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

Sat Nov 26 10:45:35 PST 2016

Marc Elias: “Listening and Responding To Calls for an Audit and Recount”<http://electionlawblog.org/?p=89510>
Posted on November 26, 2016 10:37 am<http://electionlawblog.org/?p=89510> by Rick Hasen<http://electionlawblog.org/?author=3>
The adult in the room:<https://medium.com/@marceelias/listening-and-responding-to-calls-for-an-audit-and-recount-2a904717ea39#.4bzwwab43>
Over the last few days, officials in the Clinton campaign have received hundreds of messages, emails, and calls urging us to do something, anything, to investigate claims that the election results were hacked and altered in a way to disadvantage Secretary Clinton. The concerns have arisen, in particular, with respect to Michigan, Wisconsin and Pennsylvania — three states that together proved decisive in this presidential election and where the combined margin of victory for Donald Trump was merely 107,000 votes.
It should go without saying that we take these concerns extremely seriously. We certainly understand the heartbreak felt by so many who worked so hard to elect Hillary Clinton, and it is a fundamental principle of our democracy to ensure that every vote is properly counted.
Moreover, this election cycle was unique in the degree of foreign interference witnessed throughout the campaign: the U.S. government concluded that Russian state actors were behind the hacks of the Democratic National Committee and the personal email accounts of Hillary for America campaign officials, and just yesterday, the Washington Post reported that the Russian government was behind much of the “fake news” propaganda that circulated online in the closing weeks of the election.
For all these reasons, we have quietly taken a number of steps in the last two weeks to rule in or out any possibility of outside interference in the vote tally in these critical battleground states.
First, since the day after the election we have had lawyers and data scientists and analysts combing over the results to spot anomalies that would suggest a hacked result. These have included analysts both from within the campaign and outside, with backgrounds in politics, technology and academia.
Second, we have had numerous meetings and calls with various outside experts to hear their concerns and to discuss and review their data and findings. As a part of this, we have also shared out data and findings with them. Most of those discussions have remained private, while at least one has unfortunately been the subject of leaks.
Third, we have attempted to systematically catalogue and investigate every theory that has been presented to us within our ability to do so.
Fourth, we have examined the laws and practices as they pertain to recounts, contests and audits.
Fifth, and most importantly, we have monitored and staffed the post-election canvasses — where voting machine tapes are compared to poll-books, provisional ballots are resolved, and all of the math is double checked from election night. During that process, we have seen Secretary Clinton’s vote total grow, so that, today, her national popular vote lead now exceeds more than 2 million votes.
In the coming days, we will continue to perform our due diligence and actively follow all further activities that are to occur prior to the certification of any election results. For instance, Wisconsin<https://urldefense.proofpoint.com/v2/url?u=https-3A__govt.westlaw.com_pac_Document_NE8D7C3E0343011DA8A989F4EECDB8638-3FviewType-3DFullText-26originationContext-3Ddocumenttoc-26transitionType-3DCategoryPageItem-26contextData-3D-28sc.Default&d=DgMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=1sKkSyHnIwlDe0gB4QUZh6MwPGvC_cw86smKRy99-ik&s=XELu5F3x3y7LgBkqQ26wSmwyPRPR8QWW7AZQ7TQVHfc&e=> and Pennsylvania<https://urldefense.proofpoint.com/v2/url?u=http-3A__elections.wi.gov_sites_default_files_memo_20_2014-5Fvoting-5Fsystem-5Faudit-5Frequirements-5Ffinal-5Fpdf-5F43489.pdf&d=DgMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=1sKkSyHnIwlDe0gB4QUZh6MwPGvC_cw86smKRy99-ik&s=2eKpEqSGGkwZ_GZPzElZdvYrEZmd4jAekpWYy4xvVFQ&e=> conduct post-election audits using a sampling of precincts. Michigan and many other states still do not. This is unfortunate; it is our strong belief that, in addition to an election canvass, every state should do this basic audit to ensure accuracy and public confidence in the election.
Beyond the post-election audit, Green Party candidate Jill Stein announced Friday that she will exercise her right as a candidate to pursue a recount in the state of Wisconsin. She has indicated plans to also seek recounts in Pennsylvania and Michigan.
Because we had not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology, we had not planned to exercise this option ourselves, but now that a recount has been initiated in Wisconsin, we intend to participate in order to ensure the process proceeds in a manner that is fair to all sides.If Jill Stein follows through as she has promised and pursues recounts in Pennsylvania and Michigan, we will take the same approach in those states as well. We do so fully aware that the number of votes separating Donald Trump and Hillary Clinton in the closest of these states — Michigan — well exceeds the largest margin ever overcome in a recount. But regardless of the potential to change the outcome in any of the states, we feel it is important, on principle, to ensure our campaign is legally represented in any court proceedings and represented on the ground in order to monitor the recount process itself.
The campaign is grateful to all those who have expended time and effort to investigate various claims of abnormalities and irregularities. While that effort has not, in our view, resulted in evidence of manipulation of results, now that a recount is underway, we believe we have an obligation to the more than 64 million Americans who cast ballots for Hillary Clinton to participate in ongoing proceedings to ensure that an accurate vote count will be reported.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89510&title=Marc%20Elias%3A%20%E2%80%9CListening%20and%20Responding%20To%20Calls%20for%20an%20Audit%20and%20Recount%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

“U.S. Officials Defend Integrity of Vote, Despite Hacking Fears”<http://electionlawblog.org/?p=89508>
Posted on November 25, 2016 8:53 pm<http://electionlawblog.org/?p=89508> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/11/25/us/politics/hacking-russia-election-fears-barack-obama-donald-trump.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news&_r=0>
The Obama administration said on Friday that despite Russian attempts to undermine the presidential election, it has concluded that the results “accurately reflect the will of the American people.”
The statement came as liberal opponents of Donald J. Trump<http://www.nytimes.com/topic/person/donald-trump?inline=nyt-per>, some citing fears of vote hacking, are seeking recounts in three states — Wisconsin, Michigan and Pennsylvania — where his margin of victory was extremely thin.
A drive by Jill Stein<http://www.nytimes.com/topic/person/jill-stein?inline=nyt-per>, the Green Party candidate, for recounts in those states had brought in more than $5 million by midday on Friday, her campaign said, and had increased its goal to $7 million. She filed for a recount in Wisconsin on Friday, about an hour before the deadline.
In its statement, the administration said, “The Kremlin probably expected that publicity surrounding the disclosures that followed the Russian government-directed compromises of emails from U.S. persons and institutions, including from U.S. political organizations, would raise questions about the integrity of the election process that could have undermined the legitimacy of the president-elect.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89508&title=%E2%80%9CU.S.%20Officials%20Defend%20Integrity%20of%20Vote%2C%20Despite%20Hacking%20Fears%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“Some thoughts about the reports of supposed evidence of election irregularities in MI, PA, and WI”<http://electionlawblog.org/?p=89506>
Posted on November 25, 2016 8:38 pm<http://electionlawblog.org/?p=89506> by Rick Hasen<http://electionlawblog.org/?author=3>
I trust Charles Stewart <http://electionupdates.caltech.edu/2016/11/24/some-thoughts-about-the-reports-of-supposed-evidence-of-election-irregularities-in-mi-pa-and-wi/> a lot and this is a must-read.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89506&title=%E2%80%9CSome%20thoughts%20about%20the%20reports%20of%20supposed%20evidence%20of%20election%20irregularities%20in%20MI%2C%20PA%2C%20and%20WI%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, recounts<http://electionlawblog.org/?cat=50>, voting technology<http://electionlawblog.org/?cat=40>

“Jill Stein Campaign Requests a Vote Recount in Wisconsin”<http://electionlawblog.org/?p=89504>
Posted on November 25, 2016 3:01 pm<http://electionlawblog.org/?p=89504> by Rick Hasen<http://electionlawblog.org/?author=3>
Byron Tau for WSJ.<http://www.wsj.com/articles/jill-stein-says-her-campaign-raised-funds-for-recounts-in-wisconsin-pennsylvania-1480087240?mod=e2tw>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89504&title=%E2%80%9CJill%20Stein%20Campaign%20Requests%20a%20Vote%20Recount%20in%20Wisconsin%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, recounts<http://electionlawblog.org/?cat=50>

Stein Recount Could Endanger WI Electoral Votes in the “Safe Harbor”<http://electionlawblog.org/?p=89502>
Posted on November 25, 2016 12:39 pm<http://electionlawblog.org/?p=89502> by Rick Hasen<http://electionlawblog.org/?author=3>
Journal-Sentinel:<http://www.jsonline.com/story/news/politics/elections/2016/11/25/recount-would-have-move-quickly/94417686/>
Wisconsin could be at risk of missing a Dec. 13 deadline to certify its 10 electoral votes if clerks can’t complete an expected recount by then.
Hitting the deadline could be particularly tricky if Green Party presidential nominee Jill Stein is able to force the recount to be conducted by hand, Wisconsin’s top election official said.
Stein — who received just 1% of the vote in Wisconsin — has promised to file for a recount by Friday’s 5 p.m. deadline in Wisconsin. She is also planning to ask for recounts in Michigan and Pennsylvania, which have deadlines next week.
A federal “safe harbor” law requires states to complete presidential recounts within 35 days of the election to ensure their electoral votes are counted. This year, that’s Dec. 13.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89502&title=Stein%20Recount%20Could%20Endanger%20WI%20Electoral%20Votes%20in%20the%20%E2%80%9CSafe%20Harbor%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

NC Spent Nearly $5 Million So Far Defending Its Voting Law Found to be Intentionally Racially Discriminatory<http://electionlawblog.org/?p=89499>
Posted on November 25, 2016 11:16 am<http://electionlawblog.org/?p=89499> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article116795423.html>
Since coming to power five years ago, North Carolina Republican lawmakers have spent more than $10.5 million defending controversial laws on everything from redistricting to voter ID to House Bill 2.
And the total will only grow as ongoing cases make their way through the appeals process.
Almost half the money – $4.9 million – went to defend the state’s sweeping voter law, which was overturned by a panel of federal judges.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89499&title=NC%20Spent%20Nearly%20%245%20Million%20So%20Far%20Defending%20Its%20Voting%20Law%20Found%20to%20be%20Intentionally%20Racially%20Discriminatory>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Reuters: Don McGahn to Be White House Counsel<http://electionlawblog.org/?p=89497>
Posted on November 25, 2016 10:36 am<http://electionlawblog.org/?p=89497> by Rick Hasen<http://electionlawblog.org/?author=3>
So reports Reuters<https://twitter.com/ReutersPolitics/status/802217311197401088>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89497&title=Reuters%3A%20Don%20McGahn%20to%20Be%20White%20House%20Counsel>
Posted in election law biz<http://electionlawblog.org/?cat=51>

Lessig Replies on Faithless Electors<http://electionlawblog.org/?p=89494>
Posted on November 25, 2016 9:26 am<http://electionlawblog.org/?p=89494> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<https://medium.com/@lessig/rick-hasen-but-not-to-ignore-it-what-is-it-59aaf4f0f0a3#.kjuoa63sr>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89494&title=Lessig%20Replies%20on%20Faithless%20Electors>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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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