A judge refused to block a new Republican-backed Iowa law that makes it harder for county officials to process absentee ballot applications and more likely that incomplete requests won’t be fulfilled.
New in Social Science Quarterly: “We find that a decrease of one mile to the nearest drop box increased the probability of voting by 0.64 percent.”
As our nation mourns the loss of Justice Ginsburg—a stalwart champion for gender equality and voting rights—we continue to mark the 100th anniversary of the ratification of the 19th Amendment, which prohibits the federal government and the states from denying or abridging the right to vote “on account of sex.” What role does the 19th Amendment play in the arc of constitutional progress? For whom was this amendment’s promise illusory? What have the 19th Amendment’s effects been on the health and vitality of our democracy? And as we prepare for the historic election in November and future elections, what more needs to be done to ensure that the right to vote exists not only on paper, but in the lived reality of women across the nation? These questions and more will be answered in an online event on Thursday, October 1st, from 5-6pm ET, featuring a keynote address by Catherine E. Lhamon, Chair of the U.S. Commission on Civil Rights, and then a panel conversation featuring the following experts:
Elizabeth Wydra, President, Constitutional Accountability Center
Jocelyn Frye, Senior Fellow, Women’s Initiative at the Center for American Progress, and former Policy Director for First Lady Michelle Obama.
The conversation will be moderated by CAC Vice President Praveen Fernandes.
OC Registrar and I are on this podcast, interviewed (separately) by UCI Conversations Podcast host, Kevin Bossenmeyer.
Over three million Black voters in key states were identified by President Donald Trump’s 2016 campaign as people they had to persuade to stay at home on Election Day to help him reach the White House.
The revelation comes from an enormous data leak obtained by the British news network Channel 4. It shows that, four years ago, the Trump campaign prepared files on almost 200 million American voters and separated some out into eight different categories. One such category, assigned to 3.5 million Black voters, was titled: “Deterrence.”
The leaked database was reportedly used by Trump’s digital campaign team, which was critical to Trump’s narrow victory. Channel 4 News has a track record of exposing the unethical practices of Cambridge Analytica—the now-defunct British digital black-ops firm that harvested the Facebook data of tens of millions of voters for the use of Team Trump.
The leaked files show that Black Americans were disproportionately marked ‘Deterrence’ by the 2016 campaign, making up far more of the category when compared to general population stats. For example, in Georgia, Black people make up around a third of the population, but 61 percent of the Trump campaign’s ‘Deterrence’ category there. The same pattern can be seen in data for North Carolina and Wisconsin.
Overall, people of colour—labelled by the campaign as Black, Hispanic, Asian and ‘Other’ groups—made up 54 percent of the people in the ‘Deterrence’ category, according to Channel 4 News. In contrast, the lists of voters that the campaign wanted to encourage to head out to vote were mostly white. It’s impossible to say how effective the tactics were, but research shows that, in 2016, Black turnout fell by eight points.
What are the most important political threats to voting rights and equal representation in American politics today? Why are we seeing such intense partisan fights over voting rights now? How is the coronavirus exacerbating these institutional battles? How do the dynamics of the upcoming US elections compare to past American elections and other elections around the world?
Moderators:
Robert Blair, Brown University
Gretchen Helmke, University of Rochester, Bright Line Watch
Commentators:
Richard Hasen, UC Irvine
Susan Hyde, UC Berkeley
Jennifer McCoy, Georgia State and Former Carter Center
Susan Stokes, University of Chicago
This is quite a lineup for this symposium. Wow!
Watch here.
AP:
A federal judge ruled on Monday that every polling place in Georgia must have at least one updated paper backup list of eligible voters to help keep long lines from forming on Election Day if electronic pollbooks used to check in voters malfunction.
The “narrowly tailored” order directs state election officials to “provide at least a modicum of the voting backup plan tools essential to protecting voters’ constitutionally protected ability and right to cast a ballot that is counted and given the same weight as any other on this coming November 3rd general election day and thereafter,” U.S. District Judge Amy Totenberg wrote in her 67-page order.
Voting integrity activists had asked the judge to order the change, arguing that malfunctioning electronic pollbooks created bottlenecks that resulted in voters waiting in long lines during the primary election in June and runoff election in August….
Totenberg’s ruling follows a three-day hearing earlier this month in a long-running fight over Georgia’s voting machines. The lawsuit filed in 2017 against state and county election officials originally challenged the state’s old, outdated voting machines but has since been amended to target the new machines and election system.
Totenberg’s ruling deals primarily with the issue of paper pollbook backups. She said during an emergency hearing Monday that she needs more time to address the other issues at stake in light of new issues raised by plaintiffs over the weekend, but she wanted to give the state time to begin preparing to provide paper pollbook backups.
The election integrity activists say the new voting machines are unaccountable and unverifiable and have many of the same security vulnerabilities as the old ones. They have asked Totenberg to order the state to ditch the new ballot-marking machines in favor of hand-marked paper ballots for the November election.
State officials have argued that Georgia has made significant improvements in recent years to update and secure its election infrastructure. They had urged Totenberg not to order any changes so close to the election, saying they would be extremely costly and difficult to implement in time.
I have posted the ruling below:
A federal judge has ruled Ohio’s system of verifying signatures on absentee ballot applications is not burdensome enough to be struck down as illegal, rejecting arguments made by a coalition of voting-rights groups that sued the state.
U.S. District Judge Michael Watson wrote that while Ohio’s signature-matching requirements impose a “moderate” burden on voters, they have other options to cast a ballot if their vote is improperly rejected, including casting a provisional ballot on Election Day. He agreed with Ohio Secretary of State Frank LaRose that the state has a legitimate interest in promoting an orderly and secure election, justifying that burden.
“Additionally, the Court believes that changing the rules regarding verification of signatures on ballots at this time would be particularly damaging,” Watson, a President George W. Bush appointee, wrote in an order issued Sunday evening that rejected the voting-rights activists’ request to issue what’s called a preliminary injunction. “Some public officials have unfortunately regularly cast doubt on the security and legitimacy of voting by mail. A federal court enjoining part of the State’s procedure for maintaining the security of mail-in voting in the weeks leading up to the election could further undermine public confidence in elections.”
Supreme Court observers have begun to pay more attention to the Court’s “shadow docket”: disputes the Court resolves summarily, without the usual briefing, argument, explanations, or even indications how each Justice voted. Still mostly overlooked, however, is that the Court doesn’t just have a shadow docket; it also has shadow doctrines, rules the Court applies only in its non-merits cases. In my own field of election law, the most prominent of these shadow doctrines is undoubtedly the Purcell principle, named for the 2006 (non-merits) decision of Purcell v. Gonzalez. In Purcell, the Court strongly disfavored judicial changes to election regulations close to election day. Such changes, according to the Court, “can themselves result in voter confusion and consequent incentive to remain away from the polls.” “As an election draws closer,” moreover, “that risk will increase.”
Since it was announced, the Purcell principle has reared its head every two years as elections have approached. But it has never been as important as this year for one simple reason: There has never been as much litigation in the leadup to an election. According to the COVID-Related Election Litigation Tracker, more than three hundred election law cases have been filed in 2020 in more than forty states. Among (many) other issues, these suits have addressed polling place locations and procedures, deadlines for requesting and returning absentee ballots, witness and notarization requirements for absentee ballots, and signature thresholds for qualifying for the ballot. The Supreme Court has already resolved half a dozen disputes on Purcell grounds—an all-time high—three of which included reasons for the Court’s actions or written dissents. And the Court will surely confront Purcell again before this election is over. Lower-court election litigation continues to rage, making it inevitable that more appeals will land on the Court’s doorstep.
Despite all this activity, the Purcell principle remains remarkably opaque. Precisely because it is a shadow doctrine, appearing only in the Court’s shadow docket, its contours have never been clarified. The above quote from Purcell itself was almost all the Court had to say about the rule against late-breaking judicial intervention when the Court first unveiled this policy. Since Purcell, the Court has added only a few more sentences about the doctrine’s operation. In April of this year, the Court praised “the wisdom of the Purcell principle,” and in August, the Court held that the principle carries less weight when “state election officials support the challenged decree.” True, occasional dissents from the Court’s Purcell jurisprudence have explored in somewhat more detail when courts should and shouldn’t change election regulations close to election day. But these have still been skimpy opinions that didn’t purport to offer a comprehensive analytical framework.
My aim in this piece, then, is to put some meat on Purcell’s bones: to consider more fully when judicial intervention near an election is inadvisable and when, conversely, it’s prudent or even urgent. I make two main points. First, the Purcell principle can’t be an ironclad rule. The Court’s own rationales for the doctrine indicate that judicial revision of election regulations can sometimes be appropriate despite the imminence of an election. Second, the circumstances under which judicial action is warranted, even though an election beckons, are reasonably foreseeable. They include (1) when a court’s remedy will cause little voter confusion; (2) when a court’s remedy will cause little administrator error; (3) when, if a court fails to intercede, significant disenfranchisement will ensue; (4) when plaintiffs have diligently pursued their claim; and (5) when an election is further rather than closer based on Congress’s judgments about election proximity.
Start with the argument that Purcell should be understood as a presumption against—not a prohibition of—judicial intervention near an election. This is the reading most consistent with Purcell’s actual language. In deciding whether to issue injunctions in election law cases, the Court held, lower courts are “required to weigh” the possibility that their orders will cause voter confusion and consequent disenfranchisement. Of course, to weigh a factor is to take it into account, to examine carefully all the evidence that bears on it. To weigh a factor is not to make it dispositive in all cases, to prioritize it over all competing values. So Purcell can’t fairly be construed as a categorical bar on courts amending election regulations close to election day. The decision is more like an admonition that courts considering such amendments take seriously the prospect that the changes will confuse or even disenfranchise certain voters.
With respect to this “voter confusion and consequent incentive to remain away from the polls,” furthermore, it’s plainly variable rather than fixed. As the Court observed in Purcell, injunctions near an election “can themselves result in” this harm. But such orders don’t necessarily do so. It all depends on what exactly is directed, what the law on the books previously said, how much time there is to implement the injunction, and so on. Put another way, courts shouldn’t assume that their interventions close to election day will be confusing or even disenfranchising. Instead, they should analyze whether this will be the case. Sometimes, upon examination, it will turn out that their proposed remedies will not perplex voters or deter them from voting. In this scenario, Purcell doesn’t require judicial abstention.
This discussion all fits within Purcell’s four corners. The point is that, under Purcell’s own logic, courts shouldn’t always refrain from stepping in when an election is nigh. But Purcell doesn’t exhaust the equitable factors that are relevant to shaping a proper remedy. In particular, it doesn’t take into account the potential illegality or impact of a challenged policy. Suppose a state enacts a blatantly unconstitutional law, on the eve of an election, that would disenfranchise many of its citizens—a poll tax, say. Also imagine that judicial nullification of this law, right after it was passed with much fanfare, would confuse some people. Would Purcell really compel a court to sit on its hands in this situation? Surely not. The confusion caused by judicial interference would be outweighed by the policy’s legal invalidity and democratic illegitimacy.
That Purcell isn’t always binding is demonstrated, too, by the Court’s record applying it. Several months prior to the 2018 election—well before Purcell’s concerns could have been triggered—a district court enjoined North Dakota’s requirement that voters show IDs that include their residential addresses. Then, in late September 2018 (and so quite close to the election), the Eighth Circuit stayed the district court’s order. Although “[t]he risk of voter confusion [was] severe here because the injunction against requiring residential-address identification was in force during the primary election,” as Justice Ginsburg argued in dissent, the Court upheld the Eighth Circuit’s stay. The Court thus gave short shrift to Purcell’s worry about voter confusion, instead prioritizing issues nowhere to be found in the decision (presumably, the Court’s view that ID requirements are lawful).
This sequence just repeated itself in litigation about the re-enfranchisement of ex-felons in Florida. In October 2019, a district court enjoined a Florida law requiring ex-felons to pay their outstanding fines in order to qualify to vote. This injunction remained in place until July 2020, when it was lifted by the Eleventh Circuit less than three weeks before the voter registration deadline. Again, the Court upheld the lifting of the injunction even though, as Justice Sotomayor wrote in her dissent, “the Eleventh Circuit . . . created the very ‘confusion’ and voter chill that Purcell counsels courts to avoid.” Justice Sotomayor then underscored the Court’s inconsistent application of Purcell. “[F]aced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.”
The Court’s own practice, then, confirms that Purcell isn’t an absolute. But if courts sometimes should and sometimes shouldn’t intervene near an election, how are they supposed to distinguish one setting from the other? Most of the factors that should guide courts in making this distinction have already come up. But I now want to describe these considerations in somewhat more detail.
The first relevant factor is the one stressed by Purcell itself: the probability that judicial changes to election regulations close to election day will confuse voters and dissuade some of them from voting. As explained earlier, courts shouldn’t assume that this probability is high; they should assess it based on the best available evidence. In this assessment, much will often hinge on the kind of policy that’s being challenged. Some policies, like a district plan or a jurisdiction’s underlying electoral rule (at-large voting, plurality voting, ranked-choice voting, and so on), affect every aspect of the political process. Candidates choose to run (or not) based on these policies, and the policies also drive candidate fundraising, media attention, voter interest, and the style of the campaign. Such basic building blocks of the election should almost never be upset when time is limited. Significant voter confusion is likely when the electoral environment is transformed shortly before votes are cast.
On the other hand, other policies are incapable of causing voter confusion (whether they shift or stay the same) because they apply only to administrators. Consider a signature-match requirement for absentee ballots, under which voters’ signatures on the ballots must resemble those on the registration rolls. This requirement is enforced exclusively by election officials, and if the rule is amended or waived, they’re the only ones who must modify their behavior. For exactly this reason, a North Dakota district court recently dismissed Purcell’s concerns when it enjoined the state’s signature-match law. “[T]here is no potential for voter confusion or dissuasion from voting because the process for submitting an absentee ballot will remain unchanged.”
Between these poles, unfortunately, lie most litigated policies. They’re not pillars of the electoral system, but they do apply directly to voters. With respect to these policies, courts should keep in mind that how they craft their remedies can influence how much voter confusion ensues. Take a requirement that voters procure two witnesses for absentee ballots and then have them notarized. If a court struck down the notarization rule but left the two-witness rule in place, then voters might be quite confused. They might be unsure what their new obligations were, and some might throw up their hands and forget about voting. But if a court invalidated both rules, then its ruling might be substantially more understandable. Voters wouldn’t have to interact with any third parties before returning their absentee ballots. That’s a simple message that’s easy for administrators to convey and voters to grasp.
This reference to administrators brings me to a second consideration: Courts should avoid changing election regulations near an election when, by doing so, they would likely cause election officials to make serious mistakes. Pause for a moment to sympathize for election officials. Even in the absence of judicial intervention, they have to comply with labyrinthine election codes, directives from the secretary of state, and local guidelines. When courts step in at the last minute, they can (though they need not) make it still harder to run an election. Court orders can disrupt administrators’ familiar routines, compel them to make determinations for which they lack training or experience, and extend how long each step in the process takes. As a result, the vote count can be slowed or even rendered inaccurate thanks to election officials’ missteps under the new court-imposed rules. Beyond the possibility of voter confusion, then, courts contemplating action close to election day should evaluate the risk of administrator error. When this risk is severe, discretion may be the better part of valor.
Administrator error, though, isn’t equivalent to administrator inconvenience. Almost any judicial revision of election regulations—near or far from an election—will lead to more work for election officials. This extra work is no reason for courts not to remedy legal violations unless it genuinely threatens to delay or distort the vote count. As the Eleventh Circuit recently stated in response to Alabama’s argument that it would be burdensome to abide by judicially amended absentee ballot procedures, “requir[ing] defendants to provide additional training to ballot workers” is “a feat hardly impossible in the allotted time.” Sharpening the point, the court added, “Purcell is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.”
Third, courts should take into account the disenfranchisement that will follow if they decline to intercede. Fear of disenfranchisement is the driver of the previous two factors. When courts change election regulations close to election day, they sometimes cause voter confusion and administrator error. In turn, confused would-be voters sometimes choose not to vote, and harried election officials sometimes fail to count validly cast ballots. Crucially, however, judicial intervention isn’t the only step that can lead to disenfranchisement. Judicial abstention can, too, when it allows an unconstitutional policy that unjustifiably burdens voting to stay in effect. Courts thinking about action near an election should therefore balance the disenfranchisement if they do interfere (from voter confusion and/or administrator error) against the disenfranchisement if they don’t (from the unlawful status quo). When the latter is larger than the former, the judicial calculus should tilt in favor of enjoining or otherwise amending the illegal policy. In this case, Purcell’s own goal of minimizing voters’ “incentive to remain away from the polls” is advanced by courts entering the fray.
Justice Ginsburg twice made this argument in dissents from the Supreme Court’s Purcell rulings. In 2015, the Court stayed a district court injunction barring Texas from enforcing its photo ID requirement for voting. According to Justice Ginsburg, there was “little risk” that this injunction would “in fact disrupt Texas’s electoral processes.” In contrast, the Court’s stay posed “[t]he greatest threat to public confidence in elections” since it would lead to Texas “denying the right to vote to hundreds of thousands of eligible voters.” In April of this year, similarly, the Court reversed a district court order that would have permitted Wisconsin voters to postmark absentee ballots after election day. Justice Ginsburg again criticized the Court’s decision because many more votes would have been enabled by the district court’s remedy than deterred due to voter confusion. “The concerns advanced by the Court . . . pale in comparison to the risk that tens of thousands of voters will be disenfranchised.”
Fourth, it matters whether plaintiffs diligently developed their claim or, conversely, dallied when they should have hurried. Suppose litigants waited to attack an election regulation until an election was imminent, even though the law was on the books for years and its burdens were constant over time. Then a court might sensibly postpone any action until after the election. Pre-election intervention could cause the usual Purcell harms of voter confusion and administrator error. And these harms could have been entirely avoided had the lawsuit only been launched earlier. As the Sixth Circuit held in 2016, Purcell’s worries ring “especially true when a plaintiff has unreasonably delayed bringing his claim.”
Other challenges to election regulations, though, couldn’t have been mounted any sooner. Say a state passes an onerous election law close to election day. Then pre-election litigation is both inevitable and unattributable to any tardiness on plaintiffs’ part. Likewise, circumstances can change when an exogenous shock like a hurricane or a pandemic strikes near an election. Under these new conditions, election rules that are normally unproblematic can become far more burdensome. Here, too, plaintiffs couldn’t have sued any earlier because the event that gave rise to their claim hadn’t yet occurred. In the words of a Georgia district court, this is why “a hard-and-fast rule against modifying election regulations close to an election” is untenable. It’s “inherently incompatible with emergencies, which by definition arise unexpectedly and may jeopardize fundamental voting processes.”
Finally, it’s significant just how close the next election is. When it’s very near, it’s more likely that a court order will cause voter confusion and administrator error. “As an election draws closer,” to quote Purcell,“that risk will increase.” By the same token, when an election is less proximate, there’s more time for voters and election officials to adjust to judicially mandated changes to election procedures. Beyond this intuitive point, federal law can provide some guidance as to when Purcell’s concerns are more and less acute. The Bipartisan Campaign Reform Act (BCRA) applies special restrictions to campaign ads aired within 60 days of a general election. The Military and Overseas Voter Empowerment (MOVE) Act requires absentee ballots to be sent to certain voters at least 45 days before a federal election. These statutes suggest that 60 days and 45 days prior to an election are pertinent dates for courts considering granting relief. After the first, Congress thinks the campaign is proceeding in earnest, and after the second, the actual mechanics of voting are in motion.
It won’t be lost on readers that we’re now within both BCRA’s and the MOVE Act’s windows. This fact should weigh against judicial intervention at this point in the election calendar. But it also shouldn’t be decisive. The central theme of this discussion is that courts should examine a series of factors when contemplating action close to election day, all of which are relevant and none of which is dispositive. So, now or even nearer the election, courts shouldn’t hesitate to step in if their remedies won’t baffle voters, won’t lead administrators to make mistakes, will prevent disenfranchisement, and couldn’t feasibly have been imposed sooner. This is simply the nature of a multifactor standard. It can sometimes lead to a conclusion (judicial relief) even if a particular prong (proximity to the election) points in a different direction.
For some lawyers, of course, that’s precisely the problem: I’m interpreting Purcell as a standard, not a hard-edged rule. To reiterate, though, the Supreme Court doesn’t treat Purcell as a rule either. In at least two recentcases, the Court has allowed lower courts to disrupt the electoral status quo quite close to election day. Moreover, Purcell is just a part of the broader legal analysis that courts conduct when determining whether to grant or lift a stay. And that broader analysis is—you guessed it—a multifactor standard including four distinct elements. So Purcell is an odd hill for proponents of rigid rules to die on. It lies in territory, the fashioning of remedies, that has long been ceded to flexible standards.
Note: This piece is cross-posted at Take Care.
This is something I did not know, and it increases the chances for uncertainty and problems after the election:
A Fox News Poll released the same day showed that 59% of Ohio voters planning to cast their ballot in person favor Trump, while 67% of those voting by mail support Biden.
Cutting to the chase, here’s what all these numbers likely mean for the Ohio vote, presuming the race between President Donald Trump and former Vice President Joe Biden remains reasonably competitive:
1. Since counties typically release the count from early voting first on election night, and since Democrats are poised to dominate that vote, Biden almost certainly will jump to a quick lead in Ohio.
2. However, the rest of the night will consist of a running accumulation of Election Day votes, which Republicans are expected to dominate. So by the end of the night, Trump could well have taken the lead.
3. Now comes possibly the white-knuckle part. Once the Election Day totals are finalized, the secretary of state’s office will announce how many outstanding mail ballots remain. Under longstanding state law, ballots that are postmarked before Election Day are added to the total if they arrive within 10 days after the election.
No interim counts will be announced during that 10-day period, meaning the nation may not know who won Ohio until mid-November. Even then, the result won’t become official until elections boards certify the results. Roll in the possibility of lawsuits and a recount and you see why elections officials are aging before our eyes.
Dan Balz WaPo column:
Each week has brought evidence of the damage President Trump has done during his nearly four years in office. According to his own words, he is not finished. This past week brought a renewed warning of a harm he could yet inflict on the integrity of elections.
The president did more than simply refuse to pledge that he would facilitate a peaceful transfer of power if he loses to former vice president Joe Biden, though that in itself was a step no previous president has taken. In doing so, he escalated his ongoing attack on mail-in ballots, seeding the ground to contest the election as rigged or fraudulent if he is not the winner and to propel the country into chaos.
Perhaps what Trump said merely reflected the mind-set of a president who knows he is running behind in his bid for a second term, one more rhetorical flailing to somehow throw the opposition off balance and to distract from the real reasons for Biden’s lead in the polls. But this close to the election, anything Trump does to question the validity of the count should be regarded as serious and treated as such.
Republicans who normally stand by idle when the president says or does something outrageous pushed back against his words — though, notably, nearly all were careful neither to rebuke nor condemn the president personally. They simply pointed to a long history of peaceful transfers from one presidency to the next and stood up for the Constitution, which is the minimum expected of elected officials who have sworn an oath to defend that document.
The president’s Republican allies in Congress, however, were not necessarily the principal audience for what he said about challenging the vote, nor are they the people whose views he cares about most. Instead, his attempt to discredit mail-in ballots as a way to challenge a possible Biden victory is aimed at rallying his own army of supporters, prepping them to respond, if necessary, with protests or perhaps worse if he challenges vote tabulations — and therefore the results — in the days after the election.
If any people believed that the president was just letting off steam when he declined to pledge a peaceful transfer of power, they can look to something White House Chief of Staff Mark Meadows said after FBI Director Christopher A. Wray had testified before a Senate committee that he knows of no evidence of “any kind of national voter fraud effort in a major election, whether it’s by mail or otherwise.”…
If Trump loses the election and then moves to discredit the results in the face of no evidence of widespread fraud, the country will be confronted with one more crisis of his presidency — one that will have been unfolding in plain view.
On Wednesday The Atlantic rushed its November cover story onto the web with an explanatory, almost apocalyptic note by its editor in chief, Jeffrey Goldberg, that some journalism is too important to wait. The article is about the very real chance — essentially confirmed hours later by Trump’s “continuation” comment — that he might contest the election in a manner that keeps him in power regardless of what Americans really want.
“The coronavirus pandemic, a reckless incumbent, a deluge of mail-in ballots, a vandalized Postal Service, a resurgent effort to suppress votes, and a trainload of lawsuits are bearing down on the nation’s creaky electoral machinery,” the article’s author, Barton Gellman, a Pulitzer winner, wrote. “The mechanisms of decision are at meaningful risk of breaking down. Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity.”
Just a few days before those words screeched across the internet, The New Yorker published a similar, equally chilling opus by one of its star writers, Jeffrey Toobin, who explained how this election might well degenerate into violence, as Democratic poll watchers clash with Republican poll watchers, and into chaos, as accusations of foul play delay the certification of state vote counts.
Several hours after Gellman’s article appeared, Slate published one by Richard Hasen, a professor at the University of California, Irvine, School of Law, with the headline: “I’ve Never Been More Worried About American Democracy Than I Am Right Now.”
Sometimes an overlap of alarms like that reflects groupthink. Sometimes it signals hysteria. This isn’t either of those times….
Those fires are burning hot, with dire implications for what happens after Nov. 3. Sizable camps of people in both parties don’t see any way that the other could win honestly and won’t regard the ensuing government as legitimate. Trump has essentially commanded his followers to take that view.
And he’s foreshadowing legal shenanigans by his team that would leave many Democratic voters feeling robbed. Try this on for size: Litigation to determine the next president winds up with the Supreme Court, where three Trump-appointed justices are part of a majority decision in his favor. It’s possible.
“Things that seemed off-the-wall are now on-the-wall,” Hasen told me. Last February he released a book, “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy,” the title of which now reads, if anything, as understated.
President Trump sought again on Saturday night to cast doubt on the integrity of the presidential election, telling supporters that the only way Democrats can win in Pennsylvania is to “cheat on the ballots” and raising the prospect that a disputed election could be decided by Congress.
Pressing his baseless case that the election in November will be a “disaster,” Mr. Trump said at a rally just outside a hangar at the Harrisburg airport that he would have “an advantage” if Congress were to decide.
The comments, delivered in drizzling rain, were part of the president’s continuing effort to discredit the United States’ election process as he trails former Vice President Joseph R. Biden Jr., his Democratic rival.
“I don’t want to end up in the Supreme Court, and I don’t want to go back to Congress, even though we have an advantage if we go back to Congress. Does everyone understand that?” Mr. Trump told supporters. “I think it’s 26 to 22 or something.”
“It’s counted one code per state,” he said. “So we actually have an advantage. Oh, they’re going to be thrilled to hear that. I’m sure they’re trying to figure out, ‘How can we break that one?’”
Mr. Trump appeared to be referring to what is known as a contingent election, in which the House of Representatives chooses the next president if no candidate wins an absolute majority of votes in the Electoral College — an outcome that would be more likely if the results in key states were in dispute. In that case, each state’s House delegation is given one vote, with 26 votes required to win.
A year before President Donald Trump alarmed Americans with talk of disputing elections last week, his team started building a massive legal network to do just that.
Dozens of lawyers from three major law firms have been hired. Thousands of volunteer attorneys and poll watchers across the country have been recruited. Republicans are preparing pre-written legal pleadings that can be hurried to the courthouse the day after the election, as wrangling begins over close results and a crush of mail-in ballots. Attorneys from non-battleground states, including California, New York and Illinois, are being dispatched to more competitive areas and trained on local election laws….
Democrats have launched their own gargantuan effort, doubling their efforts since 2016. They’ve amassed a team to educate voters, respond to charges of voter suppression and counter foreign interference and misinformation, according to the Biden campaign.
The effort is being led by Dana Remus, Biden’s general counsel, and Bob Bauer, a former White House counsel during the Obama administration who joined the campaign full-time this summer. It includes a national team for special litigation spearheaded by former solicitors general Donald Verrilli and Walter Dellinger, as well as Marc Elias, a nationally recognized Democratic elections lawyer, according to the campaign. Former Attorney General Eric Holder also is involved.
EVERY state right now should put in place rules beforehand as to how to judge whether a poorly marked oval is counted, and how.
AJC:
Georgia election officials said Saturday they found a programming error on the state’s voting touchscreens that caused a row of candidates in the 21-person U.S. Senate special election to disappear at times when flipping back and forth between screens.
The problem will require reprogramming the state’s 30,000 new touchscreens, called ballot-marking devices, about two weeks before in-person early voting begins Oct. 12.
The issue occurred in the U.S. Senate special election, which includes Republican U.S. Sen. Kelly Loeffler and U.S. Rep. Doug Collins, along with Democrats Raphael Warnock, Matt Lieberman and Ed Tarver.By Rocket Mortgage®Advertiser Content
To fit so many candidates on one screen, election officials had to divide the race into two columns, said Deputy Secretary of State Jordan Fuchs. She said that kind of ballot format isn’t standard, but it was easier for voters, and election officials wanted to ensure all candidates appeared together.
The Republican members of the state elections board who resigned in protest earlier this week gave the public false information, the board’s leader said in an emergency meeting Friday.
He and the other Democrats who remain on the board released documents they claim should prove their version of events.
“Two members of our board resigned their seats, claiming they were misled and did not have all the information,” said Damon Circosta, chair of the N.C. State Board of Elections, adding: “This is not true.”
For example, one of the GOP board members who resigned, Ken Raymond, said he did so because attorneys from the office of Attorney General Josh Stein, a Democrat, had withheld key information from him and the rest of the board. However, one of the formerly confidential documents released Friday shows that that information was actually on the first page of a legal memo Stein’s office sent to board members nearly two weeks ago.
After the elections board waived its attorney-client privilege on those documents Friday to make them public, Stein tweeted that Republican leaders “are lying” about the elections board’s actions “to create mistrust in our elections.”
Madison’s parks have become the latest fronts in Wisconsin’s voting wars.
The liberal stronghold is hosting “Democracy in the Park” events on Saturday at more than 200 locations across the city, where poll workers wearing yellow vests will assist voters in numerous ways.
They plan to help people register to vote, help them request absentee ballots, serve as witnesses for those who already have absentee ballots and accept those absentee ballots once they’re completed.
To Republicans, that risks looking too much like in-person early voting, which isn’t allowed under state law until Oct. 20.
Republicans and Democrats in Wisconsin have long fought over the state’s voter ID law and early voting, but their battles have intensified this year as voters turn to absentee voting in record numbers because of the coronavirus pandemic.
That I’d love to see.
Politico asked more than two dozen “legal experts” their views on this question. Here’s my contribution:
The authority and legitimacy of public institutions takes decades to build up — but can unravel far more quickly. We have been in the midst of a blood feud over the Supreme Court for some years now, which is increasingly likely to cause great damage to an institution the country needs. Like in all blood feuds, each side has its own story of how it all began, which goes back nearly 40 years: You blocked Bork. You denied Garland a hearing. We had to get rid of the filibuster for lower court judges. We had to get rid of it for the Supreme Court. Overwhelmed by the politics of the moment when in power, neither side can stop, making it inevitable that when the worm turns, the other side will up the ante all the more.
To talk about what Amy Coney Barrett would mean for this issue or that issue is to miss the true historical significance of this appointment and what it will mean for the court. If Democrats capture the Senate and White House this fall, the pressures to pack the court will become more formidable than at any time since Franklin D. Roosevelt’s disastrous 1937 attempt (the political backlash against that effort brought about the end of the New Deal). That effort might press to add four new justices, to create a 13-member court with seven Democratic appointees. As soon as the Republicans regain power, they will then take their turn at refashioning the court to serve their aims.
A bespoke court, custom designed and redesigned to serve the interests of the party in power, would lose much of the institutional capital it has built up over two centuries. Perhaps Judge Barrett’s nomination will eventually lead the warring tribes to forge a treaty that reduces the stakes in these appointments (through mechanisms scholars have discussed for years). Or perhaps the stakes in Supreme Court appointments will diminish because one political party gains complete control of government for decades, thus making the court less relevant, as Republicans did after the Civil War and Democrats did during the New Deal. Of course, each side’s firm belief that it is (always) on the cusp of doing that is part of what propels the feud forward.
Three GOP-led groups are making urgent appeals in state court to gain the legal standing needed to appeal and overturn a recent ruling requiring clerks to count late ballots and making changes to the rules governing ballot collection.
The Michigan Supreme Court on Friday issued an order that expedites consideration of the requests to intervene and ordered a ruling in at least one of the cases by Wednesday.
The potential challenges from the GOP-led Legislature, the Republican National Convention and the Michigan Republican Party stemmed from a Sept. 18 ruling by state Court of Claims Judge Cynthia Stephens, an appointee of Democratic former Gov. Jennifer Granholm.
Voters confined to hospitals and nursing homes during the COVID-19 pandemic should be allowed to cast ballots in the November election via video call, Maricopa County Recorder Adrian Fontes said in a court complaint filed in Arizona Superior Court on Friday.
The 4th Circuit Court of Appeals in Richmond has, at least temporarily, reinstated a ruling by a South Carolina federal judge that would allow S.C. voters who vote absentee to do it without having a witness signature.
The ruling was the latest major turn of the screw in a voting rights issue that ultimately could affect up to an estimated 1 million voters in the state who the S.C. Election Commission has said may vote absentee. South Carolina has approximately 3 million eligible voters.
The reversal and reinstatement of U.S. District Judge Michelle Childs’ Sept. 18 order came shortly after 8 p.m. Friday. Its effect was to waive the voter witness signature requirement and came over the heated written objections of two 4th Circuit judges, J. H. Wilkinson and Steven Agee.
In any case, the matter is likely to be dealt with speedily. Under existing law, judges are not supposed to issue decisions that could interfere with rapidly approaching elections — a point made by Judges Wilkinson and Agee in their dissent.
“The Supreme Court has repeatedly cautioned us not to interfere with state election laws in the “weeks before an election,” wrote Wilkinson and Agee. “The district court (Judge Childs) failed to give this command proper weight.”
Underscoring their displeasure with the full 4th Circuit court’s decision to overturn their panel, Wilkinson and Agee wrote, “The majority’s disregard for the Supreme Court is palpable.”
I did this New Yorker Q and A with Isaac Chotiner.
I have written this piece for the LA Times. It begins:
Let’s admit this now: We are not going to have a perfect election in November. We never have perfect elections.
There will be reports of ballots sent to voters that end up in the trash or in a ditch. We may hear about a box of ballots never delivered to voters or election officials by the post office. There may be isolated instances of fraud, or of things that initially look like fraud but turn out to be election administrator error.
This doesn’t mean we won’t have a fair election overall, and we should not allow cynical political operatives to parlay small-bore errors into a full-scale attack on the integrity of the November vote.
The controversy that bubbled up on Thursday over nine mishandled ballots in Luzerne County, Pa., illustrates the danger ahead. Even before the Department of Justice issued its announcement, President Trump and his team were complaining that mail-in ballots from military voters cast for him were being thrown into the trash, a claim fitting into his narrative — unsupported by the facts — that massive voter fraud will be used to take a November victory away from him. ABC News reported that Atty. Gen. William Barr briefed Trump on the case before it was publicly announced.
The Justice Department bungled the facts with premature announcements. Nine Trump votes were not tossed. That news release was rescinded and replaced: Seven of the ballots had been marked for Trump; two were unopened. Then came yet more information: A memo from Luzerne County that suggested there was no criminal activity related to the ballots, just administrative error. A temporary contract election worker on the job for only three days may have believed the envelopes contained applications for absentee ballots, not votes. The worker was fired when the error was discovered.
The clarifications did not stop a flood of conservative media stories blowing up the situation as some kind of evidence of a massive conspiracy to throw the election. The Luzerne County story is troubling, but not because it showed deliberate tampering. Instead it showed how political operatives — this time acting through the Justice Department — could try to give mistakes the aura of a stolen election for political gain. Whatever one thinks about the department announcing an ongoing political investigation in the midst of the election season (which goes against the DOJ’s own standards and practices), there is no non-political reason for releasing information about how the ballots were marked. This was an in-kind contribution to the Trump campaign by the Justice Department….
The court’s opinion is here and no doubt there will be an appeal.
There’s a discussion of whether this ruling comes too late under the Purcell Principle near the end of the opinion, but it does not get into the nuts and bolts of what is feasible. I look forward to hearing if and how Texas could implement this ruling at this stage of the process.
CNN:
Joanne Bland was an 11-year-old schoolgirl in Selma, Alabama, when she marched into history, joining hundreds of activists on the Edmund Pettus Bridge for a demonstration that turned into one of the bloodiest confrontations of the civil rights movement.
Baton-wielding state troopers and horse-mountedmembers of the sheriff’s posse, plunged into the peaceful crowd that day in March 1965, breaking bones and cracking skulls. Bland’s 14-year-old sister Linda, standing not far behind march leaders John Lewis and Hosea Williams, was struck in the face and the back of the head.
“It was horrible,” Bland recalls now. “There was this one lady, I don’t know if the horse ran over her or if she fell, but all these years later, I can still hear the sound of her head hitting that pavement.”
The march — known as Bloody Sunday — so shocked the nation that it helped mobilize Congress to pass the Voting Rights Act. That landmark legislation finally dismantled the Jim Crow-era laws that relied on obscure civics tests, discriminatory poll taxes and violence to deny full citizenship to all Americans.
But today, 55 years later, Bland feels as though she’s re-living parts of the past as she surveys a country riven by racial tension, where Black men and women die too often at the hands of police, and in which states press ahead with purging voters from their rolls and enforcing strict voter identification laws — even as a once-in-a-century pandemic stalks their citizens.
“Sometimes I wake up and I think we are paralleling the 60s all over again,” Bland said in an interview from her home in Selma, where she leads tours of the city’s civil rights landmarks. “The laws that they passed to prevent African Americans from voting were insurmountable, and states could make up their own rules. That’s pretty much where this is going now.”
A federal judge sidestepped a ruling Friday on whether to place multiple drop boxes in counties across Ohio, saying that he instead will wait to see how a state appeals court handles the matter.
U.S. District Judge Dan Polster issued a seven-page decision that criticized Ohio Secretary of State Frank LaRose and the state legislature for failing to come up with a solution sooner.
He ordered LaRose to work with the Cuyahoga County Board of Elections to alleviate “the looming crisis for voters who plan to personally deliver their ballots for the November 3 election rather than returning them by mail.”…
n his ruling, Polster said that he agrees with Frye’s conclusion that “nothing in state law prohibits off-site drop boxes or off-site delivery of ballots to board employees.”
He said that if appellate courts uphold Frye’s action, the issue is moot. He said he would hold his decision in abeyance until then.
“This is a problem that can and should be solved by the Secretary of State,” Polster said. “It is his job to work with each board to address any local issue that significantly impacts voters in that county being able to cast their ballots.”
Detroit News reports.
The federal 9th Circuit Court of Appeals will not hear an Alaska elections lawsuit before the Nov. 3 general election, likely eliminating any chance that a judge will require the state to send absentee ballot request forms to all voters ahead of the election.
Any Alaskan can vote absentee by mail, but they must request permission first. The state has an online application form available.
The state sent paper forms to Alaskans 65 and older, but the Disability Law Center of Alaska and several other plaintiffs sued, arguing that the age limit was discriminatory. They sought an order requiring the state to send paper forms to all Alaskans.
That request was denied by an Alaska district court judge, and on Tuesday, the federal appeals court also denied a request for an emergency order ahead of the election.
Key quotes from the Hill:
“The Electoral College votes and those are sent to Congress and they declare a winner and then the president becomes president on Jan. 20,” said Mark Braden, an elections lawyer who spent 10 years as chief counsel for the Republican National Committee. “And guess what? The new president is commander in chief, so everyone in the executive branch works for him. If they have to carry the president out in a chair, they will, because if Congress reviews the electoral votes and decides that Biden wins, then it doesn’t matter what Trump thinks or does. The government will be run by Biden.”…
Conservative elections attorney Jim Bopp told The Hill that it would be as simple as getting a judge to issue a “quo warranto” common law action, which effectively determines that a one-time guest has become a trespasser.
“It’s totally absurd to discuss, but you would just get a court order to have him removed,” Bopp said. “It’s that simple. If a person violates the court order, they’re in contempt of court and subject to civil or criminal contempt, so there’s a quick and easy legal remedy in case this preposterous event takes place.”…
“No doubt the Trump base will stick with him, and will forever believe that Pelosi, Schumer, Shifty Schiff and Hunter Biden conspired with China and Russia to flood the American electoral system with phony ballots that swung the election to Biden,” said one Republican elections lawyer who requested anonymity to speak candidly.
“But everyone in official Washington will abandon him. Pence, the entire cabinet, the RNC, every GOP senator, all but maybe a handful of GOP representatives, all of his political appointees… Most lawyers will refuse to represent him – including government lawyers who will resign before advancing his positions in court. The other two branches of government will put an end to this… The judicial system in particular will have zero patience for this and its destabilizing effect on public order. And Trump himself does not want to be frog-marched out of the White House in handcuffs — like a dog — so he’ll eventually go too. With a huge stink, but not an ounce of fight.”
Senior Pentagon leaders have a lot to worry about — Afghanistan, Russia, Iraq, Syria, Iran, China, Somalia, the Korean Peninsula. But chief among those concerns is whether their commander in chief might order American troops into any chaos around the coming elections.
President Trump gave officials no solace on Wednesday and Thursday when he again refused to commit to a peaceful transfer of power no matter who wins the election, and on Thursday, he doubled down by saying he was not sure the election could be “honest.” His hedging, along with his expressed desire in June to invoke the 1807 Insurrection Act to send active-duty troops onto American streets to quell protests over the killing of George Floyd, has incited deep anxiety among senior military and Defense Department leaders, who insist they will do all they can to keep the armed forces out of the elections.
“I believe deeply in the principle of an apolitical U.S. military,” General Mark A. Milley, the chairman of the Joint Chiefs of Staff, said in written answers to questions from House lawmakers released last month. “In the event of a dispute over some aspect of the elections, by law, U.S. courts and the U.S. Congress are required to resolve any disputes, not the U.S. military. I foresee no role for the U.S. armed forces in this process.”
But that has not stopped an intensifying debate in the military about its role should a disputed election lead to civil unrest.
On Aug. 11, John Nagl and Paul Yingling, both retired Army officers and Iraq war veterans, published an open letter to General Milley on the website Defense One. “In a few months’ time, you may have to choose between defying a lawless president or betraying your constitutional oath,” they wrote. “If Donald Trump refuses to leave office at the expiration of his constitutional term, the United States military must remove him by force, and you must give that order.”
Pentagon officials swiftly said such an outcome was preposterous. Under no circumstances, they said, would the chairman of the Joint Chiefs of Staff send Navy SEALs or Marines to haul Mr. Trump out of the White House. If necessary, such a task, Defense Department officials said, would fall to U.S. Marshals or the Secret Service. The military, by law, the officials said, takes a vow to the Constitution, not to the president, and that vow means that the commander in chief of the military is whoever is sworn in at 12:01 p.m. on Inauguration Day.
But senior leaders at the Pentagon, speaking on the condition of anonymity, acknowledged that they were talking among themselves about what to do if Mr. Trump, who will still be president from Election Day to Inauguration Day, invokes the Insurrection Act and tries to send troops into the streets, as he repeatedly threatened to do during the protests against police brutality and systemic racism. Both General Milley and Defense Secretary Mark T. Esper opposed the move then, and Mr. Trump backed down.
A Justice Department official told ABC News Friday that Attorney General William Barr personally briefed President Donald Trump about the DOJ’s investigation into a small number of ballots in Pennsylvania that were found to be discarded, prior to the information being made public by a U.S. attorney’s office Thursday afternoon.
President Trump went on to first reveal the investigation in an interview with Fox News Radio, where he, without evidence, argued that it bolsters his baseless claims of widespread fraud in mail-in voting.
“They were Trump ballots — eight ballots in an office yesterday in — but in a certain state and they were — they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen,” Trump said in the interview. “This is what’s going to happen, and we’re investigating that.”
But a press release from the U.S. Attorney’s Office in the Middle District of Pennsylvania, which announced the investigation in a press release later in the day, made no explicit mention of “fraud.” The office said it “began an inquiry into reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections,” and discovered nine ballots in a dumpster which were cast for Trump.
The office later corrected that number to seven and said two others were resealed inside their proper envelope. The investigation remains ongoing, but the U.S. attorney’s office in a letter to the Luzerne County Board of Elections raised the specter that the improperly opened envelopes could possibly be the result of an administrative error.
To horrified voters, onlookers, and the Democratic opposition, it was another clear instance of the sitting president openly telegraphing his plans to seize power, something some administration officials fear will soon take form within the federal government and among major party organs.
But to Trump, it was… funny as hell.
According to two people familiar with the matter, hours after the president stepped away from the cameras, Trump continued following the fallout in the press, including on cable news, and began privately remarking how amusing it was that his answer was making media and liberal heads explode, and also predictably dominating TV coverage.
“He seemed to get a real kick out of it,” one of the sources said, adding that the president seemed to relish making the press, in Trump’s words, “go crazy” over his non-commitment to democratic norms and procedure. “[The president] wasn’t going to be playing by their rules on this just to make them feel comfortable.”…
According to a Justice Department prosecutor, there is internal concernin some department circles that Attorney General William Barr will join post-election lawsuits on behalf of the Trump campaign or its allies. The prosecutor had no inside information about this, and described it instead as an expectation amongst some Justice Department personnel who consider Barr dangerous.
AP:
As the pandemic prompts a surge in voting by mail, voters in a handful of states, including the presidential battlegrounds of North Carolina and Wisconsin, are facing a requirement that already is tripping up thousands — the need to have a witness sign their ballot envelope.
A lack of a witness signature or other witness information has emerged as the leading cause of ballots being set aside before being counted in North Carolina, with problems disproportionately affecting Black voters in the state, according to an Associated Press analysis of state election data.
While there is a process for fixing the omissions, voting rights advocates say the numbers are an early warning sign that the extra step is becoming a barrier that could disenfranchise voters — and a potential source of legal battles in a tight race.
New Jerry Goldfeder column.
Lisa Marshall Manheim has posted this draft of SSRN (forthcoming, Vanderbilt Law Review). Here is the abstract:
In recent decades, Presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, Presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment, subordination of expertise, and disillusionment of the electorate. These harms, in turn, threaten to compromise election outcomes. By extension, they also threaten the electoral connection purportedly underlying the administrative state, and therefore the legitimacy of the work of the modern executive branch.
This Article identifies, defines, and examines this phenomenon — presidential control of elections — and explores its broader implications. It demonstrates that, across the executive branch, this phenomenon manifests differently, and sometimes counterintuitively, in ways that tend to track how Congress has structured the relevant grant of power. Three forms dominate, with Presidents influencing election administration primarily through priority setting (for grants of power running through executive agencies), promotion of gridlock (for grants of power running through independent agencies), and idiosyncratic control (for grants of power running directly to the President). This analysis reveals that congressional efforts at insulation at times can backfire, with Presidents able to exercise particularly problematic forms of control over agencies that Congress designed in blunt ways to resist presidential influence. To that end, this Article proposes that Congress and the courts avoid trying to eliminate or otherwise indiscriminately curb presidential control of elections — a quixotic endeavor that would give rise to its own constitutional hurdles and normative harms. Instead, the legislative and judicial branches should identify specific areas where the President’s control over election administration lacks an effective check, and seek to empower other political actors in those spaces.
White House Chief of Staff Mark Meadows lambasted FBI Director Chris Wray on Friday for correctly playing down the extent of voting fraud and encouraged him to “get involved” with the Trump administration’s efforts to investigate a handful of ballots in Pennsylvania—a probe that has alarmed election experts.
“Democrats want to scare you away from voting absentee,” Guilfoyle says (in Greg Sargent, Intercepted GOP robocalls expose how Trump hopes to corrupt the election.)
George Orwell’s estate should sue for copyright infringement.