the allegations of unlawful coordination.  And with it, your reminder that, as Dan Tokaji and Renata Strause explained years ago, in assessing the legality of campaign coordination, there’s often a “gap between the line the law draws and the line outside observers expect it to draw.”…

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Happy Holidays, Light Blogging, Then Guest Bloggers Through Mid-January

…the crazy 2020 election season starts in earnest and before the release of my new book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy and the accompanying book tour. Justin Levitt and Dan Tokaji will be guest blogging Dec. 30 to January 15. Please send any tips and feedback to them during that period. To all the ELB readers, wishing you a safe, happy, healthy, peaceful, and prosperous 2020!…

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“Right-Wing PAC Loses Challenge to Illinois Campaign-Finance Ban”

…he Illinois Liberty PAC is an independent expenditure committee founded by Dan Proft, a conservative radio talk-show host and former Republican candidate for governor. Under state law, an independent expenditure committee is a type of political action committee that may raise unlimited funds but it is prohibited from contributing any of that money directly to a candidate, party or another PAC. Taking its fight to court, Illinois Liberty claimed th…

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Election Meltdown Book, Book Tour, and Related Event/Ad Hoc Commission

…htening. In a slim, cogently argued analysis, legal scholar points to four dangers threatening the voting process in 2020 and beyond . . . Required reading for legislators and voters.” —Kirkus Reviews (Starred Review) From the nation’s leading expert, an indispensable analysis of key threats to the integrity of the 2020 American presidential election As the 2020 presidential campaign begins to take shape, there is widespread distrust of the fairne…

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“Comparative Election Administration: A Legal Perspective on Electoral Institutions”

Dan Tokaji has posted this draft on SSRN (forthcoming, Edward Elgar volume on comparative election law edited by Jim Gardner). Here is the abstract: This chapter examines the institutions responsible for administering elections around the world and considers what law, lawyers, and legal scholars might do to strengthen democracy through their improvement. A now-substantial body of literature examines election management bodies in both emerging an…

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Is Mike Bloomberg Breaking the Law by Continuing to Control Bloomberg News While a Presidential Candidate?[UPDATE: Probably Not]

…running for president to defeat Donald Trump and rebuild America,’” Smith said, citing Michael Bloomberg’s campaign website. However, Smith said he believes the better argument is that Michael Bloomberg and Trump aren’t officially considered opponents from a campaign finance perspective until they have secured their respective parties’ nominations.  “I don’t believe that the FEC or a court have ever ruled on this type of…

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Could California Appeal Today’s California Supreme Court Ruling on Presidential Candidate Tax Return Disclosure To SCOTUS? Maybe, Under Cases Arising Out of the 2000 Bush v. Gore Race

…independent state legislature doctrine (see this thorough piece by Hayward Smith), the state legislature gets to trump even the state constitution under Article II when it comes to setting the rules for choosing presidential electors. The Bush v. Gore concurrence offered a similar theory. To be clear: I’ve never bought this theory and think it is dangerous. I also think the tax return provision passed by the California legislature is deeply…

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“Campaign Finance Law Should Do More To Prevent Donor Harassment”

…Brad Smith oped in the Daily Caller. Although Brad correctly quotes me as saying that I support raising the donor thresholds, it is not because I believe there is a serious increase in unconstitutional harassment (I don’t). It is because I believe that there should be a realm of donor privacy for relatively small players in the political process—not much is gained when the public learns the identity of a $100 donor, for example….

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