[EL] M(o)ore News
Edward Still
still at votelaw.com
Tue Dec 12 20:58:24 PST 2017
I will not hold my breath till Majority Leader McConnell agrees to seat
Doug Jones before a certificate of election is issued by Alabama.
On Dec 12, 2017 10:45 PM, "Rick Hasen" <rhasen at law.uci.edu> wrote:
*Doug Jones Apparent Winner in Alabama Senate Race, But Moore Not
Conceding, Awaiting Possible Automatic Recount
<http://electionlawblog.org/?p=96372>*
Posted on December 12, 2017 8:41 pm <http://electionlawblog.org/?p=96372>
by *Rick Hasen* <http://electionlawblog.org/?author=3>
Roy Moore just said he is not conceding and will wait to see if there is a
recount. An automatic recount is triggered if the race is within 0.5%.
Right now, as I write, Jones is ahead by 1.6%. Moore can still pay for a
recount if the margin is beyond the 0.5% threshold.
Alabama Secretary of State John Merrill on CNN says there are an unknown
number of military as well as provisional ballots, but does not say how
many are outstanding. Merrill says it is possible that these ballots could
shrink the margin. Write-in votes cast for non-eligible candidates could
also shrink the margin.
This seems like quite a tough road ahead for Moore.
Here is the recount provision.
<http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm>
[image: hare]
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Posted in election administration <http://electionlawblog.org/?cat=18>
*From: *Law-election <law-election-bounces at department-lists.uci.edu> on
behalf of Adam Bonin <adam at boninlaw.com>
*Date: *Tuesday, December 12, 2017 at 8:34 PM
*To: *Edward Still <still at votelaw.com>
*Cc: *Election Law Listserv <law-election at uci.edu>
*Subject: *Re: [EL] M(o)ore News
Back in 2010, now-Trump-lawyer Jay Sekulow argued that the Senate need not
wait for Scott Brown's certification for him to be sworn in, citing Ted
Kennedy's 1962 swearing-in as precedent. https://aclj.org/
us-constitution/delay-in-seating-ma-senator-outrageous-
Adam C. Bonin
The Law Office of Adam C. Bonin
30 South 15th Street
<https://maps.google.com/?q=30+South+15th+Street%0D+%0D+%0D+15th+Floor%0D+%0D+%0D+Philadelphia,+PA+19102&entry=gmail&source=g>
15th Floor
<https://maps.google.com/?q=30+South+15th+Street%0D+%0D+%0D+15th+Floor%0D+%0D+%0D+Philadelphia,+PA+19102&entry=gmail&source=g>
Philadelphia, PA 19102
<https://maps.google.com/?q=30+South+15th+Street%0D+%0D+%0D+15th+Floor%0D+%0D+%0D+Philadelphia,+PA+19102&entry=gmail&source=g>
(267) 242-5014 (c)
(215) 701-2321 (f)
adam at boninlaw.com
http://www.boninlaw.com
On Tue, Dec 12, 2017 at 11:24 PM, Edward Still <still at votelaw.com> wrote:
Ala Code § 17-12-17. All returns of elections required by law to be sent to
the Secretary of State must, within 22 days after an election, be opened,
counted, and certified in the presence of the Governor, Secretary of State,
and Attorney General, or two of them.
In other words, by 3 January 2018. All the executive officials named are
Republicans, so they are not likely to hurry in doing the certification
early.
Edward Still
Edward Still Law Firm LLC
429 Green Springs Hwy, STE 161
<https://maps.google.com/?q=429+Green+Springs+Hwy,+STE+161&entry=gmail&source=g>
-304
Birmingham AL 35209
205-320-2882 <(205)%20320-2882>
still at votelaw.com
www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>
Twitter: @edwardstill
On Tue, Dec 12, 2017 at 9:25 PM, Margaret Groarke <
margaret.groarke at manhattan.edu> wrote:
What rules govern when the winner of tonight's Alabama Senate election
takes his seat?
Mitch McConnell said the winner will not take office until 2018. Is that
his decision to make?
On Tue, Dec 12, 2017 at 12:16 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
“If He Wins, Could the Senate Exclude Roy Moore? Under an 1844 Senate
Precedent, Perhaps.” <http://electionlawblog.org/?p=96367>
Posted on December 12, 2017 8:17 am <http://electionlawblog.org/?p=96367>
by *Rick Hasen* <http://electionlawblog.org/?author=3>
Fascinating Hugh Brady:
<https://legislativelawbulletin.com/2017/12/12/if-he-wins-could-the-senate-exclude-roy-moore-under-an-1844-senate-precedent-perhaps/>
*The Powell Court held that the constitutional grant of power extends “to
judg[ing] only the qualifications expressly set forth in the Constitution”
and that “the [Senate is] without authority to exclude any person, duly
elected by his constituents, who meets all the requirements for membership
expressly prescribed by the Constitution.” 395 U.S. at 521-522, 548.*
*The Powell Court was focused exclusively on the Article I qualifications,
sidestepping any discussion of additional qualification imposed by Article
VI, Clause 3: “The Senators … shall be bound by oath or affirmation, to
support this Constitution[.]” The Court explained that it did not consider
whether this provision, or the other provisions concerning dual
office-holding or disqualification because of impeachment or rebellion, was
a qualification because the parties agreed that “Powell was not ineligible
under any of these provisions.” Id. at 520 n.41.*
*So, what if the individual does not have the capacity to take the oath?
Could the Senate exclude that individual? Consider the case of John M.
Niles, elected to the Senate in 1843….*
*What should Senator Collins do? It seems that she should offer a
resolution delaying the administration of the oath to Moore pending an
inquiry into his capacity to take the oath; such a resolution is privileged
and prevents the Presiding Officer from administering the oath. Riddick’s
Senate Procedure, S. Doc. 101-28 at 704 (1992). This is certainly the
procedure used by Jarnagin in the Niles precedent. While “orderly
procedure” first outlined in 1903 suggests that a Senator-elect should be
sworn first and then his qualifications should be reviewed, that procedure
seems to relate primarily to cases of election contests and not to cases
where the Senator lacks capacity to take the oath. See id. at 704-705.
Moore can then take his case to a Federal district court and thence on
appeal, eventually to the Supreme Court. Poetic, I think.*
*Senator Collins, if you feel as you say, it’s worth a try. Good luck.*
[image: hare]
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
“Facebook and the New Red Scare” <http://electionlawblog.org/?p=96363>
Posted on December 12, 2017 8:06 am <http://electionlawblog.org/?p=96363>
by *Rick Hasen* <http://electionlawblog.org/?author=3>
David Keating and Paul Jossey in The Hill:
<http://thehill.com/opinion/civil-rights/364079-facebook-and-the-new-red-scare>
*Various interests have seized on Russian chicanery to push “reforms”
lacking priority in less neurotic times. Sens. Amy Klobuchar
<http://thehill.com/people/amy-klobuchar> (D-Minn.) and Mark Warner
<http://origin-nyi.thehill.com/people/mark-warner> (D-Va.) sent a “Dear
Colleague” letter
<https://www.scribd.com/document/359617514/Sens-Warner-Klobuchar-Dear-Colleague-Letter-On-Online-Political-Advertising-Disclosure#close_user_settings_menu>
seeking
new rules for online ads. The resulting bill would burden internet speech
with suffocating rules, even possibly banning some forms of online speech.
Instead of hitting the Russians, the bill instead targets American speech,
press and assembly rights guaranteed by the First Amendment. In short,
despite the dearth of candidate references in the Russian ads, there is
already a rush to chill the world’s most dynamic speech forum.*
*Egging on lawmakers in this endeavor is the usual cadre of nonprofits
<https://www.usnews.com/opinion/op-ed/articles/2017-09-25/congress-must-follow-up-facebooks-exposing-russian-political-advertising>
and
opinion shapers. Oft-quoted progressive professor Richard Hasen
direly warns
<http://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647>,
“It is a matter of national security and sovereignty to assure that only
Americans should be able to influence who American leaders should be.” This
is absurd and impractical.*
Good to know I’m both absurd AND impractical.
[image: hare]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96363&title=%E2%80%9CFacebook%20and%20the%20New%20Red%20Scare%E2%80%9D>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, campaigns
<http://electionlawblog.org/?cat=59>, chicanery
<http://electionlawblog.org/?cat=12>
Disturbing News from Alabama Senate Race: “Alabama Supreme Court Blocks
Digital Ballot Preservation in Eleventh Hour”
<http://electionlawblog.org/?p=96361>
Posted on December 12, 2017 8:04 am <http://electionlawblog.org/?p=96361>
by *Rick Hasen* <http://electionlawblog.org/?author=3>
Steven Rosenfeld:
<https://www.alternet.org/activism/alabama-supreme-court-issues-monday-night-order-blocking-best-practices-verify-vote>
*The Alabama Supreme Court stepped into Tuesday’s U.S. Senate race between
Republican Roy Moore and Democrat Doug Jones on Monday night by blocking a
lower state court’s ruling earlier in the day that ordered election
officials to take steps to preserve digital images of every ballot cast
Tuesday.*
*In effect, the Alabama Supreme Court’s stay—or freezing—of an earlier
court order to preserve the digital ballot images undermines the best-case
scenario for ensuring that an accurate vote count can be verified in the
controversial Senate race.*
*Alabama’s Supreme Court, where Moore served as chief justice, did not
issue an explanation with its stay. However, a lengthy brief filed at the
close of business Monday by the state on behalf of Alabama Secretary of
State John Merrill contained a list of eyebrow-raising assertions, such as
Merrill had no authority to tell local election officials how to operate
their voting machines. The state also said only private vendors holding
contracts to program the machines could do so—and that it was too late for
that.*
Update: Here
<http://www.gregpalast.com/wp-content/uploads/The-Stay-from-Supreme-Court-of-AL-12.11.17.pdf>
is
the order. It provides for further proceedings. But it grants an emergency
stay in the interim, which for all practical purposes allows the ballot
images to be destroyed before the case could be heard.
Second update: It appears
<http://www.al.com/news/index.ssf/2017/12/in_final-hour_order_court_rule.html>
that
the court issued its order within minutes after the stay request, without
giving the other side a chance for briefing. How could they have had a
chance to fairly consider the issue?
*But at 4:32 p.m. Monday, attorneys for Alabama Secretary of State John
Merrill and Ed Packard, the state administrator of elections, filed an
“emergency motion to stay” that order, which the state Supreme Court
granted minutes after Merrill and Packard’s motion was filed.*
It is very disturbing because the AL Supreme Court’s order effectively
decides the case. The ballot images will be destroyed, even if plaintiffs
ultimately win on the merits weeks later. Goes against principles of
preserving the status quo.
[image: hare]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96361&title=Disturbing%20News%20from%20Alabama%20Senate%20Race%3A%20%E2%80%9CAlabama%20Supreme%20Court%20Blocks%20Digital%20Ballot%20Preservation%20in%20Eleventh%20Hour%E2%80%9D>
Posted in election administration <http://electionlawblog.org/?cat=18>
--
Rick Hasen
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UC Irvine School of Law
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