Good conversation with Ian Bremmer.
Neal Katyal and Josh Geltzer for WaPo.
Alamance County sheriff’s deputies and Graham police pepper-sprayed people — including a 5-year-old girl and other children — who were participating in the “I Am Change” march to the polls on Saturday afternoon.
A racially diverse group of about 200 people walked with a police escort from Wayman’s Chapel AME Church to Court Square, where they held a rally encouraging people to vote. The event was organized by Rev. Greg Drumwright, a Burlington native who leads the the Citadel Church in Greensboro, according to his website….
In a statement released Saturday evening, Graham police said Drumwright and the marchers hadn’t followed proper procedures for holding the event. The department said that it warned the group that it would not be allowed to close the road, said Daniel Sisk, a public information officer for the Graham police.
The department defended its use of pepper spraying, by saying, “[T]he assembly reached a level of conduct that led to the rally being deemed unsafe and unlawful by unified command.”
The protests did not appear to disrupt the last day of early voting in the city, according to the State Board of Elections. “We’re still gathering information but it appears that voting has continued and hasn’t been interrupted,” Patrick Gannon, spokesman for the State Board of Elections, told The News & Observer.
But many who were marching may not have reached the polls.
On the eve of a presidential election fraught with tension, warning flares are bursting across American skies. From federal and local law enforcement to analysts who track radical groups, concern is high about the possibility that violence could erupt, especially if the vote count drags on for days without a clear winner.
The signals are disturbing: A sharp increase in gun sales. A spike in chatter about civil war in online forums where right-wing extremists gather. An embrace of violent language by President Trump and other leaders. And surveys showing an increased willingness by some Americans to see violence as an acceptable tool against political opponents.
President Donald Trump, in his last sprint of rallies before Election Day, is aggressively accelerating his campaign to spread distrust in the US election and legal systems, laying the groundwork for a potential effort to stop counting votes after Nov. 3.
“The whole world, and our nation, is going to be waiting, and waiting, and waiting to hear who won? You’re going to be waiting for weeks?,” Trump asked a crowd of supporters Saturday morning in Bucks County, Pennsylvania.
There has been a giant spike in early and mail-in voting nationwide because of the coronavirus pandemic, particularly — polls suggest, among Democrats. Because of how some key states like Pennsylvania count votes, that might mean that the election winner is not determined on election night, and it could mean that some states that count absentee ballots late may show initial results that have Trump winning, only for Joe Biden to overtake him as more votes come in. There’s nothing about that that would suggest fraud or illegality, and it’s not unusual for some states to take days to finalize a vote count. Trump, though, is now loudly insisting otherwise.
He repeatedly blamed the Supreme Court, which earlier this week denied Pennsylvania Republicans’ request to issue a decision on mail-in ballots before the election, punting the issue. That denial means that Pennsylvania can still count ballots that are postmarked by Election Day as long as they arrive by Nov. 6; Republicans had sued to stop them from counting anything that arrives after Nov. 3.
“This is a terrible thing they’ve done to our country. And that’s the United States Supreme Court I’m talking about. That is a terrible, political, horrible decision that they made. We’re going to be waiting, Nov. 3 is going to come and go and we’re not going to know,” Trump said. “And you’re going to have bedlam in our country, and you’re going to have this period of nine days or seven days or whatever it is, and many bad things — ballots are going to be, ‘oh we just found ten thousand ballots, oh that’s good, we just found another ten thousand.’ This is a horrible thing the United States Supreme Court has done to our country. And I say it, and I say it loud and I say it proud.”
“We have to know who won,” he said. “We have to know who won.”
WaPo:
For months, Republicans have pushed largely unsuccessfully to limit new avenues for voting in the midst of the pandemic. But with next week’s election rapidly approaching, they have shifted their legal strategy in recent days to focus on tactics aimed at challenging ballots one by one, in some cases seeking to discard votes already cast during a swell of early voting.
“It’s not just the rules anymore,” said Myrna Pérez, director of the Voting Rights and Elections Program at the nonpartisan Brennan Center for Justice. “It’s individual voters.”
Republicans said they are just trying to make sure the process runs smoothly and the rules are applied fairly, arguing that Democrats have loosened election rules in ways that could confuse voters and invite fraud.
“We have volunteers, attorneys and staff in place to ensure that election officials are following the law and counting every lawful ballot,” Justin Riemer, chief counsel for the Republican National Committee, said Friday. “If election officials aren’t providing transparency that the law demands or we are unable to resolve disputes over certain ballots or procedures, then we will litigate as necessary.”
But Democrats said there is no evidence that expanded mail balloting and other pandemic-related changes lead to fraud. They accused Republicans of targeting valid votes in Democratic strongholds in a blatant bid to gain an electoral advantage.
Texas Lt. Gov. Dan Patrick repeated unsubstantiated claims in a Thursday interview that the only way Republicans can lose on Election Day is if Democrats cheat.
“The Democrats have just decided this election, Mark, we don’t have to pay attention to any laws. We’re gonna use COVID as an excuse to steal the election, and that’s what they’re trying to do everywhere,” Patrick, a Republican, said during a radio interview on “The Mark Davis Show.” “If the president loses Pennsylvania or North Carolina, Mark, or Florida, they’ll lose it because they stole it.”
A spokesman for his office clarified after the interview that Patrick was referring to “reports of ballot irregularities” and “other potential fraud” being seen in Pennsylvania and other battleground states. There have been no credible reports of widespread fraud or irregularities in Pennsylvania. President Donald Trump’s campaign seized on an announcement by federal authorities that they were investigating why nine military ballots were found in a trash can there, but no arrests have been made and no evidence has been made public that any fraud was involved.
NYT:
Batches of ballots that will be counted at different times, depending on the swing state. Twitter gadflies and foreign agents intent on sowing confusion. A president who has telegraphed for months that he may not accept results he deems unfavorable.
Television executives overseeing this year’s election night broadcasts are facing big challenges. And the world will be watching.
“Frankly, the well-being of the country depends on us being cautious, disciplined and unassailably correct,” said Noah Oppenheim, the NBC News president. “We are committed to getting this right.”
In interviews, the men and women in charge of network news coverage — the platform that tens of millions of Americans will turn to on Tuesday to make sense of a confusing vote count and learn the future of their country — made similar pledges.
Patience. Caution. And constant reassurance to viewers about the integrity of the results. “We have to be incredibly transparent all through the night with what we know and what we don’t know,” said George Stephanopoulos, who will anchor the proceedings for ABC News.
To accommodate the idiosyncrasies of this pandemic-era campaign, networks are planning tweaks to the way some election nights looked in the past.
Real-time results will be displayed in the context of the total expected vote, including the absentee and mail-in ballots that will account for a high proportion of it. The usual metric, “precincts reporting,” is tied to in-person votes on Election Day, which producers expect to be potentially misleading.
The “decision desks,” the teams of data experts at news organizations who project results, say they are not competing over who calls a race first. “We’re preparing the audience that this might not be over in one night,” said Susan Zirinsky, the president of CBS News.
And combating misinformation — be it from online mischief-makers or falsehoods from the commander in chief — is a priority, particularly in educating Americans that any delays in declaring a victor stem from care, not chicanery.
Miles Rapoport at TAP:
But one thing we can say with some confidence is that there will be a record turnout in this election. As of this Friday evening, over 86,300,000 people have already voted. This is measured against 137 million people who voted in 2016, and a Total Voting Eligible Population of 239 million people, according to Professor Michael McDonald and the U.S. Elections Project. While it is too early to say that this extraordinary early vote are new voters and not just the same voters voting earlier, it seems clear that turnout this year will almost certainly be over 150 million votes cast; it could well go over 160 million.
There are lots of reasons for this, but I want to highlight one that is not properly credited. So many people are voting early because people have successfully fought to open the process of registration and voting over the last twenty years, building off the trailblazing work of the civil rights movement. Major expansions of opportunities for people to register and vote were increasingly the norm before any of the adjustments because of COVID-19.
With the next redistricting cycle about to begin, I wanted to note some major developments at PlanScore. First off, the site now includes partisan fairness scores that incorporate the results of the 2018 election. Second, the site now covers state senates in addition to state houses and congressional delegations. Third, Chris Warshaw, a political scientist at GW who’s written and testified about partisan gerrymandering, has joined the PlanScore team. Lastly, and most significantly, the site will soon dramatically expand its “Score a Plan” feature, allowing users to upload district maps for almost all states and instantly have them evaluated along a number of dimensions. Stay tuned for when that feature goes live.
Mark Stern flagged this new lawsuit filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled a hearing.
On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively
- It’s too late. Under the doctrine of laches, you can’t just sit on a potential lawsuit and wait to see how things are going. Over 100,000 voters have now voted and it would be too late for them to vote otherwise. this lawsuit could have come weeks ago and there’s no excuse to have waited.
- Plaintiffs don’t have standing. If the complaint is that the legislature’s power is being usurped, then the legislature needs to sue, not voters, a candidate and one member of the legislature as in this case. The plaintiffs in this suit cannot claim injury and so they should not be able to sue.
- The claim relies on an unsupported legal theory, and even accepting the theory this case doesn’t fit as confirmed by the Texas Supreme Court. The Supreme Court majority has never endorsed this theory, and even if the independent state legislature doctrine is adopted by the Supreme Court, it likely would not apply in a situation where the legislature has delegated significant authority to run elections to counties. The state supreme court had a chance to pass on the question of whether the drive-thru voting violated the election code, and on a 6-1 basis rejected the suit. (The equal protection theory advanced by the plaintiffs in this case is even weaker.)
- This is a clear, naked partisan attempt to disenfranchise voters at the last minute. This kind of maneuvering is exactly why there are doctrines like laches and respect for voter reliance interests to stop such shenanigans.
More from Michael Morley on why this claim should be immediately dismissed (despite his disagreement with me on the standing question).
Maine’s Senate race is considered close, and if so, there’s an additional reason it could take longer — maybe several days — to determine who has won. The reason is that Maine now uses ranked-choice voting (RCV), and there is an independent, Green New Deal candidate, Lisa Savage, polling in the 4-5% range. If the margin between Susan Collins and her Democratic opponent, Sara Gideon is less than that when the initial count is completed, the Senate outcome would then be determined in the second round of the ranked-choice tabulating process, when Savage will be eliminated and the second-ranked choices on those ballots will be distributed either to Collins or Gideon.
The assumption is that most of Savage’s voters will rank Gideon as their second choice, since Savage is the furthest left candidate in the race. But Maine has structured that process, as I understand it, so that it won’t get to that next stage for nearly a week. I’ve been told (maybe someone has a story to link to for this) that the Secretary of State will not turn to the second round until the vote totals from every town in the state are in; since small towns take several days to finish completing that count, that means the RCV process won’t start until the slowest town has finished completing its tallies.
This delay is not at all intrinsic to RCV. That process can be completed quickly, if not for the Secretary of State’s policy choice in Maine to wait in this way.
We are going to see mistakes about this, as in this recent story from an otherwise good Politico journalist.
Normally I would not call something like this out, but this is important and we need journalists and others to get this right now, before misunderstandings sink in: States are not required to certify their results by Dec. 8th, the safe-harbor date. It is wrong to report that States “must” certify their results by this date.
The Dec. 8th date in federal law is an offer, not a requirement: If a State certifies by then, federal law says Congress will then “conclusive[ly]” presume that slate to be valid. But States are free to certify their results after Dec. 8th. The Electoral College does not vote until Dec. 14th. If a State submits a single slate, even after the safe harbor date, Congress is to accept that slate unless both chambers — in the newly elected Congress — vote to reject it.
I blogged about this back in July, referencing a piece that Derek Muller wrote on the issue:
In this short piece, Derek Muller makes an important point: the Supreme Court did not hold, in Bush v. Gore, that the Electoral Count Act mandates that all state counting or recounting processes in the presidential election must end by the so-called “safe harbor” date in the Act. Instead, the Court (rightly or wrongly) interpreted Florida law, as construed by the Florida Supreme Court, as reflecting a state policy that such processes end in Florida by that date. . . .I’ve urged, along with others, that Congress move back this date in light of that. But especially if Congress does not do that, it’s important that Derek has clarified this point well in advance of any context in which it might become significant.
Here is the problematic passage in that Politico story:
All states are under a set time frame to sort through all the anticipated 2020 mail-in ballots.
By Dec. 8, each state must certify its results to Congress, giving each only five weeks to navigate any disputes and recounts.
Simon added that the state will not appeal to the U.S. Supreme Court, though there might be cause for litigation later. He noted that while there is currently no court order that invalidates ballots arriving after Nov. 3, his current focus is on making sure voters cast their ballots by the time the polls close on Election Day.
While legal issues were being sorted out, the state’s Democratic Party turned its operation toward alerting people of the issue. Simon, a Democrat, said an ad agency working with the state is redirecting its messaging to inform people about how to make their vote count. Additionally, the state is talking with Facebook to see if a blast can be sent out to notify Minnesotans of the change.
Democratic Party Chairman Ken Martin said officials were reaching out to voters with unreturned absentee ballots, and Democratic Sen. Tina Smith, who is up for re-election Tuesday, is creating a television ad to send the same message. The city of Minneapolis expanded hours for ballot drop-off sites to make voting more accessible….
Simon said voters who still have absentee ballots in hand may drop them off at a designated location before 3 p.m. on Election Day, vote early at an early voting station, or vote in person on Nov. 3. Those who already returned absentee ballots can track them online to see if they’ve been received – and if a ballot is still outstanding, the voter can instead cast a vote in person. Their absentee ballot will be cancelled once the state receives it….
David Schultz, a political science and legal studies professor at Hamline University in St. Paul, said the 8th Circuit ruling sets up “a lot of voters” to claim that they were denied their right to vote.
“They acted in good faith and reliance on a consent decree that gave them sufficient opportunity to postmark their ballot by Election Day, get them in in seven days,” Schultz said. “There could be thousands of voters who lose their right to vote as a result of that. … I just don’t think the 8th Circuit thought this through.”…
Richard Hasen, an election law professor at the University of California Irvine School of Law, said Thursday’s ruling was unusual and could lead to serious voter disenfranchisement. He said voters who have absentee ballot instructions at home are relying on government information about when their ballots are due – and there’s no reliable way to make sure everyone is notified of the change.
“For conservative judges, who supposedly believe in judicial restraint and not overreaching, this is an audacious and unprecedented kind of decision so close to the election,” Hasen said. “It’s the opposite of the kind of restraint that we’ve heard many conservatives preach.”
We are members of different parties, but we share a commitment to the health and integrity of our voting system. Based on our time leading the Presidential Commission on Election Administration and each of our four decades of work in U.S. elections, we believe our electoral system is strong and will deliver the reliable results required for the peaceful transfer of power that is foundational to our democracy. It is important that the public understand this and that the media strive to depict the election process as working, not as it is portrayed by those seeking to undermine its legitimacy.
Despite all the 2020 rhetoric, this country has a solid system to count votes; to adjudicate allegations of fraud, irregularity or error; to provide avenues for resolving close elections; and to declare winners. When challenging the results, opposing parties are charged with vigorously advocating their positions so that fact-finders can issue determinations that may then be peacefully accepted. No matter how hard the feelings, that is what’s best for the country….
Suspicions are high that the 2020 election will not run smoothly and will be difficult to validate. This is primarily due to President Trump’s characterization of the electoral system as “rigged” and his claim that the historic number of mail-in ballots cast because of the pandemic will result in widespread fraudulent voting.
The president has notably failed to produce any evidence of systemic fraud to support his claims. He has ignored the fact that Republican observers have witnessed voting in every election and have discovered fraud only in rare, isolated incidences. Never have they found anything close to the scale of irregularity that would justify the president’s rhetoric.
Moreover, the president has promoted the suggestion that votes cannot be lawfully counted after midnight on Nov. 3. Some have read an echo of this extraordinary and factually inaccurate claim in Justice Brett M. Kavanaugh’s dissent in the recently decided voting case from Wisconsin and worry that the Supreme Court could be heading in this direction. We do not read the Kavanaugh concurrence to support the Trump argument. In any event, this argument completely lacks merit. Ballots received by the statutory deadline — whether they are physically cast or postmarked by Election Day, depending on each state’s own laws — will be counted no matter how long it takes to count them. The counting can and always has continued past Election Day.
As a result, the president’s attempt to undermine the election is a self-serving assault on a fundamental American system. It should be condemned across party lines.
We believe any candidate (or his supporters) abusing these norms will be unsuccessful for two reasons: First, Americans have a history of rising to the occasion to stop any threat. Local, county and state election officials can typically count on the support of responsible elected officials, federal and state courts, law enforcement and the national security agencies to uphold the law and norms that ensure voters are heard.
Second, the process to overturn an election would require specific evidence proved on a precinct and county level. Blanket challenges won’t work. Bombastic rhetoric at a rally or a television interview is far from sufficient.
You can listen here.
Boockvar’s comments come amid plans by some Pennsylvania counties to postpone counting of any mail-in ballots — whether they arrive before the polls close or after — until late Tuesday or early Wednesday.
Pennsylvania law permits counties to begin counting mail-in and absentee votes beginning at 7 a.m. on Election Day but does not require that they do so immediately. Cumberland County, a Republican-leaning area outside of Harrisburg, indicated Wednesday that it would not begin counting mail-in ballots until Wednesday, citing a need to prioritize resources for in-person voting. Several other smaller counties have reportedly indicated they intend to delay counting of mail-in ballots.
The significance of the push-and-pull between the state and counties could have national significance. Both campaigns see Pennsylvania, with its 20 Electoral College votes, as potentially decisive; Trump won the state by just 44,292 votes in 2016, and Scranton native Joe Biden has stumped there extensively.
The U.S. Supreme Court earlier this week determined opted against expediting a Republican challenge to the state’s high court’s decision to permit ballots arriving up to three days after Election Day to be counted, but Justice Samuel Alito, in a dissent, indicated the court may revisit the issue after the election. Newly confirmed Justice Amy Coney Barrett sat out that court’s move, but could represent a decisive fifth vote in either direction.
Twenty-eight states and the District of Columbia have extended deadlines for military voters to account for the delays facing overseas ballots.“Each state establishes clear absentee ballot deadlines, including some extended deadlines for military and overseas citizens to return their ballots after postmarking their ballots by election day,” Lisa Lawrence, a Pentagon spokeswoman, told Task & Purpose. “All ballots that are timely received, pursuant to state law, will be considered by election officials for either acceptance or rejection.”…
“Federal law protects military and overseas voters and many states give extra time for military ballots to arrive and be counted,” Richard Hasen, a professor of Law and Political Science at the University of California-Irvine, told Task & Purpose. “No state has a final or official count on election night; the full counting takes days or weeks. It is true that races are sometimes unofficially called by news organizations on election night or soon thereafter, but those are just predictions of what the official count will likely show.”
“Trump’s calls to stop counting on election night, if followed, would disenfranchise military voters allowed to vote under state and federal law,” Hasen said. “Fortunately, the president has no role to play in dictating which ballots are counted and when.”
That decision is up to the states.
“Traditionally most states even if they are in-hand states, where the ballots have to be in at the close of the polls, have a specific carved out allowance for military and overseas voters to have their ballots come in after the fact,” Tammy Patrick, a senior advisor with the Democracy Fund, told Task & Purpose.
But for voters, it’s growing increasingly difficult to keep up to date on exactly what the rules are, even as the election looms around the corner.
Pennsylvania Democrats are increasingly alarmed that the U.S. Supreme Court might intervene to throw out mail ballots that arrive after Election Day, after three conservative justices on the high court this week held open the possibility of reversing a state court ruling that extended the deadline for returning them.
Meanwhile, several Pennsylvania counties have said they won’t begin counting mail ballots until the day after Election Day, increasing the likelihood that early returns that night could give a misleading impression of the vote, since Democrats are voting far more heavily by mail. In some counties, their votes may not begin being tallied until Nov. 4.
And the prospect of a long delay before a fuller picture of the results is known, Democrats fear, will open a window for Trump to prematurely declare victory as public perceptions harden around incomplete tallies.
Some Pennsylvania Democrats sound increasingly confident Joe Biden will have the votes to win the battleground state — and with it, likely the presidency.
But one of Biden’s closest allies in Pennsylvania worried Thursday that an unrestrained President Donald Trump or a newly reshaped Supreme Court could dismiss or thwart ballots voters had cast under the current deadline, and potentially secure a second term for the president.
“That’s my number-one concern,” Sen. Bob Casey, one of Pennsylvania’s most senior Democrats and, like Biden, a Scranton native, said in an interview. “All of these ballot issues, whether it’s by way of litigation or by way of the president engaging in conduct that might be unlawful. He’s not constrained by the law, he’s not constrained by convention or deference to institutions.”
The U.S. Supreme Court, in deciding Wednesday not to fast-track a Republican effort to strike down the state Supreme Court’s ruling extending the deadline by three days, did not address the merits of the case — only whether it could be decided before Election Day.
He did not refer it to the full Court.
WaPo:
Over the past five days, the on-time rate for ballots in 17 postal districts representing 10 battleground states and 151 electoral votes was 89.1 percent — 5.9 percentage points lower than the national average. By that measure, more than 1 in 10 ballots are arriving outside the Postal Service’s one-to-three-day delivery window for first-class mail.
Those delays loom large over the election: 28 states will not accept ballots that arrive after Election Day, even if they are postmarked before. Continued snags in the mail system could invalidate tens of thousands of ballots across the country and could factor into whether President Trump or Democratic nominee Joe Biden captures crucial battleground states and, ultimately, the White House.
In Michigan, for example, the Detroit postal district — which includes some of the state’s largest concentrations of Black voters, who are crucial to Biden’s campaign — had delivered only 72.8 percent of ballots on time over the past five days, according to Postal Service data filed in U.S. District Court of the District of Columbia. In the Greater Michigan district, which represents the rest of the state, 84.3 percent of ballots arrived to election officials on time.
In North Carolina, 84.7 percent of ballots in the Greensboro district and 85.1 percent in the Mid-Carolinas district have been delivered on time in the past five days.
In private messaging apps and social media, Spanish-speaking residents in South Florida have been exposed to a barrage of deceptive claims — a voter disinformation tactic that could last until Election Day.
The latest example is an anonymous message that emerged in WhatsApp chats this week that threatens Spanish-speaking supporters of President Donald Trump. The claims have rattled some Hispanics in South Florida even as experts warn of the claims’ falsehoods.
The threat closely mirrors false, often racist and anti-Semitic, narratives peddled in local Spanish media where some hosts and political pundits have suggested a vote for former Vice President Joe Biden would mean supporting a violent takeover of the country.
Alternatively, recent intimidating messages suggest Trump supporters will become the target of crimes by an anonymous groupif the president loses and refuses to concede.
In South Florida, some Hispanic Trump supporters are taking those threats seriously, citing traumatizing violent experiences they’ve had in their home countries. This is concerning family members who are growing worried about the toll fake scams and unsubstantiated threats are taking on their relatives.
Bryon Tau for the WSJ:
Some of America’s largest corporations have finally gotten the memo that election-season giveaways requiring proof of voting are actually illegal under federal law.
It’s an issue that recurs with every election: Companies ranging from national brands to small businesses see an opportunity to both promote themselves and a civic cause by offering discounts or freebies to people with an “I Voted” sticker.
But such giveaways run afoul of federal prohibitions on providing incentives or inducements to vote—a longstanding anticorruption measure designed to facilitate clean elections. Such prohibitions are rarely if ever enforced against corporations offering discounts or freebies to voters doing their civic duty, but they remain on the books.
This year many national chains are keeping their giveaways on the right side of the law by making them available to voters and non-voters alike….
Rick Hasen, a law professor at University of California, Irvine, and perhaps the foremost chronicler of such lawbreaking in recent election cycles, appeared surprised at how many national chains have gotten the message.
“I feel like now I can retire. Looks like all of these Election Day giveaways do *not* require proof of voting (such proof runs into the federal law against inducements to vote, but have been common in earlier elections),” he wrote on Twitter this week.
Important Salon article, glad to see one of my co-authors quoted:
“I do think it’s safe to vote in person,” Dean Blumberg, an associate professor in the Department of Pediatrics at the University of California–Davis, told Salon. “I think for most voting situations, the interactions that you’re going to have with people where you’re not gonna be socially distanced will be brief, and then wearing a mask when you are close to other people provides an extra layer of protection for when you have to be close to other people.”
The greatest risk, de St. Maurice said, is not when you’re actually voting in the polling place, but when you’re waiting in line.
“If that line is indoors, that’s probably the scenario where people might be closer together, and waiting in line for a long amount of time,” she said. “But I think if people can maintain a physical distance, if everyone is wearing a mask, and if ventilation is increased, meaning that people are maybe outdoors or there’s adequate ventilation in the polling place, those risks are really reduced.”
Blumberg said for situations where you have to break social distancing, like when you’re grabbing a ballot from the poll worker, that exchange will be so brief that the risk is low of getting infected even if one of you is asymptomatic—assuming you’re both wearing masks.
Exposure to the coronavirus isn’t a black-and-white situation, scientists say. Specifically, being exposed to the coronavirus is not the sole risk, but rather how much of the virus one encounters. Those who inhale more viral particles, either because they’re not masked or are in the presence of an infected person longer, are at higher risk.
Another simulation showed that when at a minimum 80 percent of a population is masked, the risk of transmission is greatly reduced.
Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 325. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info. And Josh Douglas is separately tracking just the federal appeals, to see how they shake out.)
A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be a good case or a shoddy one, or a “big” case or a “small” one — and some can be both at the same time. (The Eighth Circuit’s ruling Rick rightly called “outrageous” is probably a small case with respect to the number of ballots it will ultimately impact, and a giant case when it comes to the legal questions at issue). And some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.
There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September. and October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for increasingly localized relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.
These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have still been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.
You can watch the interview here.
President Trump launched into a tweetstorm in April, banging out nine retweets of the Centers for Disease Control’s account on the dangers of misusing disinfectant and other topics — two days after he himself had suggested that people could inject themselves with bleach to cure covid-19.
But those tweets spread in an odd pattern: More than half the 3,000 accounts retweeting Trump did so in near-perfect synchronicity, so that the 945th tweet was the same number of seconds apart as the 946th, University of Colorado information science professor Leysia Palen found.
The unusual finding underscores some of the little-known ways in which Trump’s social media army — composed of devoted followers and likely assistance from software that artificially boosts his content — has helped him develop one of the world’s most powerful political megaphones, unlike any other in the English-speaking world.AD
That megaphone has become a frequent source of misinformation, some of it so toxic that Harvard researchers recently dubbed attacks on mail-in voting by Trump and right-leaning leaders “a highly effective disinformation campaign with potentially profound effects … for the legitimacy of the 2020 election.”
Trump’s singular ability to spread his messages, often disseminating false or unsubstantiated information, comes from his prominence as president and the relentless clip of his tweeting to his 87 million followers. He is also aided by a vital feedback loop — often discussed but poorly understood — among the president, high-profile influencers and rank-and-file followers that both push messages in his direction and promote every online utterance.
His feedback loop, according to several new and forthcoming studies, has become a leading threat to the integrity of political debate in the United States, with an impact that to date appears far more damaging than the efforts of Russian operatives or other foreign adversaries.
A study released Thursday by the Election Integrity Partnership, a consortium of misinformation researchers, found that just 20 conservative, pro-Trump Twitter accounts — including the president’s own @realDonaldTrump — were the original source of one-fifth of retweets pushing misleading narratives about voting.
Guy Charles NBC oped:
We turn to courts to help us address deficiencies in voting rules that are really not designed to stand up under any type of pressure, whether it is the pressure of close elections or the pressure of a pandemic, much less the pressure of both a close election and a pandemic. But the courts cannot help us; they are just as divided as we are. If we want elections to be decided at the ballot box and not in the courthouse, we need to save ourselves by passing laws that make it easier for voters to vote — and not harder.
I’ve published this essay, which steps back from all the specific legal issues surrounding the election to bring to the surface an underlying question about why our legal system leaves us so much uncertainty about such vital questions.
From The Conversation:
As I’ve Zoom-traveled the country speaking about legal issues involving the election, I have found myself, as well as audiences, bewildered and frustrated by one underlying question: Why is there so much legal uncertainty about so many critical questions concerning the rules for resolving a disputed presidential election?
If ever a need existed for clear legal rules established in advance, before we know whose ox will be (Al) Gored, that situation is it….
After a decade of deliberations, Congress bequeathed the Electoral Count Act in 1887, designed to provide the framework, which still governs today, for how Congress should deal with a state that certifies two or more slates of electors.
Yet for all that deliberation – or maybe because of it – the Electoral Count Act is still riddled with major legal uncertainties. So are other federal statutes that govern the election….
But what if – more relevant this year, perhaps – a state cannot quickly enough to determine who has won the vote? That means reaching a final resolution, including any litigation that could affect the outcome, by the time the Electoral College must vote on Dec. 18. Can a legislature assert the election has “failed,” step in and directly appoint the electors itself? Yet the act contains no definition or examples of a “failed” election.
That is a rather large question to leave up in the air….
Now the courts enter the picture – or more accurately, this is where you might expect the courts to enter the picture. But they don’t.
If the courts had given a definitive interpretation of what it means for an election to have “failed,” there would be a settled meaning of this term and other unresolved ones, in this law and others, in advance of the election.
The Supreme Court has also never interpreted the Electoral Count Act. Nor will there be any ruling on what a “failed” election means before the moment when Americans actually face potentially explosive political conflicts over exactly that issue.
The reason is that our federal courts, unlike those in some states and other constitutional democracies, will not address any legal issue unless it arises in the middle of what’s termed an actual “case or controversy.” Though this principle rests on a thin historical foundation, it is as deeply embedded in American legal doctrine as any principle.
In legal terms, the federal courts will not issue advisory opinions. That means federal courts will refuse to answer any question in the abstract about the legal meaning of a statute, including whether the statute is even constitutional, no matter how important it might be to have clear guidance on what those laws mean.
This principle is conventionally described as a way of limiting the role of federal courts in American democracy. Courts will resolve disputes over the meaning of law only when they absolutely must enter the fray. The “case or controversy” constraint is also linked to proper respect for the separation of powers.
But as this election and many other contexts illustrate, this doctrine can also be dangerous for the country, as well as the courts themselves. The last time Americans want to discover the proper meaning of laws like the Electoral Count or Presidential Election Day acts is precisely in the midst of an actual controversy over who will become president.
At that moment, the courts are no longer operating behind a veil of ignorance, which would mean they were blind to any knowledge of who would benefit. They will be aware of which candidate is more likely to benefit from a ruling one way or the other.
Worse than that, even if the courts decide that question in exactly the same way they would behind that veil, the half of the country whose candidate loses will almost certainly perceive the courts as having acted for the purpose of favoring that candidate. That is almost inevitable, as I said at the time of Bush v. Gore.
One major purpose of a well-constructed legal regime is to provide a clear framework in advance for resolving contentious issues. Being in conflict about the very content of those rules, at the same time we are trying to apply them to resolve those issues, is sure to make these conflicts all the more divisive.
The country does not want to be debating how long the term of office for a president ought to be at the same time it is choosing a president, which is why the Constitution specifies the four-year term.
But to settle the meaning of many rules on the books, judicial interpretation is required. Yet that is exactly what the “case or controversy” requirement precludes – until we are in the midst of that controversy.
This is why audiences I talk to are frustrated at discovering that legal experts offer conflicting views, or give “on the one hand, on the other hand” answers to questions about exactly how a disputed election might arise and be resolved. In the name of limiting their own power, the federal courts leave us at sea until the boat is nearly capsizing.
This is a piece I’ve written for the Washington Post on the Court’s choice to decide so many “shadow docket” election cases.
But the court didn’t have to resolve any of these voting disputes. And it shouldn’t have resolved them. By intervening so often, the Supreme Court has become a body that corrects perceived lower-court errors, not one that decides major legal issues. By stepping in without explaining its actions, it has tarnished its institutional legitimacy. And by proceeding in haste, the court has made factual and legal mistakes — bad, not just unnecessary, law. . . .
Maybe these sorts of rulings — rushed and unreasoned — could be excused if the court had no choice but to act. But the Supreme Court has complete discretion whether to intervene. No law or rule compels it to grapple with the merits of every emergency application that lands at its doorstep. Just as the court denies thousands of cert petitions each year, it could reject litigants’ requests that it overrule lower-court decisions about electoral matters. Such rejections would carry no precedential weight and would not interfere with the law’s future evolution.
Moreover, the court’s choice to cram its shadow docket with electoral cases has serious negative consequences. One is to reshape the court’s role atop the judicial hierarchy. “We are not . . . a court of error correction,” Justice Antonin Scalia once wrote. Rather, as the court’s rules confirm, its function is to resolve “important question[s] of federal law.” But no one would say that all of the electoral issues the court has recently addressed are legally important. None have involved disagreements among the federal circuits. Most have focused on the application of the well-established standard for when electoral regulations unjustifiably burden the right to vote. Whether this standard is violated by early mail-in ballot deadlines, witness requirements for mail-in ballots and so on is practically significant for voters and election officials. But legally, this is just a matter of whether a particular policy fails a test that’s not in dispute. Lower courts make these judgments all the time without anyone thinking their conclusions warrant Supreme Court review. By nevertheless granting review, over and over, the court has become exactly what it professes not to be: a tribunal that fixes the lower courts’ supposed mistakes, even when they implicate no larger legal principle.
The court’s failure to explain itself in many of its pandemic-era cases makes matters worse. Above all, the court owes its legitimacy to the reasons it generally gives for its decisions. These reasons show all sides that their arguments have been carefully considered. These reasons are also what make the court’s decisions law — the product of accepted modes of legal analysis — and not merely acts of will. When the court’s rulings are unreasoned, however, they don’t command the same respect. They don’t demonstrate to litigants that their concerns have been heard. And to the public, they seem more like exercises of political power than of judicial deliberation. This impression is all the more damaging when the court’s rulings almost all come out the same way: in favor of states that make it hard for their citizens to vote.
Adam Liptak for the NYT:
In a little over a week, the Supreme Court issued five sets of orders in election cases. In three of them, Democrats prevailed.
Chief Justice John G. Roberts Jr. wrote an opinion in only one of the cases, and it was only a paragraph long. It sketched out a distinction that no other justice endorsed. But that distinction can explain every one of the court’s orders.
The distinction pressed by the chief justice was this: Federal courts should not change voting procedures enacted by state legislatures, and they also should not step in when state courts or agencies change those procedures.
The something-for-both-sides approach is broadly similar to Chief Justice Roberts’s recent record, in which he voted with the court’s liberals in cases on gay rights, immigration and abortion; joined the court’s conservatives in major cases on religion; and wrote the majority opinions in cases on subpoenas seeking President Trump’s financial records that rejected his broadest claims but did not require immediate disclosures.
Chief Justice Roberts’s deft judicial work last term meant that he was in the majority in divided decisions at a higher rate than any chief justice since at least 1953. Scholars debated whether that was evidence of principle or pragmatism, noting that the chief justice has tried hard to shield the court from charges that it is a political body.
In the election cases, too, the chief justice’s rationale staked out a middle ground, one that was consistent with conservative ideas about federalism even as the court’s other members seemed to take all-or-nothing approaches. The court’s more liberal members said the right to vote was important enough to justify letting federal judges alter state election rules. And its more conservative ones said the Constitution prohibits all changes to voting rules enacted by state legislatures, even ones supported by state courts or state officials.
The center holds at the Supreme Court in voting cases, at least for now, and that is a very good thing.
In rulings from the presidential battlegrounds of Wisconsin, Pennsylvania and North Carolina, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh held the balance of power between two trios of justices on their left and right. The pair steered the court to a sensible centrist position on the enforcement of voting rules heading into Election Day. (Justice Amy Coney Barrett, the court’s new member, did not participate in any of these decisions.)
So what would this mean if something similar happened on election night in Pennsylvania? Well, if we use what our presidential forecast currently says about the race in Pennsylvania, we can game this out a little to understand what the vote count might look like on Nov. 3. We should be clear, though, that this analysis has its limits. We can’t know for sure how many Pennsylvanians will actually vote in November or the pace and trend of the count. Not to mention, counting the votes in two separate primaries is different from counting the votes in one presidential contest.
Right now, our forecast estimates that about 6.8 million votes will be cast in Pennsylvania, on average, and the average popular vote result gives Biden about a 5-point edge over Trump, 52 percent to 47 percent. If that panned out, that means Biden would win about 3.6 million votes to Trump’s 3.2 million (with a few additional votes for other candidates). And if the vote count followed what we saw in the primary, less than half of Biden’s votes would be in by 3 a.m. on election night, whereas around 70 percent of Trump’s would be reported.
That means we could be looking at a situation where Trump has about a 16-point lead, 58 percent to 42 percent, based on approximately 60 percent of the total expected vote. But over the course of the next few days — again, assuming the same pattern we observed in the primary — Biden would win two-thirds of the remaining votes, which would precipitate a 21-point shift in the overall margin from 3 a.m. on election night to the final result, as the chart below shows.
Now, it’s entirely possible the actual shift isn’t as large as the one outlined above. After the primary, local election officials in Pennsylvania now have some experience in handling a huge number of mail ballots. The state has also made investments to expedite the vote count. Plus, a sizable share of mail ballots will have already been turned in by Election Day, so administrators could have the majority of all mail votes when they begin processing them on Election Day morning. Pennsylvania officials also want to make sure that voters aren’t surprised by a sizable vote shift so plan to be as transparent as possible. Secretary of State Kathy Boockvar has said she will call on county election officials to regularly report the progress in counting mail ballots, instead of reporting them all at once, to avoid a huge swing in the vote that might cause confusion. And she’d also like the state to share how many ballots are left to count, where they are in the counting process and the party affiliation of the voters who cast those remaining votes.
Still, we’re talking about a lot of votes that have to be processed. Just 2.7 million people cast ballots in Pennsylvania’s presidential primary, about 40 percent of the total turnout we’re expecting in the general election. In fact, more people have requested mail ballots than voted in Pennsylvania’s presidential primary, period. That means even if officials are better prepared, they will still have far more mail ballots to process than in June. And while they can begin processing at 7 a.m. on Nov. 3, that still means verifying and processing each ballot, and only then counting each vote. This could take days, which could affect how quickly we know who won the election.
David Gans for Slate.
It is hard to know where to start with this opinion. The majority suggests that a consent decree extending the deadline for absentee ballots in Minnesota, entered into by the Secretary of State and plaintiffs and approved by a state court, usurps the power of the state legislature under article II of the Constitution (under a theory a majority of the Supreme Court has not endorsed—at least not yet). The court reached this conclusion despite the fact that the Legislature did not object (the court found that Electors have standing, quite a dubious proposition that they could assert the rights of the legislature), that the Legislature delegated the power to the Secretary of State to take these steps, and despite the fact that we are on the eve of the election.
This timing issue is doubly troubling. First, the Supreme Court has said that federal courts should be very wary of changing election rules just before the election. This Purcell Principle is controversial but it has been applied very heavily by the Supreme Court this election season especially.
More importantly, think of the reliance interests of Minnesota voters, who have been told until today that they have extra time to mail their ballots. Now there is the very real chance that those late-arriving ballots won’t count through no fault of their own. Both the plaintiffs and courts could have moved much sooner if they had this concern. It is voters that are going to be on the short end of things.
Whether the state goes to the Supreme Court at this time or not, and whether they are successful at getting a majority to overturn this (I’d give it a fair shot given the reliance interests), things are so uncertain that the only advice to people in Minnesota is not to vote by mail at this point. Do NOT put your ballot in the U.S. Mail. Use official government drop boxes or vote in person.
Nine month before a purported leak of files from Hunter Biden’s laptop, a fake “intelligence” document about him went viral on the right-wing internet, asserting an elaborate conspiracy theory involving former Vice President Joe Biden’s son and business in China.
That document, a 64-page composition that was later disseminated by close associates of President Donald Trump, appears to be the work of a fake “intelligence firm” called Typhoon Investigations, according to researchers and public documents.
The author of the document, a self-identified Swiss security analyst named Martin Aspen, is a fabricated identity, according to analysis by disinformation researchers, who also concluded that Aspen’s profile picture was created with an artificial intelligence face generator. The intelligence firm that Aspen lists as his previous employer told NBC News that no one by that name had ever worked for their company, and no one by that name lives in Switzerland, according to public records and social media searches.
One of the original posters of the document, a blogger and professor named Christopher Balding, took credit for writing parts of the document when asked about it by NBC News, and said that Aspen does not exist.
Despite the document’s questionable authorship and anonymous sourcing, its claims that Hunter Biden has a problematic connection to the Communist Party of China have been used by people who oppose the Chinese government, as well as by far-right influencers, to baselessly accuse candidate Joe Biden of being beholden to the Chinese government.
The document and its spread have become part of a wider effort to smear Hunter Biden and weaken Joe Biden’s presidential campaign, which moved from the fringes of the internet to more mainstream conservative news outlets.
An unverified leak of documents including salacious pictures from what President Donald Trump’s lawyer, Rudy Giuliani, and Delaware Apple repair store owner claimed to be Hunter Biden’s hard drive were published in the New York Post on Oct. 14. Associates close to Trump, including Giuliani and former White House chief strategist Steve Bannon, have since promised more blockbuster leaks and secrets, which have yet to materialize.
The fake intelligence document, however, preceded the leak by months and helped lay the groundwork among right-wing media for what would become a failed October surprise: a viral pile-on of conspiracy theories about Hunter Biden.
Jess Bravin for the WSJ:
Vermont Secretary of State Jim Condos isn’t satisfied with Justice Brett Kavanaugh’s revision to a recent voting-rights opinion that Mr. Condos said misstated his state’s election rules.
On Wednesday, Justice Kavanaugh revised a Monday opinion that originally said Vermont hadn’t changed its “ordinary election rules” in response to the coronavirus pandemic to state that it hadn’t changed its “ordinary election deadline rules,” after Mr. Condos complained that the justice overlooked a host of other measures the state took to help voters limit exposure to Covid-19.
“I’m glad he admitted a mistake and modified his opinion, but a one-word addition doesn’t go far enough,” Mr. Condos, a Democrat, said Thursday. “I will not sit idly by while Justice Kavanaugh uses factually incorrect information about the Green Mountain State as cover to erode voting rights in the middle of a pandemic-distressed election.”
WMFE talks to Ciara Torres-Spelliscy.
Tim Wu for NYT Opinion.
I made the same point in Election Meltdown. An attack on our election infrastructure or power grid on Election Day should be seen as an act of war and declared that in advance by the President.
Yesterday I wrote about the Supreme Court order in the Pennsylvania case and Justice Alito’s separate statement strongly suggesting the PA Supreme Court acted unconstitutionally in taking power away from the state legislature.
It’s a controversial theory but I want to put that to one side and raise the point that the PA Legislature did not file this cert. petition nor did legislative leaders (who were on an earlier stay request, but not this cert. petition).
Isn’t the lack of standing, which I flagged earlier, reason enough to defeat this claim? That is, how can the party complain about the loss of the Legislature’s purported rights?