[EL] ELB News and Commentary 12/4/20

[Rick Hasen]

Justice Alito Slow-Walks Rep. Kelly’s Pennsylvania Emergency Petition, Requiring a Response from the State on Dec. 9, After the Safe Harbor Deadline: What Does It All Mean?<https://electionlawblog.org/?p=119284>
Posted on December 3, 2020 8:22 pm<https://electionlawblog.org/?p=119284> by Rick Hasen<https://electionlawblog.org/?author=3>

Although it is not yet reflected on the docket<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\20a98.html>, Justice Alito has reportedly<https://twitter.com/lawrencehurley/status/1334662656549150721> set a deadline of December 9 for the state of PA to respond to Rep. Kelly’s petition<https://www.supremecourt.gov/DocketPDF/20/20A98/162573/20201203162739451_Final_Emergency%20Application%20for%20Writ%20of%20Injunction.pdf> seeking to nullify the vote in Pennsylvania (a petition I expect to easily fail<https://electionlawblog.org/?p=119196>).

Justice Alito could have simply denied the petition, which is what I had expected given its lack of merit, but he asked for a response and after receiving the response he can either decide the matter himself or send it to the Court. He gave a relatively long deadline for a response, and the specific date of Dec. 9 is significant.

The timing here matters. Any final determination of the slate of electors made in a state by the so-called “safe harbor deadline” under the federal Electoral Count Act is entitled to be conclusively accepted as valid by Congress. This year that deadline is Dec. 8. The electors themselves vote on December 14. By setting the deadline for a response as December 9, this means that the Supreme Court won’t act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania.

The Court could conceivably act between Dec. 9 and Dec. 14 and the matter would not be technically moot. (I think it would be moot after Dec. 14 has passed). But back in Bush v. Gore, a key reason the Court refused to remand the case to the Florida Supreme Court to order a recount was the idea that Florida wanted to take advantage of the safe harbor deadline, which was the very day the Court decided Bush v. Gore. The Supreme Court would not easily mess with deciding something about electors after that date under the best of circumstances.

Speaking more generally, courts are going to be very reluctant to mess with the safe harbor deadline. That’s why today’s ruling <https://electionlawblog.org/?p=119264> in the Wisconsin Supreme Court refusing to take up the Trump Campaign’s election challenge and directing it back to the lower courts is so significant too. Every day that passes makes any judicial action less and less likely.

To be clear, I don’t see a path for Trump to use court cases to overturn the election results in even one state, much less the three states he would need at a minimum to get a different result in the electoral college. But as the clock ticks down, those tiny chances fade into nothing.
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>


Pennsylvania GOP Legislative Leadership Unequivocally Rules Out the Possibility of Trying to Appoint Alternative Slate of Presidential Electors<https://electionlawblog.org/?p=119280>
Posted on December 3, 2020 7:55 pm<https://electionlawblog.org/?p=119280> by Rick Hasen<https://electionlawblog.org/?author=3>

See this statement<https://www.pasenategop.com/wp-content/uploads/2020/12/election-reform-120320.pdf> (via Forbes<https://www.forbes.com/sites/alisondurkee/2020/12/03/pennsylvania-gop-lawmakers-make-clear-they-wont-overturn-the-election-as-trump-wants/?sh=3a4b4aea2b39>):

While we clearly recognize the need for legislative action to address the issues presented by the 2020 General Election, some of the actions requested by our residents would require us to disregard the statutes and Constitution we have fought so hard to protect during this pandemic. For instance, despite calls for the legislature to report for session in December, the General Assembly lacks the statutory authority to call itself into session between December 1, 2020 and the first Tuesday in January 2021. Any session days during this period would have to be called by the Governor.

Further, the General Assembly lacks the authority to take action to overturn the popular vote and appoint our own slate of presidential electors. It is true that under Article II, Section 1 of the United States Constitution, the state is to appoint, “in such Manner as the Legislature thereof may direct, a Number of Electors…” Very basically, that means that the General Assembly gets to choose how the electors are selected.

Under the Pennsylvania Election Code, in a provision that dates back to the Act’s adoption in 1937 and which follows a practice the Commonwealth has followed for nearly as long as we’ve been electing Presidents, the General Assembly has directed that the “manner” of appointing electors is by the popular vote. Section 1501 of the Act essentially says that when we vote for President, we are instead voting for a candidate’s slate of electors, and the slate that wins the popular vote becomes our designated electors.

We cannot take steps to appoint electors for this election given these provisions in the Election Code. Doing so would violate our Election Code and Constitution, particularly a provision that prohibits us from changing the rules for election contests of the President after the election. It would also set a precedent that a simple majority of the General Assembly can override the will of the people as evidenced by the popular vote.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Lawsuit challenges Alaska’s new ranked-choice voting ballot measure”<https://electionlawblog.org/?p=119278>
Posted on December 3, 2020 7:41 pm<https://electionlawblog.org/?p=119278> by Rick Hasen<https://electionlawblog.org/?author=3>

Anchorage Daily News<https://www.adn.com/politics/2020/12/01/lawsuit-challenges-alaskas-new-ranked-choice-voting-ballot-measure/>:

The Alaskan Independence Party, its chairman and two Anchorage residents are suing the state of Alaska to overturn Ballot Measure 2, a sweeping election reform initiative that would install ranked-choice voting in Alaska…
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>


Rep. Kelly Tries at Supreme Court a Second Time to Get Court Order Nullifying the Results of the Election in Pennsylvania; It Still Contains the Dumbest Argument I’ve Ever Seen in An Emergency Petition<https://electionlawblog.org/?p=119276>
Posted on December 3, 2020 3:50 pm<https://electionlawblog.org/?p=119276> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the new petition here<https://www.supremecourt.gov/DocketPDF/20/20A98/162573/20201203162739451_Final_Emergency%20Application%20for%20Writ%20of%20Injunction.pdf> (here<https://electionlawblog.org/?p=119247>‘s why a second petition was necessary).

Although some of the language has been tweaked, the fundamental argument is the same. See my earlier post:  Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case<https://electionlawblog.org/?p=119196>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Must-Read Miami Herald: “Disgraced Republican lawmaker planted no-party candidate in key Senate race, sources say”<https://electionlawblog.org/?p=119274>
Posted on December 3, 2020 2:21 pm<https://electionlawblog.org/?p=119274> by Rick Hasen<https://electionlawblog.org/?author=3>

Come<https://www.miamiherald.com/news/local/community/miami-dade/article247567095.html> for the fake candidate with the same last name as the Democrat; stay for the use of sham LLCs and super pacs to obscure the identity of those behind the dirty trick.

It would not surprises me if this ends up resulting in some criminal charges.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>


“Here Are the Threats Terrorizing Election Workers; Incendiary rhetoric by President Trump and his followers is fueling a wave of threats against election workers. Some have received death threats and images of nooses and been told ‘You’re a traitor.'”<https://electionlawblog.org/?p=119272>
Posted on December 3, 2020 2:19 pm<https://electionlawblog.org/?p=119272> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Wines for the NYT.<https://www.nytimes.com/2020/12/03/us/election-officials-threats-trump.html?smid=tw-share>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump aide banned from Justice after trying to get case info”<https://electionlawblog.org/?p=119270>
Posted on December 3, 2020 1:20 pm<https://electionlawblog.org/?p=119270> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/article/donald-trump-politics-elections-7624560e990ec55383a2a3e421c3a52e>

The official serving as President Donald Trump’s eyes and ears at the Justice Department has been banned from the building after trying to pressure staffers to give up sensitive information about election fraud and other matters she could relay to the White House, three people familiar with the matter tell The Associated Press.

Heidi Stirrup, an ally of top Trump adviser Stephen Miller, was quietly installed at the Justice Department as a White House liaison a few months ago. She was told within the last two weeks to vacate the building after top Justice officials learned of her efforts to collect insider information about ongoing cases and the department’s work on election fraud, the people said.

Stirrup is accused of approaching staffers in the department demanding they give her information about investigations, including election fraud matters, the people said. They spoke on condition of anonymity because they were not authorized to publicly discuss the matter.

The effort came as Trump continues to level baseless claims that he won the election and alleges without evidence that massive voting fraud was responsible for his defeat to President-elect Joe Biden.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Postal Service Delays Disenfranchised Thousands of Legally-Cast Ballots This Fall”<https://electionlawblog.org/?p=119268>
Posted on December 3, 2020 11:15 am<https://electionlawblog.org/?p=119268> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC LX<https://www.lx.com/politics/postal-service-delays-disenfranchised-thousands-of-legally-cast-ballots-this-fall/25647/>:

US Postal Service workers likely delivered more than 99.9% of the nation’s mail ballots in-time to be counted this year, despite record participation and unprecedented pandemic-related challenges. However, it also appears the USPS disenfranchised tens of thousands of voters – who mailed legally-cast ballots the week before the election – through substandard performance.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


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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