Election Policy Roundup #31: The Courts and the Midterms

Walter Olson

Number 31 in our series of occasional roundups on election law and policy, this time focusing on ongoing court action with Election Day five weeks away: 

• No, Trump can’t lawfully curtail anti-terrorism funds to states and cities to pressure them to adopt his preferred election practices [DC federal court ruling this week finding that the Department of Homeland Security (DHS) overstepped statutory authority, also invoking the major questions doctrine and citing “serious constitutional questions”; Reed Shaw, Just Security (previewing issues in case); and Steve Cavendish, Nashville Banner]. 

• Long-standing Department of Justice (DOJ) policy limits investigative actions late in an election season that could influence the vote: “Doing otherwise runs the risk of chilling legitimate voting and campaign activities and of interjecting the investigation itself into ongoing campaigns and the adjudication of any ensuing election contest,” says DOJ’s manual. But—surprise—DHS isn’t DOJ and is free to do all that [Priscilla Alvarez, Tierney Sneed, and Gabe Cohen, CNN; and Associated Press]. The months of ongoing strenuous effort haven’t thus led to much in the way of prosecutions, however [Election Law Blog; and ProPublica].

• “Allowing law enforcement unfettered access to ballots, or the ability to handle and count them in secret based on unregulated protocols, itself creates a substantial risk to election integrity.” California Supreme Court ruling last week in Cervantes v. Bianco slapped down a move by maverick sheriff to seize ballots from a past election. It should prove helpful in its reasoning for local election administrators facing similar demands, especially when voting is still in progress [Jeremy Herb and Tierney Sneed, CNN; Shelby Wayment, Checks & Balances; Richard Bernstein, Checks & Balances; and Justin Levitt, Lawfare Institute, before the ruling]. 
• And more: “The idea of federal law enforcement seizing ballots in the middle of an active election would have once been considered impossible.” Now, election and legal experts are gaming out the possibilities [Miles Parks, NPR, citing new UCLA School of Law Safeguarding Democracy Project paper, “A Judicial Guide to Search Warrants Seeking Election Materials”]. And here’s a recent thread of mine linking to papers by Richard Bernstein and Derek Clinger on federal and state legal constraints, respectively, on seizure of ballots. 
• Virginia’s attorney general says federal agents broke his state’s criminal law if they used the “look up my voter registration” tool on the state’s election website and falsely represented themselves. To quote the site, “I certify and affirm that the information provided to access my voter registration is my own or I am expressly authorized by the voter to access this information” [Associated Press; and The Guardian]. 
• A federal grand jury is investigating the campaign of an Alaska candidate whose name is confusingly similar to the incumbent, a suspicious phenomenon observed across many electoral times and places. It “raises some serious First Amendment concerns” to prosecute someone “for having dishonest motives in running for office” [Rick Hasen, Election Law Blog].