[EL] Lawsuitpalooza; more news and commentary

[Rick Hasen]

Wisconsin Supreme Court, on 4-3 Vote, Rejects Another Attempt to Overturn the Election; Conservative Justice Hagedorn Writes Must-Read Concurrence Explaining the Unprecedented and Dangerous Nature of the Relief Sought<https://electionlawblog.org/?p=119306>
Posted on December 4, 2020 3:21 pm<https://electionlawblog.org/?p=119306> by Rick Hasen<https://electionlawblog.org/?author=3>

From the concurrence<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/2020AP1930-OAfinal-12-4-20.pdf>:

The Wisconsin Voters Alliance and a group of Wisconsin voters bring a petition for an original action raising a variety of questions about the operation of the November 3, 2020 presidential election. Some of these legal issues may, under other circumstances, be subject to further judicial consideration. But the real stunner here is the sought-after remedy. We are invited to invalidate the entire presidential election in Wisconsin by declaring it “null”—yes, the whole thing. And there’s more. We should, we are told, enjoin the Wisconsin Elections Commission from certifying the election so that Wisconsin’s presidential electors can be chosen by the legislature instead, and then compel the Governor to certify those electors. At least no one can accuse the petitioners of timidity.

Such a move would appear to be unprecedented in American history. One might expect that this solemn request would be paired with evidence of serious errors tied to a substantial and demonstrated set of illegal votes. Instead, the evidentiary support rests almost entirely on the unsworn expert report of a former campaign employee that offers statistical estimates based on call center samples and social media research.

This petition falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter. The petition does not even justify the exercise of our original jurisdiction.As an initial matter, the Wisconsin Supreme Court is not a fact-finding tribunal. Yet the petition depends upon disputed factual claims. In other words, we couldn’t just accept one side’s description of the facts or one side’s expert report even if we were inclined to believe them.

That alone means this case is not well-suited for an original action. The petition’s legal support is no less wanting. For example, it does not explain why its challenge to various election processes comes after the election, and not before. Nor does it grapple with how voiding the presidential election results would impact every other race on the ballot, or consider the import of election statutes that may provide the “exclusive remedy.”

These are just a few of the glaring flaws that render the petition woefully deficient. I therefore join the court’s order denying the original action. Nonetheless, I feel compelled to share a further observation. Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case. At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic. It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen. Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election. Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.

I do not mean to suggest this court should look the other way no matter what. But if there is a sufficient basis to invalidate an election, it must be established with evidence and arguments commensurate with the scale of the claims and the relief sought. These petitioners have come nowhere close. While the rough and tumble world of electoral politics may be the prism through which many view this litigation, it cannot be so for us. In these hallowed halls, the law must rule.

Our disposal of this case should not be understood as a determination or comment on the merits of the underlying legal issues; judicial review of certain Wisconsin election practices may be appropriate. But this petition does not merit further consideration by this court, much less grant us a license to invalidate every single vote cast in Wisconsin’s 2020 residential election.

The dissenters led by the Chief Justice would have taken the case, but expressly stated that the concerns of the concurrence were premature, and that the court often does not grant the remedies sought by litigants.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Arizona Republican Legislative Leaders Unequivocally Reject Idea of Trying to Appoint Presidential Electors Directly<https://electionlawblog.org/?p=119304>
Posted on December 4, 2020 3:04 pm<https://electionlawblog.org/?p=119304> by Rick Hasen<https://electionlawblog.org/?author=3>

Statement.<https://twitter.com/AZHouseGOP/status/1334983417562243074>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Unanimous Minnesota Supreme Court, Relying Heavily on Laches, Rejects Trump Attempt to Delay Presidential Certification<https://electionlawblog.org/?p=119301>
Posted on December 4, 2020 2:43 pm<https://electionlawblog.org/?p=119301> by Rick Hasen<https://electionlawblog.org/?author=3>

Order.<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Order-Dismiss-Not-Stipulated-Entire-Case.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Nevada Trial Court In Detailed Opinion Rejects Trump Campaign Claims of Irregularities and Rejects Contest of Presidential Election<https://electionlawblog.org/?p=119299>
Posted on December 4, 2020 2:38 pm<https://electionlawblog.org/?p=119299> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/20-OC-00163-Order-Granting-Motion-to-Dismiss-Statement-of-Contest.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Michigan Appeals Court on 2-1 Vote Rejects Trump Challenge to Election Certification as Untimely [Corrected link]<https://electionlawblog.org/?p=119297>
Posted on December 4, 2020 2:33 pm<https://electionlawblog.org/?p=119297> by Rick Hasen<https://electionlawblog.org/?author=3>

Order and dissent.<https://assets.documentcloud.org/documents/7334633/12-4-20-Trump-v-SOS-MI-COA-Order.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


$42 Million Mystery at the RNC<https://electionlawblog.org/?p=119295>
Posted on December 4, 2020 12:58 pm<https://electionlawblog.org/?p=119295> by Rick Hasen<https://electionlawblog.org/?author=3>

Roger Sollenberger<https://www.salon.com/2020/12/04/rncs-highest-paid-vendor-of-the-2020-election-a-mystery-company-formed-nine-months-ago/> for Salon:

In August, Salon reported<https://www.salon.com/2020/08/08/republicans-paid-huge-strange-sums-to-facebook-and-a-mystery-company-for-list-acquisition/> that the Republican National Committee<https://www.salon.com/topic/republican_national_committee> (RNC) had paid about $5 million to a mystery marketing services<https://www.salon.com/2020/07/28/this-scheme-is-illegal-trump-campaign-masked-170-million-in-payments-watchdog-alleges/> company called Digital Consulting Group LLC, starting with a $2 million expenditure in February, just a month after the company was formed.

Now, filings<https://www.fec.gov/data/disbursements/?data_type=processed&recipient_name=digital+consulting+group&two_year_transaction_period=2016&two_year_transaction_period=2018&two_year_transaction_period=2020> with the Federal Election Commission show that the RNC paid Digital Consulting Group more than $42 million for media buys, consulting and marketing between February and October. The company went from nonexistent to being the Republican Party’s highest-paid<https://www.salon.com/2020/09/08/short-on-cash-trump-campaign-appears-to-be-hiding-large-dollar-payments-to-top-staff/> vendor of the 2020 election, all in the space of eight months.

But Digital Consulting Group presents a mystery. No other political campaign or committee has reported any payments at all to the company. While a number of organizations share the name<http://dcgpros.com/>, this particular Digital Consulting Group — a Delaware company founded Jan. 15, 2020 — does not appear to have a website, and a Delaware business entity search does not reveal an owner or location. The RNC’s spending reports list a virtual address in Wilmington, but beyond that the company cannot be traced.

That $42 million in expenditures makes this anonymous company the RNC’s highest-paid vendor of the last two years, pulling in nearly $3.5 million more than the next-largest vendor, the direct-mail firm Communications Corporation of America<http://www.cca.net/> (CCA), and topping third-place JDB Marketing, another direct mail provider, by about $19 million.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


As Path to Overturn Pennsylvania Election Results Closes Completely, Trump Campaign Apparently Abandons Seeking Supreme Court Emergency Relief in Third Circuit Case<https://electionlawblog.org/?p=119293>
Posted on December 4, 2020 8:34 am<https://electionlawblog.org/?p=119293> by Rick Hasen<https://electionlawblog.org/?author=3>

Philadelphia Inquirer<https://www.inquirer.com/news/pennsylvania-election-results-trump-general-assembly-supreme-court-mike-kelly-20201204.html>:

If its fate had not been abundantly clear already, President Donald Trump’s dream of having Pennsylvania’s GOP-controlled legislature overturn the state’s election results received what appeared to be its final death blows Thursday with a late-night order from the U.S. Supreme Court and an unequivocal statement from the General Assembly’s Republican leadership that they had no intention of doing so.

The Supreme Court order came in response to a request from one of the president’s top boosters in Congress, U.S. Rep. Mike Kelly (R., Pa.), who has asked the justices to declare the state’s vote-by-mail law unconstitutional<https://www.inquirer.com/news/pennsylvania-election-lawsuits-mike-kelly-supreme-court-trump-barr-20201201.html> and to “decertify” Pennsylvania’s results, which cemented President-elect Joe Biden’s victory by roughly 81,000 votes<https://www.inquirer.com/politics/election/pennsylvania-certification-2020-presidential-election-vote-20201124.html> last week.

But just hours after Kelly filed that appeal Thursday, U.S. Supreme Court Justice Samuel A. Alito Jr. crafted a telling schedule for the case, giving state officials until Dec. 9 to file their reply.

That date set by Alito — who oversees emergency matters arising from Pennsylvania, New Jersey and Delaware for the court — comes one day after what is known as the “safe harbor date,” the federal deadline for states to resolve any outstanding challenges to their elections. Beyond it, the state’s slate of appointed electors is considered to be locked in for the Dec. 14 Electoral College vote.

It is still possible — though, election law experts said, unlikely — that the Supreme Court could decide to consider Kelly’s appeal about the constitutionality of Pennsylvania’s mail voting law<https://www.inquirer.com/news/pennsylvania-election-results-lawsuit-congressman-mike-kelly-donald-trump-commonwealth-court-20201121.html> outside the context of the 2020 election.

But the schedule laid out by Alito appeared to foreclose any chance of the court weighing in before its outcome had been finalized….

But facing continued pressure from a segment of their party, Senate President Pro Tempore Jake Corman (R., Centre), and Majority Leader Sen. Kim Ward, (R., Westmoreland) joined House Speaker Bryan Cutler (R., Lancaster) and Majority Leader Kerry Benninghoff (R., Centre) in issuing their most definitive statement yet declaring the matter dead.

“The General Assembly lacks the authority to take action to overturn the popular vote and appoint our own slate of presidential electors,” it read. “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.”…

After the U.S. Court of Appeals for the Third Circuit rejected the latest Trump campaign legal challenge<https://www.inquirer.com/politics/election/pennsylvania-lawsuit-trump-election-third-circuit-appeal-supereme-court-20201127.html> last week, lawyers Rudy Giuliani and Jenna Ellis immediately vowed they, like Kelly, would take their case to the Supreme Court, where they felt confident that the conservative majority the president helped cement there would rule in their favor.

But seven days later and with time running out before the “safe harbor” date, they have taken no steps to file that appeal.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Supreme Court<https://electionlawblog.org/?cat=29>


“Trump Fundraising Surges After Election As He Makes False Claims It Was Rigged”<https://electionlawblog.org/?p=119291>
Posted on December 4, 2020 7:55 am<https://electionlawblog.org/?p=119291> by Rick Hasen<https://electionlawblog.org/?author=3>

Tamara Keith<https://www.npr.org/sections/biden-transition-updates/2020/12/04/942930782/trump-fundraising-surges-after-election-as-he-makes-false-claims-it-was-rigged?utm_source=dlvr.it&utm_medium=twitter> for NPR:

After President Trump lost the election to President-elect Joe Biden, the campaign’s emails and texts to supporters carried on, urgently pushing them to donate money — a strategy that seems to have paid off.

The Trump campaign, the Republican National Committee, affiliated fundraising committees and a new political action committee (PAC) called Save America have together raised $207.5 million<https://www.npr.org/2020/05/20/858347477/money-tracker-how-much-trump-and-biden-have-raised-in-the-2020-election> since the election, according to the campaign….

As NPR has reported, Trump is seriously considering<https://www.npr.org/sections/biden-transition-updates/2020/12/02/941715903/president-trump-seriously-considering-2024-run-as-he-continues-false-2020-claims> running for president again in 2024 and his loyal base of supporters and small dollar donors will allow him to be a force in the Republican party well after he moves out of the White House.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Latest Sidney Powell Bonkers Lawsuit Contains Apparent Typo, Falsely Says Voting Machines Flipping Votes from Biden to Trump<https://electionlawblog.org/?p=119289>
Posted on December 4, 2020 7:45 am<https://electionlawblog.org/?p=119289> by Rick Hasen<https://electionlawblog.org/?author=3>

Funny<https://twitter.com/bluestein/status/1334868397721591808> if it were not so despicable:
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump Pentagon nominee spreads debunked conspiracies and tweets suggesting Trump declare martial law”<https://electionlawblog.org/?p=119287>
Posted on December 4, 2020 7:43 am<https://electionlawblog.org/?p=119287> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/12/04/politics/trump-nominee-pentagon-martial-law/index.html>

President Donald Trump’s nominee to become a senior Pentagon official spread debunked conspiracies on Twitter that called Trump’s election loss<https://www.cnn.com/2020/12/03/politics/trump-election-lawsuits/index.html> to Joe Biden a “coup” attempt and shared tweets that suggest Trump should declare martial law.

Scott O’Grady, a former fighter pilot and Trump loyalist, repeatedly retweeted tweets that falsely stated Trump won the election in “landslide fashion” and that millions of votes were stolen from the President.On November 25, O’Grady retweeted a tweet that said, “Trump won & Biden & his Comrades will now attempt a coup,” next to a photoshopped image of Biden beside Xi Jinping, the President of China.

On December 2, he retweeted an account that shared an article that said former national security adviser Michael Flynn<https://www.cnn.com/2020/11/30/politics/michael-flynn-pardon-filing/index.html> had shared a petition that called for martial law. He then retweeted the same account which suggested that Trump should declare martial law.

“I don’t know who needs to hear this,” the account said, “But calling for martial law is not a bad idea when there is an attempted coup against the president and this country happening right now.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>



--
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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