[EL] ELB News and Commentary 12/2/20

[Rick Hasen]

Unanimous 4th Circuit Panel Applies “Presumption of Good Faith” in Upholding 2018 North Carolina Voter ID Law, Despite Finding That 2013 Voter ID Law Was Passed with Racially Discriminatory Intent<https://electionlawblog.org/?p=119223>
Posted on December 2, 2020 9:22 am<https://electionlawblog.org/?p=119223> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 29-page opinion at this link<https://wwwcache.wral.com/asset/news/state/nccapitol/2020/12/02/19410792/Voter-ID-Decision_4th-Circuit_Dec-2_2020-DMID1-5p24n9b1f.pdf> (via WRAL).

The opinion leans heavily on the Supreme Court’s use of a presumption of legislative good faith in Abbott, despite an earlier history of racially discriminatory conduct.

I recently wrote about how this presumption, along with other recent Supreme Court apparently procedural rules, help pave the way for courts to uphold more suppressive voting laws. See The Supreme Court’s Pro-Partisanship Turn<https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Hasen-The-Supreme-Court%E2%80%99s-Pro-Partisanship-Turn.pdf>, 109 Georgetown Law Journal Online 50 (2020).
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, voter id<https://electionlawblog.org/?cat=9>


Sidney Powell Filing in Federal Court in Wisconsin Seeking to Delay Presidential Elector Certification Fails to Follow Basic Requirements for Seeking an Emergency Temporary Restraining Order under FRCP 65(d)<https://electionlawblog.org/?p=119219>
Posted on December 2, 2020 9:04 am<https://electionlawblog.org/?p=119219> by Rick Hasen<https://electionlawblog.org/?author=3>

Read the court order<https://electionlawblog.org/wp-content/uploads/rule-65.pdf>. Astounding.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Florida Election Scandal Reveals Bigger Problems”<https://electionlawblog.org/?p=119217>
Posted on December 2, 2020 8:21 am<https://electionlawblog.org/?p=119217> by Rick Hasen<https://electionlawblog.org/?author=3>

Rob Richie and Perry Waag:<https://www.insidesources.com/florida-election-scandal-reveals-bigger-problems/>

Election steal” took on a whole new meaning in Florida this year — and it has exposed a vulnerability in how we vote that invites more hacks in the future without an election method upgrade.

Democrat Jose Javier Rodriguez’s state Senate re-election campaign was certain to be close. Rodriguez’s challenger, Ileana Garcia, was well-funded and the co-founder of Latinas for Trump. Still, Rodriguez was optimistic and garnered key endorsements from police unions and teachers unions alike.

Then a third “independent” candidate materialized. Intriguingly, Alex Rodriguez shared a surname with the incumbent. But little else could be determined about him.

He did not appear for candidate forums or debates or have a campaign website. He didn’t raise a single dollar other than a small loan from himself. When a local TV station asked him for a picture, he didn’t respond.

It’s almost as if Alex Rodriguez wanted to run for office without anyone knowing who he was. It’s as if Alex Rodriguez appeared on the ballot to potentially confuse supporters of Jose Javier Rodriguez, and perhaps siphon away crucial votes in a competitive contest.

Sure enough, Ileana Garcia defeated Rodriguez by the tightest of margins — just 34 votes. Alex Rodriguez, meanwhile, received more than 6,000 votes despite not running a campaign.

Now Florida prosecutors are looking into whether Alex Rodriguez might have been a shadow candidate, propped up by people looking to spoil the race. He now claims <https://www.miamiherald.com/news/politics-government/state-politics/article247288694.html> he doesn’t even live in the district…..

A better approach would be ranked choice voting, a proven tool that gives voters the power to rank candidates in order rather than just pick one. Already the law in Alaska and Maine for presidential elections, ranked choice voting is fair to candidates and voters alike and makes this kind of democracy-damaging mischief-making impossible.

Boosting “spoilers” only works because in a single-round system, it’s possible for a candidate to win with less than half the vote when more than two candidates run. Ranked choice voting gives voters an insurance policy. If a candidate wins 50 percent of the vote, they win, like any other election.

But if no one reaches that mark, an instant runoff takes place. The candidate in last place is eliminated, and his or her votes are counted for each voter’s next choice.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>, chicanery<https://electionlawblog.org/?cat=12>


“Army Hits Back Against False Claim that Soldiers Died in CIA Op to Nab Election Servers”<https://electionlawblog.org/?p=119215>
Posted on December 2, 2020 7:59 am<https://electionlawblog.org/?p=119215> by Rick Hasen<https://electionlawblog.org/?author=3>

Military Times<https://www.military.com/daily-news/2020/12/01/no-kraken-refer-military-intelligence-unit.hmtl>:

A retired Air Force<http://www.military.com/air-force> three-star general reignited baseless conspiratorial claims about U.S. troops’ involvement in clandestine missions in the wake of the presidential election — claims an Army official said are 100% false.

No Special Forces<http://www.military.com/special-operations> soldiers were killed while seizing computer servers in Germany as part of a CIA operation after the presidential election. There was, in fact, no mission of the sort.

And members of the 305th Military Intelligence Battalion are not “the Kraken” that an attorney for President Donald Trump said last month she’d be unleashing. The unit is not involved in any post-election missions supporting the White House — a move that would be highly unlikely considering it’s an entry-level training battalion where new soldiers who haven’t yet picked up their military occupational specialty are assigned.

“The allegations are false,” an Army official told Military.com.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“GOP candidate says he was used without permission as a plaintiff in lawsuit to overturn Wisconsin election results”<https://electionlawblog.org/?p=119213>
Posted on December 2, 2020 7:44 am<https://electionlawblog.org/?p=119213> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2020/12/01/wisconsin-republican-says-he-used-without-permission-trump-suit/3786051001/>

A Republican candidate for Congress who lost his election on Nov. 3 says his name is being used without permission as a plaintiff in a federal lawsuit to make President Donald Trump the winner of Wisconsin’s presidential election, despite receiving fewer votes than President-elect Joe Biden.

Derrick Van Orden, who narrowly lost to U.S. Rep. Ron Kind<https://www.jsonline.com/story/news/politics/elections/2020/11/04/ron-kind-derrick-van-orden-wisconsin-3rd-congressional-district-race-us-house/6130509002/>, said Tuesday he learned through social media posts about the lawsuit that his name was being used.

“I learned through social media today that my name was included in a lawsuit without my permission,” Van Orden said in a statement. “To be clear, I am not involved in the lawsuit seeking to overturn the election in Wisconsin.”‘

Former Trump attorney Sidney Powell filed a lawsuit in federal court on Tuesday on behalf of Van Orden and La Crosse County Republican Party chairman Bill Feehan. The suit seeks, among other relief, a new election for Van Orden and wants Gov. Tony Evers to certify the election for Trump instead of Biden.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Rep. Mo Brooks Plans Mischief at Congressional Session Counting Electoral College Votes<https://electionlawblog.org/?p=119211>
Posted on December 2, 2020 7:37 am<https://electionlawblog.org/?p=119211> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/newsletters/huddle/2020/12/02/the-gops-electoral-mischief-491033>

Rep. Mo Brooks (R-Ala.) has been telling colleagues and allies that he plans to challenge the Electoral College votes when Congress officially certifies Joe Biden’s victory on Jan. 6, as long as a Senate Republican joins him in the long-shot effort, sources tell your Huddle host.

Brooks confirmed his plans in a phone interview, adding that he is still considering objecting to the vote-counting process even if no one joins him — though he acknowledged that would be more of a symbolic protest. Brooks, echoing President Donald Trump’s baseless claims of voter fraud without providing evidence, argued that the election was “badly flawed” and that most mail-in voting is “unconstitutional.”

“In my judgment, if only lawful votes by eligible American citizens were cast, Donald Trump won the Electoral College by a significant margin, and Congress’s certification should reflect that,” Brooks said. “This election was stolen by the socialists engaging in extraordinary voter fraud and election theft measures.”

Brooks, a member of the conservative Freedom Caucus, said he has had “indirect communication” with some senators about potentially joining forces, though he declined to elaborate further. He also said he’s discussed the procedural maneuver with some members of GOP leadership, but they gave him neither a “thumbs up” nor a “thumbs down,” Brooks said.

As we noted<https://www.politico.com/news/2020/11/30/republicans-overturn-electoral-college-441459> here yesterday, one lawmaker from both the Senate and House needs to challenge the results in order to force a deliberation on the matter. And even then, the gambit to overturn the election results in Congress is almost certain to fail, given the makeup of the House and Senate.

But Trump’s Hill allies can still cause some mischief — and force a politically toxic vote for some in the GOP. Brooks said he hasn’t had any conversations with the White House about the issue, but it’s not hard to imagine the whole thing turning into a Trump loyalty test for Republicans.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Rice University’s James A. Baker III Institute for Public Policy: A Program on the 2020 Presidential Election<https://electionlawblog.org/?p=119208>
Posted on December 2, 2020 7:18 am<https://electionlawblog.org/?p=119208> by Richard Pildes<https://electionlawblog.org/?author=7>

The James A. Baker III Institute for Public Policy has become one of the country’s preeminent institutions for the study of the Presidency. It is currently hosting a three-day program titled “A Presidential Election During the Time of Covid.” The full program is here<https://www.bakerinstitute.org/events/2173/>.

I will be moderating a panel later today that examines the 2020 election issues through the lens of the 2000 Florida election contest, with two of the central legal figures in that saga from the Bush and Gore campaigns. That will be followed by a session that Dana Bash moderates with the campaign managers of the Obama and Romney campaigns in the 2012 election. Here is the program: .
12:05 EST


Panel III: Another 2000? Moderated by: Richard H. Pildes, J.D.,<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.biography&personid=20200> Sudler Family Professor of Constitutional Law, New York University School of Law
Benjamin Ginsberg, J.D.<https://fedsoc.org/contributors/benjamin-ginsberg>
Partner, Jones Day; National Counsel, Bush-Cheney presidential campaigns 2004 and 2000
Mitchell W. Berger, J.D.<https://www.bergersingerman.com/team/mitchell-w-berger>
Founder and Co-Chair, Berger Singerman; Attorney for Vice President Al Gore and Joseph Lieberman in Bush v. Gore (post-2000 election lawsuits)
1:20 p.m. EST


Moderated Conversation with the Co-Chairs Moderated by: Dana Bash<https://www.cnn.com/profiles/dana-bash-profile>, Chief Political Correspondent, CNN  Stephanie Cutter<https://www.cnn.com/CNN/anchors_reporters/cutter.stephanie.html>
Political Commentator, CNN; Deputy Campaign Manager, President Barack Obama’s 2012 Re-election Campaign Beth Myers, J.D.<https://iop.harvard.edu/fellows/beth-myers>
Fellow, Harvard Kennedy School Institute of Politics; Senior Advisor, Mitt Romney’s 2012 Presidential Campaign; Campaign Manager, Mitt Romney’s 2008 Presidential Campaign
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Chris Krebs: “Trump fired me for saying this, but I’ll say it again: The election wasn’t rigged”<https://electionlawblog.org/?p=119206>
Posted on December 1, 2020 3:39 pm<https://electionlawblog.org/?p=119206> by Rick Hasen<https://electionlawblog.org/?author=3>

Krebs WaPo oped<https://www.washingtonpost.com/opinions/christopher-krebs-trump-election-wasnt-hacked/2020/12/01/88da94a0-340f-11eb-8d38-6aea1adb3839_story.html>:

In 2016, five states used DREs statewide, including Georgia and Pennsylvania, with a handful of others using DREs in multiple jurisdictions. Fortunately, by 2020, Louisiana was the last one with statewide DRE usage. Congress provided grant funding in 2018, 2019 and 2020 to states to help them retire the paperless machines and roll out auditable systems. As the 2020 election season began, Delaware, Georgia, Pennsylvania and South Carolina all swapped over to paper-based systems<https://www.aaas.org/news/election-day-2019>. Then the emergence of the pandemic prompted a nationwide surge toward the use of voting by mail.

The combined efforts over the past three years moved the total number of expected votes cast with a paper ballot above 90 percent, including the traditional battleground states. While I no longer regularly speak to election officials, my understanding is that in the 2020 results no significant discrepancies attributed to manipulation have been discovered in the post-election canvassing, audit and recount processes.

This point cannot be emphasized enough: The secretaries of state in Georgia, Michigan, Arizona, Nevada and Pennsylvania, as well officials in Wisconsin, all worked overtime to ensure there was a paper trail that could be audited or recounted by hand, independent of any allegedly hacked software or hardware.

That’s why Americans’ confidence in the security of the 2020 election is entirely justified. Paper ballots and post-election checks ensured the accuracy of the count. Consider Georgia: The state conducted a full hand recount <https://www.washingtonpost.com/elections/2020/11/19/joe-biden-trump-transition-live-updates/?itid=lk_inline_manual_19> of the presidential election, a first of its kind, and the outcome of the manual count was consistent with the computer-based count. Clearly, the Georgia count was not manipulated, resoundingly debunking claims<https://apnews.com/article/fact-check-trump-legal-team-false-claims-5abd64917ef8be9e9e2078180973e8b3> by the president and his allies about the involvement of CIA supercomputers<https://www.snopes.com/fact-check/hammer-scorecard-vote-counts/>, malicious software programs or corporate rigging aided by long-gone foreign dictators.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Video of the Day<https://electionlawblog.org/?p=119204>
Posted on December 1, 2020 2:32 pm<https://electionlawblog.org/?p=119204> by Rick Hasen<https://electionlawblog.org/?author=3>

Just watch this:<https://twitter.com/ABC/status/1333885609027514372>
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Posted in Uncategorized<https://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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