Election Law Blog

This is the most in-depth story I’ve seen, from the Detroit Free Press, about how the ballot processing went on in one particularly important location, Detroit. Rick linked to it below, but I wanted to highlight that it contains all the combustible elements we expected to see, but that did not, in the end, disrupt the process:

a huge number of poll watchers from both parties — indeed, far more allowed into the center than the law required or maybe permitted; challengers pressing in much closer to the election officials than social-distancing policies permitted; social-media rumors flying fast and furious, either wilful misinformation or just confusion; some challengers not understanding the process and the rules and trying to engage in widespread disruption, such as simply challenging all the ballots at a table with no reason; the police having to remove disruptive challengers; media stories based on incorrect information or information out of context circulating widely.

It’s easy to see how combustible the situation might have been, but it did not combust. I don’t know if I’d say the process went smoothly, but through it all, the election officials performed steadily, including through the night, and none of all this surrounding noise ended up interfering with the process.

From John Kruzel.

Franita Tolson LAT oped:

However, all the blame game does is gloss over the key structural failure in our system of elections that, even in conditions of historic voter turnout, permits states to suppress that turnout and disenfranchise a significant number of voters for no good reason.

Voter suppression and disenfranchisement cannot be explained by a polling error or political strategy gone awry. This is a first-order issue of democratic legitimacy because states make it needlessly difficult for people to vote in a system that holds itself out as a democracy. As such, having more reliable polling or running more targeted campaigns won’t solve this problem. Neither will fixing the electoral college. Even if we let the people pick the president directly, some combination of states would still make it difficult for segments of their populations to cast ballots.

Josh Gerstein sums it up:

President Donald Trump’s barrage of lawsuits related to the 2020 presidential election kicked up considerable dust on Thursday, but delivered his campaign no tangible progress in halting or slowing the slide of vote tallies away from him in key battleground states.

The flurry of litigation yielded a couple of minor victories for the president, as a state judge granted his campaign’s poll watchers closer access to ballot counting in Philadelphia and a federal court judge there brokered a deal that’s likely to let more volunteers from Trump’s campaign observe the process.

Despite mixed results, the court fights seemed to serve their intended purpose of creating an air of legal uncertainty around the election while the president and his advisers scramble to preserve a sense of viability for a reelection bid that is by objective measures growing more remote.

The performative nature of the litigation was evidenced by the campaign’s dispatching some of its most combative surrogates to sites where court fights were underway or threatened.

Laura Brill makes a good point.

Rick Pildes in the NYT:

It is hard to know the true motivation behind these new lawsuits. They could be all sound and fury, an effort to appease the president and his troops, demonstrating that the campaign is fighting to the last dawn. On the other hand, they may be less about their individual claims, or about winning in court, and more the start of a plan to attempt to sow confusion, to generate a sense of chaos, to undermine the perceived integrity of the vote — even to set up later tactics.

My guess is that courts will make quick work of these new cases. At the time of the 2000 election, only half of registered voters believed it “really mattered” which candidate won the election. Today, 83 percent have that conviction. Few judges are going to believe it is good for the country or the courts for this election to be decided by anyone other than the voters.

You can watch here or read a transcript.

The report begins:

 The 3 November general elections were competitive and well managed despite legal uncertainties and logistical challenges. In a highly polarized political environment, acrimonious campaign rhetoric fuelled tensions. Measures intended to secure the elections during the pandemic triggered protracted litigation driven by partisan interests. Uncertainty caused by late legal challenges and evidence-deficient claims about election fraud created confusion and concern among election officials and voters. Voter registration and identification rules in some states are unduly restrictive for certain groups of citizens. The media, although sharply polarized, provided comprehensive coverage of the campaign and made efforts to provide accurate information on the organization of elections. Arrangements put in place by the election administrators, including for early and postal voting, together with committed civic engagement, allowed for high voter participation despite challenges posed by COVID-19 pandemic. Counting and tabulation is ongoing and should continue in accordance with the law and OSCE commitments. Baseless allegations of systematic deficiencies, notably by the incumbent president, including on election night, harm public trust in democratic institutions. 

Josh Gerstein for Politico:

President Donald Trump’s barrage of lawsuits related to the 2020 presidential election got off to a mixed start on Thursday, with his campaign winning closer access to ballot counting in Philadelphia but losing bids to invalidate a few dozen mail-in ballots in Georgia and for better access to counting in Michigan.

The initial flurry of suits did not appear capable of delivering a reelection victory to the president or even satisfying his repeated demands to stop the count. Instead, they seemed intended to create a cloud of legal uncertainty around the election and preserve a sense of viability around the campaign while Trump lawyers scramble for a strategy that could actually help him win.

PBS:

A Michigan judge has dismissed a lawsuit by President Donald Trump’s campaign in a dispute over whether Republican challengers had access to the handling of absentee ballots.

Judge Cynthia Stephens noted that the lawsuit was filed late Wednesday afternoon, just hours before the last ballots were counted. She also said the defendant, Secretary of State Jocelyn Benson, was the wrong person to sue because she doesn’t control the logistics of local ballot counting, even if she is the state’s chief election officer.

Law Prof letter:

American history is replete with presidential elections that were not decided on Election Day. From the very first presidential election in 1788 through the 2016 election, having a sufficiently complete count of votes to confidently predict a winner on the same day that the polls close has been the exception, not the norm. That’s why all of us, who teach and write about constitutional law, election law, voting rights, and/or the rule of law, are signing this letter—reaffirming that it is deeply in line with, and not counter to, our finest traditions to count every vote, to take our time in doing so, and to not cast aspersions on the process simply because it is methodical….

More of this please:

There are suspicious partisans across the spectrum who believe widespread election fraud is possible. Some hanky-panky always goes on, and there are already reports of poll watchers in Philadelphia not being allowed to do their jobs. But stealing hundreds of thousands of votes would require a conspiracy on the scale of a James Bond movie. That isn’t going to happen.

These are comments from City Commission Chairwoman Lisa Deeley. She is the one who wrote the letter to state officials worrying that there could be 100,000 of these ballots statewide:

Tuesday, she was here to tell you, was an utter bore. The only hiccups were the few election workers who showed up late or forgot the key to the polling place. And the city has received about 3,000 naked ballots, far fewer than had been expected.

Politico:

A federal judge gave a skeptical reception Wednesday to a Republican lawsuit seeking to throw out votes in a Pennsylvania county that contacted some voters to give them an opportunity to fix — or “cure” — problems with their absentee ballots.

During a morning hearing in Philadelphia, U.S. District Court Judge Timothy Savage said he was dubious of arguments from a lawyer for GOP congressional candidate Kathy Barnette, who argued that the Pennsylvania Supreme Court had concluded that the law prohibits counties from allowing voters who erred in completing or packaging their mail-in ballots to correct those mistakes.

“I’m not sure about that,” said Savage, an appointee of President George W. Bush. “Is that exactly what was said or is what was said was that there is no mandatory requirement that the election board do that?….Wasn’t the legislative intent of the statute we are talking about to franchise, not disenfranchise, voters?”

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