Election Law Blog

WaPo:

With less than three weeks to go before Nov. 3, roughly 15 million Americans have already voted in the fall election, reflecting an extraordinary level of participation despite barriers erected by the coronavirus pandemic — and setting a trajectory that could result in the majority of voters casting ballots before Election Day for the first time in U.S. history.

In Georgia this week, voters waited as long as 11 hours to cast their ballots on the first day of early voting. In North Carolina, nearly 1 in 5 of roughly 500,000 who have returned mail ballots so far did not vote in the last presidential election. In Michigan, more than 1 million people — roughly one-fourth of total turnout in 2016 — have already voted.

The picture is so stark that election officials around the country are reporting record early turnout, much of it in person, meaning that more results could be available on election night than previously thought.

ALI podcast with Ned Foley, Steve Huefner, Derek Muller, and Franita Tolson.

Justice Kavanaugh wants a response by Friday.

Trey Grayson and Robin Carnahan oped in USA Today.

Boston Globe:

More than 40 former congressional leaders, former Cabinet secretaries, retired military officials, and leaders of civic organizations have formed the bipartisan National Council on Election Integrity to ensure a democratic outcome to the 2020 election.

Zoom registration.

At the New Republic, from Jeff Sheshol, one of the leading scholars of the political battle over FDR’s Court-packing plan:

When Roosevelt finally struck against the court, at the start of his second term, his party held 76 of 96 seats in the Senate; he saw no reason why he could not persuade Congress to expand the court and, at the same time, renew his assault on the economic crisis. Yet his court plan cost him his mandate. It consumed Congress for nearly six months, dividing his supporters and driving some into the arms of the GOP. In May 1937—nearly four months into this war of attrition—Roosevelt proposed one of the most sweeping pieces of legislation of his presidency: a bill to ban child labor in factories and to create a labor standards board that would regulate wages and hours. He did this, in part, to change the subject. The gambit failed. The bill did nothing to draw recalcitrant Southern Democrats back into the fold. “To ask them simultaneously to support a national wages-and-hours law” and the court bill, this magazine observed, “is probably to ask more than human flesh is capable of.” 

The New Deal never regained its momentum. While the court plan did not create the divisions in the Democratic Party, it wrenched them wide open; it left the party raw and at war with itself. . . .

History, therefore, as well as political logic and math, counsel Biden against moving rashly. Even the more bullish blue-wave projections would give him nothing approaching FDR’s 60-vote margin in the Senate. At best, Biden might have three or four votes to spare. To advance his agenda—really, to do much of anything at all—he needs to avoid alienating Democratic senators like Joe Manchin of West Virginia with a costly fight over the court. He will also need the votes of senators who have just recaptured Republican seats (most likely in Arizona, Colorado, and Maine), as well as those who will face reelection in 2022 in states that are less-than-reliably blue: New Hampshire, for example, and Nevada. 

Of course, Biden’s calculus could change over time. The party’s left wing—as Senator Ed Markey has made clear—is determined to rebalance the court. And if oral arguments begin to look, increasingly, like meetings of a student chapter of the Federalist Society (“Government Overreach in the Wake of COVID-19” was the title of one such session in September at Baylor University), the court will find itself at odds not only with a Biden administration but with “the plainest facts of our national life,” as Chief Justice Charles Evans Hughes put it in 1937. Every time a bad decision comes down—a decision restricting abortion rights, for example, or discounting the effects of racial discrimination, or blessing the purchase of political influence by business interests, or constraining the government’s ability to address the climate crisis—the calls to pack the court will grow more insistent. We are no longer terrified of the phrase, but perhaps the justices in the majority should be. 

NYT reports.

WaPo reports.

Gear petition and Swenson petition. More at SCOTUSBlog.

Auburnpub:

A court has denied an appeal from Democratic candidate Dana Balter and the Working Families Party — a decision that will keep Steve Williams on the ballot and ensure there is a three-way race in the 24th Congressional District. 

The state Appellate Division, Fourth Judicial Department, affirmed a state Supreme Court judge’s ruling that restores Williams as the Working Families Party candidate in the 24th district. 

Andrew Appel blogs.

AP:

The Iowa Supreme Court on Tuesday swiftly granted a request from Republican groups to stay a judge’s ruling that blocked enforcement of an order that has been used to invalidate tens of thousands of absentee ballot requests.

The Republican National Committee, President Trump’s campaign and other GOP groups argued in an emergency petition filed Tuesday that Iowa’s election administration could be thrown into “chaos” if the ruling was allowed to stand.

Within hours, Chief Justice Susan Christensen released an order saying the full court had granted their request to put the ruling on hold pending further proceedings. She said the court will consider the merits of the case in the coming days….

Pate, a Republican, said his directive was intended to ensure uniformity in how the applications were mailed statewide. But Hanson found that it would harm the public’s interest in making voting by mail as easy as possible during the coronavirus pandemic, saying it appeared to be designed to limit the option.

Based on the directive, courts have invalidated absentee ballot applications that were mailed to more than 200,000 voters in three counties and that contained their identification information.

NY Post reports.

WaPo reports.

Political Wire:

David Wasserman: “It is absolutely imperative that every news outlet prepare viewers for the reality that unprecedented partisan polarization of early/Election Day votes makes lopsided batches of results expected, not suspicious, on 11/3.”

Jonathan Bernstein: “I think that’s the best way to put it. Those who have been following this topic know to expect a ‘red mirage’ as last-minute absentee-ballot voters, typically younger and therefore more likely to support Democrats, are the last to have their votes counted, with the process potentially stretching for days or even weeks after Election Day. There’s also some expectation that states where early and absentee votes are the first to be counted will show a big early lead for Joe Biden until in-person Election Day votes start getting tallied. But those are only general patterns, and some states may differ.”…

WSJ:

With only three weeks until Election Day, many states are already seeing historic levels of early voting as people cast their ballots through the mail in the middle of a pandemic.

Pennsylvania, Kentucky and Virginia have already received more early ballots than they did in the 2016 presidential election. Several other states have topped 2016 numbers for mail ballots returned, even as in-person early voting is opening up in much of the country.

So far, 8.2 million people have voted by mail in the general election and 835,000 headed to polling places early to cast ballots, according to figures from 35 states and the District of Columbia compiled by the Associated Press. For comparison, more than 58 million early ballots were cast in 2016.

Milwaukee Journal-Sentinel:

Groups seeking to allow late-arriving absentee ballots to be counted in Wisconsin are taking their case to the U.S. Supreme Court.

The push comes a week after an appeals court determined that none of Wisconsin’s voting laws should be changed because of the coronavirus pandemic. That means absentee ballots will be counted only if they arrive in municipal clerks’ offices by Election Day. 

Democrats, their allies and non-partisan groups hope to reinstate a lower-court ruling that would allow absentee ballots to be counted if they arrive after Election Day as long as they are postmarked by then.