[EL] ELB News and Commentary 12/7/20

[Rick Hasen]

“Why Kemp won’t call a special session to illegally overturn Georgia’s election”<https://electionlawblog.org/?p=119365>
Posted on December 7, 2020 7:58 am<https://electionlawblog.org/?p=119365> by Rick Hasen<https://electionlawblog.org/?author=3>

Greg Bluestein<https://www.ajc.com/politics/politics-blog/why-kemp-wont-call-an-illegal-special-session-to-overturn-georgias-election/6L6KT2NZEZCU7MYXADEBLIO6S4/> for AJC:

Gov. Brian Kemp has already defied<https://www.ajc.com/politics/politics-blog/why-kemp-wont-attend-trumps-georgia-rally-on-saturday/4ZGHTTK5YJDIDJ7YVUMTPEIMGY/> President Donald Trump’s calls to illegally overturn Georgia’s election results. Now he and other Republican leaders are shooting down an effort by pro-Trump legislators to demand a special session to brazenly award Georgia’s 16 electoral votes to the GOP.

The governor and other Republican leaders first ruled out a special session<https://www.bakersfield.com/ap/news/georgia-leaders-reject-calls-for-special-session-to-change-runoff-voting-rules/article_feab4bfe-dccd-5b7f-9332-aa1a2c8147f1.html> to help Trump undo Joe Biden’s victory on Nov. 10, and he rejected<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwivjsyX_brtAhXImVkKHWvDDgEQFjAAegQIAxAC&url=https%3A%2F%2Fwww.baltimoresun.com%2Fnews%2Fnation-world%2Fct-trump-georgia-governor-kemp-call-20201205-lj4owcrbpvgidc74spaqmb5k4i-story.html&usg=AOvVaw2EQrywlX1z5ufLYrhnGkOJ> the president’s extraordinary personal plea to intervene in the election results on Saturday.

But Kemp elaborated on his stance late Sunday after four Republican state senators – Brandon Beach, Greg Dolezal, William Ligon and Burt Jones – drafted a petition<http://secure.campaigner.com/csb/Public/show/5is4-2bzvwo--sn1lc-qkxshy9> seeking an emergency special session because of “systemic failures” in the election system.

State elections officials have said there is no widespread evidence of fraud and Georgia courts have thrown out several complaints seeking to block the certification of the vote. But Trump’s false narrative of a “stolen” election has seeped deeply<https://www.ajc.com/politics/faith-shaken-in-system-trumps-georgia-supporters-consider-skipping-us-senate-runoffs/4KPPDIUSVBEFZD6OTTPGUAQ2SE/> into the Georgia GOP and sparked a bitter internal feud.

The petition circulating over the weekend seeks<http://media.campaigner.com/media/25/257620/PETITION.call%20and%20convene.SENATE.pdf> to allow the Republican-controlled Legislature to “take back the power to appoint electors.” Jones, one of the organizers, said “untrustworthy” election results compelled the demand.ADVERTISING

“It is time for our legislative body to do its job,” he said.

Kemp and Lt. Gov. Geoff Duncan, who acknowledged Joe Biden’s victory on CNN on Sunday, issued a lengthy statement detailing that a special session is “not an option that is allowed under state or federal law” – a lengthier way of saying it was illegal.

The New York Times reports<https://www.nytimes.com/live/2020/12/07/us/joe-biden-trump#georgia-officials-say-the-state-will-recertify-election-results-today> that Georgia will recertify its results today after the Trump campaign’s requested recount failed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Another weekend, another trio of brutal legal filings for the Trump-backed voter fraud effort”<https://electionlawblog.org/?p=119363>
Posted on December 7, 2020 7:52 am<https://electionlawblog.org/?p=119363> by Rick Hasen<https://electionlawblog.org/?author=3>

Aaron Blake<https://www.washingtonpost.com/politics/2020/12/07/another-weekend-another-batch-brutal-legal-filings-trump-backed-voter-fraud-effort/> for WaPo.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Federal judge rejects GOP effort to overturn Michigan election results”<https://electionlawblog.org/?p=119361>
Posted on December 7, 2020 7:49 am<https://electionlawblog.org/?p=119361> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/12/07/judge-rejects-overturn-michigan-election-results-443411>

A federal judge on Monday tore apart Republican efforts to overturn the election results in Michigan, calling the lawsuit itself — brought by President Donald Trump’s electors in the state — an apparent effort to damage democracy.

“In fact, this lawsuit seems to be less about achieving the relief Plaintiffs seek — as much of that relief is beyond the power of this Court — and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government,” said Judge Linda Parker, of the U.S. District Court of Eastern Michigan.

Parker’s 35-page opinion<https://www.courtlistener.com/recap/gov.uscourts.mied.350905/gov.uscourts.mied.350905.62.0_3.pdf>, released after midnight Monday morning, found the legal argument of the Trump electors defective for multiple reasons, most notably that it was moot because the state had already certified President-elect Joe Biden’s win in the state, sending his electors to the Electoral College. She also found that the plaintiffs lacked standing to bring the suit, and brought it too late to be heard.

But Parker was at her most forceful when she considered the GOP electors’ goal: reversing Michigan’s entire election, disenfranchising millions of voters and declaring Trump the winner.

“With nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden, Plaintiffs’ equal protection claim fails,” Parker said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Zeynep Tufekci in The Atlantic on Trump’s Incompetent Attempt to Steal the Election and Entrenching Minority Rule<https://electionlawblog.org/?p=119359>
Posted on December 7, 2020 7:47 am<https://electionlawblog.org/?p=119359> by Rick Hasen<https://electionlawblog.org/?author=3>

Here:<https://www.theatlantic.com/ideas/archive/2020/12/trumps-farcical-inept-and-deadly-serious-coup-attempt/617309/>

What makes this moment deeply alarming—and makes Republicans’ overwhelming silence and tacit approval deeply dangerous, rather than merely an attempt to run out the clock on the president’s clownish behavior—is that Trump’s attempt to steal this election builds on a process that has already entrenched minority rule around the country.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Trump’s false fraud claims are laying groundwork for new voting restrictions, experts warn”<https://electionlawblog.org/?p=119357>
Posted on December 7, 2020 7:44 am<https://electionlawblog.org/?p=119357> by Rick Hasen<https://electionlawblog.org/?author=3>

Jane Timm<https://www.nbcnews.com/politics/elections/trump-s-false-fraud-claims-are-laying-groundwork-new-voting-n1250059> for NBC News.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Conservative nonprofit group challenging election results around the country has tie to Trump legal adviser Jenna Ellis”<https://electionlawblog.org/?p=119355>
Posted on December 7, 2020 7:41 am<https://electionlawblog.org/?p=119355> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/thomas-more-jenna-ellis/2020/12/07/09057432-362d-11eb-b59c-adb7153d10c2_story.html>:

A conservative legal organization that has filed lawsuits challenging the election results in five states has a tie to President Trump’s legal team, raising questions about the independence of what has appeared to be an endeavor separate from the president’s last-gasp legal maneuvering.

Senior Trump campaign legal adviser Jenna Ellis serves as special counsel to the Thomas More Society, which has filed lawsuits through the newly formed Amistad Project alleging problems with the vote in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin.

The Thomas More Society confirmed her relationship to the group but said she is playing no role in its election-related activities.

However, her affiliation with the organization — as well as other links between Trump’s team and the conservative group — suggest a coordinated effort to flood the nation’s courts with repetitive litigation that allows the president to claim the election results remain contested.

The first glimpse of the Amistad Project came late this summer, when the new legal outfit popped up in courts across the country, trying to stop county election officials from taking grants to bolster their operations amid the pandemic.

A lawyer who works with the group was also spotted encouraging Republican observers to challenge the absentee ballot count at Detroit’s TCF Center on Election Day.

The Thomas More Society, a Chicago-based nonprofit law firm focused on religious liberty issues, has said the Amistad Project is “dedicated to election integrity” in the public interest.

“As a tax-exempt organization, the Thomas More Society doesn’t support or endorse candidates, but when our election laws and even our constitution are under attack, we take action,” the group said <https://spark.adobe.com/page/8NYY1GEjpetzC/?fbclid=IwAR3bWw0nBhC1-7NSArThGW6eDG-U1G48dIdzp4FeiAMAJlvVztYZFnBtuGk> in an October announcement.
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Posted in tax law and election law<https://electionlawblog.org/?cat=22>


Armed Protestors Outside of Michigan Secretary of State Jocelyn Benson’s Home<https://electionlawblog.org/?p=119353>
Posted on December 6, 2020 5:22 pm<https://electionlawblog.org/?p=119353> by Rick Hasen<https://electionlawblog.org/?author=3>

Despicable and dangerous<https://twitter.com/JocelynBenson/status/1335752102140923906?s=20>.

We in America are better than this.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“It didn’t need to take that long: What Pennsylvania’s election could have looked like with earlier counting “<https://electionlawblog.org/?p=119350>
Posted on December 6, 2020 1:14 pm<https://electionlawblog.org/?p=119350> by Richard Pildes<https://electionlawblog.org/?author=7>

Excellent Philly Inquirer, Jonathan Lai story<https://fusion.inquirer.com/politics/election/pennsylvania-mail-ballots-pre-canvassing-20201206.html> with some good dataviz:

It’s impossible to know how events would have played out in an alternative world in which Pennsylvania counted enough ballots for Biden’s victory to be declared in the hours after voting ended. But it’s clear that the long vote count created a window for mis- and disinformation, with lies and false claims spreading quickly based on a flawed understanding of the counting process.
[cid:image002.png at 01D6CC6F.14CB1CE0]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Michigan: “Trump attorney: ‘Our team’ examining Antrim voting equipment after judge issued order”<https://electionlawblog.org/?p=119347>
Posted on December 6, 2020 8:29 am<https://electionlawblog.org/?p=119347> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press:<https://www.freep.com/story/news/politics/elections/2020/12/06/trump-legal-team-examining-antrim-county-voting-equipment/3847931001/>

President Donald Trump’s legal team is examining and taking images from 22 vote tabulators in Antrim County Sunday morning after a judge issued an order later Friday, a Trump attorney said.

“A judge actually granted our team access … for us to conduct a forensic audit,” Trump attorney Jenna Ellis told Fox News on Sunday.

Antrim County is solidly Republican but its unofficial results initially showed Democrat Joe Biden winning more votes on Nov. 3 than Trump did. The results were soon corrected and county and state officials have said the initial reporting inaccuracies were due to programming errors by the Republican clerk<https://www.freep.com/story/news/politics/elections/2020/11/06/antrim-county-vote-glitch-software-update/6194745002/> and not due to errors by the Dominion Voting Systems election equipment or related software.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Justice Alito Has Moved Up the Response Time to the Rep. Kelly PA Election Petition to the Morning of Safe Harbor Day: What Does It Mean?<https://electionlawblog.org/?p=119345>
Posted on December 6, 2020 8:14 am<https://electionlawblog.org/?p=119345> by Rick Hasen<https://electionlawblog.org/?author=3>

Via Bob Barnes<https://twitter.com/scotusreporter/status/1335613440833036288>, comes news that Justice Alito had moved<https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\20a98.html> the date for the response to Rep. Kelly’s request for emergency relief from Dec. 9 to Dec. 8. I had noted in an earlier post <https://electionlawblog.org/?p=119284> that Justice Alito had initially scheduled the response after the safe harbor day:

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.

This timing allows the Court at least in theory to issue some relief by the end of safe harbor day. I would not read too much into this. It shows more respect to the petitioners, and does not make it look like the Court is simply running out the clock on the petition.

I still think the chances the Court grants any relief on this particular petition are virtually zero, for reasons I’ve explained<https://electionlawblog.org/?p=119196>.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, Supreme Court<https://electionlawblog.org/?cat=29>


“Trump keeps up baseless fraud claims at rally for US senators in Georgia”<https://electionlawblog.org/?p=119343>
Posted on December 6, 2020 7:53 am<https://electionlawblog.org/?p=119343> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters reports.<https://www.brainerddispatch.com/news/government-and-politics/6789652-Trump-keeps-up-baseless-fraud-claims-at-rally-for-US-senators-in-Georgia>
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Democrats’ Opposition to “Expert” Evidence in Georgia Voting Case Shows Utter Lack of Credibility of Challenger’s Evidence<https://electionlawblog.org/?p=119340>
Posted on December 6, 2020 7:51 am<https://electionlawblog.org/?p=119340> by Rick Hasen<https://electionlawblog.org/?author=3>

Quite a read.<https://www.courtlistener.com/recap/gov.uscourts.gand.284055/gov.uscourts.gand.284055.60.0_2.pdf>
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Confusion in Brindisi-Tenney House race exposes New York’s election dysfunction”<https://electionlawblog.org/?p=119338>
Posted on December 6, 2020 7:49 am<https://electionlawblog.org/?p=119338> by Rick Hasen<https://electionlawblog.org/?author=3>

Syracuse.com:<https://www.syracuse.com/politics/2020/12/confusion-in-brindisi-tenney-house-race-exposes-new-yorks-election-dysfunction.html>

The undecided House race between Rep. Anthony Brindisi <https://www.syracuse.com/topic/22nd%20Congressional%20District/> and Claudia Tenney<https://www.syracuse.com/politics/2020/11/tenney-leads-brindisi-by-12-in-first-official-vote-count-in-house-election.html> has exposed deep flaws in New York’s election system that undermine public faith in the state’s electoral process, voting rights advocates say.

Those advocates say they will push for a series of state election reforms next year to make sure that the debacle in New York’s 22nd Congressional District won’t be repeated.

The vote count has been marked by a series of bizarre twists, including missing ballots that suddenly surfaced, lost sticky notes that had been attached to ballots, a lack of transparency and a frustrated judge – all calling into question the competency of election officials.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Flaws in Census Count Imperil Trump Plan to Exclude Undocumented Immigrants”<https://electionlawblog.org/?p=119335>
Posted on December 5, 2020 2:40 pm<https://electionlawblog.org/?p=119335> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Wines and Emily Bazelon for the NYT:<https://www.nytimes.com/2020/12/04/us/census-trump.html?searchResultPosition=2>

Census Bureau experts have uncovered serious flaws in a section of the 2020 head count that potentially affect the enumeration of millions, according to people familiar with the census operations, delaying still further the completion of state-by-state population totals that the White House has demanded before President Trump leaves office next month.

Census experts told the Trump administration last month that data-processing delays were making it impossible to meet that schedule, but the agency’s political appointees have continued to press for shortcuts in an attempt to deliver on the White House’s demand. On Friday, people involved with the census but not authorized to make official comments said the latest delay — adding 10 to 14 more days to a process that was already set to end well beyond the Dec. 31 statutory deadline — appeared to doom that last-ditch rush.

The extent of the additional problems — relating to the count of residents of group quarters like prisons, college dormitories or homeless shelters — effectively means that “that isn’t going to happen,” one official, who declined to be named for fear of retribution, said of meeting the deadline.

The Trump administration needs the bureau’s state-by-state population totals if it is to fulfill the president’s plan to strip undocumented immigrants from the state counts used to reapportion the House of Representatives. Such a move, unprecedented in American history, would produce an older, whiter, more rural population base for reallocating House seats that would mostly benefit Republicans, analysts say.

Many experts see the bureau facing deadlines it cannot possibly meet while maintaining its standards. Some bureau officials remain concerned that Mr. Trump will demand numbers anyway, a move that could plunge the nation into uncharted legal territory if the Democratic House and the new Biden administration reject the results.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


“Republicans Pushed to Restrict Voting. Millions of Americans Pushed Back.”<https://electionlawblog.org/?p=119333>
Posted on December 5, 2020 2:35 pm<https://electionlawblog.org/?p=119333> by Rick Hasen<https://electionlawblog.org/?author=3>

Important NYT report<https://www.nytimes.com/2020/12/05/us/politics/2020-election-turnout.html?action=click&module=Top%20Stories&pgtype=Homepage>:

The shifts that led to this year’s surge in voting, in particular the broad expansion of voting options and the prolonged period for casting ballots, could forever alter elections and political campaigns in America, providing a glimpse into the electoral future.

A backlash from the right could prevent that, however. In many ways, the increase in voting is what Mr. Trump and the Republican Party are now openly campaigning against in their floundering bid to overturn his clear loss to President-elect Joseph R. Biden Jr. — whose popular vote lead grew to seven million on Friday. Republicans have portrayed the burgeoning voting ranks as nefarious and the expanded access to voting options as ripe for fraud — despite the fact that the record turnout provided them numerous victories down ballot.

Though Mr. Trump and the party have not managed to prove a single claim of fraud in the courts — where they and their allies have lost or withdrawn dozens of cases — Republicans at the state level are vowing to enact a new round of voting restrictions to prevent what they claim — without evidence — is widespread fraud.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


Third Edition of “Voting Rights and Election Law”<https://electionlawblog.org/?p=119331>
Posted on December 5, 2020 2:33 pm<https://electionlawblog.org/?p=119331> by Rick Hasen<https://electionlawblog.org/?author=3>

Announcement via email:

The third edition of Voting Rights and Election Law: Cases, Explanatory Notes, and Problems,<https://cap-press.com/books/isbn/9781531019068/Voting-Rights-and-Election-Law-Third-Edition> by Michael Dimino, Brad Smith, and Michael Solimine, has just been printed and is available from Carolina Academic Press.  (ISBN 978-1-5310-1906-8)

Here is the publisher’s description, taken from the website:

Voting Rights and Election Law is a teachable, yet sophisticated, casebook that takes readers through the law of the political process, from the right to vote through the tabulation (and re-tabulation) of votes. Along the way, the book explores and explains the law of districting (including gerrymandering and the one-person, one-vote doctrine); the Voting Rights Act; ballot access and ballot design; free-speech rights of candidates, parties, and ordinary citizens; campaign finance; and the election administration.
This book presents the law of politics in a thorough but understandable way that approaches election law primarily as law rather than as an exercise in political theory.  Narrative introductions and notes clearly set forth and explain the law, and cases are edited to allow students to appreciate judicial reasoning by reading the courts’ own words. Compared to other casebooks in the field, Voting Rights and Election Law emphasizes the text of leading court opinions rather than commentary and competing political theories about elections and democracy. Students are, however, encouraged through notes and questions to examine and to question the empirical assumptions and theoretical premises behind the opinions, paying particular attention to the proper role for the courts in policing politics. Frequent problems give students and instructors an opportunity to examine how the principles of election law should be applied to realistic situations—reinforcing that election law is not merely a subject of historical or theoretical interest but one that shapes political outcomes year after year.

The third edition is the product of a comprehensive review, update, and streamlining of the second. The third edition presents more material more efficiently, and as a result the third edition is both more thorough in its coverage and clearer in its explanations, while being slightly shorter than the second edition. The book’s organization has been rethought and adjusted to make the presentation more effective.  The materials on the political-question doctrine have been revised to account for the increased attention that has been given to partisan gerrymanding and to the use of independent districting commissions. Material on congressional power to enact the original Voting Rights Act of 1965 has been moved from Chapter 1 to Chapter 3, where it joins the (slimmed-down) coverage of preclearance, which has declined in significance after Shelby County v. Holder.
The coverage of third parties and ballot access now joins the term-limits material to form a new Chapter 6 that fully considers states’ power to design, and to control access to, the ballot. The examination of the protection for anonymous speech has been combined with the materials on campaign-finance disclosure rules to form a new Chapter 9 that comprehensively considers the tradeoffs between disclosure and anonymity. The coverage of election administration has been thoroughly redesigned to cover all manner of election-day rules in a single chapter that includes examination of legal questions that have arisen as states have adjusted their election laws to account for the COVID-19 pandemic.
This new structure also allows the book to devote attention to the electoral college and to other federal rules that affect the casting and counting of votes, even as elections are administered by state and local officials.
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Posted in pedagogy<https://electionlawblog.org/?cat=23>


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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