[EL] ELB News and Commentary 12/5/20

[Rick Hasen]

Trump’s Continuing Failing Lawsuits as a Loss Leader, Grift, and Delegitimization Device<https://electionlawblog.org/?p=119328>
Posted on December 5, 2020 1:46 pm<https://electionlawblog.org/?p=119328> by Rick Hasen<https://electionlawblog.org/?author=3>

Three weeks ago<https://lawandcrime.com/2020-election/its-over-election-law-experts-declare-trumps-legal-challenges-100-percent-dead-in-the-water/>, I and others in the election law field determined that Trump’s path to use lawsuits to overturn the results of the election were dead. The campaign had uncovered no significant fraud or irregularities and none of the states where Trump lost were close enough that a recount could plausibly change the results of the election. By one count, Trump has lost 46 of his lawsuits and won only one minor one, in PA.

But the lawsuits keep coming and coming. They make much more sense when one thinks of them as about grift and delegitimizing the upcoming Biden presidency.

As to grift: Trump is spending perhaps a few hundred thousand dollars on lawsuits (he hasn’t hired leading election lawyers) and spent about $3 million on a failed, partial recall in Wisconsin. But the campaign has brought in something like $200 million since the election. The lawsuits act as loss leader that brings people into the store to spend lots of money. As of now, 75% of the money raised does not go to for the litigation fight but is going to Trump’s new leadership PAC which he can use as a kind of personal slush fund. He’s going to be well situated to engage in some self-dealing through this fund thanks to the porous rules for leadership PACs.

As to delegitimization: As I was driving today, I saw a “Stop the Steal” protest on a freeway overpass with a couple of dozen demonstrators in Thousand Oaks, CA. The false message is getting through loud and clear to Trump’s most ardent supporters that Biden has stolen the election. No amount of evidence or loss of court cases will convince them otherwise. Indeed, the more they lose, the more it demonstrates a vast conspiracy. It’s disgusting and horrible and will have long term bad consequences for our democracy.

Trump is likely doing this for his ego to explain his loss to Joe Biden and for the grift.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Just 27 congressional Republicans acknowledge Biden’s win, Washington Post survey finds”<https://electionlawblog.org/?p=119326>
Posted on December 5, 2020 1:24 pm<https://electionlawblog.org/?p=119326> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/survey-who-won-election-republicans-congress/2020/12/04/1a1011f6-3650-11eb-8d38-6aea1adb3839_story.html>:

Just 27 congressional Republicans acknowledge Joe Biden’s win over President Trump a month after the former vice president’s clear victory of more than 7 million votes nationally and a convincing electoral-vote margin that exactly matched Trump’s 2016 tally.

Two Republicans consider Trump the winner despite all evidence showing otherwise. And another 220 GOP members of the House and Senate — about 88 percent of all Republicans serving in Congress — will simply not say who won the election.

Those are the findings of a Washington Post survey of all 249 Republicans in the House and Senate that began the morning after Trump posted a 46-minute video Wednesday evening in which he wrongly claimed he had defeated Biden and leveled wild and unsubstantiated allegations of “corrupt forces” who stole the outcome from the sitting president.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Hearing Monday in Latest Legal Fight Over Who Has Won #NY-22 Congressional Race With Candidates Now Separated by 12 Votes<https://electionlawblog.org/?p=119324>
Posted on December 5, 2020 1:20 pm<https://electionlawblog.org/?p=119324> by Rick Hasen<https://electionlawblog.org/?author=3>

Keep your eye on this<https://romesentinel.com/stories/hearing-monday-to-sort-out-confusion-key-issue-in-22nd-district-rematch-whether-issues-with,107465>:

State Supreme Court Justice Scott DelConte has scheduled a hearing for 1 p.m. Monday in Oswego to determine the next step in sorting out who won the election a month ago for the seat in Congress representing New York’s 22nd District.

The judge will hear from legal teams representing first-term incumbent Anthony Brindisi of Utica and challenger former Republican member of Congress Claudia Tenney.

Tenney’s lawyers filed a motion this week asking DelConte to basically end the case by directing each of the eight county election boards to report certified results to the state Board of Elections. As tallied so far, Tenney would win by 12 votes.

The lawyers say it is impossible to say whether certain ballots were included in the counts the boards have provided because many ballots lack proper documentation. Oneida County election officials told the judge earlier that they put sticky notes on objected-to ballots only to have many ballots lose the notes. They cited previous court rulings in New York supporting their contention….

Brindisi’s team, led by Martin Connor of Brooklyn, contends that state election statutes and case law allow the judge to have the election boards correct mistakes made in recording objections to ballots and just which ballots have been counted. In their memorandum, the Brindisi lawyers cite a 1925 Oneida County case where the court held the court has jurisdiction even if the statement of canvass listed no void or challenged ballots but where witnesses established that votes were challenged.
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Posted in recounts<https://electionlawblog.org/?cat=50>


Trump Administration Files Supreme Court Brief Urging It To Hear Case That Could Weaken Campaign Finance Disclosure Rules<https://electionlawblog.org/?p=119322>
Posted on December 5, 2020 1:16 pm<https://electionlawblog.org/?p=119322> by Rick Hasen<https://electionlawblog.org/?author=3>

The Court had invited the views of the Solicitor General about whether or not it should take the case, and now the office has filed this brief<https://www.justice.gov/sites/default/files/briefs/2020/11/24/19-251acunitedstates_page_proofs.pdf>. It would not surprise me to see the Biden Administration taking a contrary position on this issue should the Court agree to hear the case (which I expect it will).
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


Ben Ginsberg Oped: “America may not be so lucky next time”<https://electionlawblog.org/?p=119320>
Posted on December 5, 2020 1:13 pm<https://electionlawblog.org/?p=119320> by Rick Hasen<https://electionlawblog.org/?author=3>

In WaPo<https://www.washingtonpost.com/opinions/america-may-not-be-so-lucky-next-time/2020/12/04/044e0c58-365d-11eb-b59c-adb7153d10c2_story.html>:

The country was lucky that President Trump and his reelection campaign were so inept. He ultimately lost by a wide margin, and his challenges to the results have been farcical. His rhetoric ramped up<https://www.washingtonpost.com/politics/trump-election-video/2020/12/02/f6c8d63c-34e8-11eb-a997-1f4c53d2a747_story.html?itid=lk_inline_manual_2> in inverse proportion to his ability to produce evidence supporting his charges of systemic “fraud” or “rigged” elections.

The United States might not be so lucky next time. What if the 2020 election had been as close as it was in 2000, and the outcome hinged on a state (or states) with a truly narrow margin? How would the country have fared under a Trump-style assault on democracy’s foundations?

Trump’s attempts to negate millions of votes by challenging state certifications revealed cracks in those foundations. Some shoring-up is clearly needed before the next election cycle begins. A good place to start might be with the appointment of a bipartisan commission that would propose election reforms to Congress and the states. Here are half a dozen suggestions to get things started:…

Strengthening election laws and modernizing the processing of ballots are important, but no matter how laws are written or what upgrades are instituted, bad actors can find a way to test the limits. The 2020 election showed that the United States’ laws and institutions can always be improved. Yet the reason the system held and Trump failed was that countless individuals honorably did their duty under those laws, even while sometimes under furious attack from the president and his allies.

As a Republican, I am especially proud of how those from my own party charged with running and certifying elections met the moment. They and their colleagues in the states and localities are the reason the country passed this stress test. The Founders, in their wisdom, designed a system that could rely on Americans themselves as the nation’s last line of defense.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Lawsuit filed week after election to stop certification dismissed by 11th Circuit Court of Appeals; The suit, filed by Lin Wood, had earlier been dismissed by the U.S. District Court for the Northern District of Georgia”<https://electionlawblog.org/?p=119317>
Posted on December 5, 2020 1:05 pm<https://electionlawblog.org/?p=119317> by Rick Hasen<https://electionlawblog.org/?author=3>

11Alive:<https://www.11alive.com/article/news/politics/elections/lin-wood-suit-dismissed-by-11th-circuit/85-4cc305df-c5c8-43ef-9e4b-cdf71bf24475>

The first major lawsuit<https://www.11alive.com/article/news/politics/elections/well-known-georgia-attorney-files-suit-against-secretary-of-state/85-36c28599-e5a1-48a0-9e92-41768db6cacc> that was filed in Georgia to contest the 2020 election, by Lin Wood a week after the election to try and stop the state from certifying its results, was dismissed for a second time on Saturday.

The 11th Circuit U.S. Court of Appeals<https://www.ca11.uscourts.gov/todays-published-opinions>, in Atlanta, issued a unanimous 3-0 ruling<https://media.ca11.uscourts.gov/opinions/pub/files/202014418.pdf> affirming a ruling in the lower U.S. District Court for the Northern District of Georgia tossing the lawsuit.

The court determined that Wood’s original request for relief – an injunction against Sec. of State Brad Raffensperger from certifying the election results – was now moot, because the results are certified.

From Judge William Pryor’s unanimous opinion<https://media.ca11.uscourts.gov/opinions/pub/files/202014418.pdf>:

This appeal requires us to decide whether we have jurisdiction over an
appeal from the denial of a request for emergency relief in a post-election lawsuit.

Ten days after the presidential election, L. Lin Wood Jr., a Georgia voter, sued state election officials to enjoin certification of the general election results, to secure a new recount under different rules, and to establish new rules for an upcoming runoff election. Wood alleged that the extant absentee-ballot and recount procedures violated Georgia law and, as a result, his federal constitutional rights.

After Wood moved for emergency relief, the district court denied his motion. We agree with the district court that Wood lacks standing to sue because he fails to allege a particularized injury. And because Georgia has already certified its election results and its slate of presidential electors, Wood’s requests for emergency relief are moot to the extent they concern the 2020 election. The Constitution makes clear that federal courts are courts of limited jurisdiction, U.S. Const. art. III; we may not entertain post-election contests about garden-variety issues of vote counting and misconduct that may properly be filed in state courts.
We affirm.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump calls Georgia governor to pressure him for help overturning Biden’s win in the state”<https://electionlawblog.org/?p=119315>
Posted on December 5, 2020 12:57 pm<https://electionlawblog.org/?p=119315> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/trump-kemp-call-georgia/2020/12/05/fd8d677c-3721-11eb-8d38-6aea1adb3839_story.html>:

President Trump called Georgia Gov. Brian Kemp (R) on Saturday morning to urge him to persuade the state legislature to overturn President-elect Joe Biden’s victory in the state and asked the governor to order an audit of absentee ballot signatures, the latest brazen effort by the president to interfere in the 2020 election.

Hours before he was scheduled to hold a rally in Georgia on behalf of the state’s two GOP senators, Trump pressed Kemp to call a special session of the state legislature to get lawmakers to override the results and appoint electors that would back him, according to a person familiar with the conversation who spoke on the condition of anonymity to describe the private call. He also asked the governor to demand an audit of signatures on mail ballots, something Kemp has previously noted he has no power to do.

Kemp declined the entreaty from Trump, according to the person.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Facebook didn’t label some Georgia-related election misinformation, activist group says”<https://electionlawblog.org/?p=119313>
Posted on December 4, 2020 5:21 pm<https://electionlawblog.org/?p=119313> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/business/live-news/election-2020-misinformation/h_6a90caa92fb1b9ce5d859900a283998b>:

Facebook failed to apply fact-check labels on some election misinformation related to Georgia, according to a report from activist group Avaaz.

Facebook has relied on fact-checking and contextual labels as a centerpiece of its strategy for combating misinformation about elections and voting, and it uses artificial intelligence to help determine what posts should get a label. Avaaz’s report highlights some of the shortcomings of these systems as Georgia heads for a contentious Senate runoff on January 5.

Researchers at the non-profit analyzed 204 Facebook posts promoting 12 different disinformation claims that had been independently fact-checked and found that only 40% of them had a fact check label applied. Meanwhile, 30% of the posts had just a generic information label about the election and 30% had no label at all. The posts were found between November 18 and 20.

In addition to stating that information is false, fact-checking labels are vital because the spread of false posts is curtailed by Facebook’s algorithm.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>


Wisconsin: “Trump-appointed judge calls president’s request ‘bizarre’ and expresses skepticism toward ruling in his favor”<https://electionlawblog.org/?p=119311>
Posted on December 4, 2020 4:09 pm<https://electionlawblog.org/?p=119311> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2020/12/04/trump-appointed-judge-calls-presidents-request-wisconsin-bizarre/3826351001/>

A federal judge expressed skepticism toward one of President Donald Trump’s lawsuits challenging Wisconsin’s election results on Friday, a day after the state Supreme Court rejected similar litigation.

U.S. District Judge Brett Ludwig — a Trump appointee<https://www.jsonline.com/story/news/politics/2020/09/09/trump-nominee-approved-milwaukee-federal-court/5756814002/> — told an attorney for the president he was asking for “pretty remarkable declaratory relief” by asking to have the fate of Wisconsin’s 10 electoral votes decided by the Republican-led Legislature instead of voters.

He questioned whether the case<https://www.jsonline.com/story/news/politics/elections/2020/12/03/trump-files-federal-court-challenge-wisconsin-election-outcome/3807794001/> should even be before him, noting Trump is arguing the state Legislature has the power under the U.S. Constitution to decide who to send to the Electoral College.

“If that’s the case, why are we doing anything in this court and if that’s the appropriate arena for a remedy, why isn’t the plaintiff going to the Legislature?” Ludwig asked.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Arizona Court, Find No Fraud or Irregularities, Rejects Calls to Block Certification of Presidential Electors<https://electionlawblog.org/?p=119309>
Posted on December 4, 2020 3:53 pm<https://electionlawblog.org/?p=119309> by Rick Hasen<https://electionlawblog.org/?author=3>

Order and opinion<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Order-2.pdf>.
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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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