[EL] M(o)ore News

Tue Dec 12 21:25:51 PST 2017

Breaking: Under Alabama Law, Roy Moore May Not Be Able to Request a Recount If The Margin is More than 0.5%<http://electionlawblog.org/?p=96376>
Posted on December 12, 2017 9:20 pm<http://electionlawblog.org/?p=96376> by Rick Hasen<http://electionlawblog.org/?author=3>
In a prior pos<http://electionlawblog.org/?p=96372>t, I noted that under Alabama law, if the margin between the candidates is within 0.5% there is an automatic recount at state expense. That statute is Section 17-16-20.<http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/17-16-20.htm>
But AL SOS Merrill, pointing on CNN to a recent governor’s race that was close, said that any candidate can get a recount at his or her own expense if the margin is greater. The statute allowing that is Section 17-16-21.<http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/17-16-21.htm>
But that statute only allows people seeking recounts to be those “with standing to contest the election under Sections 17-16-40 and 17-16-47.”
And if you look at those sections, they do not allow candidates for federal office to request such a recount or to contest the election (presumably because these would be done in the U.S. House or Senate.)
Under 40, the ones who can contest are: “The election of any person declared elected to the office of Governor, Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture and Industries, Public Service Commissioner, senator or representative in the Legislature, justices of the Supreme Court, judges of the courts of appeals, judge of the circuit court or district court, or any office which is filled by the vote of a single county, or to the office of constable.”
Section 47 only allows a contest “of any person declared to be elected to the office of senator or representative in the Legislature, judge of the circuit court or district court, any office which is filled by the vote of a single county, or constable.”
Moore is not those.  I think unless there’s another provision I’m not seeing he cannot get a recount if it is outside the 0.5% margin.
He can ask for the U.S. Senate to conduct some kind of contest but good luck with that.
Happy to be corrected if I’m wrong.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96376&title=Breaking%3A%20Under%20Alabama%20Law%2C%20Roy%20Moore%20May%20Not%20Be%20Able%20to%20Request%20a%20Recount%20If%20The%20Margin%20is%20More%20than%200.5%25>
Posted in election administration<http://electionlawblog.org/?cat=18>

From: Rick Hasen <rhasen at law.uci.edu>
Date: Tuesday, December 12, 2017 at 8:45 PM
To: Adam Bonin <adam at boninlaw.com>, Edward Still <still at votelaw.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] M(o)ore News

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>
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96372&title=Doug%20Jones%20Apparent%20Winner%20in%20Alabama%20Senate%20Race%2C%20But%20Moore%20Not%20Conceding%2C%20Awaiting%20Possible%20Automatic%20Recount>
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
15th Floor
Philadelphia, PA 19102

(267) 242-5014 (c)
(215) 701-2321 (f)
adam at boninlaw.com<mailto:adam at boninlaw.com>
http://www.boninlaw.com

On Tue, Dec 12, 2017 at 11:24 PM, Edward Still <still at votelaw.com<mailto: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 161-304
Birmingham AL 35209
205-320-2882<tel:(205)%20320-2882>
still at votelaw.com<mailto: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<mailto: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<mailto: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.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96367&title=%E2%80%9CIf%20He%20Wins%2C%20Could%20the%20Senate%20Exclude%20Roy%20Moore%3F%20Under%20an%201844%20Senate%20Precedent%2C%20Perhaps.%E2%80%9D>
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.
[are]<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.
[are]<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
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<tel:(949)%20824-3072> - 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/>

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election

--
Margaret Groarke
Associate Professor, Government
[http://home.manhattan.edu/collegerelations/email_logo.jpg]
Riverdale, NY 10471
Phone: 718-862-7943<tel:(718)%20862-7943>
Fax: 718-862-8044<tel:(718)%20862-8044>
margaret.groarke at manhattan.edu<mailto:name.name at manhattan.edu>
www.manhattan.edu<http://www.manhattan.edu/>

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171213/33f52be7/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171213/33f52be7/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 2022 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171213/33f52be7/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 2023 bytes
Desc: image003.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171213/33f52be7/attachment-0002.png>