A Guide to Election Year Activities of Section 501(c)(3) Organizations

Steven Sholk:

I am pleased to announce that an updated version of my article, A Guide to Election Year Activities of Section 501(c)(3) Organizations, has been published by Practising Law Institute as part of its 2020 Course Handbook for the seminar, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings.

You can find it here.

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The Possibility of a Blockbuster Supreme Court Decision in the PA Election Case

The Supreme Court has taken an exceptionally long time – given the impending election — to address the legal challenges before it involving voting issues in Pennsylvania.  Given that length of time, it’s reasonable to assume we are going to get a substantial opinion from the Court, which will likely include dissenting opinions as well.  The opinions could well address one of the most important unresolved constitutional issues concerning state regulation of presidential elections and maybe national elections more generally.  The ramifications of the Court doing so would go well beyond PA and well beyond this election as well.

              Two principal issues are before the Court, as it reviews the decision from the PA supreme court.  The first issue, a minor one, is whether the state court decision permits absentee ballots to be cast after Election Day and, if so, whether that would violate federal statutes that require the election to take place on Election Day.  If that’s all the Court addresses, the decision would be of minimal legal and practical significance. 

              But given the length of time this case has been pending – the initial application for a stay was filed on Sept. 28th – it is reasonable to assume the Court is addressing the much bigger question.  That issue is what the meaning of the term “legislature” is in the Constitution.  More  specifically, the question is the meaning of that term for purposes of the Elections Clause in Art. I — which applies to state regulation of national elections in general — and the Art. II provision that governs the Electoral College and the presidential elections process in particular.

              The more immediate stakes in this issue focus on whether the PA supreme court violated the Constitution in ordering that absentee ballots be treated as valid votes even if received up to three days after Election Day.  In PA, the Elections Code, enacted through the normal lawmaking process, requires that absentees must be received by 8 pm on Election Night to be valid.  Around 40 states similarly require valid absentees to be received on or before Election Night, though some states permit later receipt.  Based on the state constitution, the PA supreme court held that this three-day extension was required, in order to protect the right to vote, given potential delays in mail service. 

               If the Court holds that the PA court decision was itself unconstitutional, that would mean that courts – both state and federal – would not have the power to order extensions of these receipt deadlines.  That could be consequential for this election, particularly in PA; it would also mean that any court decisions still intact that have extended these deadlines could now be challenged and possibly reversed.  But by now, there are not many court decisions still in place that have ordered extension of these deadlines.  Most decisions by lower courts, state or federal, that have done so have now been reversed on appeal.

              Much more importantly, though, is the path by which the Court would have to get to this result.  The term “legislature” appears in the Constitution seventeen times.  And a major constitutional issue centers around whether that term is best understood to mean (1) the ordinary lawmaking processes of a state, as established by the state constitution, or whether it should mean only (2) the formal institution of the legislature itself.  Put less legalistically, the issue is whether in regulating the presidential election process or national elections more generally, the state legislatures have exclusive powers that cannot be significantly constrained by the ordinary constraints on state lawmaking – such as the state constitution or the requirement that that the Governor be given an opportunity to veto proposed laws. 

              To hold that the PA court violated the Constitution, the Court would have to hold that “legislature” means the formal institution itself.  That would mean the state constitution cannot control the substantive policy choices the legislature makes about the rules governing presidential elections (and perhaps all national elections, as well).  The state legislatures would still be bound by the federal Constitution, of course, so that they could not enact rules that would violate the Fourteenth or Fifteenth Amendments, for example.  But within the state, the legislature would have plenary and exclusive control over the ground-rules for presidential elections.

              The ramifications of that ruling would spread far and wide.  For one, would this mean that Governors would no longer be able to exercise vetoes over the “legislature’s” regulation of the presidential election process?  That would, of course, be a profound change.  Second, to what extent are various state constitutional provisions still binding on the legislature when it regulates the presidential election process – in other words, what would the boundaries be on the kind of rules the state constitution can or cannot impose on the legislature?  As an example, suppose a state constitution requires ten days of early voting in presidential elections; if the legislature wants to have more or fewer days, would the Constitution now mean that the state legislature is free to decide for itself on matters like this, regardless of the state constitution? 

Another major question would be whether the implication would be that the term “legislature” would mean only the institution itself all seventeen times it is used in the Constitution.  The Court’s decision might expressly address only the “legislature’s” power over presidential elections, under Art. II.  But what would the decision imply about the state “legislature’s” power to regulate all national elections, under the Art. I Elections Clause?

Three options exist here:  (1) the term “legislature” always means simply the institution itself; (2) the word legislature always means the ordinary lawmaking processes of the state; (3) “legislature” sometimes means the institution and sometimes means the ordinary lawmaking processes of a state.  As an example of how that third possibility might come about, the Court could hold that Art. II, on the presidential election process, is a special provision that was specifically designed to give the legislatures exclusive control over this essential process.  But if we think the Court has a textualist majority, it is not hard to imagine textualists concluding that “legislature” must have the same meaning each time it appears in the Constitution.

              Yet another question would immediately be what implications this has for the Court’s recent 5-4 decision upholding the right of voters, through the initiative process, to bypass the legislature and adopt independent commissions, or commissions of other designs, to do redistricting.  That decision, in Arizona State Legislature v. Arizona Independent Redistricting Commission – the title tells you exactly what’s going on in the case – held that “legislature” in the Elections Clause means the ordinary lawmaking processes of a state.  As a result, if a state permits voter initiatives to regulate the national election process, that does not intrude, based on the AIRC decision, on any purportedly exclusive powers of the state legislature.  But the decision provoked a vehement 4-Justice dissent, written by Chief Justice Roberts.

              If the Court holds that the PA court has violated the federal constitution, that would certainly create obvious tensions with the AIRC decision.  The Court is unlikely to say anything about the continuing validity of that decision.  And it’s possible in later cases, the Court might conclude that, even if AIRC is in tension with the (forthcoming) PA decision, that the Court will respect the precedent of that decision, but will not extend it further to new contexts.  But however the Court ultimately resolves the continuing validity of AIRC, there would certainly at least be tension between that decision and the PA decision that will, eventually, have to be resolved.

On top of all this, the Court would likely have to say something about the notoriously uncertain Purcell principle.  Other than as a general admonition to courts to be wary of making last-minute changes to election laws, Purcell does not lay out clearly which types of last-minute changes courts can properly make and which not.  If the Court overturns the PA supreme court decision here, the Court will have to provide a bit more clarity about Purcell and why it does not stand in the way here of the Court’s decision [Update: As I discussed earlier on this blog, the Purcell doctrine does not technically apply to decisions of state courts, so the Court might not feel an obligation to say anything about the doctrine]

              Finally, a holding that “legislature” means only the formal institution would put the federal courts in the position of having to adjudicate a vast array of election-law issues previously thought to be solely within the purview of state law.  That would be all the more true if the decision implies that “legislature” means only the institution for purposes not just of presidential elections, but state regulation of all national elections.  Each time a state court interprets state law on these matters, the ruling would be easily transformed into one that implicates federal constitutional law.  The losing side will always pursue the argument that the state court interpretation unconstitutionally interferes with “the legislature’s” exclusive power.  Similarly, rulings of state executive officials on election law, such as from the Secretary of State, could easily be transformed into federal constitutional ones, for the same reason.  The federal courts might eventually conclude that “reasonable” interpretations of the election code do not violate “the legislature’s” exclusive power – but that would put the federal courts in the position of judging, case by case, whether the actions of state courts or executive officials regarding state election law, for national elections, is indeed reasonable.

This essay just begins to unpack the range of questions that will arise should the Court hold that the PA supreme court violated the U.S. Constitution.  That decision would be a blockbuster one, whose implications the federal courts would spend years sorting out. 

We should find out any day now whether, in fact, that’s why the PA case has been pending so long. 

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“‘My people fought for the right to vote’: With a surge of emotion, Black Americans rush to the polls”

WaPo:

Two weeks before Election Day, Black Americans have voted in striking numbers, helping drive historic levels of early voting as mail ballots have flooded election offices and people have endured huge lines to cast ballots in person across the country.

In interviews in 10 states where early voting is underway, Black voters said this year’s presidential election is the most important of their lifetime — some calling it more consequential even than 2008, when those who were old enough went to the polls in record numbers to make Barack Obama the country’s first Black president.

They spoke of a sense of urgency to protect the nation’s democracy, and their role in it, which they believe a second Trump term would erode beyond repair. Many said they view the president as a racist who cannot bring himself to disavow white supremacists or the year’s spate of police killings of unarmed Black Americans, and they believe the country is less safe for themselves and their families.

Over and over again, Black Americans described their vote this year as much more than a choice between two presidential candidates, but as an urgent stand in the long fight against racial injustice in America, which the year’s events have made clear is not yet over.

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“As Local News Dies, a Pay-for-Play Network Rises in Its Place; A nationwide operation of 1,300 local sites publishes coverage that is ordered up by Republican groups and corporate P.R. firms.”

NYT:

The instructions were clear: Write an article calling out Sara Gideon, a Democrat running for a hotly contested U.S. Senate seat in Maine, as a hypocrite.

Angela Underwood, a freelance reporter in upstate New York, took the $22 assignment over email. She contacted the spokesman for Senator Susan Collins, the Republican opponent, and wrote an article on his accusations that Ms. Gideon was two-faced for criticizing shadowy political groups and then accepting their help.

The short article was published on Maine Business Daily, a seemingly run-of-the-mill news website, under the headline “Sen. Collins camp says House Speaker Gideon’s actions are hypocritical.” It extensively quoted Ms. Collins’s spokesman but had no comment from Ms. Gideon’s campaign.

Then Ms. Underwood received another email: The “client” who had ordered up the article, her editor said, wanted it to add more detail.

The client, according to emails and the editing history reviewed by The New York Times, was a Republican operative.

Maine Business Daily is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.

The sites appear as ordinary local-news outlets, with names like Des Moines Sun, Ann Arbor Times and Empire State Today. They employ simple layouts and articles about local politics, community happenings and sometimes national issues, much like any local newspaper.

But behind the scenes, many of the stories are directed by political groups and corporate P.R. firms to promote a Republican candidate or a company, or to smear their rivals….

Jeanne Ives, a Republican candidate for the U.S. House in Illinois, has had a direct financial relationship with the operation.

Ms. Ives has paid Mr. Timpone’s companies $55,000 over the past three years, according to state and federal records. During that time, the Illinois sites have published overwhelmingly positive coverage of her, including running some of her news releases verbatim.

In an interview, she said her payments were to create her website and monitor her Wikipedia page. One $14,342 payment included the note “Advertising-newspaper.” Ms. Ives initially could not explain why. She later called back to say Mr. Timpone had bought Facebook ads for her.

Asked if she was paying for positive coverage, she replied: “Oh, no, there’s none of that going on. I assure you. Oh, my gosh, no. Oh, no, not at all.”

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CNN’s Reliable Sources: “Have Patience, America. This Could Take a While”

Brian Stelter and Sam Feist:

STELTER: Typically 11:00 p.m. is the earliest time — 11:00 p.m. eastern time — that an election will be called because the western states have closed their polls. Is there any chance of a projection at 11:00 p.m. on November 3?

FEIST: Yes, of course there’s a chance of a projection. It is possible and we tend to make projections early on election night if the race is not close particularly in those battleground states, so it is possible. But it is entirely possible that there won’t be a projection on election night.You know, people forget that in two of the last five elections, we have gone to bed without a president-elect. Everyone remembers 2000 where Florida was the deciding state and then it was too close to call on election night, and we didn’t know, and it took another 31 days.But the very next election was 2004, and in that case, Ohio was the state that was going to be decisive and we did not have enough votes in to project a winner on election night, so we waited. And it was midday the next day when enough results were clear in Ohio that George W. Bush won Ohio and was reelected. So, it is not unusual for elections to not be decided on Election Day, especially this year because mail-in ballots take longer to count. You have to open them, you have to process them, and so it could be that we don’t know until Wednesday or Thursday or even later. But I think the vast majority of the votes in the country will be counted by late in the election week, so I believe that we will likely know a winner. It just may not be on election night.And that’s OK. That doesn’t mean anything is wrong. The public, the media, the candidates just need to be a little bit patient.

What if a candidate prematurely declares victory?

STELTER: Right. We need to tell people to have patience. A slow count is a safe count. But you know, we don’t know what’s going to happen in terms of Florida or other key states, what’s going to happen with the turnout in those votes. What about let’s say it’s midnight or 1:00 a.m., and Donald Trump comes out and says I am the winner of the election, and our data does not back that up at all, what will CNN do?

FEIST: If we have not projected enough states for a candidate to get to 270 electoral votes, and a candidate comes out and declares victory, we will make it clear that the facts do not back up that claim of victory. And we’ll do it in a number of ways. If you’ve watched CNN’s election night, John King at the magic wall spends an awful lot of election night explaining why we haven’t projected a winner in a particular state.And he goes county by county, reveals how many votes are left to come in, how many votes have been counted, which counties have not reported much votes. This year, of course, we will layer in absentee votes throughout the night in our conversation. And if we’re not ready to project the state — we’re not ready to project the state, that doesn’t mean that anything is wrong.And we will make it clear to our viewers and our readers, that there’s simply not enough information to make a projection, and that the candidate, if a candidate goes out and declares a winner — declares victory ahead of time, that they are doing it before the votes have been counted, before — that is based in fact.

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Florida: “Trump Republicans ask to double-check Broward ballot signatures”

South Florida Sun Sentinel:

Teams of lawyers for President Donald Trump and Joe Biden got a rare look Friday at Broward voter signatures, at an event staged to clear up Republicans’ questions about election accuracy.

Lawyers for Trump’s presidential campaign had asked to periodically check signed Broward ballots to see if signatures really did match those on file, internal elections office emails and letters say. That request — which could have significantly delayed Broward’s vote-counting — was rejected.

Broward elections supervisor Pete Antonacci instead allowed a one-time look on Friday at 15 randomly selected ballot signatures, from recent mail-in ballots, as a “confidence building exercise.” Each voter’s official signature on file was copied and laid alongside the signed ballot. The matches were near clones.

Antonacci said the Republicans’ request to verify signatures came after the St. Lucie County elections office allowed ballot processing to be viewed there during the August primary.

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Retired Republican Member of Congress Jim Gerlach: “Pennsylvania’s election officials should have more time to process absentee ballots”

Penn Live oped:

Failing to allow election officials to begin processing absentee ballots early will put undue pressure on them on Election Day. Failing to provide more time for processing these ballots also means that it is more likely that Pennsylvanians — and the entire country — will be waiting for days, if not weeks, for the winner of races here to be determined. The sad truth is that an extended period of uncertainty about election results — especially the winner of the presidential race here in Pennsylvania — will only harm the public’s trust in the sacred institutions and election processes that have made our country a beacon of freedom to the whole world.

The good news is that there is still time for legislators and the governor to get this right and help avoid unnecessary delays in tabulating the vote. Now is the time for Pennsylvania to listen to state and local election officials who are saying they need more time to process the deluge of absentee ballots they are expecting because of the COVID-19 pandemic. It would be a shame if the legislature and Gov. Tom Wolf fail to act on this critical issue before Election Day. The time to remedy this problem is now.

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New at Fox News: “Ex-Defense Secretaries Hagel & Panetta: Our national security requires free and fair elections”

Opinion piece:

While we come from different parts of the United States and represent different political parties, we share a common concern about the numerous and growing threats to our republic.

We remain united around a common commitment to the American tradition of safe, secure, and legitimate elections. This is why we joined with more than 40 other political, government and civic leaders to establish the National Council on Election Integrity to defend of our elections and uphold the principle that every vote cast in accordance with applicable laws should be counted this year.

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Retired Judge Michael Luttig, in WaPo Oped, Suggests Judge Barrett, If Confirmed Would Likely Have to Recuse (under the Caperton Case) in Any Supreme Court Election Litigation

Judge Luttig:

The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether the judge recognized it.

The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.

Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.

I have already explained why I believe a Justice Barrett would have to recuse in such circumstances.

Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.

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“Bannon Says Trump Will Claim Victory Early, But They Don’t Know Counting Process”

Steven Rosenfeld:

One of President Trump’s most loyal propagandists is predicting that Trump will claim victory on election night as soon as he is ahead among Election Day voters. But that scenario is based on a misconception of how all ballots are counted and the early returns are compiled, according to election and legal experts.

“At 10 o’clock or 11 o’clock… on November 3, Donald J. Trump is going to walk into the Oval Office, and he may hit a tweet before he goes in there… and he’s going to sit there, having won Ohio, and being up in Pennsylvania and Florida, and he’s going to say, ‘Hey, game’s over,’” said Stephen K. Bannon, Trump’s 2016 campaign CEO and former White House adviser, during a defiant speech on October 10 forum hosted by the Young Republican Federation of Virginia.

“The elites are traumatized. They do not want to go stand in line and vote. That, ladies and gentlemen, is a game-changer,” Bannon said. “It [the decisive factor] is what electorate shows up to vote on a vote that can be certified. That’s a vote that counts. And right now, what they [Trump critics] don’t want to talk about, is Donald J. Trump leads on people who are actually going to show up and vote on November 3, by 21 percent.”

Bannon’s prediction that Trump would defy norms by asserting that he won before indisputable victory margins were reported was not just another sign that Trump would not heed the rules governing 2020’s election. Bannon’s fiery speech was a glimpse into a propagandist’s mindset that drew on smears and distortions to fan partisan ill will. But his prediction of how Trump could claim an early victory was based on a flawed premise, because no early returns on election night were only going to contain the in-person votes cast on Election Day.

“The first reports are the county totals,” said Chris Sautter, an attorney who has specialized in post-election challenges and recounts for decades. “You don’t get the breakdowns [of votes cast in different categories such as early voting, mail-in votes, Election Day votes, and overseas votes] until after election night. It depends on the state.”

Other election administration experts confirmed that the election night returns would be a mix of all of the earliest votes cast—from early in-person voting sites, from absentee ballots that had been returned and processed, and from in-person voting on Election Day. (As of October 15, more than 16 million absentee ballots had been returned or cast in early voting, the U.S. Elections Project said.)

“Right now… they’ve requested 1.5 million absentee ballots in Pennsylvania,” Bannon said. “Ten to 20 percent will not be certifiable. What that means is it [is] going to be a dogfight in those rooms [in county offices where returned ballots are processed]. Remember, every ballot that can be certified should be certified. And that ballot should count. That’s a vote. But you’ve got a lot of things that you [absentee voters] have got to check off to get to certification, because you chose—you chose—not to go to a poll.”

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PA: A Potentially Explosive Mix of the Worst Election Laws in A Potentially Decisive State

From the Washington Post:

It’s not Election Day that worries most county officials. It’s the next stage — the count.

This spring, in the primary, it took 10 days for the county elections office to count about 30,000 mail-in ballots. With more than 70,000 expected this time around, Erie officials have hired up, going from eight to 15 workers opening envelopes and feeding ballots into the tallying machines. They’ve added hours — counting will start each day at 7 a.m., three hours earlier than during the primary. And they’ve added machines, including a second high-speed scanner to read ballots and an automatic letter-opener that can unseal 20,000 ballots per hour, Smith said.

Each envelope takes about 90 seconds to scan and prepare for counting, work that Smith would love to do ahead of time. But a state law prohibits opening and preparing mail-in envelopes for tallying before Election Day and counting those ballots before the polls close. So far, neither lawmakers nor the courts have approved a change to the rules. [emphasis added]

All that work will take place in counting rooms jammed with people trying to oversee every move. Salmon said Republicans will deploy an army of pollwatchers, lawyers and count observers. Wertz said Democrats will do the same, with more than 200 volunteers around the county and two shifts of observers in the counting rooms.

The scene can look chaotic and crowded, but it works, Republicans and Democrats agree. “We do everything in our power to keep each vote, even if the signature is sloppy and it’s changed over 15 years,” said county councilman Shank, who acts, along with his fellow council members, as Erie’s board of elections.

Still, every day a final count is delayed could undermine trust in the outcome, many in the county say.

“The integrity of the vote is going to be questioned,” said Dillon, the open-carry activist. “It doesn’t make sense that we have to wait weeks before learning who won.”

Despite the drive to accelerate the count, “they’re so far from having the resources they need, it’s not even funny,” Hayes, the Republican legislative candidate, said after meeting with local police chiefs and election officials. “If we get an answer within three weeks, I’ll be surprised.”

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“California allows Republican ballot boxes with safeguards”

The first part of this story suggests the conflicts over GOP drop boxes in CA have now been resolved:

California officials lowered the temperature Friday in their legal standoff with the California Republican Party over its unauthorized ballot boxes, saying the party had committed to enough changes for now to satisfy their concerns. . . .

In an earlier response to Padilla, the California Republican Party said it would continue to accept mail ballots at boxes but promised some safeguards: The boxes will be attended to whenever the public has access to them, and ballots will be secured and then delivered to elections officials within the required 72-hour frame, the party said. The party pledged to not represent those boxes as “official,” saying a volunteer had done so in error, while arguing that the process was legal due to a 2018 law that loosened collection requirements.

“If they want to continue ballot collection activity, that is legal in California, but they must abide by state law around the ballot collection program,” Padilla said.

But later parts of the story also suggest the conflicts over this issue might not be fully settled.

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“6 Places Where Police Reform Is Going Straight to the Voters”

Politico story on local-government ballot measures this fall to change policing systems:

Nevertheless, in Los Angeles, San Francisco, Portland, Philadelphia, Akron and Seattle, voters will get to decide on some pioneering changes to the way their policing systems work. These six cities aren’t the only places with police reform on the ballot, but they are the most notable for their scale, boldness or their locations, some of which have been in the spotlight throughout the summer for ongoing unrest. A few proposed changes are big, such as one proposal to shift millions of dollars away from law enforcement and to community services and programs in the most populous county in the country; others are smaller, such as a symbolic rejection of stop-and-frisk policing on the street. But like all ballot measures, if passed, these reforms might be just the beginning; they can provide a potential model for legislation later and elsewhere.

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Polling Data on Election-Related Issues

Some interesting data on several election-policy issues from a recent Ipsos poll for Axios:

What we’re watching: Most Black respondents (82%), Hispanic Americans (77%), Asian Americans (63%) and white respondents (59%) say the president should be elected nationally by popular vote rather than by the Electoral College.

  • Two-thirds of all Americans say election day should be a national holiday.
  • About eight in 10 voters overall support requiring photo ID to vote in person, slightly less — 73%— for Black respondents.
  • Majorities of Black Americans (81%), white Americans (70%), Hispanic respondents (64%) and Asian Americans (63%) support restoring voting rights to convicted felons who have served their time.
  • Only Black Americans (52%) favor allowing convicted felons who are still in prison to vote.
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“New Jersey Election Officials Scramble on First Mostly Mail-In Vote”

From the WSJ:

New Jersey’s election system will be tested in the coming weeks as most voters will be casting their ballots for the presidential election by mail or dropping them off for the first time in the state’s history.

The state is one of four in the U.S. that this year opted to automatically mail ballots to voters to minimize in-person voting to limit the spread of the coronavirus. A handful of other states, including Utah and Oregon, already take the approach for every election.

Local election officials have begun delivering nearly six million ballots statewide to active registered voters, the most ever mailed in the state. More than 1.25 million ballots had been returned as of Thursday, according to the New Jersey Secretary of State’s office, or 32% of the total number who voted in the 2016 presidential election. . . .

County clerks and boards of elections have also been inundated with queries from voters asking why the election process changed this year or to inquire about the status of their ballots.

“Phones are ringing all day long with questions,” said John Hogan, the Bergen County clerk. . . .

Nicole DiRado, administrator for the Union County Board of Elections, said her office hired 50 seasonal workers for the election and was expecting to receive about 200,000 mail-in and drop-off ballots to count. That will shatter the county’s record for absentee ballots set in 2018 when it received 19,000 ballots, she said.

“I know at the end of the day we will have run a fair, transparent, successful election,” Ms. DiRado said. “I know that. It’s just getting there—honestly, it’s overwhelming.”

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“Federal Appeals Courts Emerge as Crucial for Trump in Voting Cases”

NYT:

The Texas case is one of at least eight major election disputes around the country in which Federal District Court judges sided with civil rights groups and Democrats in voting cases only to be stayed by the federal appeals courts, whose ranks Mr. Trump has done more to populate than any president in more than 40 years.

The rulings highlight how Mr. Trump’s drive to fill empty judgeships is yielding benefits to his re-election campaign even before any major dispute about the outcome may make it to the Supreme Court. He made clear the political advantages he derives from his power to appoint judges when he explained last month that he was moving fast to name a successor to Justice Ruth Bader Ginsburg so the Supreme Court would have a full contingent to handle any election challenges, which he has indicated he might bring in the event of a loss.

In appointing dozens of reliable conservatives to the appellate bench, Mr. Trump has made it more likely that appeals come before judges with legal philosophies sympathetic to Republicans on issues including voting rights. The trend has left Democrats and civil rights lawyers increasingly concerned that they face another major impediment to their efforts to assure that as many people as possible can vote in the middle of a pandemic — and in the face of a campaign by Republicans to limit voting.

“There has been a very significant number of federal voting rights victories across the country and those have in the last week or two — many if not most — been stayed by appellate courts,” said Wendy R. Weiser, the director of the Democracy Program at the Brennan Center for Justice at New York University, which has been involved in several voting rights lawsuits this year. “We’re seeing the brakes being put on the voting rights expansion at the appellate level in these jurisdictions, in many cases in ways that won’t be remediable before the election.”

In potentially pivotal states like Wisconsin and Ohio, the outcomes appear to be serving the president’s effort to limit voting while in some cases creating widespread confusion about the rules only three weeks before Election Day….

The higher the level of confusion, Mr. Persily said, the more likely that final results could wind up before judges.

“The most important thing is that we have clear rules right now about how this election is going to be conducted,” he said. “While there are good rules and bad rules, it’s better to have a rule than no rule at all. The more uncertainty that the courts are injecting into the process right now, the greater the likelihood there will be postelection litigation.”

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The Games Major-Party Candidates Play with Third Parties

From the WSJ:

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

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

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“Why Do Nonwhite Georgia Voters Have to Wait in Line for Hours? Their Numbers Have Soared, and Their Polling Places Have Dwindled.”

ProPublica and Georgia Public Broadcasting:

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

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

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

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

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

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“Barrett Won’t Pull Away From Trump’s Coattails”

Jost on Justice:

The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a  justice.

Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.

When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.

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“Democrats Preferred to Vote by Mail. But as Election Day Nears, More Say They’ll Head to the Polls”

This is from the latest Morning Consult Poll:

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

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

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

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

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

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Michigan State Appeals Court Rejects Later Counting of Absentee Ballots, and Third Party Collection of Ballots

Detroit News:

A Michigan Court of Appeals panel has reversed a lower court ruling that would have required election officials to count late absentee ballots and allowed third parties to collect absentee ballots from voters.

The Court of Claims “abused its discretion” by granting injunctions that allowed for the lifting of those provisions, appellate Judges Thomas Cameron, Mark Boonstra and Michael Gadola ruled in a 3-0 opinion. Court of Claims Judge Cynthia Stephens made the ruling on Sept. 18

Cameron, Gadola and Boonstra were appointees of Republican former Gov. Rick Snyder.

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WSJ Profile of Facebook’s Zuckerberg Talks About His Political Education, “Open Line” With President’s Son-in-Law and Others

WSJ:

Mr. Zuckerberg maintains an open line with Mr. Kushner, the president’s son-in-law and senior adviser. The two sometimes discuss Facebook policies over WhatsApp. The CEO spoke this year with Mr. Kushner and separately with Treasury Secretary Steven Mnuchin about TikTok’s U.S. presence, people familiar with the talks said….

As tech platforms announced new political-content policies over the past year, Mr. Kushner has argued to Mr. Zuckerberg that some of those moves could hurt Republican and Democratic campaigns alike, people familiar with the matter said.

Mr. Zuckerberg also has forged ties with right-leaning publishers that drive engagement on the platform, including Ben Shapiro, co-founder of the Daily Wire and a Trump supporter, people familiar with the matter say. The conservative news site has been flagged repeatedly by Facebook’s fact-checkers for sharing falsehoods and distortions. But it is frequently among the most popular on the platform based on user interactions, according to CrowdTangle, a Facebook-owned analytics tool….

In late 2017, when Facebook tweaked its newsfeed algorithm to minimize the presence of political news, policy executives were concerned about the outsize impact of the changes on the right, including the Daily Wire, people familiar with the matter said. Engineers redesigned their intended changes so that left-leaning sites like Mother Jones were affected more than previously planned, the people said. Mr. Zuckerberg approved the plans. “We did not make changes with the intent of impacting individual publishers,” a Facebook spokesman said….

After the launch last year of Courier Newsroom, a network of eight progressive local-news sites that is part-owned by a left-leaning nonprofit with close ties to Democratic donors, Mr. Zuckerberg argued that Courier wasn’t a real news outlet, given its political connections, according to people familiar with his views.

The discussion sparked a new Facebook policy in August that limits the reach of partisan-backed sites by blocking their pages from inclusion in Facebook News, restricting their access to the Facebook Messenger and WhatsApp platforms and curtailing their advertising.

The nonprofit behind Courier Newsroom, called Acronym, criticized the policy, saying it favors conservative news sources.

Mr. Zuckerberg has also begun meeting with progressive groups, whose leaders argued that if he was developing personal relationships with conservatives like Mr. Shapiro, he should hear from the other side, too. The conversations haven’t always gone smoothly.

Rashad Robinson, president of the civil-rights group Color of Change, said that Mr. Zuckerberg appeared to lack an understanding of the ways Facebook could be contributing to voter suppression.

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A Florida purge of supposed felons just before the election….where have I heard this before?

CNN:

Election officials in Florida are taking steps to remove ex-felons from the voter rolls if they still owe court debts, according to an email sent this week to county elections officials obtained by CNN.

The state’s elections director, Maria Matthews, told local elections supervisors on Tuesday that they would begin to receive files on convicted felons “whose potential ineligibility is based on not having satisfied the legal financial obligations of their sentence.” The email added that if local officials received information about registered voters who are ineligible from sources other than the Florida Department of State, “you should act on it.”

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“EXCLUSIVE: Ross Commits To Protocols That Make It Harder For Trump To Mess With Census”

Tierney Sneed for TPM:

Commerce Secretary Wilbur Ross said in a statement to TPM that when the Census Bureau gives the President the 2020 census data for congressional apportionment, it will make that data public at the same time.

The statement commits the Trump administration to following a decades-long tradition of simultaneously releasing and transmitting the numbers, encouraging public confidence that the data will not be secretly manipulated by the White House.

For months, former Census officials and other census observers have been on the lookout for signals that the Trump administration might deviate from these long-established protocols. On Thursday, TPM sent the Commerce Department and the Census Bureau a detailed list of questions about its plans for the apportionment process.

“I have no further comment on the ongoing litigation, but we will release this Census data publicly, and in keeping with past practice, will do so simultaneously with its delivery to the President,” Ross said in a response provided to TPM on Friday afternoon.

After a follow up from TPM, the Commerce Department confirmed that Ross was referring to the total population counts, the apportionment calculations that they produce, and, in the event the Supreme Court gives a green light, the immigration data that Trump is requesting so that he can exclude undocumented immigrants from apportionment process.

A lower court has declared the exclusion of undocumented immigrants from the apportionment count illegal. Not long after TPM received the initial statement from Ross, the Supreme Court announced it would hear arguments in that case on a timetable that could let it resolve the dispute before early January.

The gambit, if okayed by the Supreme Court, would allow Trump to diminish political representation for immigrant-rich states, while boosting the political power of whiter, Republican-leaning parts of the country. It has been blocked by a lower court.

Even amid the legal uncertainty, the Census Bureau has been moving forward on assembling data on undocumented immigrants. Recent developments in the various census-related court cases have suggested that the Bureau is having trouble collecting reliable data on undocumented immigrants beyond those that can be linked to ICE detention records, which would be a relatively small number of people.

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“Independent Spending in 2020 Congressional Elections Has Surpassed the $1 Billion Mark”

Campaign Finance Institute:

Independent spending (IEs) in the general elections of 2020 for the U.S. House and Senate reached $1.035 billion as of October 15. This is nearly one-third of a billion dollars more than congressional IEs as of the same date in the previous record year of 2018 (see Table 1).

In fact, the spending so far already is almost equal to the record level of $1.05 billion in for the full cycle of 2018, (For full-cycle information, see CFI’s Guide to Money in Federal Elections, 1974-2018.) With 18 days left until Election Day, and IEs averaging $15 million per day over the past seven days, there is likely to be a noticeable gap between the mark set in 2018 and the new one about to be set.

It is also important to note that 63% of the IEs so far have been made by the formal congressional party committees or the Super PACs and dark money groups directly associated with the four party leaders. The parties and party-related committees are dominating the IEs so far and no one else is even close. (For all of the IEs in this year’s congressional elections arranged by spender , see CFI’s daily IE tracker by group. The IE tracker also shows the spending in each House and Senate race, updated daily.)

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“Florida Republicans Launch Last-Minute Effort to Shut Down Ballot Drop Boxes”

Mark Joseph Stern for Slate:

Florida law also allows supervisors to set up discretionarydrop boxes outside locations that qualify as early voting sites but aren’t being used for that purpose. So, for instance, supervisors can place drop boxes outside libraries, courthouses, and community centers that could be used for early voting but weren’t this year. Many supervisors have already set up these discretionary drop boxes, and they’ve proved extremely popular. By providing enough drop boxes to meet demand, they have avoided appalling scenes like those in Texas, where voters have waited in endless, snaking lines to place their ballots in the single drop box allowed per county.

On Wednesday, however, Secretary of State Laurel Lee tried to shutter a large number of both mandatory and discretionary boxes. In guidance sent to election supervisors and obtained by Slate, Brad McVay, general counsel of the Florida Department of State, imposed onerous new drop box regulations. McVay announced that mandatory drop boxes must be staffed by election officials at all times, and that these officials must ensure that each voter has signed and sealed their ballot envelope. He also declared that discretionary drop boxes may only remain open during early voting days and hours.

This guidance, if implemented, would force dozens of counties to close hundreds of drop boxes every day and remove others altogether. Florida’s counties do not have sufficient personnel to staff mandatory drop boxes 24 hours a day, or to devote the number of staffers necessary to screen each voter’s ballot. So supervisors would have to close these mandatory drop boxes for at least part of each day. Further, counties that use 24-hour discretionary drop boxes would have to shut them until Monday, when early voting begins. Then, starting Monday, they would have to either close these boxes early or keep them closed permanently. The result would be an abrupt and drastic contraction in the number of drop boxes available to Floridians.

But there’s a problem with McVay’s guidance: It has no legal basis. Florida law does notrequire mandatory drop boxes to be staffed at all times; it merely says that these boxes must be “secure.” As Ron Labasky, legal counsel for the Florida Supervisors of Elections association, told the Tampa Bay Times, there’s no definition of “secure” in the statute. Instead, the law leaves security “within the discretion of the supervisor.” And there is no legal reason why monitoring by 24-hour video or certified volunteers does not count as “secure.”

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“Supreme Court Speeds Up Case On Trump’s Push To Alter Census For House Seats”; But Still a Good Chance Trump Loses Case

NPR:

The U.S. Supreme Court has granted the Trump administration’s request to speed up the appeal of a lower court ruling that is blocking the president’s attempt to exclude unauthorized immigrants from the census numbers used to reallocate seats in Congress.

The move sets up an expedited legal fight that includes a hearing before the high court on Nov. 30, a month before federal law says the latest state population counts for reapportioning the 435 seats in the House of Representatives among the states are due to the president. The timing increases the potential for Trump to try to make the unprecedented change to who is included in the numbers while he is in the White House.

In understanding what’s going on here and the Trump Administration’s chances it is important to understand the procedural posture of this case. This is a case coming up on mandatory appellate jurisdiction from a three-judge court. It is not like a regular cert petition where the Court has complete discretion about whether to take the case.

I had thought that this case was so clear-cut against the Trump Administration that the Court might have just summarily affirmed. At least one Justice likely objected to that and the case was set for argument. But given the strong textual argument in the constitution to count all “persons,” the Trump Administration still has a tough road ahead.

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“Trump Campaign Lawyers Are Aiding a Leading Proponent of QAnon”

NYT:

Senior lawyers for the Trump campaign set up a small law firm last year that is working for Marjorie Taylor Greene, a Republican House candidate in Georgia with a history of promoting QAnon, a pro-Trump conspiracy theory.

While federal filings show that the firm, Elections L.L.C., principally collects fees from the president’s campaign and the Republican National Committee, it also does work for a number of congressional candidates, and none more so than Ms. Greene, underscoring the connections between QAnon and Mr. Trump and his inner circle. The latest example came Thursday night, when President Trump repeatedly declined to disavow QAnon at a televised town hall.

Ms. Greene is one of several Republican candidates who openly espouse the collection of bogus and bizarre theories embraced by followers of QAnon, who have been labeled a potential domestic terror threat by the F.B.I. and who former President Barack Obama warned Wednesday were infiltrating the mainstream of the Republican Party. QAnon imagines, falsely, that a Satanic cabal of pedophile Democrats are plotting against Mr. Trump, plays on anti-Semitic tropes and stokes real world violence — and has been expounded on at length by Ms. Greene in videos.

Elections L.L.C. was founded last year by Justin Clark, Mr. Trump’s deputy campaign manager, and Stefan Passantino, a former top ethics lawyer in the Trump White House. Matthew Morgan, the Trump campaign’s counsel, is also a partner at the firm. Ms. Greene’s campaign has made 14 payments to the firm since last year, worth nearly $70,000 in total, the most of any congressional campaign.

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North Carolina: “Former GOP legislator charged with assaulting a poll worker at Wake early voting site”

News & Observer:

A former Republican state legislator was charged with assaulting an election worker at a Wake County early voting site on Friday morning.

Gary Pendleton was an official Republican poll observer at the Northern Regional Center, 350 East Holding Ave. in Wake Forest, where he was charged with a misdemeanor assault. Pendleton, 73, served in the N.C. General Assembly from 2015 to 2017 and is a former Wake County Commissioner.

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“Statement on Florida Officials’ Plans to Remove People with Past Convictions from Florida’s Voter Roll”

Via email:

With less than 18 days until the 2020 General Election, the Florida

Division of Elections made plans to remove returning citizens who owe legal financial obligations from Florida’s voter roll in direct violation of Florida’s 30-day notice period.

The American Civil Liberties Union (ACLU), ACLU of Florida, Brennan Center for Justice at NYU Law and NAACP Legal Defense and Educational Fund, Inc. responded with the following:

“On the eve of a consequential election, Florida officials wrongfully endeavor to scare as many

eligible voters as possible away from voting. Florida’s Division of Elections intends to send whatever unreliable information it has to Florida Supervisors of Elections (‘SOEs’) to merely suggest some registered voters may owe legal financial obligations (‘LFOs’).

“Under a recent appellate court decision, Florida, for now, can require people with most felony convictions to pay LFOs arising from their conviction(s) before regaining their right to vote. Yet Florida had not removed people from the voter rolls for LFOs since the Florida Legislature undercut the will of Florida’s people and enacted a law creating this pay-to-vote system on July 1, 2019.

 “It is now long past when they are permitted to do so. The Division of Elections’ untimely effort to disqualify currently eligible voters requires a 30-day notice period and cannot be completed before Election Day. Importantly, Florida knows it can only remove an otherwise eligible voter through unequivocally credible and reliable information of the otherwise eligible voter’s outstanding LFOs. It additionally must give the voter notice and an opportunity to contest the state’s information. All of this takes time—seven days for the SOEs to review and act on the Division of Elections’ information and 30 days for each voter to participate in a hearing to contest the State’s information, which we know—and a federal trial court recognized—is flawed. In short, there is insufficient time before Election Day for any voter to be removed from the rolls under Florida state law requirements. Florida’s proposed action is simply an attempt to scare people with felony convictions away from voting and constitutes voter intimidation—par for the course in Florida.

“Yet as the Eleventh Circuit made clear: until Florida ‘complete[s] its screening’ of the 85,000 registrations it received ‘from felons who believe[d] they were re enfranchised’ at the time of trial, ‘it will not have credible and reliable information supporting anyone’s removal from the voter rolls, and all 85,000 felons will be entitled to vote.’ Jones v. Governor of Florida, No. 20-12003, 2020 WL 5493770, at *2 (11th Cir. Sept. 11, 2020).”

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“In Ohio, a Printing Company Is Overwhelmed and Mail Ballots Are Delayed”

NYT:

As the presidential election headed into the final stretch in late summer, counties in Ohio and Pennsylvania worried that a deluge of absentee ballot requests would swamp their printing capacity. So 16 of them contracted with Midwest Direct, a Cleveland mailing company.

But when it came time to print and ship Ohio ballots early last week, it was Midwest Direct that was overwhelmed. Several Ohio counties that expected absentee ballots printed by the company to land in voters’ mailboxes are now scrambling to print them themselves or find a last-minute contingency plan less than three weeks before Election Day.

In Pennsylvania, for instance, nearly 30,000 ballots sent to voters in Allegheny County, which includes Pittsburgh, went to the wrong addresses.

The counties had provided the company with lists of tens of thousands of requests weeks in advance. The company’s inability to meet demand has underscored the stress that mail voting has put on the nation’s election process as the coronavirus pandemic curtails in-person voting. Midwest Direct is the primary outside provider of absentee ballots for 16 Ohio counties, though many also have their own in-house operations.

Midwest Direct is owned by two brothers, Richard Gebbie, the chief executive, and James Gebbie, the chairman. This summer they began flying a Trump 2020 flag above Midwest Direct’s headquarters on the west side of Cleveland. It was a curious juxtaposition — a company in the business of distributing absentee ballots through the mail showing a preference for a president who has spent months denigrating the practice of voting by mail.

“We have freedom to vote for who we want and support who we want,” Richard Gebbie said in an interview last month. “We fly a flag because my brother and I own the company and we support President Trump.”

Mr. Gebbie said he didn’t “have an opinion” on Mr. Trump’s false claims that voting by mail is corrupt and rife with fraud, but he emphasized that the ballots his company mailed met strict security standard

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“Which Constitution Is Amy Coney Barrett Talking About?”

Jamelle Bouie:

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

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

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

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

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

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Purcell Brief

Here’s the link to a Supreme Court amicus brief, filed earlier today on behalf of several election law scholars (including myself), asking the Court to provide more guidance about the Purcell principle. The brief makes two principal arguments: (1) that Purcell advises against, but doesn’t categorically bar, judicial intervention close to an election; and (2) that, in determining whether to intervene, courts should weigh the disenfranchisement that will occur if they don’t step in against the voter confusion that might result from their involvement.

Amici strongly believe that lower courts would benefit from further guidance on the import and application of Purcell. That guidance would clarify that timing alone should not drive the decision whether to grant an injunction in election cases. Rather, as in any equitable proceeding, context is vital. Thus, as further explained below, a court considering a request for an injunction should weigh, inter alia, whether the injunction sought would likely cause voter confusion that would chill voting, whether failure to issue the injunction would likely lead to a greater chilling effect, whether the injunction would likely lead election officials to err, and whether the party seeking the injunction acted diligently or could have sought relief earlier in time. Only by fully considering those factors—and others that may apply given the context—can a court properly determine whether injunctive relief is warranted.

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Would President George W. Bush Speak Up If Trump Loses But Refuses to Concede?

The Atlantic:


With less than three weeks until the election, Bush—as the only living former Republican president—would be in a position to stand up for American democracy if Trump loses but refuses to concede, as he has threatened to do.

But if Bush is planning on doing anything about Trump, or considering some way to stand together with the other former presidents to protect democracy, that would be news to the offices of those former presidents. They haven’t heard from him.

Joe Biden’s campaign looked into whether Bush would consider endorsing him but was told he wouldn’t be getting involved. If Biden wins and Trump refuses to concede, though, the Democrat would likely lean on Bush to speak up, a person familiar with the campaign’s thinking told me. I asked the Trump campaign if the president would want Bush’s endorsement. My email was ignored.

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“Pa. has rejected 372,000 ballot applications — most of them duplicates — bewildering voters and straining officials”

Philly Inquirer:

Pennsylvania has rejected 372,000 requests for mail ballots, straining election offices and bewildering voters in one of the most hotly contested battlegrounds in the presidential election.

More than 90% of those applications, or about 336,000, were denied as duplicates, primarily because people who had requested mail ballots for the state’s June 2 primary did not realize they had checked a box to be sent ballots for the general election, too. Voters have also been baffled by unclear or inaccurate information on the state’s ballot-tracking website, and by a wave of mail ballot applications from political parties and get-out-the-vote groups. County offices across the state have been forced to hire temporary staff and work seven days a week to cope with the confusion.

“The volume of calls we have been getting has been overwhelming,” said Marybeth Kuznik, elections director in Armstrong County, northeast of Pittsburgh. It’s been preventing her office from working on anything else: “It has been almost like a denial of service attack at times because it seemed that sometimes all I could get done was answer the phone!”

Though it may deter some people from voting, the mass rejection of ballot applications is unlikely to have a big effect on turnout. Voters who submitted duplicate applications should eventually receive a ballot. Those who don’t can still vote at the polls on Election Day.

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“Twitter Changes Course After Republicans Claim ‘Election Interference’”

NYT:

President Trump called Facebook and Twitter “terrible” and “a monster” and said he would go after them. Senators Ted Cruz and Marsha Blackburn said they would subpoena the chief executives of the companies for their actions. And on Fox News, prominent conservative hosts blasted the social media platforms as “monopolies” and accused them of “censorship” and election interference.

On Thursday, simmering discontent among Republicans over the power that Facebook and Twitter wield over public discourse erupted into open acrimony. Republicans slammed the companies and baited them a day after the sites limited or blocked the distribution of an unsubstantiated New York Post article about Hunter Biden, the son of the Democratic presidential nominee, Joseph R. Biden Jr.

For a while, Twitter doubled down. It locked the personal account of Kayleigh McEnany, the White House press secretary, late Wednesday after she posted the article, and on Thursday it briefly blocked a link to a House Judiciary Committee webpage. The Trump campaign said Twitter had also locked its official account after it tried promoting the article. Twitter then prohibited the spread of a different New York Post article about the Bidens.

But late Thursday, under pressure, Twitter said it was changing the policy that it had used to block the New York Post article and would now allow similar content to be shared, along with a label to provide context about the source of the information. Twitter said it was concerned that the earlier policy was leading to unintended consequences.

Even so, the actions brought the already frosty relationship between conservatives and the companies to a new low point, less than three weeks before the Nov. 3 presidential election, in which the social networks are expected to play a significant role. It offered a glimpse at how online conversations could go awry on Election Day. And Twitter’s bob-and-weave in particular underlined how the companies have little handle on how to consistently enforce what they will allow on their sites.

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“G.O.P.-Appointed Judges Threaten Democracy, Liberals Seeking Court Expansion Say”

NYT:

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

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

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

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

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Top Recent Downloads in Election Law on SSRN

Here:

RankPaperDownloads
1.Foreword: The Degradation of American Democracy—and the Court
Michael J. Klarman
Harvard University
Date Posted: 31 Aug 2020
Last Revised: 01 Sep 2020
1,944
2.Mail-In Voter Fraud: Anatomy of a Disinformation Campaign
Yochai BenklerCasey TiltonBruce EtlingHal RobertsJustin ClarkRobert FarisJonas Kaiser and Carolyn Schmitt
Harvard University, Berkman Klein Center for Internet & Society, Berkman Klein Center for Internet & Society at Harvard University, Harvard University – Berkman Klein Center for Internet & Society, Harvard University – Berkman Klein Center for Internet & Society, Harvard University – Berkman Klein Center for Internet & Society, Harvard University – Berkman Klein Center for Internet & Society and Harvard University – Berkman Klein Center for Internet & Society
Date Posted: 08 Oct 2020
Last Revised: 09 Oct 2020
1,452
3.Post-Election Chaos: A Primer
Cass R. Sunstein
Harvard Law School
Date Posted: 03 Sep 2020
Last Revised: 28 Sep 2020
836
4.Reconsidering Lost Votes by Mail
Charles Stewart III
Massachusetts Institute of Technology (MIT) – Department of Political Science
Date Posted: 03 Sep 2020
Last Revised: 21 Sep 2020
723
5.Optimism and Despair About a 2020 “Election Meltdown” and Beyond
Richard L. Hasen
University of California, Irvine School of Law
Date Posted: 17 Sep 2020
Last Revised: 06 Oct 2020
146
6.The Race-Blind Future of Voting Rights
Jowei Chen and Nicholas Stephanopoulos
University of Michigan at Ann Arbor and Harvard Law School
Date Posted: 02 Sep 2020
Last Revised: 02 Sep 2020
139
7.How Outside Money Makes Governing More Difficult
Mike Norton and Richard H. Pildes
Stanford Law School and New York University School of Law
Date Posted: 11 Sep 2020
Last Revised: 11 Sep 2020
57
8.Election Law’s Efficiency-Convergence Dilemma
Ezekiel Wald
University of California, Berkeley, School of Law
Date Posted: 28 Aug 2020
Last Revised: 05 Oct 2020
52
9.Bring the Masks and Sanitizer: The Surprising Bipartisan Consensus About Safety Measures for In-Person Voting During the Coronavirus Pandemic
Joshua A. Douglas and Michael Zilis
University of Kentucky – College of Law and University of Kentucky – Department of Political Science
Date Posted: 19 Sep 2020
Last Revised: 19 Sep 2020
42
10.Conducting Elections During a Pandemic
David Becker
The Center for Election Innovation & Research
Date Posted: 20 Aug 2020
Last Revised: 20 Aug 2020
40
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“If we want results on election night, this is a reform both parties should support”

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

Here is an excerpt from the WP editorial:

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

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

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