[EL] More news and commentary 12/1/20

[Rick Hasen]

“More and More Republican Officials Are Standing Up to Trump and His Effort to Overturn the Election”<https://electionlawblog.org/?p=119202>
Posted on December 1, 2020 2:14 pm<https://electionlawblog.org/?p=119202> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2020/12/republican-officials-who-have-gone-against-trump-barr-ducey-kemp.html> for Slate. It begins:

On Monday, Arizona Gov. Doug Ducey added his name to the list of Republican officials who have acted admirably to uphold the rule of law following President Donald Trump’s unprecedented attacks on the election, appearing to ignore a phone call<https://www.huffpost.com/entry/doug-ducey-phone-call-donald-trump_n_5fc6189ac5b61d04bfad1ecc> from the White House while certifying his state’s critical 11 Electoral College votes for President-elect Joe Biden. Along with a number of Federalist Society-aligned judges, other GOP governors, and lower-ranking Republican election officials, Ducey and others have earned this praise in the wake of Trump’s ongoing—and ultimately futile—effort to overturn the 2020 election. We can thank principled people on the right for helping to assure that we will have a peaceful transition of power between Trump and Biden. And given the extremely dangerous rhetoric still coming from some high-profile Trump supporters—including suggestions that the president declare martial law, call off elections, or have former government officials who have vouched for the election’s integrity shot—those with progressive politics and democratic ideals need the continued support of ideological adversaries who are similarly committed to the rule of law….

Although Trump’s attempts to overturn the election have been sometimes comically bad and based upon either unproven claims of fraud and irregularities or outlandish legal theories, the reason that these outrageous claims did not work is that most people<https://www.nytimes.com/2020/11/24/us/politics/election-trump-democracy.html?action=click&module=Top%20Stories&pgtype=Homepage> across the political spectrum<https://www.nytimes.com/2020/11/28/us/politics/trump-republicans-election-results.html?smid=tw-share> who play a role in the counting of ballots and in certifying the results have complied with the rule of law.

This includes Republican election clerks, secretaries of state such as Georgia’s Brad Raffensperger who has faced death threats<https://www.washingtonpost.com/politics/brad-raffensperger-georgia-vote/2020/11/16/6b6cb2f4-283e-11eb-8fa2-06e7cbb145c0_story.html>, Aaron Van Langevelde<https://www.politico.com/news/magazine/2020/11/24/michigan-election-trump-voter-fraud-democracy-440475> of the Michigan state canvassing board who recognized he had no legal discretion not to certify Biden’s 154,000 win in the state, the Republican state legislators in states in Michigan<https://www.politico.com/news/magazine/2020/11/24/michigan-election-trump-voter-fraud-democracy-440475>, Pennsylvania<https://www.washingtonpost.com/politics/trump-michigan-georgia-pennsylvania-certify-votes-state-lawmakers/2020/11/21/1f410296-2b9e-11eb-8fa2-06e7cbb145c0_story.html>, and elsewhere who resisted Trump’s attempted gambit<https://www.washingtonpost.com/politics/trump-election-overturn/2020/11/28/34f45226-2f47-11eb-96c2-aac3f162215d_story.html> to have states appoint competing slates of electors to create a January battle over counting Electoral College votes in Congress, the Republican Govs. Brian Kemp<https://thehill.com/homenews/administration/527882-trump-im-ashamed-that-i-endorsed-kemp-in-georgia> of Georgia and Doug Ducey<https://chamberbusinessnews.com/2020/12/01/arizona-gov-doug-ducey-defends-states-election-integrity/>, who rejected Trump’s calls to declare their states’ elections fraudulent despite Trump’s personal entreaties and attacks, and the federal and state judges of both parties who applied sound legal principles in rebuffing Trump’s flimsy lawsuits, And on Tuesday, even Trump’s Attorney General Bill Barr, who had scandalously backed<https://www.cnn.com/2020/09/17/opinions/us-election-2020-william-barr-undermining-hasen/index.html> Trump’s claims of a potential for voter fraud in the past, told the AP that the Department of Justice has uncovered no kinds of fraud or irregularities that could change the outcome of the election….

There are serious disputes over elections between those of us who support strong voting rights and those on the right who have resisted them. As I’ve detailed at Slate<https://slate.com/news-and-politics/2018/11/georgia-governor-candidate-brian-kemp-attempts-last-minute-banana-republic-style-voter-manipulation.html> and elsewhere<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>, Kemp himself engaged in very questionable practices when he served as Georgia’s secretary of state, including falsely accusing Democrats of hacking into the state’s voter registration database on the eve of his gubernatorial election to cover up his own incompetence in securing that database. Republican election officials and legislators continue to support restrictive voting rules across the nation. Federalist Society judges have embraced legal theories that killed off<https://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html> a key provision of the Voting Rights Act, and are poised to allow<https://www.nytimes.com/2020/11/23/opinion/trump-election-courts.html?referringSource=articleShare> Republican states to engage in new forms of voter suppression in the name of preventing fraud or protecting the supposed rights of state legislatures to have unfettered discretion in setting rules for federal elections.

But when it comes to upholding the fundamental rule of law, many on the right deserve praise in this moment. And that might seem like a very low bar, but it is important to consider the alternative. In just the past few days, one of the president’s lawyers, Joe diGenova, said<https://lawandcrime.com/2020-election/trump-campaign-lawyer-joe-digenova-could-be-disciplined-for-stunning-statement-that-chris-krebs-should-be-shot/> that former federal cybersecurity head Chris Krebs, a Republican who has vouched for the integrity of American elections, should be shot. Sidney Powell, a lawyer who had worked for the president on his election lawsuits until she was fired and is still bringing a crazy conspiracy-laden election lawsuit in Georgia against the election results, according to Politico<https://www.politico.com/news/2020/11/30/proof-georgia-election-fraud-case-441701>, “retweeted a Twitter message<https://twitter.com/SongBird4Trump/status/1333458355487125506> that called on Trump to declare an insurrection, halt the planned convening of the Electoral College in each state in Dec. 14 and use ‘military tribunals’ to investigate alleged fraud related to the just-completed election.” Lin Wood, also involved in the litigation, said<https://twitter.com/gatewaypundit/status/1333794969300000770> that the president should declare martial law and hold a new election. Fox Business host Lou Dobbs in an interview with Powell called<https://twitter.com/brianstelter/status/1333574928759664640> for “drastic action” because of supposed crimes committed against Trump and the American people. That key Republican officials and conservative judges have not allowed themselves to be dragged along with the would-be mob is noteworthy.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


UCLA Voting Rights Project Dec. 8 & 9 Conference: Crafting a New Voting Rights Act for the 21st Century<https://electionlawblog.org/?p=119200>
Posted on December 1, 2020 2:04 pm<https://electionlawblog.org/?p=119200> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://electionlawblog.org/wp-content/uploads/Crafting-a-voting-3.pdf> has a great lineup:

The UCLA Voting Rights Project, in conjunction with the UCLA Latino Politics and Policy Initiative, is facilitating a discussion of experts and practitioners to develop key provisions for this generation’s Voting Right Act that build on the great success of the 1965 Voting Rights Act but augments it to address current challenges.

Please join us for a multi-day roundtable starting this December to begin work on our generation’s Voting Rights Act. This event will feature keynote speakers California Secretary of State Alex Padilla, Congressman Marc Veasey, and Rhode Island Secretary of State Nellie M. Gorbea. Panels will cover topics such as vote dilution and redistricting; congressional enforcement of the 15th, 19th, 24th, and 26th Amendments; procedural roadblocks; and voting rights remedies.

The event will be held remotely over the course of two days, December 8 & 9 and thereafter additional sessions will be scheduled over the following months to address particular issues. Sessions will feature panelist/discussion leaders and will be followed by a Q & A.

To register:

December 8th sign up link: https://register.gotowebinar.com/register/<https://register.gotowebinar.com/register/5698803262560425741>

December 9th sign up link: https://attendee.gotowebinar.com/register/<https://attendee.gotowebinar.com/register/5983365667921893645>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case<https://electionlawblog.org/?p=119196>
Posted on December 1, 2020 1:58 pm<https://electionlawblog.org/?p=119196> by Rick Hasen<https://electionlawblog.org/?author=3>

Over the weekend I wrote <https://electionlawblog.org/?p=119119> about the Pennsylvania’s Supreme Court decision to block a ridiculous lawsuit filed by a Republican state senator in state court which argued that the expansion of absentee voting done in 2019 by the Republican state legislature, including the plaintiff in the suit, violated the state constitution. It was a ridiculous suit for many reasons including laches: if you have a problem with an election rule, you cannot wait until after the election is run to see if you like how the election came out before suing. The state Supreme Court unanimously agreed that any kind of relief that would disenfranchise voters who voted using the system approved by the legislature would be impermissible.

I then noted<https://electionlawblog.org/?p=119132> that because this case presented only a question of state law, there were no apparent grounds to go to the Supreme Court, as the plaintiff announced an intention to do.

Well now the plaintiff has filed an emergency application for an injunction<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Kelly-v.-Commonwealth-Final_Emergency-Application-for-Writ-of-Injunction.pdf> in the Supreme Court, and the federal question presented is: “May a legislature violate its state constitution’s restrictions on the lawmaking power when enacting legislation for the conduct of federal elections pursuant to Article I, § 4, and Article II, § 1 of the U.S. Constitution? (There’s a second dumb question related to laches that is not even worth the time.)

This is kind of the opposite of the independent state legislature doctrine that we’ve seen in some of the other cases. In those other cases, the argument is that a state legislature cannot be constrained by provisions in a state constitution (as interpreted by a state supreme court) in setting rules for federal elections. This case argues that when a state legislature fails to follow a state constitutional provision, that failure violates the U.S. Constitution. Which provision of the Constitution? The question presented points to provisions in the Constitution that give state legislatures the power to set election rules, so how could that possibly be violated by a state legislature setting election rules?

Even worse, the state supreme court is the ultimate arbiter of the meaning of the state constitution, not the U.S. Supreme Court, and so it is not for the U.S. Supreme Court to say if the PA legislature violated the PA constitution.

The plaintiff wants an order from the U.S. Supreme Court nullifying the effect of the certification of the electors. It is not clear that this kind of remedy is even available. But I do not expect this case to go anywhere at the Supreme Court.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Ned Foley Says Changes in the Electoral Count Act are Desperately Needed Before the 2024 Election<https://electionlawblog.org/?p=119194>
Posted on December 1, 2020 1:36 pm<https://electionlawblog.org/?p=119194> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned’s WaPo piece <https://www.washingtonpost.com/opinions/2020/12/01/congress-must-fix-this-election-law-before-its-too-late/> concludes:

At the very least, the new Congress should hold hearings on the topic. The need to improve the Electoral Count Act is made more urgent by this uncomfortable fact: Before 2020, one could think its procedures would be relevant only when it is genuinely indeterminate which candidate won. Now we see that Congress might be called upon to settle a presidential election whenever a defeated candidate manages to generate just enough doubt about the outcome to make a political dispute of it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The CPA-Wharton Zicklin Model Code of Conduct”<https://electionlawblog.org/?p=119192>
Posted on December 1, 2020 1:34 pm<https://electionlawblog.org/?p=119192> by Rick Hasen<https://electionlawblog.org/?author=3>

New:<https://corpgov.law.harvard.edu/2020/11/28/the-cpa-wharton-zicklin-model-code-of-conduct/>

How can U.S. public companies protect against the risks inherent in spending to influence elections when politics is hyperpartisan, citizens are polarized and a controversy can ignite a wildfire virally and potentially affect a company’s bottom line?

The Center for Political Accountability and The Wharton School’s Zicklin Center for Business Ethics Research have produced a new Model Code of Conduct for Corporate Political Spending<https://corpgov.law.harvard.edu/wp-content/uploads/2020/11/CPA-Wharton-Zicklin-model-code-of-conduct-for-corporate-political-spending-10-13-20-.pdf> to address these issues. Expanded and updated from a Model Code written by CPA in 2007, it provides a framework to guide not only companies’ political spending, but also their assessment of its impact and related ethical and societal considerations…
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Barr: No evidence of fraud that’d change election outcome”<https://electionlawblog.org/?p=119190>
Posted on December 1, 2020 11:24 am<https://electionlawblog.org/?p=119190> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/election-2020-joe-biden-donald-trump-elections-william-barr-b1f1488796c9a98c4b1a9061a6c7f49d>:

Attorney General William Barr said Tuesday the Justice Department has not uncovered evidence of widespread voter fraud that would change the outcome of the 2020 presidential election.

His comments come despite President Donald Trump’s repeated claims that the election was stolen, and his refusal to concede his loss to President-Elect Joe Biden.

In an interview with The Associated Press, Barr said U.S. attorneys and FBI agents have been working to follow up specific complaints and information they’ve received, but they’ve uncovered no evidence that would change the outcome of the election.

“To date, we have not seen fraud on a scale that could have affected a different outcome in the election,” Barr told the AP.

The comments are especially direct coming from Barr, who has been one of the president’s most ardent allies. Before the election, he had repeatedly raised the notion <https://apnews.com/article/9f1fde9bb0dd6e46be5a7add286093b9> that mail-in voter fraud could be especially vulnerable to fraud during the coronavirus pandemic as Americans feared going to polls and instead chose to vote by mail….

Barr didn’t name Powell specifically but said: “There’s been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that, and so far, we haven’t seen anything to substantiate that,” Barr said.

He said people were confusing the use of the federal criminal justice system with allegations that should be made in civil lawsuits. He said such a remedy for those complaints would be a top-down audit conducted by state or local officials, not the U.S. Justice Department.

“There’s a growing tendency to use the criminal justice system as sort of a default fix-all, and people don’t like something they want the Department of Justice to come in and ‘investigate,’” Barr said.

He said first of all there must be a basis to believe there is a crime to investigate.

“Most claims of fraud are very particularized to a particular set of circumstances or actors or conduct. They are not systemic allegations and. And those have been run down; they are being run down,” Barr said. “Some have been broad and potentially cover a few thousand votes. They have been followed up on.”
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Federal Court Review of State Court Interpretations of State Laws that Regulate Federal Elections: Debunking the ‘Independent State Legislature’ Notion Once and for all, and Keeping Federal Judges to Their Important but Limited Lanes”<https://electionlawblog.org/?p=119188>
Posted on December 1, 2020 9:58 am<https://electionlawblog.org/?p=119188> by Rick Hasen<https://electionlawblog.org/?author=3>

Vik Amar has posted this draft<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3731755&dgcid=ejournal_htmlemail_law:society:legislation:ejournal_abstractlink> on SSRN. Here is the abstract:

In the weeks leading up to and following Election Day 2020, Republican litigants, taking cues from a minority group of Justices, asked federal courts to undo state election rules on which voters relied in casting ballots. The judges who indicated openness to these requests asserted they have the power and the duty to correct misconstructions of state law by state courts and other adjudicatory agencies. Yet as every good law student knows, misapplication of state law, no matter how extreme, is itself almost always a matter of state law – a problem for state courts to sort out. This teaching comes not just from Erie, but from (among others) a landmark ruling over a century earlier, Green v. Lessee of Neal, in which the John Marshall Court emphatically affirmed the notion that when state courts construe state statutes, those interpretations of state legislative will must be respected by federal courts no matter how fluctuating or wrong-headed state jurists seem to be.

The only exceptions to this – exceedingly rarely relevant and invoked – are instances when state courts misconstrue state law in ways that violate federal norms. And what is the federal norm that has been invoked in this context? That the word “Legislature” as used in Article I, Section 4 and Article II, Section 1 creates a federal entitlement along one or both of the following lines: (1) for the elected state legislature to have its enactments relating to election logistics fully implemented notwithstanding any conflicts between state statutes and state constitutions, and; (2) for the federal courts – assuming state constitutional limits can apply – to decide what those limits (and what the best ways to interpret state statutes) are.

Both halves of this “we-must-protect-the-state-legislatures” theory are not just law-less, in that they are not grounded in the law, but are law-defying, in that they turn federalism on its head. Founding history and structure, as well as binding recent precedent, demonstrate that the theory nonsensically invokes constitutional provisions designed to protect states against federal interference (including from federal courts) and uses them instead to impermissibly disrespect the wishes of the state peoples who create, empower and limit their legislatures, and also the wishes of the elected legislatures themselves.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>, Supreme Court<https://electionlawblog.org/?cat=29>


“Trump sues to try to reverse Wisconsin’s election results”<https://electionlawblog.org/?p=119186>
Posted on December 1, 2020 8:18 am<https://electionlawblog.org/?p=119186> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/12/01/trump-sues-try-reverse-wisconsins-election-results/6475902002/>

President Donald Trump sued Wisconsin officials Tuesday in a last-ditch effort to reclaim a state he lost by about 20,700 votes.

The Republican president filed his suit against Democratic Gov. Tony Evers a day after the governor and the head of the state Elections Commission certified Joe Biden had won the state’s 10 Electoral College votes<https://www.jsonline.com/story/news/politics/elections/2020/11/30/showdown-over-finalizing-wisconsins-presidential-results/6465419002/>.

Trump has made little headway with lawsuits in other states and he faces an extraordinarily difficult path in Wisconsin.

Time is running short. Under the federal “safe harbor” law<https://crsreports.congress.gov/product/pdf/IF/IF11641>, the results determined by the state will be respected if challenges to the outcome are resolved by Dec. 8. The Electoral College meets on Dec. 14 and Congress is to count the electoral votes on Jan. 6.

State law says challenges to election results are to be filed in circuit court, but Trump brought his lawsuit directly with the state Supreme Court, where conservatives hold a 4-3 majority. The justices did not immediately say whether they would take the case.

Since the election last month, Trump has argued hundreds of thousands of ballots in Wisconsin should be thrown out, in many cases on technicalities. For instance, he alleges the process election officials have used for more than a decade to conduct in-person early voting is illegal.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A Census Case That Goes to the Heart of American Democracy”<https://electionlawblog.org/?p=119184>
Posted on December 1, 2020 8:16 am<https://electionlawblog.org/?p=119184> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Wines<https://www.nytimes.com/2020/11/30/us/scotus-census.html> for the NYT:

On Monday, the Supreme Court heard arguments on a question that goes to the heart of American democracy: Must the government count everyone living in the country, citizens or not, in the census totals that the House of Representatives uses to reallocate its 435 seats among the states?

For more than two centuries, the answer has been “yes.” Both Article 1 of the Constitution<https://usconstitution.net/xconst_A1Sec2.html> and the 14th Amendment require that House seats be allotted according to “the whole number” of persons in each state. That phrase has long been read to include all the nation’s residents, whether American citizens, foreigners admitted here on visas or immigrants with no documents at all. But President Trump signaled in a memorandum this summer that he intended to exclude unauthorized immigrants from the 2020 census totals that he hoped to send to the House next year for use in reapportionment.

Federal courts have ruled in three separate lawsuits that Mr. Trump lacks that authority, saying in one case that the question was not even close. But the Supreme Court will have the final say. Here’s a rundown of some of the basics behind the issue:
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


“Judge: ‘Precious little proof’ in Georgia election fraud suit”<https://electionlawblog.org/?p=119182>
Posted on November 30, 2020 9:17 pm<https://electionlawblog.org/?p=119182> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Gerstein<https://www.politico.com/news/2020/11/30/proof-georgia-election-fraud-case-441701> for Politico:

A judge handling an election-fraud lawsuit brought by allies of President Donald Trump said the case was backed by “precious little proof,” but went on to issue a restraining order aimed at blocking three Georgia counties from making any changes to their voting machines as he considers whether to permit a forensic examination of those systems, according to court records.

U.S. District Court Judge Timothy Batten Sr. made the comments during an hour-long Sunday night court hearing on a lawsuit filed last week by Sidney Powell, a firebrand attorney who briefly joined Trump’s legal team in recent weeks before being dismissed from it.

The hearing was held via Zoom and not announced in advance on the court’s docket or accessible to the press or public, but it was transcribed by a court reporter who provided the transcript to POLITICO on Monday evening.

The transcript shows that Batten repeatedly wavered on whether to grant any relief to the Republican plaintiffs in the case, before settling on the narrow relief limited to three counties.

Powell and her colleagues initially wanted<https://www.politico.com/news/2020/11/30/judge-freezes-voting-machines-georgia-counties-441342> all voting machines in the state impounded pending further court action, but the state’s lawyers said that would present a slew of problems, including preventing some local elections set for this week and potentially interfering with the pair of U.S. Senate runoff elections set for Jan. 5.

“What the plaintiffs are seeking is basically going to take certain voting equipment out of the equation for the election scheduled to take place this Tuesday, as well as the election scheduled to take place on January 5th, because plaintiffs are wanting us to hold and basically mothball and preserve these machines at the county level — not in our possession, not in our custody and control,” Assistant Attorney General Russ Willard Sr. told Batten.

“In terms of a currently underway election, it is going to be throwing sugar in the gas tank and gumming up the works.”

Batten seemed open to the plaintiffs conducting what he called “a quick inspection” of the machines, with Powell initially asking to scrutinize the machines from 10 counties. She said “the bulk” of the inspections could be conducted within three days.

When called on by the judge, Powell aired her startling claim that the machines from Dominion Voting Systems were impacted by an algorithm that markedly increased votes for the Democratic presidential nominee, Joe Biden, and decreased them for Trump….

Powell also asserted that Dominion was doing the handiwork of late Venezuelan strongman Hugo Chavez. “It was conceived and created by Mr. Chavez’s regime for the very purpose of ensuring that he won future elections — as corrupt as it could possibly be,” she said.

Powell’s statements grew even more extreme on Monday, as she retweeted a Twitter message<https://twitter.com/SongBird4Trump/status/1333458355487125506> that called on Trump to declare an insurrection, halt the planned convening of the Electoral College in each state in Dec. 14 and use “military tribunals” to investigate alleged fraud related to the just-completed election.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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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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