“How Republicans in key states are preparing to run out the clock on the election”

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CNN:

President Donald Trump’s refusal to commit to a peaceful presidential transition Wednesday comes as Republicans across the country are taking concrete steps that threaten to undermine the integrity of the election, particularly in key battleground states.

Trump’s comments about the transition were only the latest instance where he’s actively sought to sow doubt into the legitimacy of the election. But beyond Trump’s rhetoric, his campaign and Republicans at the state and local level are moving to make it more difficult for voters to cast a ballot, more difficult for states to count votes and more likely that tallies will be challenged in the courts — with a particular focus on mail-in voting, which is being dramatically scaled up this year because of the coronavirus pandemic.

Those efforts, along with Trump’s repeated baseless claims that the election will be rigged, threaten to eat away at the public’s confidence in the outcome, regardless of whether Trump or former Vice President Joe Biden is declared the winner. They come amid a contentious fight over filling the Supreme Court seat left vacant by the death of Ruth Bader Ginsburg, in a situation where Trump could be picking the person who decides his electoral fate.

“I spent 38 years as a Republican lawyer going into precincts looking for evidence of fraud. There are, to be sure, isolated cases, but nothing like the widespread fraud that would somehow invalidate an election or cause anyone to doubt the peaceful transfer of power,” Ben Ginsberg, who helped litigate the 2000 election on George W. Bush’s behalf, told CNN’s John King on Thursday. “So what’s different about this is a president of the United States going right at one of the pillars of the democracy without the evidence that you have got to have to make that case.”

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Trump Campaign Tries to Walk Back Trump Comments About Peaceful Transitions of Power to Axios

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Axios:

And Trump advisers are ready to challenge the legitimacy of the election results, especially with the expected late wave of Democratic mail ballots. They’re also ready to defend against Democratic lawyers who mount their own election challenges.

  • One Trump campaign source told Axios that their lawyers will litigate where needed, including suing in key states that have changed election laws to allow for an extended period of time to vote or to count ballots.
  • “There are a lot of options if it turns out that the election results aren’t fair and free,” the source said.

The big picture: Trump’s own advisers are providing a reality check: the Constitution makes it clear that, even if Trump chooses denial, if Joe Biden is elected president he will be president on Jan. 20.

  • “Trump can say ‘I don’t concede, I think it’s rigged,’ but he would not be the president,” a Trump legal adviser told Axios.

But legal experts are increasingly worried about how the next president will be chosen if the mechanics for democratic elections fall apart and we face a constitutional crisis.

  • Some lawyers, especially Democrats, don’t like to talk about it because they don’t want to discourage voters who already feel their votes won’t matter — but they’re still gaming out different scenarios so that they are prepared to respond for any event….

Between the lines: Trump’s answer to the question about the peaceful transfer of power — “we’re going to have to see what happens” — is a catchphrase he uses often when he doesn’t want to answer a question.

  • But it would have been an easy answer for any other president, and he forced the GOP to spend Thursday doing cleanup. Nearly every Republican insisted there will be a peaceful transition of power, and how any assertion otherwise would be a rejection of American democracy.
  • Aides to the president argued Thursday that Trump is being misinterpreted, and that he instead was refusing to say whether he’d accept a losing result without a legal fight.
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“Court Orders Census Counting To Continue Through Oct. 31; Appeal Expected”

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Hansi Lo Wang for NPR:

A federal court has ordered the Trump administration to abandon last-minute changes to the 2020 census schedule and extend the time for counting for an additional month.

The preliminary injunction issued Thursday by U.S. District Judge Lucy Koh in the Northern District of California requires the Census Bureau to keep trying to tally the country’s residents through Oct. 31.

The ruling is the latest development in a federal lawsuit over the administration’s decision to shorten the timeline for the national head count. The Justice Department, which did not immediately respond to a request for comment, is expected to appeal the order, further complicating what could be the final days of counting for this year’s census.

Koh found that the administration’s truncated census schedule is likely to produce inaccurate numbers about historically undercounted groups, including people of color and immigrants. That, in turn, would harm the constitutional purpose of the count — to redistribute the seats in the House of Representatives among the states based on their latest populations.The judge also found that the challengers in the lawsuit — a coalition of groups led by the National Urban League — are ultimately likely to succeed in the lawsuit by arguing that the administration’s decision was arbitrary and capricious.

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“Could Republicans ignore the popular vote and choose their own pro-Trump electors?”

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From the Guardian:

A Trump campaign spokesperson said the report in the Atlantic was not true.

“The Atlantic story is false and ridiculous. The types of contingency plans included in the story are impossible,” the spokesperson said. “States have laws that determine how electors are selected. Especially if we’re looking at states that could have mail ballot problems (eg Pennsylvania, Michigan), no Democrat governor is going to sign a bill repealing those laws.”

Experts cast doubt on the feasibility of such an effort.

“It’s the ultimate nightmare scenario for the country. There’s no reason to think there would be any appropriate basis for doing this. It’s not at all clear that the legal power to do it even exists,” said Richard Pildes, a law professor at New York University. “There’s a delicate line in talking about and educating people about all sorts of potential scenarios that could emerge and creating unwarranted anxiety about what is likely to be a relatively well-functioning election process.”

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“Trump Again Sows Doubt About Election as G.O.P. Scrambles to Assure Voters”

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NYT:

President Trump declined for a second straight day to commit to a peaceful transfer of power if he lost the election, repeating baseless assertions that the voting would be a “big scam,” even as leading Republicans scrambled to assure the public that their party would respect the Constitution.

“We want to make sure that the election is honest, and I’m not sure that it can be,” Mr. Trump told reporters on Thursday before leaving the White House for North Carolina.

The president doubled down on his stance just hours after prominent Republicans made it clear that they were committed to the orderly transfer of power, without directly rebuking him. “The winner of the November 3rd election will be inaugurated on January 20th,” Mitch McConnell, the Senate majority leader, wrote on Twitter early Thursday. “There will be an orderly transition just as there has been every four years since 1792.”

Democrats were far less restrained, comparing Mr. Trump’s comments to those of an authoritarian leader and warning Americans to take his stance seriously.

“You are not in North Korea; you are not in Turkey; you are not in Russia, Mr. President, and by the way, you are not in Saudi Arabia,” House Speaker Nancy Pelosi said. “You are in the United States of America. It is a democracy, so why don’t you just try for a moment to honor your oath of office to the Constitution of the United States?”

Chris Edelson, an American University professor who has studied the expansion of presidential power during national emergencies, said Mr. Trump’s comments represented a unique threat to a central pillar of democracy. “It’s impossible to underscore how absolutely extraordinary this situation is — there are really no precedents in our country,” he said. “This is a president who has threatened to jail his political opponents. Now he is suggesting he would not respect the results of an election. These are serious warning signs.”

Douglas Brinkley, the presidential historian, said, “This may be the most damaging thing he has ever done to American democracy.”…

Ben Ginsberg, a longtime Republican elections lawyer who retired last month, said Republican senators — even those who have sought to distance themselves from Mr. Trump — are limited in how much they can criticize a president who remains overwhelmingly popular with the party’s base.

His leverage over the rank and file is even greater as he prepares to announce a Supreme Court nominee nearly all of them will support, Mr. Ginsberg said.

“The president’s comments about the peaceful transfer of power, combined with his need for the ninth justice to carry out his election plans, puts Republican senators on the horns of a dilemma,” Mr. Ginsberg said….

Still, the debate exposed a divide in the party that the flurry of G.O.P. statements — and attacks on Democrats — could not obscure, and Mr. Trump’s comments caused deep uneasiness among some stalwarts of the besieged Republican establishment.

“This isn’t the typical Trump outrage that comes and goes,” said Brendan Buck, a former top adviser to House Speaker Paul Ryan, who stepped down in 2019. “Senators are stating their principle here because it’s obvious to everyone that he is, in fact, planning to dispute the results if he loses, no matter how lopsided. Calling him names isn’t going to stop him, but they are trying to save themselves some trouble later by making clear they’re not going to flirt with crazy conspiracies that make a mockery of our democracy.”

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“Facebook Takes Down Networks Linked to Russian Disinformation”

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NYT:

Facebook announced on Thursday that it was taking down three disinformation networks that it said were linked to Russia’s military and intelligence agencies, and to the Internet Research Agency, which was central to Moscow’s interference in the 2016 presidential election.

None of the networks were large, and they operated almost entirely abroad — from Japan to Belarus. But Facebook said it was acting proactively to dismantle infrastructure Russia could use around the Nov. 3 presidential election, either in an effort to influence the vote or to dispute its outcome by calling into question the fairness of the balloting.

“We haven’t seen these networks directly target the 2020 election,” Nathaniel Gleicher, the head of security policy for Facebook, said in an interview. “But they are linked to actors associated with election interference in the U.S. in the past, including in the ‘DCLeaks’ in 2016.”

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“Trump’s escalating attacks on election prompt fears of a constitutional crisis”

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WaPo:

President Trump reiterated Thursday that he may not honor the results should he lose reelection, reaffirming his extraordinary refusal to commit to a peaceful transition of power and prompting election and law enforcement authorities nationwide to prepare for an unprecedented constitutional crisis.

Trump escalated his months-long campaign to undermine the legitimacy of the Nov. 3 election with comments Wednesday that, taken together and at face value, pose his most substantial threat yet to the nation’s history of free and fair elections.

In recent days, the president cast doubt on the integrity of vote totals. He said he might not accept the results if they show him losing to Democratic nominee Joe Biden. He said it was imperative to quickly fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg because the nation’s high court could determine the winner of the election.

And when asked directly whether he would commit to a “peaceful transition of power,” Trump responded, “We’re going to have to see what happens.” He went on to suggest that authorities “get rid of the ballots,” an apparent reference to the huge uptick in votes cast by mail amid the coronavirus pandemic, adding that, if they did, “there won’t be a transfer [of power], frankly. There will be a continuation.”

Asked on Sept. 23 if he would commit to a peaceful transfer of power if he loses the election, President Trump said, “We’re going to have to see what happens.” (The Washington Post)

Trump reaffirmed his views Thursday, saying on Fox News Radio that he would agree with a Supreme Court ruling that Biden won the election but that short of a court decision, the vote count would amount to “a horror show” because of fraudulent ballots. There is no evidence of widespread fraud.

Later Thursday, as he left the White House for a campaign rally in North Carolina, Trump reiterated to reporters, “We want to make sure the election is honest, and I’m not sure that it can be.”

Trump’s running commentary about an illegitimate vote reverberated from coast to coast. Many of Trump’s Republican allies in Congress, including Senate Majority Leader Mitch McConnell (R-Ky.), issued perfunctory statements declaring that the winner of the Nov. 3 election would be inaugurated on Jan. 20 — an orderly transition as there traditionally has been in the United States.

Democratic state attorneys general strategized among themselves on what to do if the president refuses to accept the result and said they were most concerned that his drumbeat of unfounded accusations about fraud could undermine public confidence in the election.

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“East Texas official arrested for alleged mail-in voter fraud involving 2018 Democratic primary for local seat”

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Texas Tribune:

An East Texas county commissioner was arrested Thursday on charges that he and three associates committed voter fraud in a 2018 primary election.

A grand jury indicted Shannon Brown, a Democratic Gregg County commissioner whose office is in Kilgore, Marlena Jackson, Charlie Burns and DeWayne Ward, on numerous felony charges in a scheme that allegedly involved falsely claiming voters were disabled in order to obtain absentee ballots.

County election results show Brown won a narrow victory in the March Democratic primary — 1,047 votes to his opponent’s 1,042 — with a much greater share of his support coming from absentee ballots. The indictments involve the ballots or applications for ballots of about 38 voters, and most counts accuse Brown and the others of “intentionally [causing] false information to be provided on an application for ballot by mail,” with an application indicating that “the voter was disabled, when in fact the voter was not disabled.”

An investigation into the election was announced in May 2018. The Gregg County grand jury issued indictments for 134 total counts against the four, with multiple overlapping charges involving the roughly three dozen voters. The indictments themselves offer little explanation of how the alleged fraud occurred, and do not indicate how many of the 38 successfully cast ballots.

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“Justice Dept. Discloses Pa. Ballot Inquiry, Prompting Fears of Politicization”

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NYT:

The Justice Department on Thursday released details about an investigation into nine discarded mailed-in ballots in Pennsylvania, an unusual step that stoked new fears that President Trump’s political appointees were using the levers of law enforcement to sow doubt about the election.

The U.S. attorney for central Pennsylvania, David J. Freed, announced in a statement that F.B.I. investigators were examining mail-in ballots from military members in Luzerne County in northeastern Pennsylvania that had been “discarded.” Seven of the nine ballots were cast for Mr. Trump, Mr. Freed said.

In a letter to the Luzerne County Bureau of Elections released on Thursday evening, Mr. Freed said investigators found that the nine ballots had been “improperly opened by your elections staff.” Under Pennsylvania election law, no ballots can be opened until Election Day, even for processing.

Mr. Freed added that the investigation found that “envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests,” and had been opening envelopes.

Mr. Freed said he was taking the rare step of releasing details about the investigation because of “the limited amount of time before the general election and the vital public importance of these issues.”

A spokeswoman for the Justice Department did not respond to an email seeking comment. The Luzerne County district attorney said it had “consulted with the United States attorney’s office” after a county administrator notified them of “issues” with a ballot.

The announcement came as Mr. Trump refused to commit to accepting the results of the election and as voters around the country began casting ballots by mail and in early voting.

Election experts said the announcement was highly irregular. Justice Department policy calls for keeping voter fraud investigations under wraps to avoid affecting the election outcome, and the experts said it was almost unheard-of for the department to provide an update on the case and disclose the name of the candidate for whom the ballots had been cast….

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Minnesota: “Competitive congressional election delayed after death of third-party candidate”

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Politico:

The death of a third-party candidate running against freshman Democratic Rep. Angie Craig has triggered the postponement of this year’s vote and scheduleda special election next year in her Twin Cities-area district.

The Minnesota secretary of state’s office confirmed Thursday the death of Adam Weeks, a farmer running under the Legal Marijuana Now party, and that the seat would become vacant at the start of the next term. State law requires that the November election be delayed and a a special election be held on the second Tuesday in February if a major party nominee dies within 79 days of Election Day. Early voting began in Minnesota last week.

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“Battles Over Voting Rules Fuel Concern About Postelection Fights”

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NYT:

Even before his comments over the past several days, the confusion surrounding how ballots should be cast and counted had reached a level rarely before seen.

In Wisconsin and Pennsylvania, two states pivotal to the outcome of the presidential race between Mr. Trump and Joseph R. Biden Jr., the Democratic nominee, there are legal fights underway that could affect when voters have to mail in their ballots. In Pennsylvania and Ohio, there are lawsuits about where voters might be able to drop off their ballots.

In those states and others, the very means by which the election will be conducted is still being hashed out through legislation, executive actions and consent decrees, as well as litigation.

In Michigan, legislation is pending concerning whether voters will have the ability to fix any problems with their mail-in ballots. In North Carolina, elections officials signed an agreement to extend the deadline for receiving mail ballots by six days, and Republicans immediately pledged to try to overturn it.

The problem has been exacerbated by the options that states have sought to provide to make voting safer and easier amid the pandemic, changes that have often been met with a flood of lawsuits.

“A whole bunch of Americans are going to have a different process than they may be used to,” said Justin Levitt, a professor at Loyola Law School who oversaw voting rights in the Obama administration as a deputy assistant attorney general. Mr. Levitt has been tracking pandemic-related election law cases across the country, and he said that “any change is inevitably going to lead to disruption.”

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“Michigan lawmakers give clerks more time to process ballots”

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Very good bipartisan news:

The Michigan Legislature gave final approvals Thursday to a bill that would give local clerks 10 hours extra before the election to begin processing absentee ballots, a nod to the expected uptick in absentee voting in the general election.

The bill also changed protocol for signature mismatches on absentee ballots, increased security around ballot boxes, and allowed for shifts of workers on the absent voter counting board the day of the election.

The legislation passed 94-11 through the House and was concurred on by the Senate 35-2. The bill is headed to Gov. Gretchen Whitmer’s desk next.

Nearly 2.4 million voters had requested absentee ballots as of Tuesday, building toward what’s expected to be record mail-in participation during the coronavirus pandemic.

The bill, introduced by Sen. Ruth Johnson, R-Holly, will help clerks to better meet the unique demands of the Nov. 3 election, she said.

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“Actually, We Will Know a Lot on Election Night”

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Nate Persily and Charles Stewart in the WSJ:

Pundits are warning that election night in November may turn into election week or even election month. Amid the pandemic, election officials are bracing for a flood of ballots sent by mail, and Americans may need to wait an unusually long time to know for sure who won and by how much. But that doesn’t mean we will be in the dark about the next president until all the official state counts are completed. In all likelihood, we will have a good idea on election night, or within a few days after, of whether Donald Trump or Joe Biden won the White House.

Many observers expect the states to take an inordinately long time to count votes this November because, according to a recent nationwide survey, more than 50% of voters may end up casting mail ballots this year, up from 20% in 2016. Thirteen states, including the swing states of Michigan, New Hampshire, Pennsylvania and Wisconsin, wait until election day to “process” their mail ballots. (Processing is the act of verifying the identity of the voter who returned the mail ballot, usually by matching the signature on the ballot to one on file; the actual counting comes later.) If the election comes down to mail ballots cast in those states, waiting for them to verify the ballots and count the votes could push the election into overtime.

Because more Democrats than Republicans have requested mail ballots this year, the vote totals on Election Day—reflecting all in-person voting but not all mail ballots—could paint a misleading picture about who won. Josh Mendelsohn, CEO of the Democratic data firm Hawkfish, has warned of an election-day “red mirage” of victory for Mr. Trump, which will be replaced in short order by a “blue shift” as the outstanding, heavily Democratic mail ballots are counted. Such a dramatic change from the election-night result could lead to baseless Republican charges of fraud and cries that the election was rigged, which could spark dangerous political unrest.

These nightmare scenarios ignore several key facts, however. Most states begin processing their ballots before election day, and almost all begin putting them through scanners before the polls close. Many states intermingle sent-by-mail and election-day ballots at the polling places, where they are scanned together, so that when the precinct count is released, it contains both in-person and mail ballots. In such states—which include such battlegrounds as New Hampshire and most of Wisconsin—the polling place counts may be released a few hours later than they might in another year, but not days later. More generally, local jurisdictions have been preparing all summer for a surge in mail ballots; most will be counted on election day in parallel with the day’s in-person ballots, so that the results of many ballots cast in advance can be announced early on election night.

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“Dan Forest asks Trump administration to investigate NC Democrats over mail-in voting”

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News and Observer:

President Donald Trump’s administration should launch an investigation into a proposed change in North Carolina’s vote-by-mail rules, N.C. Lt. Gov. Dan Forest said Thursday.

Forest, a Republican like Trump, wrote a letter to U.S. Attorney General William Barr asking him to look into potential changes the N.C. State Board of Elections voted on earlier this week, to settle a lawsuit against the state.

Barr, a close Trump ally, has frequently been accused of politicizing the U.S. Department of Justice to help Trump’s re-election chances. Forest’s letter makes similar accusations, but against Democrats in North Carolina.

He said N.C. Attorney General Josh Stein, who is a Democrat,worked with the Democrat-led elections board and the liberal-leaning challengers in the lawsuit “to enact, without the consent of the legislature, wholesale changes to the absentee ballot laws of North Carolina.”…

N.C. Senate leader Phil Berger, a Republican from Rockingham County, said Democrats supported the lawsuit settlement because they “have repeatedly tried to enact these policies for months. They lost when the legislature rejected them almost unanimously; they lost when a federal judge rejected them; they lost when a state court rejected them..”

Stein strongly rejected such accusations, saying in a written statement to The News & Observer that “I am committed to ensuring that all eligible voters in North Carolina are confident in the knowledge that they can vote easily and safely by mail or in person — and that the candidate who wins the most votes will prevail.”

He accused Republicans of trying to create confusion and mistrust in the elections.

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Sounds Like Election Administrator Error Rather Than Malfeasance in Early Reporting on Those 9 Ballots in PA

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New DOJ letter:

In addition to the military ballots and envelopes that were discarded and recovered as detailed above, investigators recovered four (4) apparently official, bar-coded, absentee ballot envelopes that were empty. Two (2) of those envelopes had the completed attestations and signatures on the reverse side.  One (1) envelope with a handwritten return address was blank on the reverse side.  The fourth empty envelope contains basic location information and the words “affirmation enclosed” on the reverse side.  The majority of the recovered materials were found in an outside dumpster. 

As you know, the appropriate method for processing received military ballots is to securely store the ballot, unopened, until such time as ballot pre-canvassing can begin, which is in no event earlier than 7:00 a.m. on Election Day.  Opening a military or overseas ballot, or an absentee or mail-in ballot for that matter, violates the controlling statutes and is contrary to Pennsylvania Department of State guidance.  The preliminary findings of this inquiry are troubling and the Luzerne County Bureau of Elections must comply with all applicable state and federal election laws and guidance to ensure that all votes—regardless of party—are counted to ensure an accurate election count.   Even though your staff has made some attempts to reconstitute certain of the improperly opened ballots, there is no guarantee that any of these votes will be counted in the general election.  In addition, our investigation has revealed that all or nearly all envelopes received in the elections office were opened as a matter of course.  It was explained to investigators the envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests.  Our interviews further revealed that this issue was a problem in the primary election–therefore a known issue–and that the problem has not been corrected.

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Senator Rick Scott Wants to Disenfranchise Military and Other Voters Voting by Mail By Stopping Counting After 24 Hours

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Jeremy Stahl for Slate:

On Thursday, Florida Sen. Rick Scott proposed a bill that would change election laws with less than six weeks to go until November’s election, causing complete mayhem and ensuring that untold number of otherwise valid votes would not be counted. Scott’s proposal is simple and entirely unworkable. His Help America Vote Act of 2020 would require that mail-in ballots be counted within 24 hours of when voting closes on election day. Scott’s proposed legislation would also prevent mail-in ballots received prior to election day from being processed and counted until the morning of Nov. 3, contradicting state election statutes across the country including one that he signed when he was governor of Florida. Basically, the bill would move back the date by which votes can start to be counted and move up the date by which the count must end. This would limit the count to a single less-than 48-hour window, shortening the count in some cases by weeks. In Scott’s own home state of Florida, as one example, votes can start to be counted up to 22 days before election day. In Colorado, which does all mail-in voting, they can be processed as soon as they are received and counted 15 days before election day. Under Scott’s law, those votes would all have to begin to be counted on election day itself. Any votes that did not get counted simply would not count.

Scott, who has opposed providing funding for the administration of the election in COVID-19 relief bills, does not include in his bill any federal money that would help states meet this new deadline. Without funding to implement such an immediate revamp of election administration across the country, the deadline would be impossible to meet for most states. Further, the proposal would reject untold absentee ballots cast legally by election day but arriving afterwards.

“Not only is counting all the ballots in 24 hours impossible in many places, [in] lots of places ballots can arrive days after election day to count,” UC Irvine School of Law professor and occasional Slate contributor Richard Hasen told me.

Indeed, late-arriving absentee military ballots in Florida were a major point of contention during the contested presidential election of 2000, with Republicans at the time supporting the idea that late ballots be counted.

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“White House touts unusual Justice Department announcement about ‘discarded’ Trump ballots in Pennsylvania”

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Marshall Cohen for CNN:

The Justice Department said Thursday that it is investigating “potential issues with mail-in ballots” in the swing state of Pennsylvania and, in a highly unusual disclosure, revealed that several ballots marked for President Donald Trump were “discarded.

“US Attorney David Freed said a preliminary inquiry determined that nine “military ballots were discarded” and that seven of them “were cast for presidential candidate Donald Trump.” The incident occurred in Luzerne County, a swing county in northeastern Pennsylvania that is home to Wilkes-Barre. Trump flipped the county in 2016 after years of narrow Democratic wins.

The statement was highly unusual because it highlighted the fact that the ballots were marked for Trump — which immediately raised suspicions that the Justice Department was trying to furnish material that Trump could promote for political gain. Indeed, Trump and other White House aides used the information, even before it was made public, to attack mail-in voting.Election officials go to extraordinary lengths to protect ballot secrecy. It’s unclear how investigators figured out who the votes were for, and why they made that information public.

Additionally, the Justice Department typically does not comment about ongoing investigations, though there are rules allowing it when there is a public interest at stake, like election integrity.The federal probe was apparently triggered by a request from Luzerne County District Attorney Stefanie Salavantis, a Republican who announced Tuesday that federal investigators were assisting with an election issue. Freed, also a Republican, was appointed by Trump in 2017. A spokesperson for Salavantis told CNN that the nine affected ballots are for the general election. Many military and overseas ballots were sent out last weekend.

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“Trump’s talk of rejecting election result evokes chaos scenarios”

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LA Times:

According to a report in the Atlantic, the campaign has spoken with at least one Republican leader in Pennsylvania about the possibility of citing voting irregularities to reject a Biden win there and have the state legislature direct the state’s electors to back Trump. It’s a strategy Trump could also pursue in other states.

“Unfortunately, the risk of this kind of thing happening has increased,” said Ned Foley, an election law scholar at Ohio State University who has researched how such a scenario could unfold.

The Trump campaign is not disputing the strategy is under consideration.

“If we think it’s being stolen, we’re going to fight like hell,” a senior campaign official said Thursday, while adding that Trump is not planning to try to hold on to power if he loses fairly. “I think that’s what the president was saying. But I think November could be a really bad month for this country.”

The president’s pronouncements are worrying even some in the Pentagon, after he said earlier this year that he planned to deploy a massive show of force by law enforcement on election day, in what he described as national poll-watching effort.

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Justin Levitt (Who Was a Voting Official at DOJ) on the Bizarre DOJ Press Release on an Investigation Into 9 Potentially Mishandled Ballots

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Thread starts here:

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October 5: “An election like no other: Getting Californians ready for November”

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Looking forward to doing this event for the UC (registration required):

The 2020 election is just over a month away! This is your chance to 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) will share how Californians can safely exercise their right to vote. This conversation will delve into 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 will moderate this nonpartisan discussion. Register to join live or to receive a link to the event recording.

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Now Available with Free Access: Election Law Journal: Special Section: Elections During the COVID Pandemic

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Very glad to be a part of this and kudos to editor David Canon and staff for getting this out so quickly:

VOLUME 19, ISSUE 3 / SEPTEMBER 2020

Special Section: Elections During the COVID PandemicFree

Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them
  • Pages:263–288
  • Published Online:18 August 2020

Preview Abstract

Voting by Mail and Ballot Rejection: Lessons from Florida for Elections in the Age of the Coronavirus
  • Pages:289–320
  • Published Online:17 September 2020

Preview Abstract

Signature Verification and Mail Ballots: Guaranteeing Access While Preserving Integrity—A Case Study of California’s Every Vote Counts Act
  • Pages:321–343
  • Published Online:4 September 2020

Preview Abstract

When Is It Democratic to Postpone an Election? Elections During Natural Disasters, COVID-19, and Emergency Situations
  • Pages:344–362
  • Published Online:26 August 2020

Preview AbstractFree

College Student Registration and Voting in the Time of COVID-19
  • Pages:363–373
  • Published Online:27 August 2020

Preview Abstract

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“‘Something’s in the water’: Florida Republicans see surge in voter registration”

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Politico:

Republicans have closed the traditional voter registration gap with Democrats to an historically small margin in Florida, triggering a wave of Democratic apprehension in the nation’s biggest swing state.

Top Florida Democrats and longtime activists have increasingly groused in private that they feel pressure from Joe Biden’s campaign to refrain from door-to-door canvassing or holding voter registration drives due to the potential spread of the coronavirus and fears of muddying his messaging on the pandemic.

In the absence of such efforts, a concerted drive by President Donald Trump’s Florida campaign to register voters has helped cut the state’s long-standing Democratic advantage to fewer than 185,000 voters, a gap of just 1.3 percentage points, according to data from the Florida Division of Elections released this week.

“It’s late in the game now,” said state Sen. Jason Pizzo, a Miami Democrat. “There’s been no pushback from us, meaning that for every 100 doors that Republicans have proverbially knocked on, it’s not like they pissed people off to the point where they’ve run to the Democratic Party because they’re pissed at the GOP. It’s shown to be effective.”

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Good News: “Republican Leaders Reject Trump Hedging On Transfer Of Power”

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NPR reports on these mostly positive developments:

“I’ve been complaining very strongly about the ballots. And the ballots are a disaster,” Trump said, once again pushing his unsubstantiated claims about mail-in ballot fraud.

Shortly after his remarks, Sen. Mitt Romney, R-Utah, tweeted his vehement disapproval: “Fundamental to democracy is the peaceful transition of power; without that, there is Belarus. Any suggestion that a president might not respect this Constitutional guarantee is both unthinkable and unacceptable.”

Other top Republicans followed suit Thursday morning. Senate Majority Leader Mitch McConnell, R-Ky., wrote: “There will be an orderly transition just as there has been every four years since 1792.”

The third-ranking House Republican, Rep. Liz Cheney, R-Wyo., also shared her rejection of Trump’s remarks, writing, “The peaceful transfer of power is enshrined in our Constitution and fundamental to the survival of our Republic. America’s leaders swear an oath to the Constitution. We will uphold that oath.”

Also pushing back was Sen. Marco Rubio, R-Fla., tweeting, “As we have done for over two centuries we will have a legitimate & fair election.”

While more Republicans joined their colleagues in emphasizing even a Trump loss would involve an orderly transfer of power to the new administration, House Minority Leader Kevin McCarthy of California downplayed the president’s statement and pointed to comments last month from former Democratic nominee Hillary Clinton, who suggested Biden not concede the election if it’s close.

McCarthy said he believes Trump will win reelection and there will be “a smooth transition” to a second term, telling reporters: “I know this will keep you up at night, but don’t worry about it.”

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Knight Foundation: What’s Next for Tech and Democracy?

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Happy to participate in this roundtable (Disclosure: Knight is generously supporting my book leave):

Midway through a year rocked by a pandemic, protests and politics, we asked leading researchers and policy thinkers: What new questions relating to technology’s impact on democracy have emerged or are emerging during this period? In light of these new questions, what are your predictions for the rest of 2020?  

The responses we received over the summer were far-ranging, but they all underscore how significantly technology, especially social media, is shaping our understanding of this moment. 

The scholars are all members of the Knight Research Network, a growing group of research centers, universities and independent policy organizations supported  by Knight Foundation. The effort is part of a $50 million investment in new research to foster an informed public dialogue about the ways digital technology is changing our democracy. 

Their responses appear below, loosely organized by theme: The big picture, the 2020 election, the techlash, content moderation and free expression online, competition and antitrust, technology and inequality, and some final thoughts.

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Very Disappointing to See Ohio Secretary of State Frank LaRose’s Office Coordinating Policy on Voting with Noted Vote Suppressor Hans von Spakovsky

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In the past I’ve found Secretary Frank LaRose of Ohio to be interested in bipartisan and commonsense approaches to election administration. He was one of the two keynotes (along with Michigan SOS Jocelyn Benson) at our February conference, “Can American Democracy Survive the 2020 Elections?” Here’s the video of that event. (Some participants, but not the Secretaries, later drafted the Fair Elections During a Crisis report).

But lately I’ve been disappointed with the Secretary’s resistance to a court order allowing drop boxes for the return of absentee ballots, and now comes this much more troubling news from ProPublica:

On July 15, a civil rights group formed by Black union workers called on the Ohio secretary of state to make voting amid the pandemic easier and safer. It advocated placing multiple secure ballot drop boxes in counties across the state.

When a deputy to Republican Secretary of State Frank LaRose received the A. Philip Randolph Institute’s press release, he responded quickly — but not to the group. Instead, according to records obtained by ProPublica, the deputy contacted the Heritage Foundation’s Hans von Spakovsky, a leading advocate for the discredited argument that American elections are tainted by widespread voting fraud.

“I just left a voicemail at your office, but wanted to follow up via email as well,” wrote Grant Shaffer, the deputy assistant secretary of state. “If you have a few minutes, I’d love to discuss the attached press release.”

That was the second email Shaffer sent von Spakovsky’s office that day. Earlier, he had RSVP’d to an Aug. 4 virtual briefing hosted by the conservative activist. Secretaries of state are responsible for overseeing elections, and during the pandemic von Spakovsky has organized at least two remote, off-the-record strategy sessions exclusively for Republican secretaries and their staffs to discuss voting security amid what will be one of the most contested and unusual elections in generations, ProPublica reported last week.

“I’ll be happy to attend this briefing,” Shaffer wrote to von Spakovsky’s assistant. “The Secretary can attend for part of the time, and our scheduler will be following up with you shortly on that topic. Is there anything we can help out with or be prepared to present?”

It is not known what Shaffer and von Spakovsky specifically said over the phone about the drop box request, or if the call took place. But on Aug. 12, a week after the virtual briefing, and a month after Shaffer sought von Spakovksy’s counsel, LaRose issued a directive prohibiting each of Ohio’s 88 counties from installing more than one drop box within its borders.

The secretary’s office, meanwhile, never responded to the A. Philip Randolph Institute, according to the group’s lawyer, David Carey, a senior staff attorney with the American Civil Liberties Union of Ohio. He said he was “baffled” that LaRose’s deputy would reach out to von Spakovsky and not his client. “If the secretary is turning the voting systems in Ohio into a partisan endeavor, that is a matter of extremely grave concern,” he said.

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“Foreign Hackers Cripple Texas County’s Email System, Raising Election Security Concerns”

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ProPublica:

The previously unreported attack on Hamilton illustrates an overlooked security weakness that could hamper the November election: the vulnerability of email systems in county offices that handle the voting process from registration to casting and counting ballots. Although experts have repeatedly warned state and local officials to follow best practices for computer security, numerous smaller locales like Hamilton appear to have taken few precautionary measures.

U.S. Department of Homeland Security officials have helped local governments in recent years to bolster their infrastructure, following Russian hacking attempts during the last presidential election. But desktop computers used each day in small rural counties to send routine emails, compose official documents or analyze spreadsheets can be easier targets, in part because those jurisdictions may not have the resources or know-how to update systems or afford security professionals familiar with the latest practices.

A ProPublica review of municipal government email systems in swing states found that dozens of them relied on homebrew setups or didn’t follow industry standards. Those protocols include encryption to ensure email passwords are secure and measures that confirm that people sending emails are who they purport to be. At least a dozen counties in battleground states didn’t use cloud-hosted email from firms like Google or Microsoft. While not a cure-all, such services improve protections against email hacks.

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Call for Papers

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Call for Papers

University of Arkansas at Little Rock Law Review

The University of Arkansas at Little Rock Law Review is pleased to announce a call for papers for its 2021 Symposium, Voting and Elections, to be held on February 18 & 19, 2021.

2020 is a significant year for the discussion of voting and elections. This year marked the anniversaries of the ratification of the Fifteenth and Nineteenth Amendments, granting minority and women suffrage. 2020 is an election year and census year. Further, in Chiafalo v. Washington, the Supreme Court of the United States held that states may enforce an elector’s pledge to support his or her party’s nominee for President. Now is the perfect time to discuss election laws and voting.

The broad goal of this symposium is to discuss significant issues in state and federal elections and solutions to those issues, with an eye toward the best solutions for Arkansas. Topics of interest include, but are not limited to, modern methods of voter suppression; how to promote voter registration and turnout; useful tactics to prevent voter fraud; the role and importance of the electoral college; and states’ role in federal elections. We anticipate panels comprising a mix of academics, judges, and legislators, both Arkansas and out-of-state speakers and contributors.

The University of Arkansas at Little Rock Law Review will publish articles from the symposium in an issue of volume 43 slated for release in the spring of 2021. We encourage all interested potential authors to respond. Authors should submit an abstract and a cover letter to Altimease Lowe, Symposium Editor, at allowe2@ualr.edu. The deadline for submissions of article proposals is October 5, 2020; completed articles will be due Monday, November 30, 2020. Please feel free to email Ms. Lowe with any questions.

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“Rule Changes In Swing States Mean More Votes Will Count, Results May Take Longer”

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Miles Parks for NPR:

Last week, Pennsylvania’s Supreme Court said ballots that are postmarked on or before Election Day will be counted so long as they’re received within the next three days.

And a Michigan state judge last week also ruled that absentee ballots postmarked by Nov. 3 can be counted if they arrive up to two weeks after Election Day.

The developments could mean more votes will count in the states that would have otherwise been disqualified, but it also could mean a longer wait before a definitive winner is announced in the closely contested battlegrounds. An NPR analysis of absentee ballot rejections during the presidential primaries this spring found that at least 65,000 ballots were rejected for arriving late.

“The broad upshot of this is that in Wisconsin, which is already a very closely watched state, we’re going to be watching it for about a week longer before the results can be known,” said Eddie Perez, an election administration expert with the OSET Institute.

Even with the changes, Perez noted, North Carolina is in a slightly better position to have at least some of the mail voting results available quickly, because the state allows officials to begin processing received mail ballots two weeks before Election Day.

But in Wisconsin and Pennsylvania, election officials can’t begin the arduous process until polls open on Nov. 3.

In a new poll released Wednesday by Quinnipiac University, 63% of likely voters surveyed said they did not believe the country would know who the winning presidential candidate is on election night. Just 30% thought there would be a winner declared on Nov. 3.

Regardless, the new changes could almost certainly play a role in who wins both states.

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How Realistic Is It That State Legislatures Would Take Back Their Power to Choose Electors Directly This Fall?

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I wrote a thread on Twitter about this, starting here:

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Judge Amy Barrett on Originalism

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In the event she is nominated, I thought this video of her speaking on originalism might be of interest. This is from the 2019 Federalist Society National Lawyers Convention. Judge Barrett spoke on a “Showcase Panel, titled “Why, or Why Not, Be an Originalist,” along with myself, and Professors Michael Dorf and Sai Prakash.

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“First Came the Floods; Then Came the Polling Place Changes”

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CPI:

Twenty-six percent of Black voters in East Baton Rouge Parish had their polling place changed between the 2012 and 2016 general elections, compared with 15% of white voters in the parish, according to a new analysis of polling place movement by the Center for Public Integrity and Stateline.

The changes to East Baton Rouge Parish’s polling places in the wake of the 2016 floods added confusion for voters already preoccupied with reconstructing their lives in the wake of the disaster. Many advocates say recovery was slower in the parish’s majority-Black neighborhoods, where residents already struggled with systemic inequities before the storm.

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“Facebook allowed hundreds of misleading super PAC ads, activist group finds”

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CNN:

Facebook (FB) has allowed political advertisers to target hundreds of misleading ads about Joe Biden and the US Postal Service to swing-state voters ranging from Florida to Wisconsin in recent weeks, in an apparent failure to enforce its own platform rules less than two months before Election Day.

The ads containing false or misleading information, primarily by a pro-Republican super PAC led by former Trump administration officials, have collectively been viewed more than 10 million times and some of the ads remain active on the service, according to an analysis of Facebook’s ad transparency data by the activist group Avaaz.

Two super PACs emerged as the worst offenders in Avaaz’s analysis: the pro-Trump group America First Action, and the pro-Democratic group Stop Republicans. But the report found that AFA’s activities far exceeded those of Stop Republicans, both in terms of money spent and impressions received.

While Facebook allows politicians to make false claims in their ads — arguing that voters deserve an unfiltered view of what candidates and elected officials say — advertisements by super PACs and other independent groups are subject to the company’s policies on misinformation.

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Our “Fair Elections During a Crisis” Report Portion About “Peaceful Transitions of Power”

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From our cross-ideological, cross disciplinary April report:

Although laws govern the conduct of democratic elections, they are also shaped by a set of informal norms. We should strive for a system that upholds democratic principles that are embodied in both law and norms, one in which all eligible voters, and only eligible voters, can easily cast a vote that can be fairly and accurately counted.

Striking a reasonable balance between competing values of full participation and fraud prevention is a necessary and critical goal, one that must be evidence-based, resolved in good faith, and favoring no party over another.

There are increasing signs of erosion of these norms. A winner-take-all mentality in a time of high political polarization contributes to claims of stolen and rigged elections. Elected officials, political leaders, and others should embrace basic democratic principles abouf fair election contestation, and should continue to ensure the peaceful transition of
power and acceptance of election results when on the losing end of a hard-fought, butfair, election. Once fair election decisions are final, losers should concede rather than raise unsubstantiated claims of fraud or incompetence.


The ongoing COVID-19 crisis has already disrupted the 2020 primary elections. Upholding the norms of ballot access for all eligible voters, while respecting election integrity and public health imperatives, will be especially crucial if these challenges persist through November.

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“Trump Won’t Commit to ‘Peaceful’ Post-Election Transfer of Power”

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NYT:

President Trump declined an opportunity on Wednesday to endorse a peaceful transfer of power after the November election, renewing his baseless warnings about extensive voting fraud before saying there would be no power transfer at all.

Asked whether he would “commit here today for a peaceful transferral of power after the November election,” Mr. Trump demurred, passing on a chance to call for a calm and orderly election process.

“We’re going to have to see what happens,” he told a reporter during a news conference at the White House. “You know that I’ve been complaining very strongly about the ballots, and the ballots are a disaster.”

“I understand that, but people are rioting,” responded the reporter, Brian Karem of Playboy magazine, who repeated the question.

“Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation,” the president said. That was an apparent reference to mail-in ballots, which for months he has railed against, without evidence, as rife with fraud and likely to produce a delayed, tainted or outright illegitimate election result.

Mr. Trump’s refusal — or inability — to endorse perhaps the most fundamental tenet of American democracy, as any president in memory surely would have, was the latest instance in which he has cast grave uncertainty around the November election and its aftermath. Democrats are growing increasingly alarmed as Mr. Trump repeatedly questions the integrity of the vote and suggests that he might not accept the results if he loses.

Earlier on Wednesday, Mr. Trump said he needed to swiftly confirm a successor for Justice Ruth Bader Ginsburg because he expected disputes over the election result to be resolved by the Supreme Court, which could split 4-to-4 if a ninth justice is not seated.

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“The Election Is Already Under Way in America’s Courts; And the two parties—and the judges they have appointed—are on completely divergent legal paths.”

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Leah Litman in the Atlantic:

The case captions tell much of the story. Republican Party officials, including those in President Trump’s reelection campaign, are trying to stop states’ efforts to expand voting—they are suing to prevent mail-in voting, extensions for counting ballots, and drop-box voting, and intervening in lawsuits in order to defend Republican-led states’ ability to enforce voting restrictions in the midst of the pandemic. The Democratic Party and its voters and interest groups, by contrast, are using litigation to make voting easier for more people to do safely, and not in person, in the midst of the pandemic.

Many of the rulings also break down along these lines. Two district court judges who were appointed by President Barack Obama issued rulings in the Alabama and Wisconsin cases that would have prevented states from enforcing some of their voting restrictions during the coronavirus crisis. In the Florida case, a district judge appointed by President Bill Clinton invalidated the state’s requirement that recently released persons pay court fines and fees before voting when the state would not tell them how much they owed. In the Alabama and Wisconsin cases, the five Republican-appointed justices on the Supreme Court allowed the states to enforce voting restrictions, but the Democratic-appointed justices would not have. In the Florida case, the Republican-controlled U.S. Court of Appeals for the Eleventh Circuit upheld Florida’s pay-to-vote scheme. A majority of the Republican-appointed justices on the Supreme Court also allowed Florida to enforce the scheme in the primary election, whereas a majority of Democratic-appointed justices would have prohibited the state from doing so. In the Texas case, a Democratic-appointed district judge invalidated Texas’s law prohibiting voters under the age of 65 from voting without an excuse, but a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, with two Republican-appointed judges, put that opinion on hold and allowed Texas to enforce the law, because they concluded that the law was likely constitutional. The Pennsylvania Supreme Court, which has a majority of justices elected as Democrats, rejected an attempt to limit late ballots and drop boxes, and a Michigan state-court judge appointed by a Democratic governor expanded the period for counting mail ballots.

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“GOP appeals ruling that extended time to count Wisconsin absentee ballots”

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Milwaukee Journal-Sentinel:

Republicans who control the state Legislature appealed a court decision Wednesday to try to make sure absentee ballots aren’t counted if clerks receive them after election day. 

The filing with the 7th Circuit Court of Appeals came two days after U.S. District Judge William Conley ruled absentee ballots should be counted if they are postmarked by Nov. 3 — election day — and received by clerks by Nov. 9. 

Ordinarily, absentee ballots in Wisconsin are counted only if they are in clerks’ hands by election day. Conley provided the extension because of the coronavirus pandemic, a surge in mail voting and recent problems with delivering mail on time. 

There is precedent for his decision. The U.S. Supreme Court in April allowed ballots to be counted that were postmarked by election day in the race for state Supreme Court.

The case is being watched closely because Wisconsin is a battleground in the race between Republican President Donald Trump and Democratic nominee Joe Biden. Trump won Wisconsin in 2016 by less than a percentage point.

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North Carolina: “State Board of Elections’ only two Republicans resign after lawsuit settlement drops”

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WRAL:

A pair of State Board of Elections members resigned from the board Wednesday, less than two months ahead of a presidential election, complaining of the details in a lawsuit settlement that may rewrite absentee voting rules in the weeks ahead.

Ken Raymond and David Black were the only two Republican members on a board that has been split 3-2, with Democrats in control. Notice of their resignations went out shortly after 10 p.m.

In his resignation letter, Raymond said Attorney General Josh Stein’s office kept him in the dark on key details of a lawsuit the board voted – unanimously – to empower State Board counsel to settle.

“It is impossible to have true bipartisanship when both sides of the political aisle do not have the important and vital information needed to make the right decisions,” Raymond said in his letter.

WRAL News has reached out to Stein’s office for comment, but in a statement announcing the resignations, State Board spokesman Patrick Gannon said all board members heard from attorneys representing the board in this lawsuit and others. The board held a closed session on the matter last week.

Joe Bruno thread:

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Democratic Voter Registration Lagging Republican Registration in Key Midwestern States

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Tom Edsall:

A Democratic strategist — who requested anonymity because his employer does not want him publicly identified talking about the election — analyzed the implications of the most recent voter registration trends for me.

In Michigan, Pennsylvania and Wisconsin, he said, overall

registration is up by 6 points through August compared to the 2016 cycle, but net Democratic registrations are down by 38 percent. That’s about 150,000 fewer additional Democrats than were added in 2016.

In addition, he continued, registration among whites without college degrees

is up by 46 percent while registration by people of color is up by only 4 percent. That gap is made more stark when you realize that over the last four years, the WNC (white non-college) population has increased by only 1 percent in those states, while the number of people of color increased by 13 percent.

The pattern was more pronounced in Pennsylvania and Wisconsin than it was in Michigan.

On its own, increased registration among non-college whites would have only a negligible effect on total state voting, my source pointed out, but

it becomes troubling if it reflects greater interest more generally for these voters in those states. And there are good reasons to believe that if that is the case, those additionally energized voters are very underrepresented in surveys now.

Even if white non-college turnout reached the highest expectations, he cautioned, it would not “erase Biden’s current polling leads. But it does make the races much closer.”

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In Alarming Answer at Press Conference President Trump Refuses to Commit to Peaceful Transition of Power (Assuming He Loses) Because of Claimed (But Nonexistent) “Problems” with the Ballots

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Chilling:

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Voting Rights Groups Fight Against Fulton County Voter Purge

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Release:

The Georgia NAACP and the Georgia Coalition for the People’s Agenda are moving to stop 14,000 voters from being purged from the rolls before November’s general election, after a lawsuit was filed by two Fulton County voters which seeks to force the Fulton County Election Board to convene challenge hearings and purge the voters. The Georgia NAACP’s and Georgia Coalition’s motion to dismiss, which was filed today, asserts that the voter purges requested by the lawsuit would violate both state law and the National Voter Registration Act, and that the lawsuit must therefore be dismissed immediately.

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“I’ve Never Been More Worried About American Democracy Than I Am Right Now; The pre-emptive attack on the vote count is a five-alarm fire.”

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I have written this piece for Slate. It begins:

With less than six weeks to go before Election Day, and with over 250 COVID-related election lawsuits filed across 45 states, the litigation strategy of the Trump campaign and their allies has become clear: try to block the expansion of mail-in balloting whenever possible and, in a few key states, create enough chaos in the system and legal and political uncertainty in the results that the Supreme Court, Congress, or Republican legislatures can throw the election to Trump if the outcome is at all close or in doubt. It’s a Hail Mary, but in a close enough election we cannot count the possibility out. I’ve never been more worried about American democracy than I am right now….

The Trump strategy of fighting the expansion of mail-in balloting appears to be two-fold. To begin with, the campaign appears to have made the calculation that lower turnout will help the president win reelection. This may explain why Pennsylvania Republicans are planning on going to the U.S. Supreme Court to argue against a state Supreme Court ruling allowing the counting of ballots arriving soon after election day without a legible postmark. They argue that doing so unconstitutionally extends Election Day beyond November 3 and takes power away from the Pennsylvania Legislature to choose presidential electors.

The first argument is not a particularly strong one: a decision to accept ballots soon after election day without a legible postmark does not extend election day as much as it implements how election officials determine if a mailed ballot was timely mailed. It recognizes the reality that many ballots have been arriving without postmarks and uses proximity to the election as a proxy for timely voting. Virginia and Nevada recently adopted similar rules, in light of pandemic-related mail delays. The Trump-allied Honest Elections Project is fighting a consent decree over a similar extension in Minnesota.

The argument about the state Supreme Court’s ruling usurping legislative power to set federal election rules echoes a parallel claim that was made during the disputed election in 2000. The question is whether a state supreme court usurps legislative power when it interprets election rules in line with both state statutes and the state Constitution. The argument that a state Supreme Court applying a state constitution in a voting case usurps legislative power is weak to me, but it was convincing enough for the more conservative members of the Supreme Court that decided Bush v. Gore.

The fighting over things like postmark rules are fights on the edges, the kind of trench warfare that will only matter if the election comes down to hundreds of ballots in a key swing state essential for the electoral college outcome. But there’s a second play here as well, one that is far more worrisome.

The idea is to throw such much muck into the process and cast so much doubt on who is the actual winner in one of those swing states because of supposed massive voter fraud and uncertainty about the rules for absentee ballots that some other actor besides the voter will decide the winner of the election. That could be the RBG-less Supreme Court resolving a dispute over a group of ballots. Indeed, on Tuesday, Vice President Mike Pence suggested that Justice Ruth Bader Ginsburg’s replacement needs to be seated, possibly without so much as a hearing, in order to decide “election issues [that] may come before the Supreme Court in the days following the election” including questions involving “universal unsolicited mail” and states “extending the deadline” for ballot receipt. (Never mind that a 4-4 split on the Court on an election issue is unlikely.) It could be a Republican legislature in a state saying it has the right under Article II of the Constitution to pick the state’s winner in the face of uncertainty. Bart Gellman in The Atlantic recently quoted a Republican operative imagining these state legislatures saying, “‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state.” And it could be Republicans in the Senate—if they keep their majority—not counting electoral college votes that were cast for Biden based upon manufactured uncertainty. This would lead to a dispute with the Democratic House and lead to a political struggle over the presidency.

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“Fact check: Trump Jr. touts baseless rigged-election claims to recruit ‘army’ for his dad”

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CNN:

Donald Trump Jr. is touting baseless election-rigging claims in videos posted to Facebook and Twitter asking “able-bodied” people to join an election security “army” for his father.

Facebook and Twitter affixed labels to the video pointing to accurate information about voting, but neither company said the video violated its election integrity rules in a way that would result in it being removed.

Twitter labeled the video only after being asked about it by CNN on Wednesday. The video had been on its site since Monday.

“The radical left are laying the groundwork to steal this election from my father,” Trump Jr. said in the video posted by the Trump campaign. He added, “Their plan is to add millions of fraudulent ballots that can cancel your vote and overturn the election.”

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