“DNC postpones presidential convention until August 17”


The Democratic National Committee is postponing the party’s presidential convention in Milwaukee to August 17, the week before the Republican Party’s convention, a Democratic official briefed on the decision said. The delay from July 13 came after likely nominee Joe Biden publicly called for the convention to be rescheduled in response to the coronavirus pandemic.


Can Wisconsin Conduct a Democratic Election on Tuesday? Federal Judge and Ned Foley Suggest No

Milwaukee Journal-Sentinel:

A federal judge slammed Gov. Tony Evers and lawmakers Wednesday for ignoring their responsibilities by not postponing next week’s election because of the coronavirus pandemic as the Democratic governor prepared to deploy the National Guard to help at the polls.

“The State of Wisconsin’s Legislature and governor are not willing to step up and say there’s a public health crisis and make it absolutely clear that we should not be allowing poll workers and voters to congregate on April 7,” U.S. District Judge William Conley said near the end of a four-hour hearing. 

Conley said he did not believe he had the power to delay Tuesday’s election but would consider making some changes to voting rules. He said those who have brought lawsuits could come back to him after the election if they believe large numbers of people were disenfranchised. 

Conley gave his views of the case as Democratic presidential candidate Bernie Sanders called for delaying the election and Milwaukee Mayor Tom Barrett — who is on Tuesday’s ballot — said voters should vote absentee instead of going to the polls. Voting in person will be dangerous, Barrett said. 

Ned Foley:

Daniel Jacobson offers this provocative thesis:


“Top NC Republican Dismisses Ideas To Make Mail Voting Easier”


North Carolina’s top Republican lawmaker, Senate leader Phil Berger, said Wednesday he opposes some recommendations made by the North Carolina Board of Elections to make it easier to vote by mail because of the coronavirus pandemic.

Elections executive director Karen Brinson Bell has proposed a number of changes, including eliminating the requirement that mail ballots be signed by two witnesses or a notary, or only requiring one witness. She says that would encourage social distancing.

And she has proposed making it easier for people to request mail ballots.

In an interview with WFAE, Berger said he’s concerned that if North Carolina loosens its laws on mail voting it could cause problems similar to the 9th Congressional District mail ballot scandal in 2018.

“I understand that some progressive, liberal Democratic groups would like to roll that back and put us back to where we were,” Berger said. “I’m afraid that’s where the elections director would take us with her proposals.”

It is worth recalling that the 9th District scandal involved ballot tampering done to help a Republican candidate.


“Judge signals he will expand voting but not delay Wisconsin’s election amid coronavirus outbreak”


A federal judge is signaling he will not move next week’s presidential primary but will expand people’s ability to vote — possibly by allowing them to cast ballots by mail after election day because of the coronavirus pandemic.

U.S. District Judge William Conley will hold a hearing at 1 p.m. over what changes, if any, he should make to Tuesday’s election as mayors and clerks warn that voters and poll workers could be sickened and ballots could go uncounted.

In a video conference with attorneys Tuesday, Conley indicated he did not think he could change the election date but believed he could offer significant other help for voters. Conley did not allow reporters to listen in on Tuesday’s video conference, but three people familiar with his comments described them to the Milwaukee Journal Sentinel. 


“Loeffler reports more stock sales amid insider trading allegations”


U.S. Sen. Kelly Loeffler’s most recent financial disclosures show that millions of dollars in stocks were sold on her behalf at the same time Congress was dealing with the impact of the coronavirus.

The largest transactions — and the most politically problematic — involve $18.7 million in sales of Intercontinental Exchange stock in three separate deals dated Feb. 26 and March 11. Loeffler is a former executive with ICE, and her husband, Jeff Sprecher, is the CEO of the company, which owns the New York Stock Exchange among other financial marketplaces.

During the same time period reflected on reports filed late Tuesday, the couple also sold shares in retail stores such as Lululemon and T.J. Maxx and invested in a company that makes COVID-19 protective garments. The Atlanta Journal-Constitution got the first look at these reports, covering mid-February through mid-March and shedding new light on Loeffler’s financial transactions during the pandemic. Previous reports — which have put Loeffler in the national spotlight — covered her trading during the first six weeks of 2020.


“Gerrymandered by Definition: The Distortion of ‘Traditional’ Districting Principles and a Proposal for an Empirical Redefinition”

Yunsieg Kim and Jowei Chen have posted this draft on SSRN. Here is the abstract:

What are “traditional” districting criteria? The meaning of that term is critical to curbing abusive districting practices, because states must draw electoral districts according to those criteria to defeat claims of racial gerrymandering. Yet, the Supreme Court has never explicitly stated the qualities that make a districting criterion “traditional,” or given an exhaustive list of such criteria. Exploiting the Court’s failure to intelligibly define traditional redistricting criteria, conflicted interests are attempting to define that term in service of their private interests at the expense of the public’s. For example, legislatures pushing redistricting plans that would advantage a particular party or protect incumbents from competition claim that those districting objectives are “traditional”—and therefore must be judicially protected—by relying on anecdotal examples of a state having used them.

This Article proposes a definition of “traditional” districting criteria that would both curb such abuse and stay faithful to the commonly understood meaning of that word: widely accepted as standard practice. Under this alternative, which we call the empirical definition, a criterion is “traditional” only if a majority of the states require or allow it and fewer than a quarter prohibit it in state constitutions, statutes, or legislative guidelines. According to the empirical definition and our database of the redistricting laws of the fifty states, compactness, contiguity, equal population, and preserving county and city boundaries are traditional criteria. Among others, partisan advantage, incumbent protection, and preserving communities of interest are nontraditional criteria that should not be judicially protected.

In addition to the quantitative indicator, we argue that nontraditional districting criteria tend to be defined so as to be applied in a geographically inconsistent manner. Advantaging a certain party or protecting incumbents, by definition, requires disparate application, whereas preserving county boundaries applies regardless of whether a county votes Republican or Democratic. We also argue that preserving communities of interest is not traditional because it imposes a procedure instead of a substantively unambiguous districting principle, and because the term is so open-ended that it can be abused to justify nontraditional criteria such as partisan advantage or incumbency protection.

The empirical definition presents both legal and political advantages over the status quo. By presenting an objectively discernible definition of traditional criteria, the empirical definition would reduce the influence of undesirable judicial activism over election litigation. By excluding objectives such as partisan advantage or incumbency protection, it would also provide more constitutional protection from abusive districting.


Franita and Foley: Voting in the Time of the Virus, Part 2″

Beyond causing delays, COVID-19 will impact the many administrative and logistical aspects of the 2020 U.S. presidential election — from staffing to absentee ballot printing to vote counting. How can we prepare if we don’t know what to expect? What happens if there is a second wave of the virus? Is the coronavirus relief bill’s $400 million to protect elections enough? Election scholars Ned Foley (OSU Moritz College of Law) and Franita Tolson (USC Gould School of Law) welcome guests Nathaniel Persily (Stanford Law School) and Charles Stewart III (MIT Political Science) to discuss what needs to be done to prepare for Election Day.



11th Circuit Denies Rehearing En Banc in Florida Felon Disenfranchisement Case; Full Trial in April Over Felon Rights Likely to Lead to Greater Voting Rights

The 11th Circuit has denied rehearing en banc in a case concerning whether the Florida legislature’s attempt to make felons pay all fines and fees before having their voting rights restored under Florida’s Amendment 4 is unconstitutional.

The ruling so far applies only to the named plaintiffs, but there will be a trial in April about extending the ruling to the over one million former felons in Florida. Without that extension, there will be legal uncertainty and confusion that surely would depress the vote from this population.


“Voting rights groups sue state over extended Ohio primary”

Columbus Dispatch:

Voting rights advocates sued the state Monday over a new primary election plan state lawmakers adopted last week after polls were closed because of the COVID-19 outbreak.

The League of Women Voters, A. Philip Randolph Institute and four individual voters filed a federal lawsuit Monday alleging the plan violates the National Voter Registration Act and the First and Fourteenth amendments of the U.S. Constitution.

Immediate action is needed from the court “to prevent the state from compounding the current public health crisis into a crisis for democracy in Ohio,” the lawsuit said.

“Under the General Assembly’s undemocratic election scheme, thousands, if not millions, of Ohioans will not get to vote through no fault of their own,” said Jen Miller, executive director of the League of Women Voters of Ohio, in a prepared statement.

“Ohio’s inefficient absentee voting system wasn’t designed for this massive scale, especially under such an impossible time frame. We call on the justice system to ensure that Ohio’s primary is constitutional and accessible.”

The Ohio General Assembly last week unanimously adopted a bipartisan plan to extend absentee voting until April 28, with limited opportunities for in-person voting that day.

The first sheet of the 26-page lawsuit says lawmakers “ignored the pleas of bipartisan state and local elections officials, and imposed a cumbersome multi-step, multi-mailing process that will be impossible for elections officials and voters to complete in the time left before the election concludes.”

Research indicates that these changes “may hit Black and brown voters the hardest,” the lawsuit said.


“Wisconsin polling places are closing because there’s not enough people to work the April 7 election”

Milwaukee Journal-Sentinel:

Some election clerks are so short of workers because of the coronavirus pandemic that they are planning to shutter polling places around Wisconsin — including many of them in Milwaukee.

And at least one clerk is warning that some voters in the April 7 election won’t be able to return their absentee ballots in time to have them counted. 

Milwaukee needs about 1,400 poll workers to run its election but so far has fewer than 400, according to Neil Albrecht, director of the Milwaukee Election Commission. Another 300 workers are needed for the central location where absentee ballots are processed, but fewer than 50 had been hired as of last week.

Training those poll workers is difficult because health officials say people must stay 6 feet away from one another to slow the spread of coronavirus.


“What Happens in November if One Side Doesn’t Accept the Election Results? How coronavirus could contribute to a 2020 election meltdown.”

I have written this new big piece for Slate. Some snippets:

The November 2020 presidential election won’t be run perfectly—we have never had a perfect election conducted in this country or elsewhere—but the unique challenges posed by the coronavirus pandemic add special stress to what was already going to be a difficult election and underline the need to insure that it is run in a way that maximizes both voter access and integrity. Even before the current crisis I had been deeply concerned about the chances of a 2020 “election meltdown,” in which the 47 percent or more of the population on the losing side would not accept the results as legitimate. I am even more worried now because of the changes and shortcuts that will be necessary to successfully run November’s tally amidst a pandemic. Here is what we need to do to minimize the chances of a November meltdown….

The current public health crisis is only likely to increase the strains on voter confidence. In its massive economic aid package that was signed into law on Friday, Congress is providing only $400 million for states to deal with expected increased costs associated with running the election during the outbreak, a woefully inadequate amount given Brennan Center $2 billion estimate for additional needs. Congress rejected Democrats’ attempts to require states to offer a no-excuse vote-by-mail option in November for the one-third of the states that still require voters to offer an excuse to vote from home.

The lack of federal funding may negatively affect voter confidence in a few ways. First, if the pandemic is still limiting our ability to move freely about society in the fall, the amount of absentee balloting is going to explode whether Congress mandates an expansion of absentee balloting or not. We have already seen the huge growth in absentee ballot requests for Wisconsin’s April 7 primary, along with legal challenges surrounding the state’s Voter ID law . Vote-by-mail is an important step in assuring that even if the virus keeps people away from physical polling places, millions of Americans will have a means of avoiding disenfranchisement. But it is not perfect.

Vote-by-mail ballots are more likely to be rejected than other ballots, because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. Some disabled voters, meanwhile, may need to vote at physical polling places because they lack the physical ability to fill out a ballot at home. These voters too risk disenfranchisement. And in the 11 states without online voter registration, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours.

Further, some jurisdictions are going to be overwhelmed with the number of absentee ballots to process, whether because of the lack of scanners or workers. There will be stories of notoriously bad election administration in November, because we have some election offices in the country with poor leadership and inadequate resources—problems that will only be exacerbated by the stress of conducting an election under these conditions. Those stories will fit into a “stolen election” narrative, one likely egged on by Russians or others seeking to sow discord and undermine faith in our election. This will be on top of potential virus-related misinformation aimed at particular communities warning them against showing up to vote or telling them to vote at the wrong place or time.

Even worse, the need to process millions more absentee ballots without adequate funds and training means November’s election results could well be delayed. This is especially worrying in Detroit and Philadelphia, because both cities have a history of poor election administration and both of their states, Michigan and Pennsylvania, have recently adopted no excuse absentee balloting—and both states play a critical role in the outcome of the Electoral College that determines the presidency. Delay is going to lead to cries of fraud, when in fact good election administration—especially when dealing with absentee ballots—take time.

What if President Trump is ahead in Michigan and Pennsylvania on election night and he declares victory, but after millions of absentee ballots are processed a week or so later Biden is declared the winner in those states and wins the election? Will Republicans believe Trump if he claimed the later count was the result of fraud, despite all evidence to the contrary?

Meanwhile, when election fraud—as rare as it is—does actually happen in the United States, about a quarter of the time it is because of absentee ballot tampering. In some states it is legal for people to collect an unlimited number of completed absentee ballots from other voters, and that raises the danger not only of fraud but of folks on the wrong side of an election believing that fraud is happening. The kind of fraud that led the North Carolina state elections board to require a do-over of the 2018 race for the state’s ninth congressional district involved the collection and tampering of such absentee ballots. Already we are seeing the usual suspects on the right raise concerns that voter fraud will be rampant with increased vote by mail. Last week, for instance, Republican Rep. Thomas Massie (the same guy who objected to a voice vote on the federal coronavirus bill and made a majority of house members return to Washington. D.C. for a vote) tweeted that “Universal vote by mail would be the end of our republic as we know it.”


Trump Says If Rates of Voting Increased as Dems Proposed in Coronavirus Bill “You’d Never Have A Republican Elected in This Country Again”

Saying the quiet part out loud:


“Rev. Joseph E. Lowery, Civil Rights Leader and King Aide, Dies at 98”


The Rev. Joseph E. Lowery, a lieutenant to the Rev. Dr. Martin Luther King Jr. who helped organize a pivotal moment in the civil rights movement — the bus boycott in Montgomery, Ala. — and who gave the benediction at President Barack Obama’s inauguration more than half a century later, died on Friday at his home in Atlanta. He was 98.

The Martin Luther King Jr. Center for Nonviolent Social Change announced his death on Twitter.

Even before Rosa Parks refused to give up her seat on a Montgomery bus on Dec. 1, 1955, Mr. Lowery had successfully campaigned to integrate buses in Mobile, Ala., where he was a young Methodist minister. After Ms. Parks’s action, he huddled with Dr. King and other Alabama ministers to oversee a 381-day boycott of Montgomery’s segregated buses.

In November 1956, the Supreme Court ended racial segregation on buses in Montgomery and, by extension, everywhere else.

Mr. Lowery was at Dr. King’s side almost until the day of his assassination in April 1968. At Dr. King’s request, he presented the demands of voting-rights marchers from Selma, Ala., to Gov. George C. Wallace in 1965. Mr. Lowery also helped found the Southern Christian Leadership Conference, Dr. King’s signature organization, and led it for 20 years, from 1977 to 1997.


“Facebook, Google and Twitter Struggle to Handle November’s Election; After spending billions to avoid a repeat of 2016, the tech giants are careening from crisis to crisis as their foes change tactics.”


But as the events of just one day — Feb. 12 — at Facebook showed, although the companies are better equipped to deal with the types of interference they faced in 2016, they are struggling to handle the new challenges of 2020.

Their difficulties reflect how much online threats have evolved since the 2016 election. Russia and other foreign governments once conducted online influence operations in plain sight, buying Facebook ads in rubles and tweeting in broken English, but they are now using more sophisticated tactics such as bots that are nearly impossible to distinguish from hyperpartisan Americans.

More problematic, partisan groups in the United States have borrowed Russia’s 2016 playbook to create their own propaganda and disinformation campaigns, forcing the tech companies to make tough calls about restricting the speech of American citizens. Even well-funded presidential campaigns have pushed the limits of what the platforms will allow.


“If a presidential nominee gets coronavirus, we’re in uncharted territory”

The virus is prompting questions about what would happen if a presumptive presidential nominee or a nominee becomes incapacitated in a variety of circumstances: before the primaries have ended, after that but before the conventions, or after the conventions. I did a long interview with Vox that provides answers in these various circumstances, which we hope will not arise.

Here’s an excerpt on what would happen on the Democratic Party side if the nominee became incapacitated after the convention:

It’s nearly impossible to call back all the delegates for another convention, Pildes said. “You can’t reconstitute the convention, that’s just too unwieldy. At least to the Democratic Party, the rules specify the DNC in a circumstance like that would choose the replacement nominee for the party.”

So the number of people making the decision would be much smaller, reduced from thousands of delegates to about 447 DNC members, which are composed of state-elected members, current and former party officials (presidents, members of Congress, etc.), and representatives from party committees.

Here’s what the Democratic Party’s rules and bylaws say about the process:

Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.

For Democrats in 2020, that would mean DNC Chair Tom Perez would confer with House Speaker Nancy Pelosi, Senate Minority Leader Chuck Schumer, and New Jersey Gov. Phil Murphy (the current chair of the Democratic Governors Association) and then issue a report to the full 447-member DNC. The party as a whole would then meet, deliberate, and pick a new nominee.


“Amid coronavirus crisis, give clerks support, autonomy to conduct the November election”

Tina Barton, Kammi Foote and Paddy McGuire oped in the Detroit Free Press:

Today, more than ever before, local and state election officials across this country have the capacity to provide safe and transparent elections to all voters. We are calling on Congress and States to act now to provide the funding and local autonomy needed to protect the sanctity of this November’s election. 

Most of the current conversation in the midst of this national crisis has centered around the need for a significant increase in voting by mail, and we agree. However, it is a mistake for the Federal government to impose top-down, long-term sweeping structural reforms to how Americans vote. Critical decisions about administering elections should reside primarily with state and local governments, as provided for in the U.S. Constitution. What we do need from Washington are the resources to staff up and increase our capacity to deal with unanticipated problems.  …

Tina Barton is clerk of the City of Rochester Hills, Michigan. Kammi Foote is clerk/recorder and registrar of voters at Inyo County, Calif. Paddy McGuire is auditor of Mason County in Washington. 


“Two more lawsuits filed over Wisconsin’s spring election seeking to change how and when people vote during coronavirus”

Milwaukee Journal-Sentinel:

Wisconsin’s chaotic spring election got even more unpredictable Thursday as two new lawsuits were filed attempting to alter voting rules because of the coronavirus pandemic that has forced people to stay at home.

The lawsuits — the third and fourth to be filed over the April 7 election — come as clerks scramble to figure out how to safely run an election when they are short on poll workers and hand sanitizer and health officials say people should stay at least six feet from each other.

One of the new lawsuits, led by voter mobilization group Souls to the Polls, seeks to put off the election for weeks or months. It’s in line with a lawsuit Green Bay’s clerk filed this week to postpone the election.

The other suit filed Thursday seeks to allow people to cast absentee ballots without having to get a witness to sign their voting certificate.


Travis Crum: “The Curious Disappearance of Shelby County”

The following is a guest post from Travis Crum:

Earlier this week, the Supreme Court issued a decision that could have significant consequences for the constitutionality of the Voting Rights Act and other civil rights legislation applied against the States. The Court’s opinion in Allen v. Cooper is not your typical blockbuster, but it is the first time the Court has addressed Congress’s Reconstruction Amendment enforcement authority since its 2013 decision in Shelby County v. Holder invalidating the VRA’s coverage formula.

Even though the Court did not do so explicitly, Allen helps reconcile Shelby County’s equal sovereignty principle and Boerne’s congruence and proportionality test. Allen establishes that laws need not pass muster under both Shelby County and Boerne. Coverage formulas are governed by Shelby County, and nationwide statutes enacted pursuant to Congress’s Fourteenth Amendment enforcement authority are controlled by Boerne.

Let’s start with Allen. In 1990, Congress passed the Copyright Remedy Clarification Act, and, in so doing, relied on its enforcement authority under Section Five of the Fourteenth Amendment to abrogate state sovereign immunity in copyright suits. In Allen, the Court concluded that Congress failed to amass a sufficient legislative record to abrogate state sovereign immunity for copyright infringement. Most relevant here, the Court relied heavily on Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, a progeny of Boerne holding that Congress had not validly abrogated state sovereign immunity for patent infringement suits. As Justice Kagan’s majority opinion wryly observed, “Florida Prepaid all but prewrote our decision today.”

If Shelby County changed the standard of review for statutes enacted pursuant to Congress’s Reconstruction Amendment enforcement authority, Allen would not be a sequel to Florida Prepaid. Thus, what’s noteworthy about Allen is that it straightforwardly applies Boerne’s congruence and proportionality test even though it post-dates Shelby County. In fact, Allen does not even cite Shelby County. In many ways, Allen is the doppelgänger of Shelby County, where, as Rick Hasen has pointed out, the Court glaringly omitted any reference to Boerne.

As such, Allen is strong evidence that Shelby County’s equal sovereignty principle is an example of “freestanding federalism” rather than a specific limitation on Congress’s Reconstruction Amendment enforcement authority. I have previously argued this point (see here, here, and here), as have Leah Litman and Thomas Colby, so I will not belabor it here. Rather, I want to focus on the consequences of Shelby County being cabined to statutes that differentiate between the States. And here, a few hypotheticals are illuminating.

Imagine that a future Congress enacts a nationwide statute that prohibits States from discriminating on the basis of sexual orientation in certain realms, such as employment or adoption services. And to enforce that statute, Congress abrogates state sovereign immunity. As Allen makes plain, Shelby County’s equal sovereignty principle has nothing to say about that nationwide statute.

Now envision the inverse situation. Suppose Congress passes a statute under the Commerce Clause that expressly singles out a State for special treatment, say, a requirement that Illinois—and only Illinois—obtain federal pre-approval to make changes to its public employee pension fund. If the equal sovereignty principle is an example of freestanding federalism, then the statute would have to satisfy Shelby County. But if the equal sovereignty principle is tied to the Reconstruction Amendments, then it would not. In light of Allen, the Court would probably apply Shelby County, as the statute would impugn Illinois’s sovereignty alone.

These two hypotheticals address Shelby County’s concern with equal sovereignty, but what about its language that a statute’s “current burdens” must be justified by “current needs”? Suppose ten years from now a State seeks to overturn Nevada v. Hibbs, a 2003 decision upholding the FMLA’s family-care provision and its abrogation of state sovereign immunity. The State may argue that Congress’s findings were based on data from the 1990s and earlier—in other words, the FMLA has a constitutional shelf life.

The hypothetical State’s argument would seem like an ill fit for a permanent statute. After all, as the Shelby County Court repeatedly reminded us, Congress reauthorized the VRA in 2006 for twenty-five years but relied on the same data from the 1964, 1968, and 1972 elections as triggers for coverage. By contrast, Congress’s decision to abrogate every States’ sovereign immunity in the FMLA was intended to be not only nationwide but also permanent. The hypothetical State’s argument would also run counter to stare decisis: the Hibbs Court expressly followed Boerne and upheld the FMLA’s family-care provisions notwithstanding the lack of a termination date. Even assuming a future Court were concerned about outdated data, it would be difficult to square this concern with precedent. Put simply, if Shelby County were limited to coverage formulas, then its “current burdens” and “current needs” requirement could not be invoked to overturn precedent or challenge older, nationwide statutes.

To be clear, I am not here to celebrate Boerne. The congruence and proportionality test is no paper tiger, and the Court has invoked it to invalidate numerous civil rights provisions as applied to the States. Rather, my point is to demonstrate that Allen helps resolve the doctrinal mess left in Shelby County’s wake and makes clear that the equal sovereignty principle does not apply to nationwide provisions of the VRA like Sections 2 and 3(c). And because the Court has never held that Boerne applies to Congress’s Fifteenth Amendment enforcement authority, those provisions can still be defended under Katzenbach’s rationality standard.