[EL] ELB News and Commentary 11/23/16

[Rick Hasen]

Happy Thanksgiving!<http://electionlawblog.org/?p=89465>
Posted on November 23, 2016 8:56 am<http://electionlawblog.org/?p=89465> by Rick Hasen<http://electionlawblog.org/?author=3>
I wish all ELB readers a safe, enjoyable, relaxing, and low-stress Thanksgiving.
I’ll may be blogging a bit more before I am gone next week. Otherwise, back with you December 5.  Dan Tokaji will keep you entertained in the meantime.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“N.C. governor wants recount, though signs point to Cooper win”<http://electionlawblog.org/?p=89463>
Posted on November 23, 2016 8:51 am<http://electionlawblog.org/?p=89463> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN<http://www.cnn.com/2016/11/22/politics/north-carolina-governor-race-recount-pat-mccrory-roy-cooper/> reports.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Trump’s lobbying ban might actually make corruption worse”<http://electionlawblog.org/?p=89461>
Posted on November 23, 2016 8:34 am<http://electionlawblog.org/?p=89461> by Rick Hasen<http://electionlawblog.org/?author=3>
Tim LaPira and Herschel Thomas <https://www.washingtonpost.com/news/monkey-cage/wp/2016/11/23/trumps-lobbying-ban-might-actually-make-corruption-worse/> for The Monkey Cage.
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Posted in lobbying<http://electionlawblog.org/?cat=28>


Dan Tokaji Guest Blogging Next Week (Nov. 28-Dec. 4)<http://electionlawblog.org/?p=89459>
Posted on November 23, 2016 8:30 am<http://electionlawblog.org/?p=89459> by Rick Hasen<http://electionlawblog.org/?author=3>
If you have a tip or pitch for ELB, send it to Dan<http://moritzlaw.osu.edu/faculty/professor/daniel-p-tokaji/>. Please DON’T send it to me while I try to stay off the grid.
And follow him on Twitter <https://twitter.com/Title52law> while you are at it!
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Looks Like Someone Mangled Alex Halderman’s Views to Make Case for Recount to Help Clinton<http://electionlawblog.org/?p=89457>
Posted on November 23, 2016 8:07 am<http://electionlawblog.org/?p=89457> by Rick Hasen<http://electionlawblog.org/?author=3>
Extensive Alex Halderman post<https://medium.com/@jhalderm/want-to-know-if-the-election-was-hacked-look-at-the-ballots-c61a6113b0ba#.i66685ofz> at Medium begins:
You may have read at NYMag that I’ve been in discussions with the Clinton campaign about whether it might wish to seek recounts in critical states. Thatarticle<http://nymag.com/daily/intelligencer/2016/11/activists-urge-hillary-clinton-to-challenge-election-results.html>, which includes somebody else’s description of my views, incorrectly describes the reasons manually checking ballots is an essential security safeguard (and includes some incorrect numbers, to boot). Let me set the record straight about what I and other leading election security experts<http://www.usatoday.com/story/opinion/2016/11/18/election-audit-paper-machines-column/93803752/> have actually been saying to the campaign and everyone else who’s willing to listen….
Were this year’s deviations from pre-election polls the results of a cyberattack? Probably not. I believe the most likely explanation is that the polls were systematically wrong, rather than that the election was hacked. But I don’t believe that either one of these seemingly unlikely explanations is overwhelmingly more likely than the other. The only way to know whether a cyberattack changed the result is to closely examine the available physical evidence — paper ballots and voting equipment in critical states like Wisconsin, Michigan, and Pennsylvania. Unfortunately, nobody is ever going to examine that evidence unless candidates in those states act now, in the next several days, to petition for recounts.
This makes a lot more sense. As I wrote in my post last night, I have a lot of respect for Alex’s opinion <http://electionlawblog.org/?p=89454> .  And now we know the story in NY Mag had someone else’s fingerprints on it.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


New Claims of Electronic Vote Rigging Used to Steal Election from Clinton: What to Think?<http://electionlawblog.org/?p=89454>
Posted on November 22, 2016 4:13 pm<http://electionlawblog.org/?p=89454> by Rick Hasen<http://electionlawblog.org/?author=3>
Quite a report<http://nymag.com/daily/intelligencer/2016/11/activists-urge-hillary-clinton-to-challenge-election-results.html?mid=twitter-share-di> from Gabriel Sherman:
Hillary Clinton is being urged by a group of prominent computer scientists and election lawyers to call for a recount in three swing states won by Donald Trump, New York has learned. The group, which includes voting-rights attorney John Bonifaz and J. Alex Halderman, the director of the University of Michigan Center for Computer Security and Society<http://security.engin.umich.edu/>, believes they’ve found persuasive evidence that results in Wisconsin, Michigan, and Pennsylvania may have been manipulated or hacked. The group is so far not speaking on the record about their findings and is focused on lobbying the Clinton team in private.
Last Thursday, the activists held a conference call with Clinton campaign chairman John Podesta and campaign general counsel Marc Elias to make their case, according to a source briefed on the call. The academics presented findings showing that in Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots. Based on this statistical analysis, Clinton may have been denied as many as 30,000 votes; she lost Wisconsin by 27,000. While it’s important to note the group has not found proof of hacking or manipulation, they are arguing to the campaign that the suspicious pattern merits an independent review — especially in light of the fact that the Obama White House has accused the Russian government of hacking the Democratic National Committee.
Without public evidence on the record to examine it is hard to really evaluate this claim other than by looking at the credibility of the people involved. Halderman is very credible, and if he says there are anomalies that deserve investigation, they should be investigated. But the fact that this group has gone to Elias and Podesta, and so far the campaign has said nothing since learning of it last Thursday, should give you pause. Time  has just about run out. Claiming a hacked or rigged election is about as explosive a claim as one could make—-especially coming after Trump made unsupported allegations of vote rigging throughout the election. If there’s a realistic chance of anything here that could be proven to affect the election outcome, you have to trust Clinton’s legal team to advance it (or have advanced it already).
That said, let me make three more observations.
First, I continue to be inundated with messages from people advancing the most extreme legal and political theories to try to change the results of an election that many on the left see as a threat to American Democracy itself. People want to believe there is rigging, or some magic legal way out, to change the outcome of the election. All of these theories should be approached with extreme caution. Most are a combination of wishful thinking and dubious reasoning. That was true the theories that were put out there using exit polls to try to show that Ohio’s 2004 results were rigged against John Kerry. Some people still believe this even though there is no good evidence of it (as Rep. John Conyers concluded in his report).
Second, the top of Congress’s election reform agenda should be funding for a new generation of voting machines (something we desperately need), with a requirement to eliminate all electronic voting machines that do not produce a paper trail which can be fully audited to make sure that the electronic results match the paper results. In this era of mistrust and cyber-dirty tricks, this country cannot afford to keep using electronic voting machines without a paper trail.
Third, it is hard to overstate the damage Trump has done to American democracy by stoking vote rigging claims. Our democracy depends upon the losers accepting the results as part of a fair process. That concept, essential to our Republic, is under considerable stress right now.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


4th Edition of Goldfeder’s Modern Election Law Now Available<http://electionlawblog.org/?p=89452>
Posted on November 22, 2016 12:16 pm<http://electionlawblog.org/?p=89452> by Rick Hasen<http://electionlawblog.org/?author=3>
Ordering info.<http://www.nylp.com/online_cat/gmel/gmel_cat.asp>
Congrats, Jerry
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Posted in pedagogy<http://electionlawblog.org/?cat=23>


“North Carolina’s Disputed Race for Governor: Historical Context”<http://electionlawblog.org/?p=89450>
Posted on November 22, 2016 11:01 am<http://electionlawblog.org/?p=89450> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley<http://moritzlaw.osu.edu/election-law/article/?article=13365>:
Rick Hasen makes<http://electionlawblog.org/?p=89420> the correct and important observation that, if North Carolina’s General Assembly were to overturn the state’s gubernatorial election based not on the evidence of the actual valid votes, but solely because of a partisan desire to keep control of the governorship, then the federal judiciary would have the power to invalidate that “brazen power grab” as a violation of the Fourteenth Amendment.
In this post, I wish only to supplement Rick’s point with a historical perspective drawn from my new book, Ballot Battles: The History of Disputed Elections in the United States<https://global.oup.com/academic/product/ballot-battles-9780190235277?cc=us&lang=en&>.
At the moment, no one knows for sure that the still-unsettled<http://www.newsobserver.com/news/politics-government/state-politics/article116322068.html> governor’s race in North Carolina will end up in the scenario that Rick envisions: a federal-court order, based on the precedent of Bush v. Gore or Roe v. Alabama, that nullifies the state legislature’s attempt to overturn the administratively certified result of the vote count. But if it does end up that way, it would underscore the 180-degree reversal of jurisprudence that has occurred over the course of the twentieth century concerning the power of the federal courts in this kind of case.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


McCrory Calls for Recount in NCGov Race, NC Board of Elections Meeting Allows Counties to Continue Counting, But More Protests Coming<http://electionlawblog.org/?p=89448>
Posted on November 22, 2016 10:57 am<http://electionlawblog.org/?p=89448> by Rick Hasen<http://electionlawblog.org/?author=3>
Press releas<https://twitter.com/dominicholden/status/801133271346069504>e from McCrory team, which is behind Cooper right now by about 6,000 votes.  (A candidate can request a recount if the number < 10,000. It will be very hard to make up a 6,000 vote deficit, and so the play might be something else.<http://electionlawblog.org/?p=89420> In normal times I would have expected a concession.)
On today’s<https://twitter.com/democracync/status/801126231806611456> NCBOE proceedings.
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Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>, The Voting Wars<http://electionlawblog.org/?cat=60>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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