“In the Most Litigated Election Ever, Early Democratic Wins but Few Clear Signals”


Ahead of an election that seems certain to have the most litigated voting rules ever, Democrats won important cases over the past week in the critical states of Michigan, Wisconsin and Pennsylvania.

But appearances can be fleeting. Even with only six weeks of campaigning left, experts say some of the most pivotal rulings are yet to come. And what may look like convincing legal victories may be overturned on appeal.

“Voting rights victories are the best outcome, but only if they last until the election,” said Nathaniel Persily, a Stanford University political scientist and the co-director of the Stanford-M.I.T. Healthy Elections Project.

That project tracks more than 300 legal battles over voting, involving issues like absentee ballots and assistance to voters that are broadly related to the coronavirus pandemic. But there are dozens more, over questions like placing third-party candidates on the fall ballot, whose rulings could also prove crucial in state or national races in November….

The Republican organizations argue that Democrats are trying to relax voting rules to make it easier to cast bogus Democratic votes. So far, that argument has not been persuasive, said Richard L. Hasen, an election law scholar and law professor at the University of California, Irvine.

Republicans have offered two arguments against making voting easier, he said — that relaxing rules violates state law, and that it violates the Constitution by promoting fraud, which dilutes the value of legitimate votes.

The fraud argument “has fallen flat in the courts so far,” he said, “because the Trump campaign has not been able to produce evidence to support that claim.” Republican lawyers were unable to document systemic fraud risks in hundreds of pages of documents submitted to a federal judge in a Pennsylvania lawsuit. A federal judge in Chicago ruled last month that Republican arguments that expanded absentee voting would abet fraud were “conjecture.”

But legal decisions often depend on who decides. The argument is likely to be tested again in the Michigan and Pennsylvania cases won by Democratic lawyers. The Michigan ruling, by a lower court, can be appealed in a state where the Supreme Court leans Republican. In Pennsylvania, a federal district judge nominated in 2019 by President Trump is expected to soon hear a Republican challenge to expanded mail balloting, based on the threat of fraud, that parallels the one rejected by the State Supreme Court this week.

That Pennsylvania case, with potentially crucial ramifications for mail-in voting, could race through the appeals process and to the Supreme Court in a matter of weeks, Dr. Hasen said.

The death of Justice Ruth Bader Ginsburg on Friday could complicate things further, removing one of the four liberal votes from the court and increasing the likelihood that conservatives would prevail on appeals that go to the court.


“Democrats See a Glimmer of Hope Over Supreme Court Fight in Arizona’s Senate Race”


Democrats have almost no power to stop a pre-election vote on President Trump’s nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court, but they see a glimmer of hope in a bank-shot scenario if they capture a Senate seat in Arizona in the November election.

If Mark Kelly, the Democratic nominee, wins, he could be seated in the Senate as early as Nov. 30, six weeks before the other winners are sworn in, according to elections experts from both parties. Mr. Kelly currently leads Senator Martha McSally, a Republican, in the polls.

There are many ifs: If the Arizona results can be rapidly certified, and if Senate Republicans hold a confirmation vote in the postelection lame-duck session and if three Republicans defect, Mr. Kelly could cast the deciding vote to defeat Mr. Trump’s as-yet unnamed pick to the high court.


“Trump Supporters Disrupt Early Voting in Virginia” (And the Virginia GOP Troublingly Gloats About It in a Tweet)


A group of Trump supporters waving campaign flags disrupted the second day of early voting in Fairfax, Va., on Saturday, chanting “four more years” as voters entered a polling location and, at one point, forming a line that voters had to walk around outside the site.

County election officials eventually were forced to open up a larger portion of the Fairfax County Government Center to allow voters to wait inside away from the Trump enthusiasts.

Election officials said that the group stayed about 100 feet from the entrance to the building and, contrary to posts on social media, were not directly blocking access to the building. But they acknowledged that some voters and polling staff members felt intimidated by what some saw as protesters.

Virginia GOP on Twitter:


“Biden Has $466 Million in Bank, and a Huge Financial Edge on Trump”

Shane Goldmacher for the NYT:

Joseph R. Biden Jr.’s campaign said on Sunday that it entered September with $466 million in the bank together with the Democratic Party, providing Mr. Biden a vast financial advantage of about $141 million over President Trump heading into the intense final stretch of the campaign.

The money edge is a complete reversal from this spring, when Mr. Biden emerged as the Democratic nominee and was $187 million behind Mr. Trump, who began raising money for his re-election shortly after he was inaugurated in 2017. But the combination of slower spending by Mr. Biden’s campaign in the spring, his record-setting fund-raising over the summer — especially after he named Senator Kamala Harris of California as his running mate — and heavy early spending by Mr. Trump has erased the president’s once-formidable financial lead.

Mr. Trump and his joint operations with the Republican National Committee entered September with $325 million, according to Mr. Trump’s communications director, Tim Murtaugh.

The Trump campaign pulled back on its television spending in August to conserve money, as some campaign insiders fretted about a cash crunch in the closing stretch of the campaign. But other officials argued that the Trump campaign would continue to raise heavily from small donors and that the cutbacks over the summer were shortsighted.


“Census Could Look ‘Manipulated’ If Cut Short By Trump Officials, Bureau Warned”

Hansi Lo Wang for NPR:

Weeks before the Trump administration announced it was cutting the 2020 census schedule short, career officials at the Census Bureau attempted to send signal flares about how that last-minute decision would lead to “fatal” data problems with the national head count and the perception of “politically-manipulated results.”

Internal emails and memos, which were released this weekend as part of a federal lawsuit in California, show career officials trying to hold the integrity of the once-a-decade count together in the last weeks of July amid mounting pressure from the administration to abandon the extended timeline it had previously approved in response to the coronavirus pandemic.

Shortening that schedule, a draft document dated July 23 warned, “will result in a census that has fatal data quality flaws that are unacceptable for a Constitutionally-mandated national activity.”

With counting now set to end on Sept. 30, the revelations come shortly before federal courts are expected to decide whether to order the administration to keep tallying the country’s residents through Oct. 31.


“Vote-by-mail meltdowns in 2020?”

Andrew Appel blogs.

Probable election meltdown states

What would be really dysfunctional would be to encourage vote-by-mail, but then to wait until November 3 (or November 2) to start processing those envelopes. That’s a recipe for election meltdown. The states that are heading for this disaster are MI, VT, WI. Iowa, Michigan, and Wisconsin are mailing absentee-ballot-request forms to every voter; but waiting until the last minute to process them after they’re returned. Vermont is even worse: the state is mailing a ballot to every voter, but won’t start processing the returned envelopes until November 2nd.

The Michigan State Senate recently approved a bill to start processing on November 2nd instead of November 3rd. If passed into law, that’s better than nothing — it will certainly help — but it may turn out to be inadequate.

Voters in these states should strongly consider taking this advice: vote in person.


“Mail-in ballot law in Pennsylvania has driven out nearly a quarter of state’s top election officials”

Very worrying story:

More than a dozen counties in Pennsylvania have seen election directors or deputy directors leave in the last year since a new law was passed to accommodate no-excuse mail-in voting across the state, three county officials familiar with the movement tell NBC News.

“The general assembly, the courts, and the governor have created a s—show of an election. Nobody truly understands what’s what,” one county election official said, “nobody has a grasp.”

The heightened concern comes after the Keystone State took weeks to report its primary results in June and as local election officials face ever-changing demands on the election process this year. With less than 45 days to go until the general election, the race in the battleground state is expected to be tight and top Pennsylvania elections officials have already said not to expect results on election night.

An email among a group of Pennsylvania directors of elections, provided to NBC News, shared that nearly one in four counties across the state has seen leaders in their election offices leave.

At least one, in Mifflin County, left for a promotion to the Pennsylvania Department of State and has since been replaced. Others though, left after the new state law around mail-in ballots was passed last fall, or retired — and some of these positions are still left unfilled.

“The loss of so many county election officials in a single year, more than anything else, should be a canary in the coal mine for state-level stakeholders to recognize that the current paradigm is unsustainable,” the email reads in part, also warning that there’s a potential for more officials to leave before November 3rd….


“Swing State Hurdle: Returning Absentee Ballots to Election Day Polls”

Steven Rosenfeld:

Across the country, the past week has seen the Democratic Party and voting rights groups win legal victories to make it easier to vote in the presidential election. But no victory addresses what some experienced election officials say may be a foreseeable trend that could delay polling place voting on Election Day in many swing states.

What may trigger voter confusion and traffic jams are rules that do not allow voters to drop off an absentee ballot at a poll on Nov. 3. In some states, those voters can wait in line and after some completing some paperwork, they will get to vote with a regular or provisional ballot. Or those voters can go to a government election office to return their absentee ballot, or find a drop box if that option is offered.

“It looks like a little tiny thing, but it is a major thing,” said Jan BenDor, a former election official and Michigan Election Reform Alliance statewide coordinator, speaking of voters not being able to simply return an absentee ballot at any Election Day precinct. “One reason we worked so hard to get these drop boxes is so that people don’t get caught in these traps.”

In MichiganPennsylvaniaOhioFloridaGeorgiaNorth Carolina and Wisconsin, there are varying scenarios awaiting voters who might think that they can quickly return an absentee ballot on Election Day. Those voters face hurdles that they may not anticipate. This snafu was previewed in some 2020 primary elections.


“Postal Service says voter registration, vote-by-mail materials permitted in Houston post offices”

Houston Chronicle:

There’s been a breakthrough in the weeks-long standoff over the availability of voter registration materials in Houston post offices with just weeks to go before the election.

Word came in a letter Friday to two Houston Democrats from the U.S. Postal Service government relations official in Washington, clarifying that postmasters are now explicitly authorized to allow voter registration and vote-by-mail applications to be on hand in post office lobbies as long as there is room to stash them.


“‘The Most Important Woman Lawyer in the History of the Republic’”


Politico Magazine asked more than a dozen legal thinkers — law professors, litigators and constitutional scholars — to tell us how RBG’s life and work reshaped America. Many pointed to her work as a champion of women and voting rights. “Her deep and abiding commitment to justice and equality drove her analytic rigor, not the other way round,” Columbia University’s Gillian Metzger wrote. Others argued that she embodied a “sense of moderation and strategy,” as the Cato Institute’s Ilya Shapiro put it, that perhaps went overlooked.


Breaking: “Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87”


Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural, and feminist icon has died. The Supreme Court announced her death, saying the cause was complications from cancer.

Architect of the legal fight for women’s rights in the 1970s, Ginsburg subsequently served 27 years on the nation’s highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that i I will not be replaced until a new president is installed.”

There will be time to discuss Justice Ginsburg’s legacy later as well as the political implications.

At this point, it is enough to express condolences to her family and friends and all who knew her. May her memory be a blessing.


“Mississippi justices: No broad absentee voting amid COVID-19”


Mississippi law does not allow absentee voting by all people who have health conditions that might make them vulnerable to COVID-19, the state Supreme Court ruled Friday.

A majority of justices reversed a Sept. 2 decision by Hinds County Chancery Judge Denise Owens, saying she too broadly interpreted some changes that legislators made to state law this year.

“Having a preexisting condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purposes,” justices wrote.

Rob McDuff is a Mississippi Center for Justice attorney who sued the state on behalf of people with conditions including kidney disease and diabetes. He said Friday that the Supreme Court ruling does allow absentee voting by people with conditions that are serious enough to be considered a physical disability….

Other voting rights groups filed a similar lawsuit Aug. 27 in federal court, arguing Mississippi’s absentee voting restrictions put people at risk amid the pandemic. They filed additional papers Thursday asking a judge to block two requirements — that a voter have absentee ballot forms notarized and that people have an excuse to vote absentee, such as being out of town on Election Day. Waiving the excuse would open absentee voting to many more people.


“Long lines and hand sanitizer on the first day of early voting for general election”


Early voting for the November election kicked off Friday in four states as voters showed up in person to cast their ballots, driven by a sense of urgency about the divisive presidential election, growing unease over the timely delivery of mail ballots, and fear of exposure to the novel coronavirus at the polls on Election Day.

By this weekend, as many as 20 states will have begun some form of general election voting by mailing out absentee ballots or allowing people to cast them in person, giving Americans an opportunity to make their selections for president and other offices long before Nov. 3.

In Minnesota and Virginia, election officials described long lines in some places as people queued up even before voting sites opened, standing on stickers glued six feet apart for social distancing.


“New Yahoo News/YouGov poll: Only 22% of Americans think the 2020 presidential election will be ‘free and fair'”


Just 22 percent of Americans believe this year’s presidential election will be “free and fair,” according to a new Yahoo News/YouGov poll — a disturbing loss of confidence in the democratic process that could foreshadow a catastrophic post-election period with millions of partisans refusing to accept the legitimacy of the results.  

The survey, which was conducted from Sept. 15 to 17, found that both Republicans and Democrats harbor grave and growing doubts about whether the upcoming election will accurately reflect the will of the people. 

Half of Trump supporters (50 percent) say the election will not be free and fair; more than a third of Biden supporters (37 percent) agree. Overall, the number of Americans who say the election will not be free and fair (46 percent) is more than twice the number who say the opposite. Another third (32 percent) say they’re not sure what to expect.


“Alabama Senate Candidate Tommy Tuberville Struggles To Discuss Voting Rights Act”


“You know, the thing about the Voting Rights Act it’s, you know ― there’s a lot of different things you can look at it as, you know, who’s it going to help? What direction do we need to go with it? I think it’s important that everything we do we keep secure. We keep an eye on it. It’s run by our government. And it’s run to the, to the point that we, it’s got structure to it. It’s like education. I mean, it’s got to have structure. Now for some reason, we look at things to change, to think we’re gonna make it better, but we better do a lot of work on it before we make a change.”


“The Conservative Voter Fraud Swarm; Interlocking sets of legal organizations comprise what amounts to a marketing campaign for the false narrative of stolen elections.”


Several more-established conservative legal groups mask themselves with the branding of well-known pro–voting rights organizations. There’s the American Constitutional Rights Union (ACRU; formerly the American Civil Rights Union), which could easily be confused with the American Civil Liberties Union (ACLU). There’s also the Public Interest Legal Foundation (PILF), not to be mistaken for the Public Interest Law Fund. And there’s the Lawyers Democracy Fund, which often refers to itself in emails as LDF, the same nickname for the NAACP’s Legal Defense Fund.

“This is consistent with a naming trend where we see conservative anti-voter groups trying to co-opt the names of existing pro-voting groups,” said Eliza Sweren-Becker, counsel at the Brennan Center for Justice, in an interview with the Prospect. “There is a concerted effort among these organizations … And they are bringing the same types of claims across the country.”…

While these groups do not technically work together, they share similar views about mass voter fraud in their rhetoric and legal arguments, inside and outside of the courtroom. For instance, in December 2019, PILF filed a lawsuit pushing for the City of Detroit to “properly clean its voter rolls,” which could be interpreted as purging people’s names from the official registered-voters list. It claimed, based on census data, that about 2,500 people were dead, almost 5,000 names were doubled or tripled, and about 16,500 should be removed because the date of registration was missing.

PILF voluntarily dismissed the case on June 30. But that didn’t stop the Honest Elections Project from supporting a suit filed on June 9 against the Michigan secretary of state based on the same premise, with a press release using the same language, asking Michigan to “clean up” the voter rolls. The plaintiff in this case is Tony Daunt, whose legal team includes William S. Consovoy, the personal attorney to President Donald Trump, along with two other lawyers from his practice, as well as Jason Torchinsky, who is a contributor to the Federalist Society and a member of the Republican National Lawyers Association.

It’s also not unusual for these organizations to rescind their claims when a win on the merits appears unlikely. Often the evidence isn’t clear when it’s presented in court, according to several experts. In one Wisconsin case from 2014, the judge wrote in his decision that “[s]ome of the ‘evidence’ of voter-impersonation fraud is downright goofy, if not paranoid.” In this case over voter IDs, Frank v. Walker, the defense argued that voter ID laws would stop buses from transporting foreigners to vote in U.S. elections, though there was no proof provided. More to the point, there is little to no evidence that there are people trying to vote under a false identity, the kind of fraud that would be prevented with an ID law.

“Whether it’s PILF, or the Honest Elections Project, or the ACRU, there’s a pattern that is repeated across these jurisdictions to try to bully or compel these underfunded, under-resourced local officials into purging their rolls when that is not necessary and it’s certainly not what’s required by the National Voter Registration Act,” Sweren-Becker explains.


“Considering all the risks you take on a day-to-day basis, voting at your polling place is going to be low risk”

That’s a quote from Dr. Annabelle de St. Maurice, MPH, an assistant professor of pediatrics in the division of infectious diseases who leads the Pediatric Infection Control and is the co-chief infection prevention officer for UCLA Health. That’s from this Healthline story, titled “How to Vote Safely in Person This November,” which includes interviews with several public-health experts. Hopefully this will help get the word out more broadly that in-person voting — which includes early in-person voting — will be safe for most people.


“New York Expands Options for Absentee Voters to Have Their Vote Counted”


Today, a settlement agreement for the November election has been reached between attorneys representing New York voters and state attorneys with the New York State Board of Elections and Office of the New York Attorney General, addressing issues brought by Selendy & Gay and Campaign Legal Center (CLC) in their July case over the process by which the state counts absentee ballots. The League of Women Voters of New York State and an individual, Carmelina Palmer, are plaintiffs in the case.  

Terms of the settlement specify how voters will be contacted if their ballot is rejected and how they can fix the problem. The state has expanded who will benefit from this “cure” process to include other types of errors beyond their signature, including defects with their envelope. It will also, for the first time, provide a clear list of technical issues – such as use of pencil or extraneous marks on the ballot – that do not trigger ballot rejection and do not require any further voter action. Counties had previously used many of these reasons to disqualify ballots, leading to alarming ballot rejection rates, including in this year’s primary elections. More than 84,000 ballots were rejected in New York City alone. The settlement builds off the suite of voter protections addressed by Governor Andrew Cuomo and the New York State Legislature in August.


Michigan Court Allows Third Party Collection of Absentee Ballots (So-Called “Ballot Harvesting”) in the Weekend Before Election Day, and Requires States To Accept Ballots Arriving Up to 2 Weeks After Election Day if Postmarked the Day Before

You can find the opinion here.

I expect this will be appealed as have other Michigan fights over the ballot rules.

One notable finding:

One of the issues in this case concerns evidence—or lack thereof—of voter fraud and threats to election integrity associated with absent voter ballots. Plaintiffs produced largely unrefuted expert testimony and documentary materials from Dr. Michael C. Herron, who concluded that literature on voter fraud consistently concluded that incidences of fraud were “rare.” In addition, he concluded that there was “no evidence of significant voter fraud in [Michigan] associated with absentee voting and voter assistance.” Nor were there significant incidences of fraud reported with the May 2020 election, in which nearly all ballots were cast by mail or at a ballot drop-box….

Plaintiffs’ likelihood of success on this matter is not affected by the amici’s concerns about election integrity. The documentary evidence in this case reveals that the incidences of voter fraudand absentee ballot fraud are minimal and that the fears of the same are largely exaggerated.

Moreover, there is little evidence to suggest that fraud would increase with a larger pool of persons eligible to assist absentee voters. Nor, for that matter, is there a compelling case to be made on this record that a voter’s neighbor, who otherwise would not be able to help her return a ballot, would be more likely to induce fraud than an individual who is approved to render assistance by MCL 168.932(f), such as a voter’s brother-in-law. Furthermore, as plaintiffs point out, the remaining provisions of MCL 168.932 already prohibit interference with the absentee voting process and are much more tailored to that purpose than the voter assistance ban. The fraudfighting role of the voter assistance ban is debatable, at best. As explained in League of Women Voters of Mich I, _ Mich App at _, slip op at 11, legislation supplementary to a self-executing constitutional provision such as art 2, § 4 “must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it more available, and such law must not curtail the rights reserved or exceed the limitations specified.” (Citation and quotation marks omitted; emphasis added). Under the circumstances and timeframe identified in this case, the voter assistance ban curtails the self-executing rights set forth in art 2, § 4 in a way that cannot survive constitutional scrutiny.


“Senate Republicans renounce Trump’s claim that election results ‘may never be’ determined”

Politico with a very good set of responses from Republican Senators:

Senate Republicans on Thursday forcefully rejected President Donald Trump’s suggestion that the 2020 election results might not be accurately determined, but largely declined to address previous bipartisan conclusions that such rhetoric aids foreign adversaries.

Trump, who has frequently made comments that undermine confidence in the electoral process and once suggested delaying the election, tweeted on Thursday morning that the “result may never be accurately determined, which is what some want.”

The president’s assertions have been based on unsubstantiated claims about mail-in voting, which is expected to be widespread this year because of the coronavirus pandemic. U.S. intelligence officials have also warned that foreign actors, including the Russian government, have amplified similar claims in order to instill doubt in the process.

Twitter officials flagged Trump’s tweet as “potentially misleading statement regarding the process of mail-in voting” — and many GOP senators agreed.

“It’s just not accurate,” Sen. Marco Rubio (R-Fla.), acting chair of the Senate Intelligence Committee, said when asked whether Trump’s comment was inappropriate.

“I don’t think we’ll have inaccurate election results,” Rubio added. “They may take a lot longer than they ever have because of the amount of mailed ballots that are going to come in and so forth. But I don’t have any concerns about the accuracy of the election.”…


“Frank LaRose needs to stand firm for voting access”

Cleveland Plain Dealer editorial:

Contrary to LaRose’s own pledges to do everything possible to help county elections officials prepare for an election in which record numbers are choosing to vote absentee, LaRose has used the power of his office improperly to make it harder for voters in Cuyahoga County and the state’s other urban counties to cast their ballots.

This week, Franklin County Common Pleas Judge Richard Frye confirmed what our editorial board wrote at the time — that LaRose’s August order forbidding county election boards from providing secure ballot drop boxes in more than one location was based on an incorrect reading of Ohio law.

The judge in his initial ruling this week left it up to LaRose to lift his prohibition based on LaRose’s statement that he would follow the law once a finding was issued. But when LaRose failed to lift the order, Frye the next day ordered him to do so — and LaRose appealed.

Equally troubling, when the Ohio Republican Party issued a scurrilous attack on Frye, an attack that was so over the top that Ohio Supreme Court Chief Justice Maureen O’Connor felt compelled to issue a sharp rebuke, LaRose was silent.

Jon Keeling, director of communication for LaRose’s office, told the editorial board that LaRose had made clear he sought a final verdict from the courts before acting, hence his appeal. Keeling said LaRose typically refrains from commenting on a pending legal matter.

But with less than three weeks to go before early voting starts, LaRose needs to explain actions that make it harder for elections officials — by law, two Republicans and two Democrats running election boards in every county in Ohio — to plan ahead and do their jobs.


“As Courts Back Broad Mail-In Voting, DeJoy Apologizes for Missteps”

NY Times:

Courts on both sides of the United States issued rulings on Thursday that could expand mail-in voting in the election in November, as the postmaster general privately apologized to state officials for missteps in his agency’s efforts to educate voters on mail-in ballots.

In Pennsylvania, the state Supreme Court paved the way for more mail-in ballots to be counted by extending the due date they must be received by election officials and allowing expanded use of drop boxes.

In Washington State, a federal judge blocked operational and policy changes made by the Postal Service in recent months that have slowed mail delivery and amounted to “voter disenfranchisement.”

Postmaster General Louis DeJoy, who instituted those changes, conceded during a video conference with election officials on Thursday afternoon that he had failed to adequately consult with state election officials on a postcard that was sent to addresses nationwide to educate voters about mail-in ballots. The apology came as some state election officials had publicly clashed with the Postal Service over mail voting, including accusing Mr. DeJoy and his team of deliberately providing misinformation about how to vote by mail.


“Trump’s bluster and millions hasn’t stopped universal mail-in voting plans”


President Donald Trump has spent $20 million of his political war chest to stop it. He riffs about it at rallies. He tweets relentlessly about it.

Yet six months into a crusade to stop universal mail-in voting, Trump hasn’t yet prevented a single state from sending voters the unsolicited ballots he claims, with minimal evidence, are ripe for fraud.

His attempts in Nevada, New Jersey and Montana are tied up in court. His legal challenge in California was circumvented by the state legislature. And he hasn’t challenged the mailing of ballots in the six other states that plan to mail them, including Vermont, the last state that switched to full remote voting this year following the coronavirus outbreak, according to the Trump campaign and the Republican National Committee.

Time is running out. Ballots are already being sent across the country. Some counties in New Jersey began mailing them last week. Both Vermont and Nevada, a battleground state the president campaigned in last weekend, expect to mail ballots within days.

“Once the ballots have gone out, it’s hard to see how the courts could grant meaningful relief on the claims,” said Richard Pildes, a leading expert on election law and a professor of constitutional law at the New York University School of Law. “There would be no way to put the genie back in the bottle, no way to put the toothpaste back in the tube.”


“Cash-strapped Trump campaign awaits a bailout from big donors”


Republican Party megadonors are racing to bail out President Donald Trump’s cash-strapped reelection campaign, with a newly formed super PAC pouring a further$25 million into battleground states.

Preserve America is set to begin running a trio of TV commercials savaging Democrat Joe Biden as Republicans express growing alarm over the president’s absence from the airwaves. Trump — who went dark for part of August and has since cancelled advertising in key states — is being outspent more than 2-to-1 by Biden this week, according to the media tracking firm Advertising Analytics/


What Else Do We Have to Worry About?

Edward Luce is one of the best analysts of Western democracy, as reflected in his 2017 book, The Retreat of Western Liberalism. In his piece in the Financial Times, on the nature of this fall’s election, he ends on this sobering note:

The scene is set for an October surprise. That could be Mr Trump unveiling a Covid-19 vaccine. Or it could be a war with Iran, or even a clash with China. The particular twist is anybody’s guess. But it will be something. Elections like this do not end with a whimper.


“Federal judge issues temporary injunction against USPS operational changes amid concerns about mail slowdowns”


A federal judge in Washington state on Thursday granted a request from 14 states to temporarily block operational changes within the U.S. Postal Service that have been blamed for a slowdown in mail delivery, saying that President Trump and Postmaster General Louis DeJoy are “involved in a politically motivated attack on the efficiency of the Postal Service” that could disrupt the 2020 election.

Stanley A. Bastian, chief judge of the U.S. District Court for the Eastern District of Washington, said that harm to the public “has already taken place” by changes put in place under DeJoy. Bastian ruled from the bench Thursday afternoon after a two-and-a-half hour hearing.

“The states have demonstrated that the defendants are involved in a politically motivated attack on the efficiency of the Postal Service. They have also demonstrated that this attack on the Postal Service is likely to irreparably harm the states’ ability to administer the 2020 general election,” he said….

The scope and duration of the injunction were not immediately clear. In response to a question from defendants’ counsel, Bastian said he would provide more detail in the written order, which the judge said he plans to issue later Thursday or Friday.


“How Republicans Undermined Ex-Felon Voting Rights in Florida: It’s a cautionary tale about the messy process of citizen-led ballot initiatives and how a dominant political party can exert its power”


When voters passed the referendum, known as Amendment 4, civil rights groups celebrated what was billed as a potentially game-changing expansion of the electorate in the nation’s biggest battleground state. White people like Mr. Gruver represent a majority of the state’s former felons. But Black residents are disproportionately represented: More than one in five potential Black voters in Florida were barred from casting a ballot.

Nearly two years later, most former felons remain shut out of the ballot box over their inability to pay legal financial obligations. Of the about one million former felons in Florida — a conservative estimate — at least three-quarters owe court debt. Between 70 and 80 percent are indigent and unable to pay.

And even those who can pay face a Catch-22: Because there is no central database of court fines and fees, it is difficult or impossible to establish how much anyone owes. As of May, the state had failed to process any of the more than 85,000 voting registration applications submitted by former felons since Amendment 4 passed in late 2018.

“It has been a very long slog to change public opinion on the re-enfranchisement of felons, and it took millions of dollars and a lot of effort to get that initiative passed,” said Nathaniel Persily, a Stanford University law professor. “The idea that felons would then have to pay money in order to vote after being enfranchised is depressing.”


“FBI director Wray says Russia is actively interfering in 2020 election to ‘denigrate’ Biden”


According to Wray, Russia is using social media, proxies, state media and online journals to sow “divisiveness and discord” and “primarily to denigrate Vice President Biden and what the Russians see as kind of an anti-Russian establishment.”

Intelligence officials have said they have uncovered evidence that Russia is currently interfering in the election to hurt Biden’s campaign. Separately, some evidence has already emerged about Moscow’s efforts, including Facebook’s announcement earlier this month that a troll group that was part of Russia’s attempt to interfere in the 2016 election is trying to target Americans again.

But while the intelligence community has assessed that China and Iran prefer Trump to lose in November, officials have offered no indication, to date, that either country is acting on that preference in the same way as Russia, according to public statements issued by the intelligence community and sources familiar with the underlying evidence.


“Trump Is Waging A Multistate, Multimillion-Dollar Legal Battle Against Mail-In Voting During The Pandemic”

Zoe Tillman for BuzzFeed:

President Donald Trump’s campaign and the Republican Party are devoting millions of dollars to wage a state-by-state legal battle against mail-in voting during the coronavirus pandemic, not only suing state officials but also intervening in cases where they aren’t a party to limit how Americans can vote from home.

BuzzFeed News identified at least 11 cases where the Trump campaign has asked judges for permission to intervene to defend state and local policies that voting rights advocates argue will make it harder for people to safely vote during the pandemic. That’s in addition to more than half a dozen lawsuits the campaign has filed with the Republican National Committee contesting efforts by Democratic governors and other state and local officials to expand mail-in voting.

It’s unusual to see a presidential campaign take such an active role in court leading up to an election, but the pandemic has made for an extremely unusual — and highly litigious — election year. As the US death toll continues to rise, Trump is throwing the weight of his campaign behind legal challenges in court and using his platform as president to try to dissuade Americans from voting by mail. At the White House, on the campaign trail, and on Twitter, Trump has repeated debunked and unsupported claims that the practice is tainted by widespread fraud and the specter of foreign interference.


The Pennsylvania Supreme Court Decision

I want to highlight one intriguing aspect of this decision.  The state adopted no-excuse absentee voting in a law passed in 2019, before the pandemic.  That meant that the surrounding laws were not written for the volume of absentees likely this fall.

The state-constitutional law issue emerged out of conflict between three elements:  state law that permits voters to request an absentee ballot as late as 7 days before Election Day; state law that requires those ballots to be received by 8pm on Election Night; and the US Postal Service’s representations to the Secretary of the Commonwealth – in a letter from the USPS General Counsel – that it takes 2-5 days to deliver mail. 

You can add those numbers up yourself:  that means there is no guarantee that a voter who lawfully requests a ballot 7 days before the election, fills it out immediately and mails it back, would have their ballot delivered by Election Night and thus be able to cast a valid vote.  Given these circumstances, the majority concluded the state constitution required PA to treat absentees as valid if received up to 3 days after Election Day.

The circumstances required 3 more days in the election calendar.  Those days could have come at the back end but they could also have come at the front end.  And three judges on the court – one a Democrat, the other two Republicans (PA has partisan judicial elections) – agreed that the current laws were unconstitutional, but that the right remedy was to capture those 3 extra days at the front end of the process.  They would have held that the state constitutional violation should have been remedied by requiring voters to request an absentee 10 days (not 7) in advance of the election, and that the court should have preserved the state law requiring receipt by 8pm Election Night.

The argument of these judges was that the number of days in advance that a ballot has to be requested is fairly arbitrary.  There is nothing “magical” about 7 days in advance rather than 10.  Many states require the request to be made 10 or more days in advance, though many permit 7 days.  But this group of concurring/dissenting judges concluded that there was a more compelling legal reason for the state policy that all votes be in by Election Night – that is when the election is over.  So as between which of the two dates should be judicially changed, this group of 3 judges believed the request date, rather than the receipt date, should be changed.

I think many judges would believe that moving up the request deadline would seem like a policy choice that only the legislature could make, while moving back the receipt deadline was a more appropriate form of judicial remedy.  But whether there should be such a big perceived difference between these two options for courts is part of what makes this decision a rich one.

From a policy (not a legal) perspective, I have always been particularly concerned this election about late-counted ballots (maybe the issue won’t matter in the end, because few Pennsylvania voters will mail ballots back at the last minute).  That’s also why I thought this separate opinion for 3 judges raises such an interesting, alternative remedy. 


Breaking: Pennsylvania Supreme Court Extends Absentee Ballot Receipt Deadlines, Allows Drop Boxes, Limits Poll Watchers from Other PA Counties. What’s Next?

Jonathan Lai for the Philly Inquirer:

The Pennsylvania Supreme Court extended the state’s mail ballot deadlines on Thursday, a move that could allow tens of thousands of additional votes to be counted — and will likely draw criticism from Republicans who have argued that all votes should be received by Election Day.

State law says mail ballots must be received by 8 p.m. on Election Day, but the high court said Thursday that ballots will be counted if they are received by 5 p.m. the Friday after the Nov. 3 election. To count, ballots arriving after Election Day must either be postmarked by Nov. 3 or have no proof they were sent afterward. Ballots that arrive by the new deadline with missing or illegible postmarks would still be counted.

In addition, the court held that state election law allows counties to use drop boxes for hand delivery of mail ballots; denied requests from President Donald Trump’s campaign and others to allow poll watchers to work in counties other than the ones where they are registered; and denied a request that other people be allowed to deliver voters’ ballots.

Majority opinion

Concurring opinion

Concurring and dissenting opinion

Concurring and dissenting opinion

This is litigation I’ve been following for a while, as it is among the most significant in battleground states.

This could lead to a Trump appeal to the U.S. Supreme Court, or, more likely, an attempt to revive federal constitutional issues in the case where the federal judge had initially abstained from deciding issues pending the state resolution of related issues.


“Barr’s undermining of the election is downright dangerous”

I have written this oped for CNN. It begins:

By repeating false and misleading statements about the potential for voter fraud and post-election violence, Attorney General William Barr has stepped out of his role as the nation’s chief law enforcement officer and marred the 2020 elections. This parroting of President Donald Trump’s unsupported rhetoric is irresponsible and dangerous, turning the job of the Department of Justice as the protector of voting rights on its head.

This sowing of doubt in the integrity of our elections could be even worse than Barr’s other recent comments comparing prosecutors to children, equating Covid-19 health restrictions to slavery and suggesting that some political protesters should be charged with “sedition.”

It is perhaps too much to expect the attorney general of the United States to condemn Trump’s repeated and unsupported comments that the only way he can lose the upcoming election against his opponent, former Vice President Joe Biden, is if the election is “rigged.” A responsible attorney general, who would put the interests of the country over that of the president or party, would surely come out and say that Trump’s remarks cross a line.The remarks have inspired people such as Roger Stone (a Trump ally whose crimes including lying to Congress and whose sentence Trump recently commuted) to say that the President should declare martial law, seize ballots in Nevada and do whatever it takes to stay in power following the election.

But Barr has said it is “bulls–t” and “crap” to suggest that if the President loses he would stay in office and seize power, calling it “projection” by the left aimed at “creating an incendiary situation where there will be loss of confidence in the vote.”

If anyone is causing people to lose confidence in the fairness of the vote, it is Barr himself.


“How a Pennsylvania law could delay presidential election results for days or even weeks”

Jon Ward:

If Pennsylvania has a repeat performance of its primary, America is in trouble.

Election results in Pennsylvania’s June 2 primary took weeks to be announced. And because it is such a crucial swing state, a similar delay in the Nov. 3 election could end up leaving the country unsure of who the next president will be long after Election Day.

But state officials told Yahoo News they’re confident that results won’t take as long to be announced in the fall election.

“That’s not going to happen,” said Wanda Murren, a spokesperson for the secretary of state’s office.

Murren said the biggest reason for delays during the primary was the consolidation of polling places. Because of COVID-19 and a shortage of poll workers, Philadelphia reduced what are normally more than 800 voting locations in the city to just under 200.

For the Nov. 3 election, Murren said, the city plans to have around its usual number of polling places for in-person voting.