Interesting twist on the perennial problem of offering inducements for voting.
Sherman Smith for the States Newsroom.
A whirlwind of competing lawsuits and legal actions has thousands of ballots in North Carolina in limbo.
With just a few weeks left until the Oct. 27 deadline to request absentee ballots, the North Carolina State Board of Elections has no clear plan for fixing errors on voters’ mail-in ballots.
As of Oct. 4, 7,272 ballots are classified as “pending cure,” meaning there is missing information on the ballot or envelope. “Currently the cure process is being considered by the courts. We will contact you soon with more information,” county election board employees are being instructed to tell voters who call about the status of their ballot.
On Sunday, North Carolina State Board of Elections Executive Director Karen Brinson-Bell sent a memo to local boards directing them to “take no action” on ballots that come in with mistakes on the envelopes. Brinson-Bell said the decision is to avoid confusion while matters are pending in several courts. “Envelopes with deficiencies shall be kept in a secure location and shall not be considered by the county board until future notice,” according to the memo.
The North Carolina state board announced last week new rules it says make it easier for voters to fix or “cure” mail-in ballots. The changes were included in a joint settlement agreement with North Carolina Alliance for Retired Americans after the group filed a lawsuit challenging several absentee voting processes.
Under the agreement, the NCSBE would allow voters who are missing witness signatures or addresses on their ballot envelope to correct the mistake by filling out an affidavit instead of completing a new ballot. The settlement also allows election boards to accept absentee ballots up to nine days after the election if they are postmarked by Nov. 3.
A county judge approved the settlement last Friday, but the next day a federal judge issued a temporary restraining order banning the NCSBE from enacting the changes.
I have written this piece for CNN Opinion. It begins:
With coronavirus infections raging through the White House and the state of the President’s health unclear, it’s time to face up to an unsettling reality. We need to start thinking about what to do if the disease incapacitates or kills President Donald Trump or his opponent, Joe Biden — or even both of them — between now and January 6, 2021, when Congress meets to count Electoral College votes.
These scenarios may be unlikely, but they need to be considered because being unprepared for any of them would be a calamity for our democracy.
There is one thing each state can do now to minimize the risk: pass a law providing that voters’ votes for a deceased or incapacitated presidential candidate count toward a replacement chosen by that candidate’s party, and that state’s electoral college votes for the deceased or incapacitated candidate also go to the party replacement.
I expect this will be quickly appealed and could end up very quickly at the Supreme Court.
I wrote earlier today at Slate about the important case coming out of the Pennsylvania Supreme Court. Here’s part of what I wrote:
The final argument that Republicans are advancing is the boldest and perhaps most dangerous one. The argument is that when state supreme courts apply their state constitutions’ provisions protecting a right to vote to loosen voting rules in a pandemic, these state courts are usurping the power given by the Constitution to state legislatures to set the manner for conducting presidential elections. The argument echoes an argument that three conservative justices on the Supreme Court accepted in the 2000 Bush v. Gore case ending that presidential election. It’s a dangerous idea that a state court applying a state constitution is taking away legislative power, particularly in states like Pennsylvania where the state legislature has itself approved the constitutional provisions being applied.
But this argument is likely to resonate with at least some of the conservative justices on the court. As professor Ned Foley explains, this argument for vast legislative power to set the rules for presidential elections could have dire consequences and that “partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.”
Of all the arguments advanced by Republicans in these lawsuits, this argument about legislative power can do the most mischief. Most dangerous is the idea, furthered in a recent Bart Gellman Atlantic piece, that state legislatures could try to disenfranchise voters and take back their power to appoint presidential electors directly even after the votes are counted.
Democrats filed their response in the Pennsylvania case today, but rather than simply oppose the stay, they make the following argument:
This Court may construe applications for a stay as petitions for certiorari and resolve them summarily—a course that is particularly appropriate when an election is fast approaching. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 2 (2006). That is the circumstance here. The 2020 general election is less than a month away, and the issues presented here call out for immediate and definitive resolution to provide States and voters with certainty about the rules that will govern them this fall, during this pandemic and at a time when COVID-19 cases are rising in Pennsylvania and around the country. If the Court agrees and reaches the merits, it should affirm the decision of the Pennsylvania Supreme Court for the reasons explained below….
This Court must definitively resolve the questions presented in this case in order to provide certainty both with respect to the balloting rules governing in Pennsylvania and, should the Court reach the merits, with respect to broader legal questions that are implicated in both this case and in other cases currently proceeding through state courts. Across the country, litigants from both parties are asking state courts to interpret or invalidate state election-law provisions on grounds similar to those asserted here. See, e.g., 20A54 Emergency Application for Stay 34-36 & nn.6-7 (hereinafter, “RPP Stay”). The question whether the Elections Clause curtails state courts’ authority to grant such relief is therefore likely to be recurring and, in light of the approaching election and the number of pending cases, of overwhelming importance. Moreover, as the Republican Party Applicants explain, the more specific questions presented here—whether courts may extend Election Day received-by deadlines and how election officials should treat nonpostmarked ballots received after Election Day—are equally important and recurring, as many pending suits involve both federal- and state-law questions related to the treatment of such ballots. Id. at 19, 36 n.7 (citing cases).
Unless these questions are definitively resolved now, uncertainty about the legal rules governing election regulation, and about what parties will have standing to challenge or defend them, could persist up to and after Election Day. Merely deciding whether the Applicants are entitled to the stays they seek would not provide the necessary definitive resolution. Denying the stay (or construing the applications as petitions for certiorari and denying certiorari) would not provide an opportunity for definitive resolution or even necessarily reveal the Court’s ultimate views as to the standing and merits questions, even in this very case. A stay denial would permit the Applicants to again seek stay relief from this Court closer to Election Day—or, even more disturbingly, to challenge Pennsylvania’s election results after Election Day on the ground that the results are allegedly tainted by mail-in ballots that should not have been counted under (what Applicants contend are) the correct legal rules. Conversely, granting the stay would signal merely that a majority of the Court believes there is a “fair prospect” of certiorari and reversal—without facilitating a definitive resolution of the questions presented. Moreover, any certiorari petitions would not be due until well after Election Day, but, by that time, the Pennsylvania Supreme Court’s decision will have expired by its own terms (as it governs only the 2020 election) and the case will have become moot. Thus, while granting the stay would effectively determine the mail-in ballot rule governing the 2020 election in Pennsylvania, it would not provide or facilitate the provision of definitive guidance concerning the important and recurring legal questions at issue.
When Ned Foley and the Wall Street Journal editorial page and I agree—we need certainty on these issues before the election—the Supreme Court should listen. As the Journal puts it: “To the Supreme Court: Please rule on the Pennsylvania legislature’s appeal. The rules are much less important than for people to know what they are before the election.”
Ariane de Vogue for CNN.
Florida’s online voter portal crashed on the final day of registration, prompting Democrats to accuse Gov. Ron DeSantis and other Republican state officials of trying to suppress the vote less than a month before Election Day.
Details: Secretary of State Laurel Leesaid the site went down briefly Monday. The portal appeared to continue with problems and in the early evening was down again or moving slowly, possibly overwhelmed by people trying to access it.
Lee, in a text on Monday evening, said her office thought it had handled the crash “right away”, but was “working now to see if there’s an ongoing problem.”
Floridians who want to vote in the November election have until 12 a.m. Tuesday to register, and Republicans and Democrats had mounted campaigns to urge people to sign up. With President Donald Trump and Democrat Joe Biden on the ballot, turnout is expected to be high in the battleground state.
Democrats were suspicious of the timing of the crash, noting the system has had problems in the past when demand is high.
University of California Office of the President
Hear directly from the experts on what Californians need to know as they get ready to vote. UC Irvine Professor Rick Hasen (BA, UC Berkeley; MA, JD, PhD, UCLA), an election expert and CNN Election Analyst, along with James Schwab (BA, UC Davis), Chief Deputy Secretary of State (California) share how Californians can safely exercise their right to vote. This conversation discusses the historic nature of holding an election during a pandemic –and the opportunities and challenges that come with it –and how public officials are addressing questions related to confidence in the electoral process. Jen Tolentino (BA, UC Riverside; MPP, UCLA), Deputy Director for the Los Angeles Mayor’s Office, Innovation Team moderates this nonpartisan discussion. This webinar was hosted by the UC Advocacy Network.
Josh Gerstein on the Purcell Principle in Politico.
Will see if these allegations pan out better than the allegations of ballots in a ditch in Wisconsin. Especially concerning is the original source.
You can find the order here.
As I explained today in Slate, “In South Carolina, a federal district court held that a requirement that those voting by mail obtain a witness signature unconstitutionally burdened voters’ rights during the pandemic, given the higher risk of COVID coming from obtaining such signatures. This followed similar, unchallenged orders from the judge during the primary season. A 4th U.S. Circuit Court of Appeals panel reversed, but the full 4th Circuit reinstated the requirement. The Republican Party and South Carolina government have gone to the Supreme Court to restore the requirement, even as voting by mail has already begun.”
In today’s order, the Court reversed the en banc 4th Circuit and reinstated the signature requirement (except for those who already voted and ballots received within two days of this order). Justices Thomas, Alito and Gorsuch would have made those people who voted without a signature have to vote again to have that vote count.
Justice Kavanaugh, speaking only for himself, defending the Court’s order on two grounds: deference to state officials over what do to about covid-related issues and the Purcell principle. I wrote in Slate about Purcell:
The third argument we are seeing from Republicans in both federal and state cases is something I have dubbed the Purcell principle, which suggests that courts should not accept challenges to state laws the nearer the date to an election because changes to voting close to the election can cause voter and election administrator confusion.
The Purcell principle has never been fully explained, it has been applied inconsistently, and it focuses on only one aspect of how courts should consider emergency changes to the rules. It also doesn’t follow ordinary Supreme Court practice of considering a number of factors when adjudicating whether to grant emergency relief. Still, many courts this cycle, including the Supreme Court, have rejected changes to voting rules on grounds they come too close to the election. The South Carolina case is particularly interesting since the witness signature requirement was not in place in the primary and has been used for voting so far. Reinstating it now would cause more confusion and disenfranchisement.
There were no noted dissents from the Court’s order, not even from the three liberals.
What to make of all of this? A few observations:
- This sends a strong signal that the Supreme Court is going to be wary of federal court ordered changes close to the election, even those done to deal with burdens on voters created by the pandemic (like the need to get witness signatures). This does not bode well for other cases heading up the pipeline where federal courts issued such orders. It also signals, per Justice Kavanaugh’s concurrence, a strong version of the Purcell principle is in play. With Gorsuch, Alito, and Thomas willing to go even further in risking disenfranchisement of voters, this is a signal that this continues to be a Court not willing to strongly protect voting rights.
- It is not clear exactly how these principles will play out when these emergency actions come up from state courts, where the doctrinal context is different. Rather than Anderson-Burdick federal constitutional balancing, these are cases under state law. And as Rick Pildes points out, it would be something new to move Purcell into state court doctrine. We could get some sense of this as the Court decides the pending Pennsylvania petition (also described in my Slate piece).
- Why did the Court’s liberals not note a dissent? It could be that they dissented without noting it, but in the other voting cases these Justices did note a dissent. One possibility is a compromise here: note the Court’s order did not extend to those in South Carolina who already voted without including a witness signature. Maybe unanimity was the price here. This also sends a signal to voting rights plaintiffs and Democrats who have been suing that things are not likely to go well as these cases work their way up to the Supreme Court. This is not a place that is going to be friendly for voting rights.
- This result doesn’t mean that Democrats and voting rights plaintiffs will lose all the cases coming up to the Court. There are reasons to think that the Pennsylvania case may not go Republicans’ way (as I explain in Slate, the Election Day argument is especially weak). That result may too signal a call to stand down in some of these cases with attempts to further litigate the election rules during a period when over 2 million Americans have voted.
- Then again, this is all on the shadow docket, and these ruling are abbreviated and not fully explained. Perhaps we should not read too much into any one ruling. But if I’m a federal district court judge contemplating new relief at this stage of the process, I’m going to think long and hard about that before ordering it.
[This post has been updated.]
AP:
When Donald Trump’s campaign took issue with a new rule on processing some votes in North Carolina, it didn’t just complain to the Board of Elections and file a lawsuit. It wrote to some of the state’s 100 local election offices with extraordinary guidance: Ignore that rule.
“The NC Republican Party advises you to not follow the procedures,” Trump campaign operative Heather Ford wrote in an email to county officials last week.
The email urging defiance was a small glimpse at the unusually aggressive, hyperlocal legal strategy the Trump campaign is activating as voting begins. Through threatening letters, lawsuits, viral videos and presidential misinformation, the campaign and its GOP allies are going to new lengths to contest election procedures county-by-county across battleground states.
That means piling new pressure on the often low-profile election officials on the frontline of the vote count, escalating micro-disputes over voting rules and seeking out trouble in their backyards.
The local approach already is producing a blizzard of voting-related complaints. Trump and his allies have then seized on the disputes, distorted them and used them to sow broad doubts of fairness and accuracy.
A judge blocked Iowa’s secretary of state Monday from enforcing an order that barred counties from sending absentee ballot applications to voters with their personal information already filled in.
Judge Robert Hanson sided with Democratic Party groups, who contended that Secretary of State Paul Pate exceeded his authority when he told counties that absentee ballot request forms must be blank when mailed to voters.
Hanson ordered Pate to put enforcement of his directive on hold. Local elections officials said they were studying the ruling to determine the impact, including whether they could take steps to mail ballots to thousands of voters whose requests were previously invalidated based on Pate’s directive.
New from the Prison Policy Initiative.
AP:
An Alaska court judge on Monday ruled enforcement of witness requirements for absentee ballots during a pandemic “impermissibly burdens the right to vote” but did not immediately put into effect an order eliminating the requirement for the general election.
Superior Court Judge Dani Crosby gave the parties until late Tuesday to propose how the Division of Elections should communicate the message and said she would later issue an order “specifying how to implement elimination” of the requirement for the Nov. 3 election.
She noted the state might appeal to the Alaska Supreme Court.
I have written this piece for Slate. It begins:
While the nation’s attention has been focused on the president’s COVID-19 diagnosis and the ensuing questions surrounding that, it’s important to remember there will still be an election in one month. As we reach the four-week mark, the country is closing in on 350 lawsuits filed related to the 2020 elections and COVID. This is very likely to be the most important week so far for those suits. The Supreme Court is expected to weigh in on cases from Pennsylvania and South Carolina, and the justices may set limits on what state and federal courts can do to accommodate voters during the pandemic as well as preemptively resolve one key issue should the 2020 elections go into overtime. I’m not optimistic.
The Trump campaign, the Republican Party, and Republican government officials, however, have so far failed in blocking government expansion of voting by mail in places like Nevada. Courts have rejected their evidence-free arguments that such expansion will “dilute” the votes of legitimate voters by injecting fraudulent ballots into the process.
Generally, though, the Republican side may be far more successful in blocking lower court orders sought by Democrats and voting rights groups seeking to expand voting by mail. Although Democrats in particular have crowed about some of their (sometimes partial) victories, things are far from over.
The biggest cases in play this week are already before the Supreme Court on an emergency basis. These Pennsylvania and South Carolina cases illustrate the state of play and the kinds of arguments Republicans are making throughout the country to try to make voting by mail harder and thereby shrink turnout in an apparent attempt to benefit Republicans.
Cleveland.com on LaRose splitting the baby:
Ohio counties will be allowed to offer extra options to collect completed absentee ballots, but still only at a single site per county, Ohio Secretary of State Frank LaRose said Monday.
LaRose said counties can set up additional drop boxes for completed ballots, as well as drive-through drop-off stations staffed by bipartisan teams of elections workers. But these additional options must be at or outside the county board of elections office, LaRose said in a directive to local elections officials on Monday.
LaRose’s extra guidance comes shortly before a 12 p.m. deadline set by a federal judge overseeing a federal lawsuit over ballot drop boxes. U.S. District Judge Dan Polster had given LaRose until then to explain why he wouldn’t permit Cuyahoga County elections officials to move forward with a plan that sought to sidestep an Aug. 11 order from LaRose that set a limit of one ballot drop box per county. LaRose, a Republican, is the state’s top elections official.
It’s possible LaRose’s order, issued as a directive to county elections offices on Monday, isn’t the final word on the issue, since lawsuits over drop boxes are ongoing. Voting-rights activists, the lawsuit Polster is overseeing, are seeking to force LaRose to allow counties to set up additional secure drop boxes for completed absentee ballots at additional off-site locations.
He’s off to a terrible start.
I have written this piece for New York. It begins:
When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats will pepper her with questions about whether she would recuse herself in any Trump v. Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it wouldmean in the long run for voting and election cases to have a sixth conservative justiceon the Supreme Court.
In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans….
We don’t know much yet about Barrett’s views in voting cases since she joined the bench in 2017. Her writings in this area are scant. She wrote an unremarkable opinion in a ballot-access case (joined by a Democratic colleague) rejecting a minor-party candidate’s attempt to get on the ballot. She has not weighed in as a judge in a campaign-finance case. In a law-review article, she pointed to Justice Scalia’s willingness to abide by some precedent he thought was wrong giving Congress stronger power to combat racial discrimination in the Voting Rights Act. By all indications, Barrett is a judge who would approach such questions openly and honestly. But she’s also a deeply conservative judge who is, like Scalia, committed to principles of originalism and textualism, so she’s likely to side with other conservatives as these issues come to the Court — on everything from gerrymandering to restrictive voting laws to money in politics. I made the same point about Justices Gorsuch and Kavanaugh being reliable conservative votes in these cases before they joined the Court, and the predictions turned out to be correct.
The Court could perhaps soon reverse its decision in the 2015 Arizona case, which would reempower politicians to draw their own congressional districts even if voters want nonpartisan redistricting commissions to do it. Roberts wrote a bitter dissent for conservative justices in this case, and if the Court is willing to revisit recent precedent, he almost certainly would have a majority on this issue.
On Friday, the Court said that next year it would take up another case from Arizona that concerns the Voting Rights Act. An appeals court held that the state engaged in intentionally discriminatory conduct against minority voters by limiting the ability to collect absentee ballots, which were a tool, especially on Native American reservations, to get out the vote. A finding of intentional discrimination would open up Arizona to further federal oversight of its elections under the Voting Rights Act, and my sense is that the Court took the case to reverse the appeals court’s holding….
The Court could also make things much worse when it comes to campaign financing.Senator Mitch McConnell and others have already been pushing cases that would allow individuals and corporations to make unlimited campaign contributions directly to candidates. And some justices believe that those making contributions or expenditures in campaigns have a constitutional right to total anonymity from the public. This would make our political system much more prone to corruption, deprive voters of valuable information, and let the rich have even greater influence over election officials than they do now.
Can’t wait to dive into this Britta Lokting and Sam Adler-Bell piece in Jewish Currents.
The following is a guest post from John Fortier and Norm Ornstein:
After 9/11, in the course of our work on continuity of government, we wrote a piece in the Election Law Journal, “If Terrorists Attacked our Presidential Election.” A grim subject, of course, but the purpose was to think through the electoral timeline from primaries to Inauguration Day, how terrorist attacks leading to the death of the candidates might disrupt our electoral system–and what legal and constitutional tools we have to recover.
The dangers of disruption, of course, are not just from terrorists. In recent days, we have both been asked these same sorts of questions about the pandemic, especially with the President’s positive test and hospitalization. In particular, what would happen if the Covid illness of the President were severe enough that he chose to withdraw from the presidential race (or what if he or another candidate were to die before the election.) How would a replacement be selected? Could the ballots be changed? What would happen to the ballots already cast for the withdrawn candidate?
We wrestled with these questions in our ELJ piece, and the answers have held up pretty well. We said that political parties could select a replacement nominee and that the unlikelihood of changing the ballot at this late date would not disrupt the election because, in a presidential race, the people are really not voting for the nominees Biden or Trump, but are electing presidential electors for the electoral college, and that these slates of electors, loyal to their party, could cast their ballots for a replacement candidate who did not appear on the ballot.
But one thing has changed in recent years that makes replacing a presidential candidate more difficult. Thirteen states have passed laws intended to ensure that presidential electors vote “faithfully,” that is, when they meet on December 14th to cast their votes in the electoral college, they vote the way their state voted on the November ballot (2 other states’ laws are understood to have given their secretary of state the power to enforce faithful elector pledges).
These recent “faithless elector” laws are not the garden variety pledges that bind electors without any penalty or impose a small fine for electors who stray from their pledges. They have real teeth. The laws call for electors who vote “faithlessly” for another candidate to be removed immediately and replaced by an alternate elector who can then vote the correct way (Note that only North Carolina had a law like this when we wrote in 2004; fourteen other states have adopted this procedure, by law or direction, since). In 2016, these laws kicked in, with one prominent example in Colorado where an elector pledged to Hillary Clinton voted for John Kasich, but was immediately replaced by an alternate elector who then voted faithfully for Hillary Clinton.
This summer the Supreme Court upheld these faithless electors laws, but did send a warning in a footnote that the issue of a dead candidate was problematic. The Court surmised that states might not enforce these provisions in the case of a deceased candidate, all but urged states to enact an exception for deceased candidates (an exception that a few states do have) and noted that the Court had not ruled on the constitutionality of a pledge that binds electors to a deceased candidate.
So how could these faithless elector laws undermine the replacement of a withdrawn or deceased candidate? Let’s say that President Trump withdraws from the ticket sometime in October. The Republican National Committee could convene and select a replacement ticket of, say, Pence-Rubio. But Trump-Pence would remain on the election day ballot. If Republicans prevailed in the election, they would face uncertainty as to what would happen on December 14th when the presidential electors meet.
What if some electors voted for Mike Pence as President and others under the inflexible faithless elector provisions were forced to vote for the withdrawn or deceased Trump? Democratic won states, of course would vote for Joe Biden. But no candidate would garner the required 270 EVs for a majority. This three way, no majority scenario would lead to a vote of the House of Representatives who would select a president (with voting by state delegation). It would be the new House, on January 6; currently, Republicans have majorities in 26 state delegations, but that, of course, could change. If no candidate got to 26, the new Senate, voting as individuals, would choose a Vice President who could serve as acting president when sworn in on January 20.
Another plausible scenario would be that Republican electors and those that replace them would simply refuse to vote for Donald Trump and that no slate of electors comes out of the official vote. Perhaps a Republican controlled legislature would appoint a slate of electors directly for the Pence-Rubio ticket or perhaps multiple actors step in and appoint alternative slates, ultimately leaving Congress to resolve the very difficult situation of multiple slates of electors.
The uncertainty would extend to Congress counting the vote. We have examples where Congress refused to count electors’ votes cast for deceased candidates. In the case of losing presidential candidate Horace Greeley, who died before the electors met in the election of 1872, Congress refused to count the votes of three electors. Here Congress could refuse to count the votes for Trump, again perhaps leading to a situation where no candidate would have a majority and an election by the House of Representatives. Less likely, Congress might find a way to throw out entire slates of electors as not regularly given, which could lead to a reduction in the total number of electors cast and perhaps an electoral college majority for the losing candidates, in this case the Biden-Harris slate. And again, perhaps Congress would get stuck in a deadlock over multiple slates of electors, unable to move because of divided government between the House and Senate.
All of these scenarios are unlikely if cooler heads prevail, but they might give a political party pause before attempting to select replacement candidates. The uncertainty of what might happen makes the simple process of selecting replacements and instructing the electors to vote for the replacements less of a slam dunk.
Clarity in advance would make a big difference. In the longer term, states should consider exceptions in their laws which would not force electors to vote for replaced or deceased candidates. In the short term, states with laws without exceptions could indicate that they do not plan to enforce them in the case of a replacement ticket. Without this kind of certainty, we will have added one more category of election meltdown to the already too long list.
In other words, although voters might be under the impression that they get to choose the president, in fact, the Constitution does not mandate that role. Ordinary voters have a say in the process only as a matter of legislative grace within each state, not as a consequence of constitutional protection.
In an age of political hardball and rampant political gerrymandering, there are at least three ways in which partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.
From the Philly Inquirer:
“If state leaders want to run the risk of negative national news coverage during a presidential election in a battleground state with the anticipated high turnout, then they should do nothing,” Jeff Snyder, a Republican county commissioner in central Pennsylvania’s Clinton County, said Thursday. “The General Assembly must give counties additional time before Election Day to begin the time consuming manual work” of preparing ballots to be counted.”
This is the issue Ned Foley, Michael Morley, and I discussed last week on PA law and the 2020 election, in front of a PA audience. In my view, this is the most troubling issue for the election there is still time for lawmakers to fix. Why is the PA legislature not listening to the state’s election administrators about what they need to ensure a smooth election process?
Here is a link to our PC conference, in which much of the discussion dealt with this issue: https://psu.zoom.us/rec/share/sKrsw-RJ6flbplRmrLJlZ2EqoOIyM4XHWBUJyo3a1j_aaVhSwTXFQAukQHNAnSOL.zBfwpt-_r5aRp5KM?startTime=1601413335000
Honored that the Boston University Law Review has published this online symposium on my book, Election Meltdown:
With the 2020 election now less than one month away, the Boston University Law Review is pleased to present this symposium on Richard L. Hasen’s recent book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
The eight contributors to this symposium surely have their disagreements including on fundamental questions about the likelihood of an election meltdown this November and about the most troubling drivers of a meltdown, or a broader democratic breakdown, in the short term and long term. But they all agree on at least one thing: they, like us, share a commitment to America’s experiment with democracy as a project that is both worth cherishing and defending and that we have to work at together. American democracy won’t magically maintain itself. We thank them for that commitment and their contributions to that shared project in this symposium and the rest of their scholarship.
Ellen D. Katz, Eight Months Later, 100 B.U. L. Rev. Online 243 (2020)
Lisa Marshall Manheim, Cracks in the Foundation, 100 B.U. L. Rev. Online 268 (2020)
Lorraine C. Minnite, Putting a Band-aid on a Gunshot Wound, 100 B.U. L. Rev. Online 273 (2020)
Derek T. Muller, Governing Elections Without Law, 100 B.U. L. Rev. Online 278 (2020)
Eugene D. Mazo, Voting During a Pandemic, 100 B.U. L. Rev. Online 283 (2020)
President Trump’s national security adviser said on Sunday that he had warned his Russian counterpart last week that “there would be absolutely no tolerance for any interference” in the November election, but did not mention that American intelligence officials and a range of private firms had said they already saw evidence of Russian influence operations.
The adviser, Robert C. O’Brien, said on CBS’s “Face the Nation” that he had delivered the warning during a meeting in Geneva on Friday with Nikolai Patrushev, the secretary of Russia’s Security Council. Mr. O’Brien did not disclose what else was discussed, but the meeting comes as the administration is racing a deadline to decide whether to extend the New START nuclear arms control treaty and as it faces pressure to act against Moscow after the poisoning of Aleksei Navalny, the Russian opposition leader.
There are signs that younger Americans, who have historically turned out at the polls at lower rates than older voters, are more energized about voting this November than they have been in decades. Yet the pandemic has created thorny challenges for college students trying to cast their ballots this year — and their predicaments are growing more dire as state voter registration deadlines loom.Some schools that initially reopened this fall have already sent students home after struggling to contain soaring infection rates, creating complications for those who were planning to vote at or near campus. Other schools may follow suit at any given point this fall, leaving students unsure about the best address to use to register to vote.
Many colleges and universities that are still open canceled their fall breaks in an effort to send students home by Thanksgiving, which means some students who had planned on voting early at home in October no longer will have time off to do so.
The first line of the Republican lawsuit makes clear its motivations: “Bad things are happening in Philadelphia.” That’s not a legal argument, and it’s unlikely to sway a judge in Philadelphia’s Court of Common Pleas.
But that’s not the point.
The lawsuit filed late Thursday on behalf of President Donald Trump’s reelection campaign, with language echoing his dig at Philadelphia during Tuesday’s debate, is the latest effort in a political operation to shape a false narrative that the results of the Nov. 3 election can’t be trusted. Especially if they hinge on Pennsylvania, a critical swing state that could determine the outcome.
Trump’s attacks on the election in Philadelphia and Pennsylvania now encompass all methods of voting — and how those votes are counted.
Zoe Tillman for Buzzfeed.
John Koza on the Open Mind podcast.
Pennsylvania’s online system for registering to vote and applying for and tracking mail ballots crashed over the weekend, triggering an outage that stretched for more than 24 hours and prompted frustration from voters weeks before critical election deadlines.
As of Sunday night, the state’s voter services website, pavoterservices.pa.gov, was still down. State officials said they were working to resolve the issue, which they blamed on an equipment failure at a data center run by an outside contractor. They did not believe any data had been lost or that malicious physical or cyber activity was behind the outage.
Lisa Lerer for the NYT.
Governor Pritzker of Illinois has been pushing a ballot measure that would change the state from a flat-rate income tax to a graduated one. The Governor, heir to the Hyatt Hotel fortune, has contributed an eye-opening $56.5 million to the Yes campaign. Not to be outdone, Ken Griffin, founder of Chicago-based Citadel hedge fund, has contributed $46.75 million to the No campaign. Today’s form of political equality.
The Chicago Tribune has the details.
A federal judge could rule as early as today in a legal fight that might upend how Georgia runs November’s election.
The dispute centers on a last-minute software update that Georgia officials ordered on voting machines across the state. The update was prompted by a technical glitch that in some cases hid the names of some candidates in a 21-candidate special election for the U.S. Senate.
Plaintiffs in a long-running legal case say the last-minute change could create new hacking vulnerabilities – and argue there’s not enough time to test for other bugs that will make the machines malfunction during voting. They’re asking a judge to order the state to replace the machines with hand-marked paper ballots, which experts say are the most secure option and dramatically lower the chance of technical foul-ups.
The pressure’s on with less than two weeks before early in-person voting begins in Georgia and just over a month until Election Day. “Having an election that, at the end of the day, everyone can say this was the safest, most reliable option — that should be what we all want,” David Cross, an attorney with Morrison & Foerster who’s representing the Georgia voters who brought the case, told me. “Not going into an election with entirely new software that was written over a weekend.”
Marilyn Marks thread starts here:
KVUE:
A group of top aides for Texas Attorney General Ken Paxton is asking federal law enforcement to investigate their boss, the state’s top lawyer, for possible crimes that include bribery and abuse of office, KVUE News and the Austin American-Statesman have learned.
A letter sent to the agency’s human resources director said the executives have provided statements to law enforcement about actions they believe Paxton committed “in his official capacity as the current Attorney General of Texas.”
This is the same AG who has been working as hard as he can to make it hard for people who lack immunity from a deadly pandemic to be able to vote by mail.
Richard Wolf for USA Today.
Amy Howe for SCOTUSBlog:
The justices start their new term on Monday, at a time when the Supreme Court is at the center of a bitter battle over President Donald Trump’s nominee to succeed Justice Ruth Bader Ginsburg, who died last month at the age of 87. If Judge Amy Coney Barrett is confirmed, it could cement a decisive conservative majority on the court for decades to come. With the ideological balance on the Supreme Court very much at the forefront of many people’s minds, it is perhaps fitting that in their first oral argument of the term the justices will consider whether a provision in the Delaware constitution that seeks to ensure bipartisanship in the state’s courts violates the U.S. Constitution.
Under the Delaware constitution, judges are appointed by the governor for 12-year terms and must be confirmed by a majority of the state senate. The state’s constitution also imposes additional limitations on the governor’s appointments. One section, known as the “bare majority” provision, directs that no more than a bare majority of the judges on the state’s five main courts can be affiliated with any one political party. Another section, known as the “major party” provision, applies to the three courts known as the “business” courts: the Delaware Supreme Court, the Court of Chancery and the Superior Court. It divides the seats on those courts between the two major political parties – currently the Democratic Party and the Republican Party.
The case before the U.S. Supreme Court on Monday, Carney v. Adams, was filed by John Adams, who became a lawyer in 2000. A registered Democrat, Adams worked as a family-law lawyer in the Delaware Department of Justice from 2003 to 20015. Adams changed his party affiliation in 2017 to Independent and decided that he wanted to serve as a judge, but he believed that he would not be able to apply for any future vacancies on the business courts because he wasn’t a Democrat or a Republican. Adams went to federal court in Delaware, where he argued that the “bare majority” and “major party” provisions violate the First Amendment to the U.S. Constitution by limiting a judicial candidate’s freedom to associate with the political party of his choice.
Victoria Nourse LAT oped hits the nail on the head about textualism:
Many think that the appointment of Judge Amy Coney Barrett to the Supreme Court will jeopardize the Affordable Care Act and abortion rights. But the reach of her antidemocratic judicial philosophy will go beyond those issues to put every federal law that conservatives oppose in danger.
Barrett, who has been on the federal bench for less than three years, is a conservative star because of her writings supporting the theory advocated by the late Justice Antonin Scalia known as “textualism.” This judicial philosophy is fundamentally at war with democracy. It would allow the court to rip apart laws that voters need and want.
Gustavo Arellano LA Times column.
A federal judge placed a temporary restraining order Saturday on the NC Board of Elections settlement that came out of Wake County Superior Court Friday and changed state election laws ahead of the Nov. 3 election.
Attorneys representing House Speaker Tim Moore and Senate President Pro-Tem Phil Berger, North Carolina’s top Republicans, argued to Judge James Dever Friday night that the settlement violated the Elections Clause of the U.S. Constitution, which gives state legislatures the authority to set election rules. They added that the settlement is inconsistent with state law.
Wake County Superior Court Judge Bryan Collins ruled Friday afternoon that a settlement between the Board of Elections and a political group of retirees was fair and not a product of collusion between Democratic board members and the plaintiffs.
A Guardian piece on Mayor Pete’s own writings asks him what he’s reading. He says this:
Election Meltdown – Rick Hasen
“Rick Hasen’s book is extremely timely, because we have a lot of concerns about what’s going to happen in this election. There are a lot of specific problems and I think he’s got a handle on what those issues are and how to stay ahead of them.”
The US Department of Justice improperly censored portions of the Mueller report dealing with potential criminal charges and Russia’s hacking of the Democratic National Committee, a federal judge ruled Wednesday.
In response to a complaint brought by BuzzFeed reporter Jason Leopold, US District Judge Reggie Walton ruled that Attorney General William Barr’s department must release the redacted segments — including portions related to the 2016 Trump campaign’s interest in DNC emails stolen by Russia — by November 2, a day before the US election.
According to BuzzFeed, the ruling means the Justice Department “will be obliged to unveil at least 15 previously blacked-out pages from volume one of special counsel Robert Mueller’s 448-page report” on Russian electoral interference.
In March 2020, the same judge, appointed to the bench by former President George W. Bush, chastised Attorney General Barr for having issued a “distorted” and “misleading” summary of the Mueller report.
Battleground states that could decide the presidential election face a shrinking window to take action to allow the processing of absentee ballots before Election Day to cut down on the days or even weeks it could take to have final results.
But in Wisconsin and Pennsylvania, two key swing states, efforts have stalled in Republican-controlled state legislatures. And in a third crucial state, Michigan, a push to begin the counting process several days before the election is dead. Lawmakers there instead chose to give election officials just a 10-hour head-start.
It means that outcomes in the three Rust Belt states could remain in doubt long after polls close Nov. 3, the result of a unprecedented high volume of mail-in ballots expected amid the coronavirus.
And because of the critical importance of these three states – President Donald Trump narrowly won each in 2016, but polling shows Democratic Joe Biden ahead in all three – the outcome of the entire presidential election is likely to be on hold as well.
The Wisconsin Supreme Court agreed to clarify one of its rulings late Friday as federal appeals judges weigh how to handle absentee ballots this fall.
The development improved fortunes for Republican lawmakers after a series of recent legal setbacks. They are eager to hear from the state’s conservative-led high court after losses before the three federal judges, all of whom were nominated by Republican presidents.
The state’s high court will have to act quickly because of the fast-approaching Nov. 3 election.
Saying the pandemic interfered with the process, two groups want more time to sign up voters for this election.
Legal papers filed in U.S. District Court in Phoenix claim the current deadline of October 5 to register does not work this year. That complies with the requirement in Arizona law to close the process 29 days before the general election.
So Mi Familia Vota and the Arizona Coalition for Change are asking U.S. District Court Judge Steven Logan to set the registration deadline no later than October 27. That is just a week ahead of the vote.
The move could draw opposition from Secretary of State Katie Hobbs, if for no other reason than the idea of making major changes in the system so close to the election.
Attorney Zoe Salzman said her clients recognize that. But she said there is ample evidence that the unique conditions this year have put a damper on getting people registered to vote.