Monthly Archives: July 2020

Ned Foley Op-Ed on the Legitimacy of the Fall Election

In the NY Daily News:

The elections will remain scheduled for Nov. 3. The question will be whether procedures to be used will be sufficient to permit every eligible voter wishing to participate to have an adequate opportunity to cast a ballot that will be counted.

Candor requires acknowledging that there will be challenges in satisfying this basic standard — challenges caused largely by conditions associated with coronavirus.

First, some voters may properly request mail ballots to which they are entitled by state law, but they may never receive them because of the failure of local election administrators (or the postal service) to deliver these ballots to the voters in time.

Second, some polling locations may have unreasonably long lines — several hours or more — that cause voters to forego casting a ballot because they cannot wait that long.

The primary elections this year saw both types of problems, and they probably will happen again in November.

But here’s a crucial point. As horrible as wrongful disenfranchisement is to the particular voters who suffer it, and as much as the electoral system should endeavor to avoid any wrongful disenfranchisement at all, what matters in terms of the capacity of the election to serve the purpose of collective self-government is whether or not the wrongful disenfranchisement affects the accuracy of the outcome.

Given the purpose of elections, the question ultimately is this: Is the candidate declared the winner the candidate that the electorate collectively wanted to win? If the answer is yes, then the system did not fail to serve its essential purpose even if there were problems. (Recall: President Obama needed to establish a commission after the 2012 election because of the long line problems that year, but those problems did not negate the validity of his victory.)

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Important: Preventable Fall Election Nightmare Looming in Michigan and States with Similar Policies

This story from Yahoo News is titled “GOP intransigence in Michigan could lead to a chaotic presidential election.” The story identifies an issue that I have been hammering away at since way back in March. There are going to be plenty of difficult issues to address, but this one is easy to fix:

A top Michigan official warned on Wednesday that, unless the Republican-controlled state Legislature passes a law to speed up the reporting of election results, it would be responsible for a chaotic and destabilizing election this fall. 

“Continued inaction by lawmakers, when we need their support and partnership now more than ever, will equate to a dereliction of duty,” Michigan Secretary of State Jocelyn Benson said on a conference call with reporters.

Benson, a Democrat, is the state’s top election official. She wants current laws changed in order to allow vote counters to be able to open mail-in and absentee ballots at least one day before Election Day. 

Benson said that if clerks are not enabled to start arranging the ballots for counting before Election Day, this will increase delays in reporting the results. For one thing, she said, “every single one of [the election officials] is already going to be dealing with several other issues” on the day of the election.  

“That will create a space to enable bad actors to falsely raise questions about the sanctity and security of our elections. That reality has implications not just for our voters but for the entire country,” she said.

Pennsylvania is another large, important state for the presidential election that has the same problem. Last I checked, lawmakers there had made a modest change in these policies, which now permit election officials to process the absentees starting at 7 am on Election Day. That’s still way too late.

I fail to understand why lawmakers in these states and others with similar policies are not changing policies to permit election officials to start processing absentee ballots earlier than usual, given the volume of absentees likely to be cast this fall.

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“The Hidden Mess That Could Cost Democrats Up to Two Points in November”

From David Wasserman at The Cook Political Report:

The real danger is a perfect catastrophe of administrative overload, postal delays and voter error that could lead to millions of absentee ballots not counting. And this year, unlike the past, those ballots are likely to be overwhelmingly Democratic.

The problem for Democrats? Absentee ballots are rejected at higher rates than those cast in person. And academic studies have shown that younger voters and voters of color, some of Democrats’ most reliable voters, are much more likely to cast mail ballots that are rejected and less likely to take steps to “cure” their ballots if election officials flag them for signature problems.

There’s a relatively low risk of a meltdown in states accustomed to processing large quantities of mail ballots, such as Colorado, Oregon and Washington (where all elections have been conducted by mail for years) along with California, Florida and Arizona. But many of the highest-stakes Electoral College states face steep logistical curves as they rush to adapt to the COVID era: in 2018, mail-in votes were just six percent of all votes cast in Wisconsin and Georgia, four percent in Pennsylvania and three percent in North Carolina.

Growing fears over rejection rates could prompt Democrats to renew their focus on emphasizing in-person early voting as a means for those at lower health risk to relieve the burden on states’ strained mail and Election Day infrastructure. But early in-person voting isn’t available in some states, and there’s no guarantee lines to vote early would be less crowded than voting on Election Day.

“If I were advising someone at lower health risk, I would say think about early in person voting,” says Stewart of MIT. “But go early in the process and don’t wait until the last minute.”

I have been a strong proponent of the view that in-person voting is going to remain critical this fall. I am concerned that, with all the pressures state and local election officials face, they will neglect investing the efforts and resources needed to ensure a robust in-person option for voters this fall.

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“State shifts position on COVID-19 and absentee voting in arguments before Tennessee Supreme Court”

TN law permits absentee voting only for one of 12 specified reasons. A lower court held, as a matter of state constitutional law, that no-excuse absentee voting was required, given Covid-19. The case was argued yesterday before the TN Supreme Court, and the Nashville Tennessean has this interesting account of the argument (I really like being able to post articles from local papers):

Throughout her opening remarks, Janet Kleinfelter, the attorney for the state, was asked questions by the five justices as she argued the lower court had erred in its ruling. At one point, Justice Sharon Lee seemed frustrated while pressing Kleinfelter on the state’s position that voters with underlying health issues or those living with people with such conditions would be allowed to vote absentee.

As Kleinfelter attempted to answer, Lee repeatedly reiterated her question.

“If the voter has made that decision, then yes, they may vote absentee,” Kleinfelter said. Lee asked Kleinfelter whether the state would communicate the point to voters, noting earlier such information was not clear on absentee ballot applications.

Kleinfelter’s comments seem to contradict previous interpretations by the state, possibly marking a shift in the state’s position. 

“In consultation with the attorney general’s office, the fear of getting ill does not fall under the definition of ill,” Elections Coordinator Mark Goins told The Associated Press in mid-May. 

On Thursday, Kleinfelter’s remarks to Lee’s questioning indicate the state’s interpretation of state law is slightly different than Goins’ previous statement.

The revised interpretation, based on her remarks to the court, would not block people with underlying health conditions from determining for themselves that fear of COVID-19 was a valid reason to apply for an absentee ballot. Kleinfelter said the same was true for those who care for people with underlying health conditions. 

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“Dark money and PAC’s coordinated ‘reopen’ push are behind doctors’ viral hydroxychloroquine video”

From NBC news:

A dozen doctors delivered speeches in front of the U.S. Capitol on Monday to a small crowd, claiming without evidence that the coronavirus could be cured and that widely accepted efforts to slow its spread were unnecessary and dangerous.

It was the latest video to go viral from apparent experts, quietly backed by dark money political organizations, evangelizing treatments for or opinions about the coronavirus that most doctors, public health officials and epidemiologists have roundly decried as dangerous misinformation.

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“Postal Service backlog sparks worries that ballot delivery could be delayed in November”

The Washington Post’s Michelle Lee and Jacob Bogage write:

The U.S. Postal Service is experiencing days-long backlogs of mail across the country after a top Trump donor running the agency put in place new procedures described as cost-cutting efforts, alarming postal workers who warn that the policies could undermine their ability to deliver ballots on time for the November election. […]


  1. DeJoy, a North Carolina logistics executive who donated more than $2 million to GOP political committees in the past four years, approved a series of changes that took effect July 13 that the agency said were aimed at cutting costs for the debt-laden mail service. They included prohibiting overtime pay, shutting down sorting machines early and requiring letter carriers to leave mail behind when necessary to avoid extra trips or late delivery on routes.
  1. The new policies have resulted in at least a two-day delay in scattered parts of the country, even for express mail, according to multiple postal workers and union leaders. Letter carriers are manually sorting more mail, adding to the delivery time. Bins of mail ready for delivery are sitting in post offices because of scheduling and route changes. And without the ability to work overtime, workers say the logjam is worsening without an end in sight.
  1. “I’m actually terrified to see election season under the new procedure,” said Lori Cash, president of the American Postal Workers Union (APWU) Local 183 in Western New York.
  1. “I vehemently weighed in that this is wrong,” said Mark Dimondstein, president of APWU, which represents more than 200,000 postal employees and retirees. “It’s wrong for the people of the country, it’s wrong for the public Postal Service. It drives away business and revenue. And it’s wrong for the workers.”

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“Democratic state party groups in traditional and emerging swing states are seeing a huge cash influx from donors looking to beat Trump”

For those of us who believe strong political parties, at both the national and state level, are important for a strong democratic system of politics and governance, this story from Politico identifies a noteworthy development:

Once ignored, underfunded and often written off, Democratic state party organizations are harvesting record-setting cash heading into the 2020 election, reasserting their roles inside the Democratic infrastructure after suffering for years in competition with super PACs and campaigns. . . .

State parties appear to be benefiting in part from an improved relationship with the Democratic National Committee leading up to this election and, now, a nominee who is more invested in the party apparatus than President Barack Obama was.

“For a long time, state parties were ignored during Obama’s presidency and they were incredibly weak,” said former Vermont Gov. Howard Dean, who chaired the DNC from 2005 to 2009, and described the shift of focus from the DNC and state parties to Organizing for America, the Obama campaign apparatus. “Now, they’re not [weak], which is a combination of increased competency among state parties and a donor base that’s outraged by Trump.”

Republicans, meanwhile, have also been building a strong in-state party structure for several years, investing in organizing in particular, with over 1,500 staffers on the ground in 23 targeted states. They’ve maintained more stable data-sharing relationships in recent years, an issue which has at times proven challenging for Democrats.

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How Greater Transparency Might Have Increased Polarization in Congress

That appears to be the conclusion of this new paper by Ed Stiglitz and Aviv Caspi entitled “Observability and Reasoned Discourse: Evidence from the U.S. Senate”. Free Download

Here’s the abstract:

Many private and public institutions depend on reasoned discourse to reach decisions. Before collective action, before voting, tends to come reasoned discourse, at least in aspiration. Reformers commonly call for increases in the transparency of collective decision-making, lobbying for instance for the Supreme Court to televise proceedings. Here, we examine reasoned discourse in one important public body, the U.S. Senate, and study how increasing transparency through the introduction of C-SPAN changed legislative discourse. We find that the introduction of C-SPAN encouraged member discourse to herd with co-partisans and to anti-herd with cross-partisans; it also appears to have led to the restructuring of Senate time to facilitate performative speech. Suggesting the information problems and career incentives at play, these herding and anti-herding effects seem strongest for those closest to an election and for those with less sophisticated constituencies.

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Pres. Trump’s Tweets on “Mail-in Voting”

With all the attention focused on his “delay the election” tweet, I want to highlight another aspect of this morning’s tweets about voting.

The President begins by praising absentee voting: “With Universal Mail-in Voting (not Absentee Voting, which is good) 2020 will be the most INACCURATE & FRAUDULENT Election in history.” But when he goes on in later tweets to offer concrete examples of why “mail-in voting” will supposedly be catastrophic, all the examples involve absentee voting, not “Universal Mail-in Voting” (or what I call full vote-by-mail).

In a later tweet, the most specific example he offers is from New York:

Donald J. Trump@realDonaldTrump·20h New York Mail-In voting is in a disastrous state of condition. Votes from many weeks ago are missing – a total mess. They have no idea what is going on. Rigged Election. I told you so. Same thing would happen, but on massive scale, with USA. Fake News refuses to report!

He also offers a video from a local reporter in Philly, which shows how slow the US Postal Service can be.

But New York does not have “Universal Mail-in Voting.” Nor does PA. They both have absentee voting, nothing more. In fact, only a handful of states have “Universal Mail-in Voting.” Instead, about 28 states now have no-excuse absentee voting — including many that would be considered “red states,” such as KS/ID/WY/SD/ND/NC/NV/NE/MT/GA/AK (a few of these states currently have divided government).   

To be sure, the current absentee process in New York is a mess, as I have blogged about several times. That’s not because it’s “rigged” (there is no evidence of that so far) but because of bad policy and bad administration. But that’s not because NY uses “Universal Mail-in Voting.”

In short, there is no logical relationship I can identify between the President’s praise of absentee voting, his condemnation of “Universal Mail-in Voting,” and the specific examples of problems he offers. But the President does seem to think absentee voting is “good.”

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World’s Head Explodes: Trump Tweets about “Delaying the Election”

If you think it’s only American media that’s been turned upside down by a tweet like this, I’m already doing interviews on the subject with German and Spanish television, and have turned down requests from still other countries.

              I’m saying the same thing about this that everyone else who knows the law is saying.  Some legal questions are complex, this one is not:  the President has no power to change the date of the election unilaterally.   The current date is fixed by statute.  For Congress to change it, a bill would have to pass the House and survive a filibuster in the Senate.

              On top of that, the Constitution, via the 20th Amendment, terminates the terms of current Senators and Representatives on Jan. 3rd and those of the President and Vice President on Jan. 20th.

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“FBI director Wray warns of China election interference”

From Axios:

FBI Director Christopher Wray and other intelligence community officials warned about China’s increased capability to interfere in U.S. elections in separate classified hearings with the Senate Intelligence Committee this week, two sources familiar with the hearings tell Axios.

What we’re hearing: Wray and other officials cited concerns that China is developing the ability to interfere with local election systems and target members of Congress to influence China policy, the sources said.

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“Intelligence disputes fuel rare public acrimony among Gang of Eight”

Troubling story from Politico about congressional oversight of potential foreign influence over the election:

The group of congressional leaders responsible for reviewing the nation’s most closely held secrets is engaged in an unusual and bitter partisan fight over how much information to share with the public about election interference —all while lawmakers and administration officials seek to prevent 2016-style meddling from foreign countries.

The public spat between the Democratic and Republican sides of the so-called Gang of Eight, less than 100 days before Americans go to the polls, is highly unusual for the group, whose obligations normally rise above the political fray and rarely descend publicly into the partisan squabbles that define Capitol Hill. . . .

The fundamental disagreement between the Democratic and Republican sides of the Gang of Eight centers on how much information about foreign threats should be made public. While Democrats have urged more transparency, Republicans have warned about the potentially dangerous precedent that would set. As a result, the Democratic and Republican sides of the group have issued dueling statements and demands on subjects on which they are normally unified.

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VP Pence Endorses Absentee Voting, Distinguishes it From Full Vote by Mail

In an interview on Fox News two nights ago, Vice President Pence endorsed absentee voting for this fall and drew a distinction between that and full vote by mail. Below is the relevant portion from a transcript of that interview. In reproducing it, I am not endorsing, of course, anything said here. But I think the VP’s endorsement of absentee voting is newsworthy.

According to the Washington Post, as of now, 77% of Americans will have the option of voting at home this fall.

Transcript –

MACCALLUM: With regard to the election, even a question raised today, two big issues that were raised today, one is the issue of mail-in ballots and here is what Representative Greg Stanton of Arizona said about that today. Watch this.


REP. GREG STANTON, D-ARIZ.: There are fears that you and the President are laying the foundation to interfere with the upcoming election specifically with vote by mail, as my colleagues have previously noted, because both of you have advanced false conspiracy theories about mail-in voting.


MACCALLUM: There are so many states in the country that already have mail- in voting, they’ve had it for a long time. Is there any reason not to accelerate or offer that opportunity to people given the COVID-19 pandemic? Is there anything that’s wrong with that in your mind?

PENCE: Well Martha look, what we’ve had in this country for a long time is absentee ballot voting by mail. We’ve had in the State of Indiana, I’ve voted in absentee myself since I get this job in Washington D. C.

MACCALLUM: Yes, you are right.

PENCE: And look, that requires a person request the ballot and then the signature is verified and we protect the vote. The integrity of the vote is paramount. I mean through the generations, Americans have worn the uniform, fought and died to protect all of our freedoms and the right to vote is at the heart of this democracy, and absentee balloting is a time honored tradition.

But what you see across this country in Democrat led states is an effort for universal distribution of ballots. Without the accountability that you have with absentee balloting, and when you combine that with states like California that actually allow what is called vote bundling or vote harvesting, you see where the entire ability for widespread fraud is very real.

And what you’re hearing from President Trump and you will continue to hear from this administration is a commitment to protect the one person, one vote, integrity of our electoral system, and we are going to stand strong on that.

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