“Frank LaRose needs to stand firm for voting access”

Cleveland Plain Dealer editorial:

Contrary to LaRose’s own pledges to do everything possible to help county elections officials prepare for an election in which record numbers are choosing to vote absentee, LaRose has used the power of his office improperly to make it harder for voters in Cuyahoga County and the state’s other urban counties to cast their ballots.

This week, Franklin County Common Pleas Judge Richard Frye confirmed what our editorial board wrote at the time — that LaRose’s August order forbidding county election boards from providing secure ballot drop boxes in more than one location was based on an incorrect reading of Ohio law.

The judge in his initial ruling this week left it up to LaRose to lift his prohibition based on LaRose’s statement that he would follow the law once a finding was issued. But when LaRose failed to lift the order, Frye the next day ordered him to do so — and LaRose appealed.

Equally troubling, when the Ohio Republican Party issued a scurrilous attack on Frye, an attack that was so over the top that Ohio Supreme Court Chief Justice Maureen O’Connor felt compelled to issue a sharp rebuke, LaRose was silent.

Jon Keeling, director of communication for LaRose’s office, told the editorial board that LaRose had made clear he sought a final verdict from the courts before acting, hence his appeal. Keeling said LaRose typically refrains from commenting on a pending legal matter.

But with less than three weeks to go before early voting starts, LaRose needs to explain actions that make it harder for elections officials — by law, two Republicans and two Democrats running election boards in every county in Ohio — to plan ahead and do their jobs.

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“As Courts Back Broad Mail-In Voting, DeJoy Apologizes for Missteps”

NY Times:

Courts on both sides of the United States issued rulings on Thursday that could expand mail-in voting in the election in November, as the postmaster general privately apologized to state officials for missteps in his agency’s efforts to educate voters on mail-in ballots.

In Pennsylvania, the state Supreme Court paved the way for more mail-in ballots to be counted by extending the due date they must be received by election officials and allowing expanded use of drop boxes.

In Washington State, a federal judge blocked operational and policy changes made by the Postal Service in recent months that have slowed mail delivery and amounted to “voter disenfranchisement.”

Postmaster General Louis DeJoy, who instituted those changes, conceded during a video conference with election officials on Thursday afternoon that he had failed to adequately consult with state election officials on a postcard that was sent to addresses nationwide to educate voters about mail-in ballots. The apology came as some state election officials had publicly clashed with the Postal Service over mail voting, including accusing Mr. DeJoy and his team of deliberately providing misinformation about how to vote by mail.

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“Trump’s bluster and millions hasn’t stopped universal mail-in voting plans”

Politico:

President Donald Trump has spent $20 million of his political war chest to stop it. He riffs about it at rallies. He tweets relentlessly about it.

Yet six months into a crusade to stop universal mail-in voting, Trump hasn’t yet prevented a single state from sending voters the unsolicited ballots he claims, with minimal evidence, are ripe for fraud.

His attempts in Nevada, New Jersey and Montana are tied up in court. His legal challenge in California was circumvented by the state legislature. And he hasn’t challenged the mailing of ballots in the six other states that plan to mail them, including Vermont, the last state that switched to full remote voting this year following the coronavirus outbreak, according to the Trump campaign and the Republican National Committee.

Time is running out. Ballots are already being sent across the country. Some counties in New Jersey began mailing them last week. Both Vermont and Nevada, a battleground state the president campaigned in last weekend, expect to mail ballots within days.

“Once the ballots have gone out, it’s hard to see how the courts could grant meaningful relief on the claims,” said Richard Pildes, a leading expert on election law and a professor of constitutional law at the New York University School of Law. “There would be no way to put the genie back in the bottle, no way to put the toothpaste back in the tube.”

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“Cash-strapped Trump campaign awaits a bailout from big donors”

Politico:

Republican Party megadonors are racing to bail out President Donald Trump’s cash-strapped reelection campaign, with a newly formed super PAC pouring a further$25 million into battleground states.

Preserve America is set to begin running a trio of TV commercials savaging Democrat Joe Biden as Republicans express growing alarm over the president’s absence from the airwaves. Trump — who went dark for part of August and has since cancelled advertising in key states — is being outspent more than 2-to-1 by Biden this week, according to the media tracking firm Advertising Analytics/

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What Else Do We Have to Worry About?

Edward Luce is one of the best analysts of Western democracy, as reflected in his 2017 book, The Retreat of Western Liberalism. In his piece in the Financial Times, on the nature of this fall’s election, he ends on this sobering note:

The scene is set for an October surprise. That could be Mr Trump unveiling a Covid-19 vaccine. Or it could be a war with Iran, or even a clash with China. The particular twist is anybody’s guess. But it will be something. Elections like this do not end with a whimper.

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“Federal judge issues temporary injunction against USPS operational changes amid concerns about mail slowdowns”

WaPo:

A federal judge in Washington state on Thursday granted a request from 14 states to temporarily block operational changes within the U.S. Postal Service that have been blamed for a slowdown in mail delivery, saying that President Trump and Postmaster General Louis DeJoy are “involved in a politically motivated attack on the efficiency of the Postal Service” that could disrupt the 2020 election.

Stanley A. Bastian, chief judge of the U.S. District Court for the Eastern District of Washington, said that harm to the public “has already taken place” by changes put in place under DeJoy. Bastian ruled from the bench Thursday afternoon after a two-and-a-half hour hearing.

“The states have demonstrated that the defendants are involved in a politically motivated attack on the efficiency of the Postal Service. They have also demonstrated that this attack on the Postal Service is likely to irreparably harm the states’ ability to administer the 2020 general election,” he said….

The scope and duration of the injunction were not immediately clear. In response to a question from defendants’ counsel, Bastian said he would provide more detail in the written order, which the judge said he plans to issue later Thursday or Friday.

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“How Republicans Undermined Ex-Felon Voting Rights in Florida: It’s a cautionary tale about the messy process of citizen-led ballot initiatives and how a dominant political party can exert its power”

NYT:

When voters passed the referendum, known as Amendment 4, civil rights groups celebrated what was billed as a potentially game-changing expansion of the electorate in the nation’s biggest battleground state. White people like Mr. Gruver represent a majority of the state’s former felons. But Black residents are disproportionately represented: More than one in five potential Black voters in Florida were barred from casting a ballot.

Nearly two years later, most former felons remain shut out of the ballot box over their inability to pay legal financial obligations. Of the about one million former felons in Florida — a conservative estimate — at least three-quarters owe court debt. Between 70 and 80 percent are indigent and unable to pay.

And even those who can pay face a Catch-22: Because there is no central database of court fines and fees, it is difficult or impossible to establish how much anyone owes. As of May, the state had failed to process any of the more than 85,000 voting registration applications submitted by former felons since Amendment 4 passed in late 2018.

“It has been a very long slog to change public opinion on the re-enfranchisement of felons, and it took millions of dollars and a lot of effort to get that initiative passed,” said Nathaniel Persily, a Stanford University law professor. “The idea that felons would then have to pay money in order to vote after being enfranchised is depressing.”

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“FBI director Wray says Russia is actively interfering in 2020 election to ‘denigrate’ Biden”

CNN:

According to Wray, Russia is using social media, proxies, state media and online journals to sow “divisiveness and discord” and “primarily to denigrate Vice President Biden and what the Russians see as kind of an anti-Russian establishment.”

Intelligence officials have said they have uncovered evidence that Russia is currently interfering in the election to hurt Biden’s campaign. Separately, some evidence has already emerged about Moscow’s efforts, including Facebook’s announcement earlier this month that a troll group that was part of Russia’s attempt to interfere in the 2016 election is trying to target Americans again.

But while the intelligence community has assessed that China and Iran prefer Trump to lose in November, officials have offered no indication, to date, that either country is acting on that preference in the same way as Russia, according to public statements issued by the intelligence community and sources familiar with the underlying evidence.

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“Trump Is Waging A Multistate, Multimillion-Dollar Legal Battle Against Mail-In Voting During The Pandemic”

Zoe Tillman for BuzzFeed:

President Donald Trump’s campaign and the Republican Party are devoting millions of dollars to wage a state-by-state legal battle against mail-in voting during the coronavirus pandemic, not only suing state officials but also intervening in cases where they aren’t a party to limit how Americans can vote from home.

BuzzFeed News identified at least 11 cases where the Trump campaign has asked judges for permission to intervene to defend state and local policies that voting rights advocates argue will make it harder for people to safely vote during the pandemic. That’s in addition to more than half a dozen lawsuits the campaign has filed with the Republican National Committee contesting efforts by Democratic governors and other state and local officials to expand mail-in voting.

It’s unusual to see a presidential campaign take such an active role in court leading up to an election, but the pandemic has made for an extremely unusual — and highly litigious — election year. As the US death toll continues to rise, Trump is throwing the weight of his campaign behind legal challenges in court and using his platform as president to try to dissuade Americans from voting by mail. At the White House, on the campaign trail, and on Twitter, Trump has repeated debunked and unsupported claims that the practice is tainted by widespread fraud and the specter of foreign interference.

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The Pennsylvania Supreme Court Decision

I want to highlight one intriguing aspect of this decision.  The state adopted no-excuse absentee voting in a law passed in 2019, before the pandemic.  That meant that the surrounding laws were not written for the volume of absentees likely this fall.

The state-constitutional law issue emerged out of conflict between three elements:  state law that permits voters to request an absentee ballot as late as 7 days before Election Day; state law that requires those ballots to be received by 8pm on Election Night; and the US Postal Service’s representations to the Secretary of the Commonwealth – in a letter from the USPS General Counsel – that it takes 2-5 days to deliver mail. 

You can add those numbers up yourself:  that means there is no guarantee that a voter who lawfully requests a ballot 7 days before the election, fills it out immediately and mails it back, would have their ballot delivered by Election Night and thus be able to cast a valid vote.  Given these circumstances, the majority concluded the state constitution required PA to treat absentees as valid if received up to 3 days after Election Day.

The circumstances required 3 more days in the election calendar.  Those days could have come at the back end but they could also have come at the front end.  And three judges on the court – one a Democrat, the other two Republicans (PA has partisan judicial elections) – agreed that the current laws were unconstitutional, but that the right remedy was to capture those 3 extra days at the front end of the process.  They would have held that the state constitutional violation should have been remedied by requiring voters to request an absentee 10 days (not 7) in advance of the election, and that the court should have preserved the state law requiring receipt by 8pm Election Night.

The argument of these judges was that the number of days in advance that a ballot has to be requested is fairly arbitrary.  There is nothing “magical” about 7 days in advance rather than 10.  Many states require the request to be made 10 or more days in advance, though many permit 7 days.  But this group of concurring/dissenting judges concluded that there was a more compelling legal reason for the state policy that all votes be in by Election Night – that is when the election is over.  So as between which of the two dates should be judicially changed, this group of 3 judges believed the request date, rather than the receipt date, should be changed.

I think many judges would believe that moving up the request deadline would seem like a policy choice that only the legislature could make, while moving back the receipt deadline was a more appropriate form of judicial remedy.  But whether there should be such a big perceived difference between these two options for courts is part of what makes this decision a rich one.

From a policy (not a legal) perspective, I have always been particularly concerned this election about late-counted ballots (maybe the issue won’t matter in the end, because few Pennsylvania voters will mail ballots back at the last minute).  That’s also why I thought this separate opinion for 3 judges raises such an interesting, alternative remedy. 

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Breaking: Pennsylvania Supreme Court Extends Absentee Ballot Receipt Deadlines, Allows Drop Boxes, Limits Poll Watchers from Other PA Counties. What’s Next?

Jonathan Lai for the Philly Inquirer:

The Pennsylvania Supreme Court extended the state’s mail ballot deadlines on Thursday, a move that could allow tens of thousands of additional votes to be counted — and will likely draw criticism from Republicans who have argued that all votes should be received by Election Day.

State law says mail ballots must be received by 8 p.m. on Election Day, but the high court said Thursday that ballots will be counted if they are received by 5 p.m. the Friday after the Nov. 3 election. To count, ballots arriving after Election Day must either be postmarked by Nov. 3 or have no proof they were sent afterward. Ballots that arrive by the new deadline with missing or illegible postmarks would still be counted.

In addition, the court held that state election law allows counties to use drop boxes for hand delivery of mail ballots; denied requests from President Donald Trump’s campaign and others to allow poll watchers to work in counties other than the ones where they are registered; and denied a request that other people be allowed to deliver voters’ ballots.

Majority opinion

Concurring opinion

Concurring and dissenting opinion

Concurring and dissenting opinion

This is litigation I’ve been following for a while, as it is among the most significant in battleground states.

This could lead to a Trump appeal to the U.S. Supreme Court, or, more likely, an attempt to revive federal constitutional issues in the case where the federal judge had initially abstained from deciding issues pending the state resolution of related issues.

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“Barr’s undermining of the election is downright dangerous”

I have written this oped for CNN. It begins:

By repeating false and misleading statements about the potential for voter fraud and post-election violence, Attorney General William Barr has stepped out of his role as the nation’s chief law enforcement officer and marred the 2020 elections. This parroting of President Donald Trump’s unsupported rhetoric is irresponsible and dangerous, turning the job of the Department of Justice as the protector of voting rights on its head.

This sowing of doubt in the integrity of our elections could be even worse than Barr’s other recent comments comparing prosecutors to children, equating Covid-19 health restrictions to slavery and suggesting that some political protesters should be charged with “sedition.”

It is perhaps too much to expect the attorney general of the United States to condemn Trump’s repeated and unsupported comments that the only way he can lose the upcoming election against his opponent, former Vice President Joe Biden, is if the election is “rigged.” A responsible attorney general, who would put the interests of the country over that of the president or party, would surely come out and say that Trump’s remarks cross a line.The remarks have inspired people such as Roger Stone (a Trump ally whose crimes including lying to Congress and whose sentence Trump recently commuted) to say that the President should declare martial law, seize ballots in Nevada and do whatever it takes to stay in power following the election.

But Barr has said it is “bulls–t” and “crap” to suggest that if the President loses he would stay in office and seize power, calling it “projection” by the left aimed at “creating an incendiary situation where there will be loss of confidence in the vote.”

If anyone is causing people to lose confidence in the fairness of the vote, it is Barr himself.

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“How a Pennsylvania law could delay presidential election results for days or even weeks”

Jon Ward:

If Pennsylvania has a repeat performance of its primary, America is in trouble.

Election results in Pennsylvania’s June 2 primary took weeks to be announced. And because it is such a crucial swing state, a similar delay in the Nov. 3 election could end up leaving the country unsure of who the next president will be long after Election Day.

But state officials told Yahoo News they’re confident that results won’t take as long to be announced in the fall election.

“That’s not going to happen,” said Wanda Murren, a spokesperson for the secretary of state’s office.

Murren said the biggest reason for delays during the primary was the consolidation of polling places. Because of COVID-19 and a shortage of poll workers, Philadelphia reduced what are normally more than 800 voting locations in the city to just under 200.

For the Nov. 3 election, Murren said, the city plans to have around its usual number of polling places for in-person voting.

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Former DNI Dan Coats in NYT Oped Calls for High Level Election Commission to Weigh In on Election Issues

Coats:

The most important part of an effective response is to finally, at long last, forge a genuinely bipartisan effort to save our democracy, rejecting the vicious partisanship that has disabled and destabilized government for too long. If we cannot find common ground now, on this core issue at the very heart of our endangered system, we never will.

Our key goal should be reassurance. We must firmly, unambiguously reassure all Americans that their vote will be counted, that it will matter, that the people’s will expressed through their votes will not be questioned and will be respected and accepted. I propose that Congress creates a new mechanism to help accomplish this purpose. It should create a supremely high-level bipartisan and nonpartisan commission to oversee the election. This commission would not circumvent existing electoral reporting systems or those that tabulate, evaluate or certify the results. But it would monitor those mechanisms and confirm for the public that the laws and regulations governing them have been scrupulously and expeditiously followed — or that violations have been exposed and dealt with — without political prejudice and without regard to political interests of either party.

Also, this commission would be responsible for monitoring those forces that seek to harm our electoral system through interference, fraud, disinformation or other distortions. These would be exposed to the American people in a timely manner and referred to appropriate law enforcement agencies and national security entities.

Such a commission must be composed of national leaders personally committed — by oath — to put partisan politics aside even in the midst of an electoral contest of such importance. They would accept as a personal moral responsibility to put the integrity and fairness of the election process above everything else, making public reassurance their goal.

We made a similar recommendation in our Fair Elections During a Crisis report.

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“Democrats scramble to soothe voter fears about in-person voting ahead of November election”

CNN:

After months of warnings about the risks posed by in-person voting in a push to expand access to mail-in ballots, Democrats across the country are increasingly focused on communicating to voters that it is safe to cast their ballots in a voting booth.

The shift comes after a national legal campaign has successfully resulted in expanded access to mail-in voting in nearly every state — prompting an unprecedented shift in the way millions of Americans will be able to vote due to the coronavirus pandemic.But as voting is set to begin in more states in the coming weeks, Democrats have settled on a strategy of emphasizing that all voting options, including in-person early and Election Day voting, are safe amid the pandemic.

Perhaps the most pointed urging for Democrats to physically go to the polls came from former first lady Michelle Obama’s primetime speech during the Democratic National Convention last month.

“We’ve got to vote early, in person if we can,” Obama said, as she urged Democrats to cast their ballots ahead of an election in which she said democracy itself was at stake.

The former first lady also did not miss an opportunity to urge voters to request their mail-in ballots as soon as possible. But her message to “grab our comfortable shoes, put on our masks” and head to the polls was a notable change of emphasis compared to her party’s laser-like focus on mail-in voting since the coronavirus pandemic began.

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“How the Campaigns Are Preparing to Win the Chaotic Election Aftermath”

Ben Jacobs:

With less than seven weeks to the general election, both Democrats and Republicans are preparing for a drawn-out fight to decide who serves the next four years in the White House — with at least some of the fighting taking place for an unknown duration after Election Day. There are some practical reasons for this: The contest will see an unprecedented number of absentee ballots and is occurring in the midst of a pandemic; there’s also the fact that the sitting president is, on an almost daily basis, making false and outlandish claims of voter fraud. But this election is also different in that increasingly both parties seem to be expecting chaos and uncertainty after votes are cast — and preparing for that chaos, with the hope of emerging triumphant, has become a key part of the overall campaign strategy. It’s a new political world in which November 3 doesn’t necessarily mark the end of the campaign but the beginning of a new phase.

Trump violates political norms on a daily basis, and the damage that his rhetoric and tweets have done to democratic institutions has altered American politics in fundamental ways. But top Democrats have now also begun talking about strategies for winning the post-election period that in the recent past would have fallen outside standard political norms for a presidential election. Recently, Hillary Clinton advised that “Joe Biden should not concede under any circumstances.” She continued: “I think this is going to drag out, and eventually I do believe he will win if we don’t give an inch and if we are as focused and relentless as the other side is.” A study group featuring Clinton’s former campaign manager, John Podesta, floated a scenario where Democratic governors of states that went narrowly for Trump might try to flip their Electoral College votes to Biden.

Campaigns have always prepared for legal issues. Ben Ginsberg, a veteran Republican election lawyer, told Intelligencer, “In normal times, campaigns approach Election Day and what comes after in terms of preparing for recounts and contests in terms of state law and federal overlay. They’ll still have to do that in 2020, but the reality is 2020 is going to be completely different because of the onslaught of absentee ballots, which stands to throw off the timing of election results.” (Ginsburg, who recently retired from the active practice of law, drew attention recently for his Washington Post op-ed that pushed back on Trump’s claim that elections, specifically those using absentee ballots, were “rigged” and noted that there are minimal cases of voter fraud in the U.S.)

What makes the fight over absentee ballots particularly thorny in 2020 is the expected partisan skew to them. Traditionally, there is a relatively minimal partisan variation to the mail vote, but the higher level ofconcern among Democrats over the pandemic combined with cries of fraud — particularly from Trump and Fox News — have changed the composition of the electorate that votes early. So far, in states that report absentee-ballot requests by partisan affiliation, over 7 million more Democrats than Republicans have requested ballots. In the August primary in the swing state of Michigan, between 70 and 80 percent of Democrats voted absentee, while only 45 to 55 percent of Republicans did the same.

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“Watchdogs demand election night clarity from the media”

Politico:

The unprecedented, pandemic-era 2020 election is bringing increased scrutiny to how the news media report the vote count and project who will be the next president.

The National Task Force on Election Crises, a consortium of election experts and academics, is urging major media outlets to detail how they plan to account for the expected surge of mail ballots in how they project winners, and are pleading for caution with calling a victor when results may still be inconclusive on election night.

The task force sent letters Wednesday evening to The Associated Press, Fox News and the National Election Pool, which includes the three broadcast networks and CNN, calling for the outlets to detail four things publicly: how they’re adapting their underlying exit polling data and voter surveys to account for an increase in mail ballots; how they’ll contextualize discrepancies from results released on Election Day and final results; how they’ll protect their decision desks from internal and external pressure on making election calls; and how they’ll cover a politician who declares victory before the outlets project a winner.

“We know that there is a furious race to call the winner in every election cycle. But this year needs to be different,” Rajiv Chandrasekaran, the head of policy and strategy at the Emes Project and a former editor at The Washington Post, said via a spokesperson for the group. “With such a large number of absentee ballots that will be cast in so many battleground states, the rush to be first could result in getting it wrong.”…

Of particular concern to the task force is how outlets will project winners in races in states that will see a wave of mail ballots with no historical precedent. Many decision desks rely, in part, on historical data to model the electorate — but states that have seen past mail voting rates in the single digits could climb as high as half of all voters this cycle.

“With a record number of mail-in and absentee ballots expected this election cycle because of the coronavirus pandemic, it is imperative for newsrooms to be transparent about their modeling and how they are accounting for an increase in vote by mail,” Avery Davis-Roberts, the associate director of the democracy program at The Carter Center and a member of the task force, said in a statement. “If the American electorate understands how the media will be addressing these challenges, they will have more trust in our democratic process.”

We made a similar recommendation in our Fair Elections During a Crisis report.

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“New Report: Republican-Controlled Senate Renders 116th Congress as Least Productive in History”

Release:

With mail-in voting underway and early in-person voting coming up in many states, Common Cause today released its 2020 Democracy Scorecard to help voters evaluate the records of their members of Congress.

The 2020 Democracy Scorecard provides data on every current member of the House of Representatives and Senate based on their votes for and co-sponsorship of key democracy reform bills, such as the historic For the People Act (HR 1). If enacted, the reforms would limit the influence of big money in our elections, end gerrymandering, and make it easier and safer to vote.

“What the 2020 Democracy Scorecard makes plain is the blatant disregard for democracy reforms in the Senate,” said Aaron Scherb, director of legislative affairs for Common Cause. “The House of Representatives passed nearly 10 democracy reform bills, often with bipartisan support, this session, but Majority Leader Mitch McConnell blocked debate and mark-ups on all of these bills and refused to allow a vote.”

“In fact, the Senate’s inaction has the 116th Congress on track to be the least productive in history, with just one percent of the bills becoming law,” said Scherb, author of the 2020 Democracy Scorecard.

To ensure all Members of Congress got a fair evaluation in the 2020 Democracy Scorecard, Common Cause sent each congressional office four letters listing the bills included in this year’s Scorecard to make sure every member of Congress knew which bills he or she was being evaluated on. Since these letters were sent, a combined total of more than 150 cosponsors have been added to these collective bills so voters can know what their Members of Congress are doing to protect our democracy.

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“Tribal nations face continued voter suppression”

High Country News:

In response to the COVID-19 pandemic, South Dakota encouraged voters to use absentee ballots in the June 3 presidential primary election. Although the state received almost 89,000 absentee ballots in the primaries— five times the number of absentee ballots cast in the June 2016 primaries — and voting increased across the state, voter turnout on the Pine Ridge Reservation remained low, at approximately 10%. As author Jean Schroedel explains in her new book, Voting in Indian Country: The View from the Trenches, barriers to Indigenous voting are nothing new. Absentee ballots may only make them worse.

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“Postal Service and State Officials Feud Over Mail Voting as Election Looms”

NYT:

The Postal Service postcard urging voters to “plan ahead” if they intended to vote by mail seemed innocuous enough.

But not to Colorado’s secretary of state, Jena Griswold, who dispatched her staff to call the Postal Service trying to stop it — a request that was denied — and then sued the agency in an effort to halt its delivery, arguing that the mailer was filled with misinformation that would disenfranchise voters in her state.

Such is the toxic state of the relationship between some state and local election administrators in both parties and the Postal Service six weeks before Election Day, as officials throughout the country scramble to prepare for what is expected to be an unprecedented flood of mail-in ballots in an extraordinary pandemic-era election.

The feuding suggests a pre-emptive blame game between the nation’s mail-delivery agency and those charged with administering and counting the vote, as the prospect of an operational and political crackup looms in November.

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“Wisconsin Elections Commission: 19 Reported Cases Of Possible Voter Fraud Over Nearly 2 Years”

WPR:

The violations were:

  • Seven reports of an undeliverable Election Day registration confirmation postcard.
  • Four reports of an individual attempting to vote twice in the same election by trying to cast a ballot in two different municipalities.
  • Three reports of an individual providing an incorrect address on their voter registration. 
  • Two reports of an individual attempting to vote twice in the same election, once by in-person early voting or voting by mail and once at the polls on election day. 
  • One report of a felon who attempted to register to vote.
  • One report of an individual providing unspecified incorrect information on their voter registration. 
  • One report of an individual attempting to vote twice in the same election, once by in-person early voting and once by mail

During the Wednesday commission meeting, chair Ann Jacobs, who was appointed by a Democrat, said it’s very important for people to be confident about election security. She pointed out the 19 reports of fraud, irregularity or violation represent a very small percentage of the ballots cast over the past several elections. For example, about 2.7 million people voted in the 2018 general election, according to the commission, and there were only four reports from clerks of fraud, irregularity or violation for that election. 

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“SC’s governor signs into law new COVID-19 election rules”

AP:

South Carolina Gov. Henry McMaster signed into law Wednesday changes in South Carolina voting rules allowing anyone to cast an absentee ballot without a reason in November’s general election to help fight the spread of COVID-19.

But the changes passed by the Republican dominated General Assembly did not include proposals pushed by Democrats including eliminating the requirement that a second person witness and sign the ballot and placing multiple drop boxes for ballots in counties.

State law still requires absentee ballots be mailed in or dropped off at county election commission offices in person. Voters can also cast absentee ballots in person at those offices for several weeks before Election Day.

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“Just Seven Weeks Out, Michigan Considers Election Law Changes”

Governing:

With seven weeks left until voters step into the ballot box — and even less time until voters can begin sending in absentee ballots — Michigan lawmakers are considering changes to the state’s election laws in anticipation of record absentee turnout.

On Tuesday, the Michigan Senate voted 34-2 to approve Senate Bill 757, legislation sponsored by Senate Elections Committee Chair Ruth Johnson, R-Holly, that would allow election officials in communities with at least 25,000 residents to start processing absentee ballots a day early.

It’s a step meant to help clerks handle an unprecedented number of voters choosing to cast absentee ballots in Michigan, although a number of clerks said Tuesday they hoped lawmakers will ultimately opt to give clerks even more time to pre-process absentee ballots so results don’t take days to tally.

But giving clerks more time to process ballots isn’t the only idea that’s emerged in the lead-up to Election Day. Below are some other proposals for changing Michigan’s election laws that legislators have taken up or could consider this fall.

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“New Tool to Analyze Political Advertising on Facebook Reveals Massive Discrepancies in Party Spending on Presidential Contest”

NYU:

Transparency in political ads is vital to ensuring safe and fair elections, but transparency is difficult if advertisers are not required to disclose details about targeting and sources of funding. While TV broadcasters must disclose information about political ads to the public, Facebook, which is used by nearly 70% of Americans and is a source of news for many users, faces no such federal requirements.

Damon McCoy, professor of computer science and engineering at the New York University Tandon School of Engineering, and doctoral student Laura Edelson — the team behind the NYU Tandon Online Transparency Project — are bringing transparency to political advertising with the newly launched, first-of-its-kind tool NYU Ad Observatory

Designed to help reporters, researchers, thought leaders, policy makers, and the general public easily analyze political ads on Facebook ahead of the 2020 U.S. elections, the web-based tool allows users to search by state, as well as major political races, to identify trends in how ads are targeted to specific audiences and what messages are being used, who is funding each ad, and how much they are spending to disseminate them. 

Recent findings include:

  • Since July 2020, Trump has spent twice what Biden has on ads across their respective Facebook pages.
  • In Colorado’s Third District, a House candidate who has been associated with QAnon, Lauren Boebert, has spent $32,000 on Facebook ads since July 1, while her Democratic opponent, Diane Mitsch Bush, has spent $20,000. Both are focusing on donations.
  • Twenty-two percent of Trump’s ad spending in that period has been focused on messages about the media.
  • In the two weeks ending September 8, Trump spent around $30 million in swing states on Facebook ads, most designed to secure donations. 
  • Between January and August this year, Rep. Alexandria Ocasio-Cortez, D-NY, spent $2.8 million on Facebook ads, more than any other candidate.
  • Nationwide, the top topic in Facebook political ads is President Donald Trump.
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Federal District Court Rips Louisiana for Rolling Back Voting During Pandemic without a “Scintilla” of Evidence of Widespread Voter Fraud

From the opinion:

Even under this standard, Defendants’ evidence is woefully inadequate. First, they offer not a scintilla of evidence of fraud associated with voting by mail in Louisiana. Strikingly absent is even a hint of fraud in the July and August primaries, where expanded mail voting was available to voters with COVID-19 comorbidities, caretakers, and others.
In fact, the Louisiana Commissioner of Elections, Sherri Wharton Hadskey (“Commissioner Hadskey” or “Hadskey”), testified that she was unaware of any incidents of voter fraud among mail voters in the July and August elections. With utterly no evidence of voter fraud in Louisiana, the Defendants bolster their voter fraud justification with two exhibits: a 2012 Grand Jury Report from Miami-Dade County, Florida that identified vulnerabilities in Florida’s absentee by mail voting process and a 2019 Order from the North Carolina Board of Elections ordering a new election in North Carolina’s Ninth Congressional District because the 2018 general election there was so “corrupted by fraud, improprieties, and irregularities so pervasive that its results are tainted. . .”

Defendants glaringly fail to acknowledge that, according to Secretary Ardoin, Louisiana “absolutely, without a doubt” ranks among the top five states for election security and election integrity. Asked about the prevalence of voter fraud in the state, Ardoin stated that “it has not been widespread” and that he believes it to be “a rare occurrence.” When it has occurred, he explained, it has been in connection with “local races, small races.” Ardoin demurred when asked if he knew the number of voter fraud prosecutions that have proceeded to trial in Louisiana, but stated that such trials are “very, very, very rare.” Likewise, former Secretary of State Tom Schedler in 2017 issued a statement that “Louisiana did not have any widespread irregularities or allegations of fraud” during the 2016 presidential election. Also, as Plaintiffs note, the database on voter fraud maintained by the Heritage Foundation contains only four known instances of voter fraud in Louisiana, none of which is related to absentee by mail voting and only one of which occurred after 2005.

Puzzling and left unexplained by the Defendants is why their concern over voter fraud presented no obstacle to the passage and implementation of the Emergency Election Plan for the July and August elections, which broadened the availability of mail ballots for COVID-19 reasons. Apparently Secretary Ardoin, the Louisiana legislature, and Governor Edwards were satisfied that expanding the availability of absentee by mail voting presented no grave threat when they approved the Plan on April 27, 2020, fewer than five months ago.

The Court is not persuaded by Defendants’ conclusory assertion that their interest in preventing voter fraud – which Defendant Secretary Ardoin testified only four months ago is “a rare occurrence” – is weighty enough to justify their roll back of COVID-19-specific allowances for mail voting.

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“Optimism and Despair About a 2020 ‘Election Meltdown’ and Beyond”

I have written this brief response to an upcoming Boston University Law Review online symposium on my recent book, Election Meltdown. Here is the abstract:

It is easy to assume that the author of a book called Election Meltdown thinks we are in a Dickensian “worst of times.” Adding to the feelings of despair is the condition of the United States since the book appeared in February 2020, with 200,000 American dead from coronavirus and millions more affected; systemic racism brought to the forefront of the national consciousness by the killing of George Floyd and the Black Lives Matter protests; President Trump’s decision to use force against protestors in Washington D.C. and beyond; and the President’s continued insistence without evidence that extended mail-in voting necessitate by the pandemic will lead to a stolen or rigged election.

Four of the contributors to this fine and generous set of Boston University Law Review symposium essays on Election Meltdown—Atiba Ellis, Ellen Katz, Lisa Marshall Manheim, and Lorraine Minnite—believe things are even worse than I described when my book first appeared in February, and particularly that systemic racism and voter suppression have contributed to a crisis not just of election administration but of American democratic legitimacy. Two symposium contributors, Anthony Gaughan and Derek Muller, believe that while we are not necessarily in the “best of times,” we can hope that forces such as free speech and a modern history of honest elections in the United States can save us from a November election meltdown.

My position falls somewhat between these two poles. A debacle is unlikely to happen in November, but thanks mostly to luck, not work. What is most likely to save us from a Twitterized Bush v. Gore 2.0 and possible post-election violence in November in neither an honest election system nor counter speech to combat election misinformation. Instead, simply speaking numerically about the margin of litigation, the odds are against an election close enough to go into overtime in a state crucial for the electoral college outcome.

But just as someone who runs a nuclear power plant would not ignore a small risk of a catastrophic meltdown of the reactor core, we cannot ignore that the four forces I described in my book—voter suppression, pockets of election administrator incompetence, dirty tricks such as Russian disinformation campaigns, and an increasingly incendiary rhetoric about stolen or rigged elections—could lead to a catastrophic breakdown of the American electoral process in a close enough election, especially given the social stresses exacerbated by the pandemic, injustice, and social unrest. If we dodge a bullet now, it is only because election administrators’ prayers are answered.

In this very short essay I first explain why the optimism of Gaughan and Muller is unwarranted, and that the American election system requires fundamental repair. I then explain that although the deeper pathologies in American democracy diagnosed by Ellis, Katz, Manheim, and Minnite (and some contributors to an earlier Balkinization symposium on Election Meltdown) are correct, that does not mean we will fail to have a decisive presidential outcome in November. Instead, their critiques point to the need for broader, more systemic change not just in American elections but American democracy. We should channel our despair into resolution to begin urgent work after we make it through this tumultuous election period.

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“Fragile Democracy: The Struggle over Race and Voting Rights in North Carolina”

New book from James L. Leloudis and Robert R. Korstad:

America is at war with itself over the right to vote, or, more precisely, over the question of who gets to exercise that right and under what circumstances. Conservatives speak in ominous tones of voter fraud so widespread that it threatens public trust in elected government. Progressives counter that fraud is rare and that calls for reforms such as voter ID are part of a campaign to shrink the electorate and exclude some citizens from the political life of the nation.

North Carolina is a battleground for this debate, and its history can help us understand why–a century and a half after ratification of the Fifteenth Amendment–we remain a nation divided over the right to vote. In Fragile Democracy, James L. Leloudis and Robert R. Korstad tell the story of race and voting rights, from the end of the Civil War until the present day. They show that battles over the franchise have played out through cycles of emancipatory politics and conservative retrenchment. When race has been used as an instrument of exclusion from political life, the result has been a society in which vast numbers of Americans are denied the elements of meaningful freedom: a good job, a good education, good health, and a good home. That history points to the need for a bold new vision of what democracy looks like.

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Ohio Supreme Court Chief Justice (a Republican) Condemns Ohio Republican Party Attack on (Democratic) Judge in Ohio Drop Box Voting Case

Whoa:

Chief Justice Maureen O’Connor of the Supreme Court of Ohio issued the following statement today:

I condemn in the strongest possible terms both the statement released by the Ohio Republican Party on September 15, 2020, and its unsigned authors. The statement disparages the integrity of Franklin County Common Pleas Judge Richard Frye.  The publication accuses Judge Frye of colluding with the Ohio Democratic Party and labels him a “partisan judge.”

Every one of Ohio’s 722 judges, 800 magistrates, and numerous active-retired judges should be greatly concerned and voice their dismay at the irresponsible Republican Party allegation that politics controlled the judge’s decision. This is a blatant and unfounded attack on the independence of the Ohio judiciary.

Contrary to the statements in this disgraceful, deceitful piece, judges don’t decide cases based on partisanship.  That would be easy.  It is also a mistake to say that there is not a legitimate case in controversy. The only thing clear about this matter is that the law is not clear, and it remains to be seen what the ultimate interpretation of the statute will be.

To accuse a judge of deciding the matter before him on partisan politics and further accuse the judge of “obstruction of his judicial responsibility” is without merit and is meant to further the false narrative that judges have no conscience, no legal responsibilities, and no capacity to decide what the law is beyond the raw politics of the issue.

The Republican Party’s statement should be seen for what it is: part of a continuing string of attacks against any decision that doesn’t favor a political end, regardless of party, even if that decision may be legally correct and indeed legally required.

I will not address the merits of the lower court’s decision. The case may very well find its way to the Supreme Court of Ohio, and I would be asked to weigh in then.  I will retain my independence and sit on the Court to hear the matter if it does.

Attacks on the judiciary only serve to undermine the public’s confidence in the courts.  Attacks such as these, no matter the source, reflect poorly, not on the judiciary, but on the leadership of those who would perpetrate them.

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‘Will the Election be Legit: How to Protect from Threats Foreign and Domestic’

BPC event:

                                       September 18, 2020 from 2-3p.m. ET

There are a number of serious threats facing the elections in November. From the spread of misinformation to safety and security concerns about both in-person and mail-in voting options, voters are experiencing a pervasive sense of mistrust and confusion. Moreover, all these factors will almost certainly lead to delays in the reporting of results, opening up the possibility that one or both parties will question or dismiss official totals as illegitimate. 

Please join us this Friday as we work to distinguish between fact and fiction, and discuss how we can still ensure the integrity of our elections this November. 

Panelists and Moderators

Donna Brazile | Former Interim Chairwoman, Democratic National Committee, Fox News Contributor, Adjunct Professor, Howard University @donnabrazile

Michael Steele | Former Chairman, Republican National Committee, CEO, The Steele Group, Former Lt. Governor of Maryland @MichaelSteele

Kathy Boockvar | Pennsylvania Secretary of State @KathyBoockvar@PAStateDept

Laurel Lee | Florida Secretary of State @FLSecofState

Moderated by:

Steve Scully | Political Editor, C-SPAN @SteveScully

Additional participants to be announced

Register now to receive a link to attend, and contact BPC’s director of media relations, Ari Goldberg, with questions

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“Whose America Is It?”

This well-researched Thomas Edsall NYT essay is my must-read piece of the day. It’s subtitled: “Apocalyptic terms” have taken over the 2020 election, with potentially dangerous implications.

I’m not going to try to post an excerpt, because it would be difficult to do that and honor the nature of the piece. But the full essay is an important read.

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New Election Administration Institutions

Pennsylvania, under divided government, nonetheless recently created a new “Election Advisory Board.” I’m flagging this because many of us have advocated for various forms of independent or bipartisan boards or commissions to oversee the election process. This new Board has the power to evaluate and recommend best election practices. There are still unresolved issues over critical voting matters in Pennsylvania, and I don’t know whether this Board intends to, and will be capable of, making any recommendations on these issues in the next month or so.

Given the interest on how these kind of bodies might be constituted and whether they can offer credible, non-partisan election-reform recommendations, I’m including the language from the Act on the appointments and duties of this new Board.

ARTICLE XIII-E

PENNSYLVANIA ELECTION LAW ADVISORY BOARD

Section 1302-E.  Pennsylvania Election Law Advisory Board.

(a)  Establishment.–The Pennsylvania Election Law Advisory Board is established within the Joint State Government Commission.

(b)  Members.–The board shall be comprised of the following members:

(1)  The Secretary of the Commonwealth or a designee.

(2)  The President pro tempore of the Senate or a designee.

(3)  The Minority Leader of the Senate or a designee.

(4)  The Speaker of the House of Representatives or a designee.

(5)  The Minority Leader of the House of Representatives or a designee.

(6)  One member from each congressional district, of whom no more than half may be registered with the same political party, appointed by the Governor and confirmed by the Senate and which shall include members who:

(i)  represent groups advocating for individuals with disabilities;

(ii)  represent groups advocating for voting rights; and

(iii)  represent county commissioners or county election officials.

(c)  Duties.–The board shall have the following duties:

(1)  Study this act and identify statutory language to repeal, modify or update.

(2)  Collaborate with other agencies and political subdivisions of the Commonwealth to study election-related issues.

(3)  Study the development of new election technology and voting machines.

(4)  Evaluate and make recommendations on:

(i)  improving the electoral process in this Commonwealth by amending this act or through regulations promulgated by the Department of State; and

(ii)  implementing best practices identified to ensure the integrity and efficiency of the electoral process in this Commonwealth.

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New book: “The Best Candidate: Presidential Nomination in Polarized Times”

Great lineup of contributors in this new book edited by Eugene Mazo and Michael Dimino’s, The Best Candidate: Presidential Nomination in Polarized Times. (20 percent discount from publisher with code: TBC2020)

Here is the Table of Contents


Introduction, by Eugene D. Mazo and Michael R. Dimino 
Chapter 1: Presidential Selection: Historical, Institutional, and Democratic Perspectives, by James A. Gardner 
Chapter 2: The Historical Development of the U.S. Presidential Nomination Process, by Richard H. Pildes 
Chapter 3: Constitutional Law and the Presidential Nomination Process, by Richard Briffault 
Chapter 4: Winnowing and Endorsing: Separating the Two Distinct Functions of Party Primaries, by Edward B. Foley 
Chapter 5: Simplifying Presidential Primaries, by Derek T. Muller 
Chapter 6: The Case for Standardizing Primary Voter Eligibility Rules, by Michael R. Dimino 
Chapter 7: Primary Day: Why Presidential Nominees Should Be Chosen on a Single Day, by Eugene D. Mazo 
Chapter 8, A Eulogy for Caucuses, by Sean J. Wright 
Chapter 9: Floor Fight: Protecting the National Party Conventions from Manipulation, by Michael T. Morley 
Chapter 10: A Better Financing System? The Death and Possible Rebirth of the Presidential Nomination Public Financing Program, by Richard Briffault 
Chapter 11: Campaign Finance Deregulation and the Hyperpolarization of Presidential Nominations in the Super PAC Era, by Michael S. Kang 
Chapter 12: Democratizing the Presidential Debates, by Ann M. Ravel and Charlotte Hill 
Chapter 13: The Influence of Technology on Presidential Primary Campaigns, by Anthony J. Gaughan 
Chapter 14: Women and the Presidency, by Cynthia Richie Terrell 
Chapter 15: The Nomination of Presidential Candidates by Minor Political Parties, by Richard Winger 
Chapter 16: Reforming the Presidential Nominating Process: A Curmudgeon’s View, by Bradley A. Smith  

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Ohio Judge Threatens To Issue Injunction (with the Potential to Hold Ohio SOS LaRose in Contempt) If LaRose Does Not Allow Drop Boxes

I wrote yesterday that it was quite odd that SOS LaRose was not going to comply with a declaratory judgment that he has no right to block the use of drop boxes for the return of Ohio ballots. “As a matter of Remedies law, a declaratory judgment is implicitly coercive. If LaRose won’t follow the declaration, it can be followed by a court order.”

The judge seems to feel the same way:

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“Should Congress Establish an Electoral Commission to Handle Disputes over the 2020 Presidential Election?”

Ilya Somin:

It’s no secret that, if the presidential election turns out to be close, there might be serious disputes over who actually win. President Trump has repeatedly suggested he might not accept an election result that goes against him, claiming that any such defeat would be the result of fraud. Many Democrats might at the very least be deeply suspicious of any close win for Trump. Add in the reality that increased mail-in voting might mean that the results will remain unclear for a long time after election day, and there is the potential for a serious crisis over disputed election results. In an insightful recent LA Times op ed, Yale Law School Prof. Bruce Ackerman and Democratic Rep. Ro Khanna, describe the potential dangers, and propose a possible solution…

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October 7: Georgetown Law at 150: Alumni and Faculty in Conversation: Voting Rights Panel (Virtual Event)

Very much looking forward in participating in this event, one of many marking Georgetown Law’s 150th anniversary (registration required):

Wednesday, October 7: Georgetown Law at 150: Alumni and Faculty in Conversation
Voting Rights Panel featuring:
Sylvia Albert (L’06), Director of Voting and Elections at Common Cause
Aderson Francois (Moderator), Agnes N. Williams Research Professor and Director of the Institute for Public Representation Civil Rights Law Clinic
Rick Hasen, Visiting Associate Professor at Georgetown Law, Election Law Analyst for CNN
Marc Morial (L’83), President and CEO of the National Urban League
Paul Smith, Professor from Practice at Georgetown Law, Vice President for Litigation and Strategy at the Campaign Legal Center
Andrea Young (L’79), Executive Director of the ACLU of Georgia

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“Sheldon Adelson is plotting a spending spree to help Trump with under 50 days left until the election”

CNBC:

Casino magnate and Republican megadonor Sheldon Adelson is plotting a spending blitz to support President Donald Trump with just under 50 days to go until Election Day, CNBC has learned. 

Adelson, CEO of Las Vegas Sands, is looking to spend around $20 million to $50 million in a last-ditch effort to help Trump overcome Joe Biden, according to people familiar with the matter.

Most of the money is expected to go toward the new pro-Trump super PAC, Preserve America, these people added. Other organizations, including the Trump campaign, the Republican National Committee and groups helping Republicans in Congress, could also see some of Adelson’s money. 

One of the people noted that Adelson’s team has recently been in touch with GOP officials close to Trump about where best to deploy the cash. Another person noted that Adelson was a major donor who helped get Preserve America up and running. The people declined to be named as these efforts are private.  

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