“Counties are asking for a change to help them tally votes faster. But as election day nears, Pa.’s legislature hasn’t acted on a bill to make that happen”

Posted on by

Here’s a detailed story from local news in PA about where things stand in the legislature about changing the law to permit the processing of absentee ballots before Election Day.

“It’s been frustrating, observing that there haven’t been really any constructive discussions about this, that we can tell, in public or behind closed doors,” said Pat Christmas, policy director at nonpartisan good government think tank Committee of 70. “The time that the counties would have to process these ballots – that’s a purely administrative change that should not have any implications one way or another, on one party’s … ability to win votes or not.”

Directors have been asking to begin pre-canvassing before Election Day since April, ahead of a vote-by-mail surge predicted for the primary. At the time, lawmakers punted. They did the same thing after the June 2 primary because they wanted data to inform election code changes. They’ve since received that data. 

“It’s mystifying to see this train coming at us, the counties, the voters – and for the legislature not to do anything about it,” Christmas said. “If Pennsylvania happens to have electoral votes that … could be the decisive ones in a presidential election — if that is the case, we’re asking for just an incredible amount of scrutiny during election week, and potentially beyond that if some ballots are being challenged.”

Share

“One Neat Trick that Could Save America from Vote-Counting Chaos”

Posted on by

The Rolling Stone covered the PA event that Michael Morley, Ned Foley, and I did on why PA is ground zero for potential ballot-counting issues and what the state can still do to minimize these issues.

The sub-heading to the piece is: “There’s an easy solution to dealing with the flood of mail-in ballots. Will Pennsylvania do it?” From the story:

Right now, Pennsylvania law only allows election clerks to begin sorting ballots at 8 a.m. on Election Day. Such a policy makes sense in a state where absentee voting typically makes up a small percentage of all ballots cast. But with Covid-19 raging, more than 2 million Pennsylvanian voters have requested absentee ballots for this year’s elections, which would smash previous state records for mail-in voting.

“If I could just have a magic wand to wave over one issue, it would be this issue [pre-canvassing] that sounds somewhat arcane,” Rick Pildes, an NYU law professor and election law expert, said at a recent panel hosted by Penn State University.

“The goal here is to think about ways a state can reduce risk,” Ned Foley, an Ohio State University law professor and election-law expert, said at the same panel. Foley said adding precanvassing in Pennsylvania was “the one single most important thing to do to mitigate risk and avoid a problem” come Election Day.

Share

“The collapse of the Cambridge Analytica conspiracy theory”

Posted on by

This is from The Spectator in the UK. I know nothing about the credibility of the U.K. Information Commission that undertook this three-year study, nor do I endorse The Spectator’s rhetoric. But I think readers will want to be aware of this report:

So there you have it. Cambridge Analytica was ‘not involved’ in the 2016 EU referendum. The digital marketing firm that Remainers love to hate did not swing the British electorate towards Leave, as we were constantly told. In the words of the Guardian, no doubt uttered through gritted teeth, Cambridge Analytica did not ‘directly misuse data to influence the Brexit referendum’.

These are the conclusions of the Information Commissioner’s extensive three-year investigation into Cambridge Analytica. Throwing a big bucket of cold water on the chattering-class belief that Cambridge Analytica stealthily and probably illegally harvested people’s online data in order to manipulate our minds and make us vote Leave, the Information Commissioner Elizabeth Denham said yesterday that, in truth, CA was not a significant player in the referendum, ‘beyond some initial enquiries’. . . .

Indeed, the Information Commissioner’s Office concludes that CA used online data in a fairly standard way. ‘On examination’, it says, CA’s methods were ‘well-recognised processes using commonly available technology’. That was always one of the most striking things about the anti-CA hysteria of the past four years – it struck many of us that this company was only doing what other political campaigns, including Barack Obama’s, had done, in terms of tapping into online data in order to build up potential audiences for political messages.

Share

Breaking: Federal District Court Rejects Trump Campaign Lawsuit Against Pennsylvania Drop Boxes and Other Voting Rules, Finding Fraud Claims Speculative; Appeal Chances Slim

Posted on by

138-page opinion.

It was pretty clear that’s where this one was heading, and I have serious doubts that the Trump campaign is going to do better if they try to appeal this up the appellate ladder. As I explained in my Slate piece, although Republicans have advanced a number of arguments that may appeal to some federal courts (like Purcell argument), arguments based upon the need for states to take more antifraud measures are losers because they are based on nothing more than speculation. Here’s what the district court said on that in today’s opinion:

The problem with this theory of harm is that it is speculative, and thus Plaintiffs’ injury is not “concrete”—a critical element to have standing in federal court. While Plaintiffs may not need to prove actual voter fraud, they must at least prove that such fraud is “certainly impending.” They haven’t met that burden. At most, they have pieced together a sequence of uncertain assumptions: (1) they assume potential fraudsters may attempt to commit election fraud through the use of drop boxes or forged ballots, or due to a potential shortage of poll watchers; (2) they assume the numerous election-security measures used by county election officials may not work; and (3) they assume their own security measures may have prevented that fraud.


All of these assumptions could end up being true, and these events could theoretically happen. But so could many things. The relevant question here is: are they “certainly impending”? At least based on the evidence presented, the answer to that is “no.” And that is the legal standard that Plaintiffs must meet. As the Supreme Court has held, this Court cannot “endorse standing theories that rest on speculation about the decisions of independent actors.” See Clapper v. Amnesty Int’l USA, 568 U.S. 398,
414 (2013).

The court also turned the kinds of rulings that have helped Republicans—about deferring to state processes—on its head when it comes to state measures easing burdens on voting during the pandemic:


Second, even if Plaintiffs had standing, their claims fail on the merits. Plaintiffs essentially ask this Court to second-guess the judgment of the Pennsylvania General Assembly and election officials, who are experts in creating and implementing an election plan. Perhaps Plaintiffs are right that guards should be placed near drop boxes, signature-analysis experts should examine every mail-in ballot, poll watchers should be able to man any poll regardless of location, and other security improvements should be made. But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials. See Andino v. Middleton, — S. Ct. —, 2020 WL 5887393, at *1 (Oct. 5, 2020) (Kavanaugh, J. concurring) (state legislatures should not be subject to “second-guessing by an unelected federal judiciary,” which is “not accountable to the people”) (cleaned up).


Put differently, “[f]ederal judges can have a lot of power—especially when issuing injunctions. And sometimes we may even have a good idea or two. But the Constitution sets out our sphere of decision-making, and that sphere does not extend to second-guessing and interfering with a State’s reasonable, nondiscriminatory election rules.” New Georgia Project v. Raffensperger, —F.3d —, 2020 WL 5877588, at *4 (11th Cir. Oct. 2, 2020). As discussed below, the Court finds that the election regulations put in place by the General Assembly and implemented by Defendants do not significantly burden any right to vote. They are rational. They further
important state interests. They align with the Commonwealth’s elaborate election-security measures. They do not run afoul of the United States Constitution. They will not otherwise be second-guessed by this Court.

We are still waiting on a ruling from the Supreme Court on a separate case coming from the state Supreme Court, one where Republicans may fare better.

Share

Texas: “US judge blocks Abbott order limiting ballot drop-off locations” (link to opinion)

Posted on by

Statesman:

A federal judge issued an order Friday night barring enforcement of Gov. Greg Abbott’s Oct. 1 proclamation that limited counties to one mail-in ballot drop-off location.

U.S. District Judge Robert Pitman said Abbott’s order placed an unacceptable burden on the voting rights of elderly and disabled Texans, who are most likely to request a mail-in ballot and to hand deliver those ballots early to ensure that they are counted.

These voters are also particularly vulnerable to COVID-19, the judge said.

“By limiting ballot return centers to one per county, older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted,” Pitman wrote.

From the court’s order on the Purcell timing issue:

Here, the Court has been asked, by Plaintiffs and Defendant County Clerks, to reduce or eliminate what would amount to executive-caused voter confusion on the eve of an election. Governor Abbott’s unilateral decision to reverse his July 27 Order after officials already began sending out absentee ballots and just days before the start of early voting in Texas has caused voter confusion. (See e.g. Hollins Decl., Dkt. 8-1, at 7). Even without declaratory evidence, it is apparent that closing ballot return centers at the last minute would cause confusion, especially when those centers were deemed safe, authorized, and, in fact, advertised as a convenient option just months ago. As such, the Court’s injunction supports the Purcell principle that courts should avoid issuing orders that cause voters to become confused and stay away from the polls. 549 U.S. 1, 4–5.

To the extent that this Court’s injunction to reinstate the ballot return centers does potentially cause confusion, the Court is satisfied that it would be minimal and outweighed by the increase in voting access. Since Governor Abbott closed previously-sanctioned centers, there is confusion: (1) confusion resulting from a voter trying to cast a ballot at a center she thought was open—because it used to be—but which is now closed or (2) confusion resulting from a voter trying to cast a ballot at a center that she thought was recently closed but is now open again.11 Between these two choices, the Court is of the opinion that the second scenario is the more favorable and just choice: it is the only choice that restores the status quo and likely reduces confusion on the eve of an election, and it results in a greater chance that a ballot can be cast at a ballot return center that was previously available to voters—after being vetted as safe and secure and publicly touted as a viable option to exercise voting rights. See Ely v. Klahr, 403 U.S. 108, 113 (1971) (affirming district court decision where “the court chose what it considered the lesser of two evils”).

Share

“Inside the Trump Campaign’s Strategy to Make Voting a Tooth-and-Nail Fight”

Posted on by

NYT:

When President Trump used the prime-time debate last week to urge his supporters to “go into the polls and watch very carefully,” he wasn’t just issuing a call for a grass-roots movement or raising the prospect of intimidation tactics at voting sites. He was also nodding to an extensive behind-the-scenes effort led by the lawyers and operatives on his campaign.

Over the summer, Mr. Trump named a new campaign manager, Bill Stepien, who was once a top aide to former Gov. Chris Christie of New Jersey before being fired amid the “Bridgegate” scandal. Mr. Stepien swiftly elevated a group of lieutenants focused on using aggressive electoral tactics, moves that led Marc E. Elias, the leading election lawyer for the Democratic Party, to tweet that Mr. Trump was “tripling down” on “opposing voting rights.”

One of the main architects of the effort is Justin Clark, whom Mr. Stepien promoted to deputy campaign manager. He has been viewed with suspicion among Democrats since he was recorded last year saying, “Traditionally it’s always been Republicans suppressing votes in places,” and adding that in 2020 the party would “start playing offense a little bit.”

Other key figures in the campaign include a senior aide who once oversaw a right-wing information-gathering operation for the conservative Koch brothers; an adviser who was involved in a secretive vote-challenge operation for President George W. Bush’s re-election campaign in 2004; and a campaign counsel who is coordinating a series of lawsuits aimed at preventing the expansion of mail voting.

With polls showing Mr. Trump trailing Joseph R. Biden Jr. nationally and in most swing states, the president has increasingly focused attention on the voting process, declaring that the only way he could lose is if the election is rigged and refusing to commit to a peaceful transfer of power. With the election less than a month away, his campaign has moved the idea of voting irregularities to the forefront of both its ground operations and its legal strategy.

The campaign is trying to shape the voting process in many ways. Following the president’s lead, it has undertaken a legal and rhetorical assault on mail-in balloting, claiming with no evidence that it is rife with fraud. It is also pushing the boundaries of traditional poll monitoring in ways that many Democrats believe amount to voter intimidation. And it has put legal pressure on states to aggressively purge their voter rolls.

Campaign officials tried to downplay Democratic anxiety and insisted they wanted everyone to vote who wants to do so.

Share

“Judge: Minnesota 2nd District election to take place Nov. 3”

Posted on by

AP:

A federal judge ruled Friday that the election for Minnesota’s 2nd Congressional District should proceed in November as originally scheduled, despite the recent death of a third-party candidate.

Democratic U.S. Rep. Angie Craig asked the judge to require that the election be held in November instead of being delayed until February — after the Sept. 21 death of Legal Marijuana Now Party candidate Adam Weeks triggered a state law that led to the postponement.

The court’s order is here.

Share

“The mystery of a GOP congressman’s seemingly rent-free campaign office”

Posted on by

Politico:

For at least seven years,GOP Rep. Jim Hagedorn appears to have enjoyed rent-free use of a campaign office supplied by a political donor — which would be a clear violation of federal election law that comes amid mounting scrutiny of his finances.

In dozens of filings with the Federal Election Commission, as early as October 2013 and as recently as last month, Hagedorn has listed a basement suite in a downtown Mankato, Minn., building as his campaign’s headquarters: Suite 7 of the Brett’s Building at11 Civic Center Plaza. But election spending records show Hagedorn has reported no payments for the use of that space over the course of the past four elections he’s run to represent Minnesota’s 1st Congressional District, including his current race.

Hagedorn’s campaign and the former owner of the building struggled to explain the situation.In recent interviews, they insisted there had been no impropriety but gave conflicting accounts of why no payments have been disclosed. It all adds up to a portrait of, at best, highly irregular or sloppy spending practices; at worst, it’s a breach of campaign finance law. Nonpartisan ethics experts, meanwhile, expressed deep skepticism with Hagedorn’s actions.

Share

“Ohio county says nearly 50,000 voters received wrong ballots”

Posted on by

Politico:

Nearly 50,000 voters received incorrect absentee ballots in the county that is home to Ohio’s capital, elections officials said Friday as they promised corrected ballots would be mailed within 72 hours.

With about 240,000 ballots mailed, that meant one in five voters received a wrong ballot. The error happened Saturday afternoon when someone changed a setting on a machine that places absentee ballots into mailing envelopes, Franklin County elections officials said Thursday.

Share

“Former Special Forces sought by business group to guard polling sites in Minnesota, company says”

Posted on by

WaPo:

A private security company is recruiting a “large contingent” of former U.S. military Special Operations personnel to guard polling sites in Minnesota on Election Day as part of an effort “to make sure that the Antifas don’t try to destroy the election sites,” according to the chairman of the company.

The recruiting effort is being done by Atlas Aegis, a private security company based in Tennessee that was formed last year and is run by U.S. military veterans, including people with Special Operations experience, according to its website.

The company posted a message through a defense industry jobs site this week calling for former Special Operations forces to staff “security positions in Minnesota during the November Election and beyond to protect election polls, local businesses and residences from looting and destruction.”…

The prospect of armed guards outside election sites alarmed election officials in the state. It is illegal in Minnesota for people other than voters and elections staff — or those people meeting the requirements to be a registered election “challenger”— to be within 100 feet of polling sites.

There are also laws against voter intimidation that could prevent armed civilians from being in the area even if outside the buffer, according to election officials in Minnesota.

Share

“The Trump campaign can’t have poll watchers at Philly satellite election offices, judge says”

Posted on by

Philly Inquirer:

A Philadelphia judge ruled Friday that President Donald Trump’s campaign does not have the right for poll watchers to observe activities inside the city’s new satellite election offices.

The campaign sued the city last week, arguing its representatives should be permitted inside the offices, where voters can request, complete, and submit mail ballots.

Common Pleas Judge Gary S. Glazer issued a ruling Friday denying the petition.

The lawsuit had echoed false claims Trump himself made during last month’s presidential debate, when he said “bad things happen in Philadelphia.” The campaign argued it had a right to observe the offices because they were marketed as early voting locations.

A lawyer for the city argued during a hearing this week that the offices are not official voting locations like polling places, and that campaigns have a right to observe the counting of mail ballots beginning on Election Day.

You can find the opinion at this link.

Share

“Twitter Will Turn Off Some Features to Fight Election Misinformation”

Posted on by

NYT:

Twitter, risking the ire of its best-known user, President Trump, said on Friday that it would turn off several of its routine features in an attempt to control the spread of misinformation in the final weeks before the presidential election.

The first notable change, Twitter said, will essentially give users a timeout before they can hit the button to retweet a post from another account. A prompt will nudge them to add their own comment or context before sharing the original post.

Twitter will also disable the system that suggests posts on the basis of someone’s interests and the activity of accounts they follow. In their timelines, users will see only content from accounts they follow and ads.

And if users try to share content that Twitter has flagged as false, a notice will warn them that they are about to share inaccurate information.

Share

“Intelligence chief briefed lawmakers of foreign influence threats to Congress”

Posted on by

The Hill:

The nation’s top intelligence official briefed lawmakers last month that foreign influence campaigns targeting Congress were more expansive than previously known, but a lack of specifics has left some with questions, multiple sources tell The Hill.

Director of National Intelligence John Ratcliffe led intelligence officials in separately briefing the House and Senate Intelligence panels behind closed doors on the threats, informing lawmakers that the burgeoning foreign influence threat is being perpetrated by the usual suspects: China, Russia and Iran, though he indicated that Beijing was the primary aggressor.

Ratcliffe gave ballpark estimates of how many lawmakers have been targeted, suggesting it is from the dozens to roughly 50. But in the briefings, he declined to identify which members of Congress were the targets and he did not indicate if one party was being more heavily targeted than the other.

Share

“Trump Engineered a Sudden Windfall in 2016 A Campaign Funds Dwindled”

Posted on by

NYT:

Donald J. Trump needed money.

His “self-funded” presidential campaign was short on funds, and he was struggling to win over leery Republican donors. His golf courses and the hotel he would soon open in the Old Post Office in Washington were eating away at what cash he had left on hand, his tax records show.

And in early 2016, Deutsche Bank, the last big lender still doing business with him, unexpectedly turned down his request for a loan. The funds, Mr. Trump had told his bankers, would help shore up his Turnberry golf resort in Scotland. Some bankers feared the money would instead be diverted to his campaign.

That January, Mr. Trump sold a lot of stock — $11.1 million worth. He sold another $11.8 million worth in February, and $7.5 million in March. In April, he sold $8.1 million more.

And the president’s long-hidden tax records, obtained by The New York Times, also reveal this: how he engineered a sudden financial windfall — more than $21 million in what experts describe as highly unusual one-off payments from the Las Vegas hotel he owns with his friend the casino mogul Phil Ruffin.

In previous articles on the tax records, The Times has reported that, in all but a few years since 2000, chronic business losses and aggressive accounting strategies have allowed Mr. Trump to largely avoid paying federal income taxes. And while the hundreds of millions of dollars earned from “The Apprentice” and his attendant celebrity rescued his business career, those riches, together with the marketing power of the Trump brand, were ebbing when he announced his 2016 presidential run.

The new findings, part of The Times’s continuing investigation, cast light on Mr. Trump’s financial maneuverings in that time of fiscal turmoil and unlikely political victory. Indeed, they may offer a hint to one of the enduring mysteries of his campaign: In its waning days, as his own giving had slowed to a trickle, Mr. Trump contributed $10 million, leaving many people wondering where the burst of cash had come from.

The tax records, by their nature, do not specify whether the more than $21 million in payments from the Trump-Ruffin hotel helped prop up Mr. Trump’s campaign, his businesses or both. But they do show how the cash flowed, in a chain of transactions, to several Trump-controlled companies and then directly to Mr. Trump himself….

The experts consulted by The Times said that in assessing the legitimacy of the payments, the central question was whether they were compensation for actual work done.

To that end, Mr. Shaviro, the N.Y.U. tax law professor, said it would be especially important to examine the deals cited by the president’s financial disclosures to justify some of the payments.

Nathaniel Persily, an election law expert at Stanford Law School, said that if the payments were not legitimate, and were then directed to Mr. Trump’s campaign, they would likely be considered illegal campaign contributions.

“If it turns out a corporation gave the campaign any money, that is illegal,” he said. “If an individual contributed any money exceeding the legal limits, that is illegal.”

The White House spokesman, Mr. Deere, did not answer The Times’s specific questions about the payments and any deals underlying them.

Share

RNC Chair (Positive for COVID) Cheers Appellate Court Victories Rolling Back Orders Making It Easier for People to Vote Safely During the Pandemic

Posted on by

Amazing:

Follow up:

Share

“Most voters confident their vote will be counted, poll finds. But partisans disagree on election threats.”

Posted on by

Nate Persily and Charles Stewart at The Monkey Cage:

Americans are worried about this election. And who can blame them? Each day, a new story, whether true, false or overblown, creates fresh anxiety about mail-in voting or polling places.

A battleground-state survey conducted by the Stanford-MIT Healthy Elections Project shows that registered voters harbor worries about voting in this election that diverge in predictable ways, given their partisan affiliations. Despite these worries, most are confident that their ballots will be counted accurately….

For every item concerning in-person voting, Democrats were more worried than Republicans. The greatest worries were “being near other voters” and “waiting in line with others.” Almost 60 percent of Democrats shared those concerns, compared with only 13 percent of Republicans. This divide reflects Democrats’ greater concern about the coronavirus pandemic and the risks of infection when standing near large numbers of people.

But when asked about voting by mail, Republicans are more worried than Democrats. 

Share

“An accidental candidate looms as wild card in Katko-Balter race for Congress”

Posted on by

Syracuse.com:

Steve Williams agreed to be only a temporary placeholder on the Working Families Party line until Democrats chose a candidate – ultimately Balter – in the June 23 primary election.

But now he’s stuck on the ballot, even though he’s backing Balter. His awkward position is the result of miscalculations by the Working Families Party and a lawsuit by Republicans, who want to block Balter from gaining a third-party line in the election.

Williams’ appearance on the ballot takes on added importance because a Siena College | Syracuse.com poll shows Balter (45%) and Katko (42%) locked in a statistical dead heat. The race is within the poll’s margin of error of plus or minus 5.1 percentage points.

If the election is anything like 2010, when Ann Marie Buerkle defeated Rep. Dan Maffei by 648 votes in the Syracuse-based congressional district, Williams could be a big factor in the final outcome.

Share

Federal District Court, While Excoriating Florida for Its Incompetence, Won’t Extend Registration Deadline After Last-Day System Crash

Posted on by

The court found that the burden on the state in keeping the system going outweighed the risk of disenfranchisement. The court’s order concludes:

The state could have extended the registration deadline until midnight on October 6th, which would have given these potential voters a fighting chance. Instead, the state chose to notify the public during a normal workday and gave them only seven hours to somehow become apprised of their rights and register, all while also participating in their normal workday, school, family, and caregiving responsibilities. One would expect the state to make it easier for its citizens to vote.
Unfortunately for these potential voters, this Court cannot remedy what the state broke under these circumstances. This Court must consider the consequencesof extending voter registration deadline. Having done so, the motion for preliminary injunction, ECF No. 3, is DENIED.
In so ruling, this Court notes that every man who has stepped foot on the Moon launched from the Kennedy Space Center, in Florida. Yet, Florida has failed to figure out how to run an election properly—a task simpler than rocket science.

Share

Well Now We Know What Ohio SOS Frank LaRose Really Thinks About Drop Boxes: He’s Appealed the Federal Court Ruling That Would Allow Them; With No Stay, Expect a Quick Ruling

Posted on by

Cleveland.com:

LaRose, a Republican, appealed within hours of the ruling. Polster declined to put a stay on his order, meaning it will take effect immediately unless the appeals court intervenes. If it stands, the ruling would allow Cuyahoga County to move forward with a plan to set up staffed ballot collection sites at six county library branches.

“The Secretary has not advanced any legitimate reason to prohibit a county board of elections from utilizing off-site drop boxes and/or off-site delivery of ballots to staff. Voting began October 6, the Cuyahoga County board voted to begin collecting ballots at public libraries on October 13, other county boards may now vote to implement plans for off-site collection, and it is time for this litigation to end,” [the court] wrote, ruling in favor of a lawsuit brought by a group of voting-rights advocates.

In a statement, LaRose spokeswoman Maggie Sheehan said: “Voting has begun, and Ohio’s elections are safe, secure and accessible. The place to make changes in how we run our elections is the Statehouse, not the courthouse.”

Share

“Elliott Broidy, a Top Trump Fund-Raiser, Charged in Foreign Influence Case”

Posted on by

NYT:

The details of the accusations against Mr. Broidy are especially striking: They include a promised $75 million success fee from Mr. Low and discussions about arranging for Malaysia’s prime minister to play golf with Mr. Trump. But they follow a pattern that has become familiar since Mr. Trump began seeking the White House.

People who had backgrounds or were pursuing business that was likely to have raised red flags in other campaigns and administrations marketed themselves as intermediaries to individuals, companies and countries wanting something from the Trump administration. They were able to do so because Mr. Trump ran for office and came to Washington without the established networks of gatekeepers, lobbyists and fund-raisers that typically surround a president.

 number of Mr. Trump’s associates have been charged in the nearly four years since he was elected. Among those who have pleaded or were found guilty of charges related to their work for him are Michael T. Flynn, the former national security adviser whose case the Justice Department is now seeking to dismiss; George Papadopoulos, a former campaign adviser; and Roger J. Stone Jr., a longtime friend whose sentence the president commuted.

Mr. Trump’s former campaign chairman, Paul Manafort, and his deputy, Rick Gates, were charged with lobbying and financial crimes that predated their work for the president’s campaign. The two pleaded guilty to lesser charges in exchange for agreeing to cooperate with prosecutors, as did Michael D. Cohen, Mr. Trump’s longtime personal lawyer.

Mr. Cohen, Mr. Gates and Mr. Manafort had sought to parlay their perceived access to the president into business opportunities.

But few figures seized on the Trump presidency more ambitiously than Mr. Broidy, who owns a defense contracting firm.

Share

“Citing 25th Amendment, Pelosi, Raskin move to create panel that could rule on president’s fitness for office”

Posted on by

WaPo:

House Speaker Nancy Pelosi (D-Calif.) and Rep. Jamie B. Raskin (D-Md.) plan to introduce legislation Friday that would create a commission to “help ensure effective and uninterrupted leadership” in the presidency.

The panel would be called the Commission on Presidential Capacity to Discharge the Powers and Duties of Office, “the body and process called for in the 25th Amendment to the U.S. Constitution,” the offices of Pelosi and Raskin said in a statement announcing the move.

The 25th Amendment formalizes that the vice president takes over the duties of the presidency in the event of a president’s death, inability to perform his duties or resignation from office. It also lays out a process by which a sitting president may be removed from office. Congress’s role in this, however, is limited.

Share

“Mike Pence does not seem prepared to save the republic, should he be called upon to do so”

Posted on by

Philip Bump:

Should that happen, Vice President Pence may be put in a position where he needs to decide between standing with his boss or standing with the will of the country. Asked about such a scenario at the vice-presidential debate Wednesday, his response suggested that his loyalties would lie with the former.

“If Vice President Biden is declared the winner and President Trump refuses to accept a peaceful transfer of power, what would be your role and responsibility as vice president?” moderator Susan Page asked. “What would you personally do? You have two minutes.”

Pence’s response came in three parts. The first was to assert his confidence that Trump would win, rattling off the familiar litany of accomplishments that’s often peppered throughout the president’s speeches.

Then he pivoted to a line of attack familiar to regular consumers of conservative media….

“President Trump and I are fighting every day in courthouses to prevent Joe Biden and Kamala Harris from changing the rules and creating this universal mail-in voting that will create a massive opportunity for voter fraud,” Pence said. “If we have a free and fair election, we know we’re going to have confidence in it, and I believe in all my heart that President Donald Trump is going to be reelected for four more years.”

n other words, Pence holds to the party line, which is not reassuring.

Again, there is no “massive opportunity for fraud” that’s created, given the safeguards that are in place. The bigger risk is clearly that more mail ballots will be rejected on review in an effort to stamp out even attempted fraud. Biden and Harris aren’t pushing universal mail-in voting; that, instead, was driven by state leaders who wanted to offer an alternative form of voting, given the coronavirus pandemic. Only five states moved to mailing out ballots automatically, four of which Trump is not likely to win.

Share

“Trump Lashes Out at His Aides With Calls to Indict Political Rivals”

Posted on by

NYT:

Mr. Trump has not been seen in person since returning from the hospital on Monday, but he sought to reassert himself on the public stage with a pair of telephone interviews with Fox News and Fox Business, a video and a series of Twitter messages. Even for him, they were scattershot performances, ones that advisers said reflected increasing frustration over his political fortunes only 26 days before an election with surveys that show him trailing Mr. Biden by double digits.

The president castigated his own team, declaring that Attorney General William P. Barr would go down in history “as a very sad, sad situation” if he did not indict Democrats like Mr. Biden and former President Barack Obama. He complained that Secretary of State Mike Pompeo had not released Hillary Clinton’s emails, saying, “I’m not happy about him for that reason.” And he targeted Christopher A. Wray, the F.B.I. director. “He’s been disappointing,” Mr. Trump said.

He was all over the map, throwing out unsubstantiated or discredited accusations, explaining that he wanted to bring home troops from Afghanistan to be ready to fight China or Russia if necessary and calling Gov. Gretchen Whitmer of Michigan “the lockup queen” even as his own Justice Department was announcing the existence of an anti-government group’s plot to kidnap her….

“Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it,” Mr. Trump said, referring to the investigation into his 2016 campaign ties with Russia. “But these people should be indicted. This was the greatest political crime in the history of our country, and that includes Obama and it includes Biden.”

Mr. Trump has often argued that his political antagonists should be prosecuted, but in this case, he went further by indicating that he had directly pressured Mr. Barr to indict without waiting for more evidence. “He’s got all the information he needs,” the president said. “They want to get more, more, more, they keep getting more. I said, ‘You don’t need any more.’”

Share

“Both parties prepare for possibility of contested election as chaotic White House race hurtles to a close”

Posted on by

WaPo deep dive:

Even as a coronavirus outbreak has upended the White House, Democrats and Republicans have been gaming out another potential crisis that experts agree could plunge the country into unprecedented turmoil — a contested election in the weeks after Nov. 3.

House Speaker Nancy Pelosi (D-Calif.) has recently spoken in multiple meetings about preparing for a situation in which neither candidate attains the 270 electoral votes needed to win the presidency, according to multiple Democrats familiar with her remarks — a historic development that would throw the outcome to the new Congress in January.

She has also directed some of her members to be ready if GOP legislatures in states with narrow margins or unfinished counts seek to appoint their own electors, a situation Democrats hope to head off with an obscure law from the 19th century that allows Congress to intervene.

The internal talks are among a number of strategy sessions taking place in political and legal circles in anticipation of a post-Election Day fight. The campaigns of President Trump and former vice president Joe Biden are preparing for all scenarios, each amassing robust legal teams to prepare for post-Nov. 3 disputes, in addition to monitoring Election Day activity and ballot counting.

An uncharted battle over who the next president will be, after a campaign that has roiled and exhausted Americans, could severely test the nation’s faith in its election system — and undermine the principle that the president should be selected by voters rather than Congress or the courts, experts said.

“These are all terrible scenarios to contemplate,” said Richard H. Pildes, a professor of constitutional law at New York University. “Nothing is more explosive in a democratic system than a disputed election for the chief executive, because so much turns on who holds that office.”…

Share

Federal District Court Issues Order Mandating that Ohio Secretary of State Frank LaRose Allow Drop Boxes to Be Set Up When County Election Boards Want to Use Them to Collect Absentee Ballots; What’s Next?

Posted on by

You can find the opinion at this link.

Given the South Carolina ruling from the Supreme Court this week, and the reaction from the 7th Circuit in the Wisconsin case, it could well be that the 6th Circuit reverses this order fairly quickly. We’ll see.

That’s IF Secretary LaRose chooses to appeal. He doesn’t have to, and had earlier indicated he had no problem with drop boxes.

Share

“Electoral Structure Matters: Fixing the Creaks and Cracks in the Constitution by Its Quarter Millennium”

Posted on by

New Idaho Law Review article by Rick LaRue. Abstract:

Our nation’s constitutionally prescribed governing structure has original problems (the Electoral College) and those that have developed over time (excessively long congressional tenures and, for the presidency, biased reelection timing and unequally productive terms that are equal in length). Repairing the erosion in any one or all three of these components by the Constitution’s 250th anniversary in 2037 constitutes a workable civic engineering timeframe. This article reviews the context for constitutional change; presents the Electoral College’s primary failings; identifies three objectives for its replacement (delivering majority outcomes, providing meaningful roles to states, and broadening the structural focus for such change); and explains which term limit and term length adjustments would provide such breadth while correcting for deficiencies that have emerged in their own roles.

Share

“Vote-by-mail ballot rejection and experience with mail-in voting”

Posted on by

David Cottrell, Michael Herron, and Dan Smith have posted this new draft. Here is the abstract:

Although most ballots in the United States have historically been cast in-person, an increasing number of Americans are turning to mail-in voting during the ongoing COVID-19 pandemic. Voters inexperienced with the form of voting, however, disproportionately submit ballots that end up being rejected, either because they arrive late at local elections offices or have signature defects on their return envelopes. Our analysis of ballot rejections in the political battleground state of Florida shows that inexperienced mail voters were three and 2.75 times more likely, respectively, in the 2016 and 2018 General Elections to have their ballots rejected than experienced mail voters. Similarly, in Florida’s recent 2020 Presidential Preference Primary, held in March 2020 as the COVID-19 pandemic was beginning to take hold in the state, voters inexperienced with mail ballots suffered from rejection rates 2.75 times as great as voters with experience voting by mail. Moreover, the effect of inexperience on vote-by-mail ballot rejection rates varies by party affiliation, race/ethnicity, age, and gender.

Share

Mark Your Calendars for Oct. 29 OSU Event: “5 Days Out – A Virtual Roundtable of Election Law Experts”

Posted on by

Details:

Election Law at Ohio State is honored to host this panel of election law experts from around the country who will share their assessments of where things stand with 5 days to go before this unprecedented presidential election.

THURSDAY, OCTOBER 29
4:00 – 5:30pm (ET)

REGISTER HERE

HOST: Edward B. Foley | Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law, Moritz College of Law, The Ohio State University

MODERATOR: Steven F. Huefner | C. William O’Neill Professor in Law and Judicial Administration; Deputy Director, Election Law, Moritz College of Law, The Ohio State University

PANELISTS:

Rebecca Green | Professor of the Practice of Law, Kelly Professor of Excellence in Teaching, Co-Director of the Election Law Program, William & Mary Law School

Richard L. Hasen | Chancellor’s Professor of Law and Political Science, UC Irvine School of Law

Lisa Manheim | Charles I. Stone Associate Professor of Law, University of Washington School of Law

Derek T. Muller | Professor of Law, Caruso School of Law, Pepperdine University

Nathaniel Persily | James B. McClatchy Professor of Law at Stanford Law School

Richard H. Pildes | Sudler Family Professor of Constitutional Law, New York University School of Law

Charles Stewart III | Kenan Sahin Distinguished Professor of Political Science, MIT; Co-director, Caltech/MIT Voting Technology Project; Director, MIT Election Data and Science Lab

Franita Tolson | Vice Dean for Faculty and Academic Affairs, and Professor of Law, USC Gould School of Law

Share

Breaking and Analysis: 7th Circuit, on 2-1 Vote, Rejects District Court Extension of Wisconsin Deadline for Receipt of Absentee Ballots, Relying Heavily on Supreme Court’s Earlier Ruling in South Carolina Case

Posted on by

As I noted in this Slate piece earlier this week, “Generally, though, the Republican side may be far more successful in blocking lower court orders sought by Democrats and voting rights groups seeking to expand voting by mail. Although Democrats in particular have crowed about some of their (sometimes partial) victories, things are far from over.” And the South Carolina ruling from earlier this week, sent an unmistakable signal from the Supreme Court to roll back federal district court orders easing voting burdens during the pandemic.

Today’s ruling from the 7th Circuit illustrates perfectly what’s going on.

From the majority opinion:

The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the,Supreme Court’s recent stay of another injunction issued close to the upcoming election. Andino v. Middleton, No. 20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992).

Voters have had many months since March to register or  obtain absentee ballots; reading the Constitution to extend  deadlines near the election is difficult to justify when the  voters have had a long time to cast ballots while preserving  social distancing. The pandemic has had consequences (and  appropriate governmental responses) that change with time,  but the fundamental proposition that social distancing is  necessary has not changed since March. The district court did not find that any person who wants to avoid voting in person on Election Day would be unable to cast a ballot in  Wisconsin by planning ahead and taking advantage of the  opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could  be encountered by voters who do not plan ahead and wait  until the last day that state law allows for certain steps. Yet,  as the Supreme Court observed last April in this very case,  voters who wait until the last minute face problems with or  without a pandemic. ..

From Judge Rovner’s dissent:

Today, by granting that stay, the court adopts a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote. It does so on two grounds: (1) the Supreme Court’s Purcell doctrine, as exemplified by the Court’s recent shadow-docket rulings, in the majority’s view all but forbids alterations to election rules in the run-up to an election; and (2) in times of pandemic, revisions to election rules are the province of elected state officials rather than the judiciary. With respect, I am not convinced that either rationale justifies a stay of the district court’s careful, thorough, and well-grounded injunction. At a time when judicial intervention is most needed to protect the fundamental right of Wisconsin citizens to choose their elected representatives, the court declares itself powerless to do anything. This is inconsistent both with the stated rationale of Purcell and with the Anderson-Burdick framework, which recognizes that courts can and must intervene to address unacceptable burdens on the fundamental right to vote. The inevitable result of the court’s decision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it.


This is a travesty.

Judge Rovner’s dissent concludes:

Given the great care that the district court took in issuing its preliminary injunction and the ample factual record supporting its decision, I am dismayed to be dissenting. It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages. The district court ordered five modest changes to Wisconsin’s election rules aimed at minimizing the number of voters who may be denied the right to vote. Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices.


Good luck and G-d bless, Wisconsin. You are going to need it.

Correction: The original version of this post said it was a party line vote. This was in error.

Share

“Facebook bans marketing firm running ‘troll farm’ for pro-Trump youth group”

Posted on by

WaPo:

Facebook said Thursday it will permanently ban from its platform an Arizona-based marketing firm running what experts described as a domestic “troll farm” — in a probe of the deceptive behavior prompted by a Washington Post article last month.

The firm, Rally Forge, was “working on behalf of Turning Point USA,” Facebook concluded in an investigation that led to the removal of 200 accounts and 55 pages, as well as 76 Instagram accounts — many of them operated by teenagers in the Phoenix area. The fake accounts, some with either cartoonlike Bitmoji profiles or images generated by artificial intelligence, complemented the real accounts of users involved in the effort, which largely entailed leaving comments sympathetic to President Trump and other conservative causes across social media.

Facebook stopped short of penalizing Turning Point USA, the prominent conservative youth organization based in Phoenix, or its 26-year-old president, Charlie Kirk, saying it could not determine the extent to which the group’s leaders were aware of the specific violations carried out on their behalf, such as the use of fake accounts. Twitter also acted against the operation on Thursday, suspending 262 accounts involved in “platform manipulation and spam” — in addition to the several hundred accounts already removed last month following questions from The Post — but similarly did not boot Turning Point USA, a tax-exempt nonprofit founded in 2012, or its affiliates from the online platform.

Share

Divided 9th Circuit Panel Allows Arizona Registration Deadline Extension to Continue for Now, Suggesting RNC Has No Standing to Appeal

Posted on by

Interesting order. Judge Bybee would stop the registration extension as the Ninth Circuit continues the case. (h/t AZ Law)

I guess the Governor and state legislature either chose not to appeal or don’t have the ability under state law, but I am open to hearing other explanations. Update: “The Court also notes that it has not yet granted Brnovich’s effort to intervene.”

Share

The Purcell Principle Needs to Be Reined in and David Gans Has the Goods

Posted on by

I’ve been quite critical of the Purcell Principle, most comprehensively in this piece, Reining in the Purcell Principle. Since I wrote that article, the Court has only made things worse.

David Gans, in this careful ACS issue brief, brings this research up to date and makes a strong case:

Purcell should be reconsidered. Through a series of orders that either offer no reasoning or simply rely on Purcell and its progeny, the Court has effectively displaced a long line of prior precedents that recognized the judiciary’s obligation to enforce the Constitution and voting rights laws, while also placing limits on the scope of remedies consistent with long-standing equitable principles. Reconsidering the Purcell principle would not mean courts would grant injunctive relief across the board. Rather in line with Reynolds and other cases, the Court would consider longstanding equitable principles, which require consideration of the likelihood of
success on the merits, the balance of hardships, and the public interest, including the interest in the orderly administration of the election.74 As Reynolds laid out, “[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree.”75

74 See Hasen, Reining in the Purcell Principle, supra note 12, at 444 (“[T]he Supreme Court should adjudicate its election disputes consistent with the general standards and levels of deference it has established for considering non-election requests to stay a lower court order, vacate a lower court stay, or issue an injunction in its own right. Special considerations related to elections should be one, but not a dominating, factor.”).


75 Reynolds, 377 U.S. at 585.

Share

Senator Mike Lee Hates Democracy

Posted on by

NY Mag:

Last night, livetweeting his thoughts on the 2020 vice-presidential debate, Republican senator Mike Lee decided it was an opportune moment to share one of his edgier political beliefs: Democracy is bad.

Lee is articulating a view that has long been in vogue on the American right but which Republican politicians were generally hesitant to express openly. The premise is that liberty is a higher value than democracy, and they define liberty to mean a right to property that precludes redistribution. That is to say, the far right does not merely view progressive taxation, regulation and the welfare state as impediments to growth, but as fundamentally oppressive. A political system that truly secured freedom would not allow the majority to gang up on the minority and redistribute their income for themselves.

My response last night:

Share

“Trump Officials Ask Supreme Court To Block Order That Extends Census Counting”

Posted on by

Hansi Lo Wang for NPR:

The Trump administration is asking the Supreme Court to allow counting for the 2020 census to end soon.

In an emergency request on Wednesday, Acting Solicitor General Jeffrey Wall said that the Census Bureau must immediately wrap up its field operations, now that it’s passed the bureau’s internal target date of Oct. 5, in order to have a chance of meeting the legal deadline for delivering the first set of census results to President Trump by year’s end.

“With October 5 having come and gone while the court of appeals was considering the stay application,” Wall wrote, “every passing day exacerbates the serious risk that the district court’s order to continue field operations and delay post processing will make it impossible for the Bureau to comply with the December 31 statutory reporting deadline.”

See also this tweet thread by Marty Lederman, which includes this nugget:

Share

“Wisconsin election officials go from famine to feast with a swell of poll workers”

Posted on by

WaPo:

With the nation’s eyes on Wisconsin — its coveted 10 electoral votes could again determine the outcome of the presidential race — municipalities across the state are finding themselves in a surprising position ahead of Nov. 3. Rather than struggling with too few poll workers, which hampered the presidential primary election early in the pandemic, some locations have been overwhelmed with volunteers.

Nearly all of the 1,200 people who staffed Milwaukee polling locations in August will return in November. They’ll be joined by a few thousand more, most of them new to the process.

“They’re stepping up to fill the role that grandma might ordinarily fill,” said Maribeth Witzel-Behl, city clerk in Madison. The capital city, a liberal bastion, was so inundated by September that it had to cut off applications at 6,000. Typically, about 3,000 people work the polls in a fall general election.

Share