Election Law Blog

From the WSJ:

THIRD-PARTY SENATE CANDIDATES could play key roles in some of the fall’s closest contests—in some cases with the help of a major party candidate. In South Carolina, where Democrat Jaime Harrison has run close to Sen. Lindsey Graham with the help of record-shattering fundraising, Harrison has paid for digital ads that use reverse psychology to promote Constitution Party candidate Bill Bledsoe, calling him “Too Conservative” for the Senate, a bid to get Graham voters to defect to Bledsoe. Graham’s campaign seems to have recognized the risk—Bledsoe dropped out of the race and backed Graham earlier this month, and Graham quickly promoted the endorsement. But Bledsoe’s name remains on the ballot.

Harrison is employing an oft-used tactic by Democrats in red states, said nonpartisan election analyst Dave Wasserman: “Try to lower your threshold for victory to ~48%.” A similar dynamic is at play in Maine, where Sen. Susan Collins narrowly trails Democrat Sara Gideon in polling averages. Collins is expected to be at a disadvantage because of the state’s ranked-choice voting system, where candidates outside the top two finishers have their votes reallocated to the top two based on voters’ second choices. Independent candidate Lisa Savage has urged her supporters to list Gideon as their second choice, while Max Linn, another independent, asked his voters to rank Savage second, depriving Gideon and Collins of extra votes.

ProPublica and Georgia Public Broadcasting:

The clogged polling locations in metro Atlanta reflect an underlying pattern: the number of places to vote has shrunk statewide, with little recourse. Although the reduction in polling places has taken place across racial lines, it has primarily caused long lines in nonwhite neighborhoods where voter registration has surged and more residents cast ballots in person on Election Day. The pruning of polling places started long before the pandemic, which has discouraged people from voting in person.

In Georgia, considered a battleground state for control of the White House and U.S. Senate, the difficulty of voting in Black communities like Union City could possibly tip the results on Nov. 3. With massive turnout expected, lines could be even longer than they were for the primary, despite a rise in mail-in voting and Georgians already turning out by the hundreds of thousands to cast ballots early.

Since the U.S. Supreme Court’s Shelby v. Holder decision in 2013 eliminated key federal oversight of election decisions in states with histories of discrimination, Georgia’s voter rolls have grown by nearly 2 million people, yet polling locations have been cut statewide by nearly 10%, according to an analysis of state and local records by Georgia Public Broadcasting and ProPublica. Much of the growth has been fueled by younger, nonwhite voters, especially in nine metro Atlanta counties, where four out of five new voters were nonwhite, according to the Georgia secretary of state’s office.

The metro Atlanta area has been hit particularly hard. The nine counties — Fulton, Gwinnett, Forsyth, DeKalb, Cobb, Hall, Cherokee, Henry and Clayton — have nearly half of the state’s active voters but only 38% of the polling places, according to the analysis.

As a result, the average number of voters packed into each polling location in those counties grew by nearly 40%, from about 2,600 in 2012 to more than 3,600 per polling place as of Oct. 9, the analysis shows. In addition, a last-minute push that opened more than 90 polling places just weeks before the November election has left many voters uncertain about where to vote or how long they might wait to cast a ballot.

This is from the latest Morning Consult Poll:

But as Nov. 3 has inched closer, questions over the U.S. Postal Service’s ability to deliver mailed ballots on time has prompted some Democratic organizers to encourage people to vote in person. Morning Consult/Politico polling shows that guidance may be resonating with the party’s base, with more Democrats saying they plan to cast their ballots in-person. 

An Oct. 8-10 poll found the share of Democrats who now plan to vote in person rose 12 percentage points, to 42 percent, compared with a July 31-Aug. 2 survey that gauged how they preferred to vote, while the share who plan to vote by mail was down 10 points from the 65 percent who said that was their inclination in the summer.

Another way to put these numbers is there has been about a 50% increase in the percentage of Democrats who now plan to vote in person compared to how they thought they would vote back in early August. I suspect this number is going to continue going up as we get closer to the election.

Perhaps the messaging that has been coming out encouraging voters to vote in person, to avoid various issues absentee balloting might generate, has been getting through; or perhaps voters are becoming more comfortable seeing voting as comparable to going to the grocery store or similar places that people have gotten comfortable going to with masks and social distancing in place.

Whatever the reasons, it’s extremely good news for the election process. The higher the percent of the vote that’s in-person, the more it diminishes the role of absentee ballots and the three main risks the latter pose: (1) mail delays; (2) rejection rates; and (3) significant delays in knowing who has won the election.

Wow.

Jamelle Bouie:

Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification, as she states at the outset of a paper she wrote called “Originalism and Stare Decisis….

Many Americans think the same, identifying the Constitution with the document drafted by James Madison to supplant the Articles of Confederation and create more stable ground for national government. But there’s a strong argument that this Constitution died with the attack on Fort Sumter on April 12, 1861.

The Civil War fractured an already divided country and shattered the constitutional order. What came next, Reconstruction, was as much about rebuilding that order as it was about rebuilding the South. The Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country. “So profound were these changes,” the historian Eric Foner writes in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,”

that the amendments should not be seen simply as an alteration of an existing structure but as a “second founding,” a “constitutional revolution,” in the words of Republican leader Carl Schurz, that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.

Whereas the Constitution of 1787 established a white republic in which the right to property meant the right to total domination of other human beings, the Reconstruction Constitution established a biracial democracy that made the federal government what Charles Sumner called the “custodian of freedom” and a caretaker of equal rights. To that end, the framers of this “second founding” — men like Thaddeus Stevens, Lyman Trumbull and John Bingham — understood these new amendments as expansive and revolutionary. And they were. Just as the original Constitution codified the victories (and contradictions) of the Revolution, so too did the Reconstruction Constitution do the same in relation to the Civil War.

NYT:

Progressive activists who want Democrats to expand the Supreme Court and pack it with additional liberal justices are mustering a new argument: Republican-appointed jurists, they say, keep using their power to make it harder for Americans to vote.

Backed by a new study of how federal judges and justices have ruled in election-related cases this year, the activists are building on their case for why mainstream Democrats should see their idea as a justified way to restore and protect democracy, rather than as a radical and destabilizing escalation of partisan warfare over the judiciary.

The study, the “Anti-Democracy Scorecard,” was commissioned by the group Take Back the Court, which supports expanding the judiciary. It identified 309 votes by judges and justices in 175 election-related decisions and found a partisan pattern: Republican appointees interpreted the law in a way that impeded ballot access 80 percent of the time, versus 37 percent for Democratic ones.

The numbers were even more stark when limited to judges appointed by President Trump, who has had tremendous success at rapidly reshaping the judiciary. Of 60 rulings in election-related cases, 85 percent were “anti-democracy” according to the analysis.

Glad to see the Washington Post weighing in the need for states like PA to permit processing of absentee ballots sooner than Election Day. How long have some of us been urging states to make this change? Since March, when the very first shutdown was imposed –as in my early warning cry on Reducing One Source of a Potential Election Meltdown. PA now has just three days of legislative sessions left to make this change.

Here is an excerpt from the WP editorial:

Yet there are still two politically pivotal states — Wisconsin (10 electoral votes) and Pennsylvania (20) — that permit no pre-Election Day ballot processing, even though both expect far higher than normal volumes of absentee voting. In Wisconsin, where county clerks have already received more than 785,000 absentee ballots — almost as many as in all of 2016 — the Republican legislature has not acted and has no plans to reconvene before Nov. 3, despite an appeal by the state’s GOP senator, Ron Johnson, to address the issue. In Pennsylvania, which is expecting 10 times more absentee ballots than in 2016, GOP legislators are commendably willing to allow ballot processing three days prior to the election. But they are attempting to trade their agreement for supposed election security measures, such as eliminating ballot drop boxes, that Gov. Tom Wolf, a Democrat, rightly opposes.

I’m less concerned about WI than PA. That’s because WI requires a witness signature on absentee ballots, instead of doing signature verification of the voter’s signature. That means the absentees can be processed more quickly in WI than states that have to go through the signature verification process.

Politico:

Behind the brewing legal battle is a nationally reverberating dispute over a 2016 California law authorizing third parties to collect filled-out mail ballots from voters and submit them to elections officials. Republicans here and in Washington have excoriated the process, saying it’s susceptible to fraud and allows liberals to manipulate election outcomes (a House Republican study raised security concerns but found no concrete instances of fraud in California).

After California Democrats swept competitive House contests in 2018, some California Republicans conceded that they had no choice but to match their counterparts by embracing the tactic. In leaked audio, National Republican Congressional Committee chair Rep. Tom Emmer said Republicans had to adapt after getting “their clocks cleaned.”

This week’s drama shows the party further embracing that change. In doing so, Republicans are trying to paint Democrats as hypocrites wielding a partisan double standard when it comes to election tactics. The party is “going to be ballot harvesting throughout the entire state,” Millan Patterson said.

That stance has echoed to the highest levels of national politics. Trump has constantly assailed California’s voting rules, but this week he repeatedly urged California Republicans to charge ahead, asserting on Twitter that Democrats have “been taking advantage of the system for years!”

California Republicans have acknowledged placing the boxes in three large counties that contain the most contested House races of 2020. And they’re exploring a similar tactic in other states that allow third-party ballot collection, albeit with more constraints than in California.

“Chairman Emmer has said repeatedly that anywhere Democrats have legalized ballot harvesting Republicans will play by the same rules those Democrats put in place,” NRCC spokesperson Torunn Sinclair said in a statement.

California is one of 26 states that allow a voter to designate someone to deliver their ballot, according to the National Conference of State Legislatures. The state has some the most relaxed laws on third-party collection based on the NCSL database; 12 states, for instance, limit the number of ballots that one person can collect to deter coordinated campaign efforts. California does prohibit payment for ballot collection

Rick Hasen, aprofessor specializing in election law at the University of California, Irvine, cited two potential “overlapping rationales” for California Republicans’ strategy.

“Number one is they’re trying to thread the needle between Trump’s claims of fraud with mail-in ballots and the reality that Republicans in California like elsewhere have long relied on vote by mail,” Hasen said, “and the other possibility is it’s a way of trying to highlight the Democrats’ laws that allow for ballot harvesting and to highlight the insecurity of the practice.”

Hasen said he supports curtailing California’s voter-collection law, such as limiting the number of ballots any given person can pick up and deliver. But he argued Republicans are pursuing a “bone-headed means of getting out the vote” given the potential for people tampering with the boxes.

“It just doesn’t seem like a very smart way to get out the vote,” Hasen said. “It would be far better for them to go door-to-door to Republican households.”

CSM reports.

New Brennan Center report.

AJC:

Voting slowed to a crawl across Georgia this week in large part because of check-in computers that couldn’t handle the load of record turnout at early voting locations.

The problem created a bottleneck as voters reached the front of the line, when poll workers had to deal with sluggish laptops to verify each voter. Some early voting sites reported checking in just 10 voters per hour at each computer.

The computer problem shows why poll workers struggled to clear long lines: They could only move as quickly as the technology would let them while managing 243,000 voters in the first two days of Georgia’s three-week period of early voting.

Secretary of State Brad Raffensperger initially attributed the lines to high turnout, which is part of the reason for delays. But it became clear from interviews with poll workers, election officials and voters this week that technical difficulties contributed to severe waits.

Raffensperger said Wednesday that he’s working with the state’s election software company to improve speeds and process voters more quickly.

Later in the day, his office said the state’s elections software vendor, New Orleans-based Civix, had increased bandwidth, resulting in immediate improvements reported by many counties. Wait times fell from over three hours to about one hour Wednesday afternoon at several early voting sites in metro Atlanta.