[EL] New Texas voting lawsuit; more news and commentary

Tue Dec 8 14:33:34 PST 2020

Well, Rick, you may have a competitor for the dumbest statistical argument ever made in a election law related SCOTUS brief <https://www.supremecourt.gov/DocketPDF/22/22O155/163048/20201208132827887_TX-v-State-ExpedMot%202020-12-07%20FINAL.pdf>, but I’m not an election law expert!

On the other hand, statistics professors are always looking for examples of the misuse of statistics. That is likely all that will result from the Paxton lawsuit.

Attorney General Paxton claims on Pg. 8 <https://www.supremecourt.gov/DocketPDF/22/22O155/163048/20201208132827887_TX-v-State-ExpedMot%202020-12-07%20FINAL.pdf>:

	"Again, the statistical improbability of Mr. Biden winning the popular vote in these four States collectively is 1 in 1,000,000,000,000,0005. Id. 10-13, 17-21, 30-31 (App. 3a-7a, 9a)."

Uh, no, that’s not exactly what your expert showed. Charles J. Cicchetti is a bit more careful in his language. Here is what is actually tested: (Appendix pgs. 1a-10a <https://www.supremecourt.gov/DocketPDF/22/22O155/163048/20201208132827887_TX-v-State-ExpedMot%202020-12-07%20FINAL.pdf>).

	“First, I analyzed the differences in county votes of former Secretary of State Hillary Clinton (Clinton) compared to Former Vice President Joseph Biden (Biden). Second, many Americans went to sleep election night with President Donald Trump (Trump) winning key battleground states, only to learn the next day that Biden surged ahead. Therefore, I compared and tested the significance of the change in tabulated ballots earlier in the reporting to subsequent tabulations. For both comparisons, I determined the likelihood that the samples of the outcomes for the two Democrat (sic) candidates and the two tabulation periods were similar and randomly drawn from the same population."

The rest of the statistical jargon and tests are reported on pgs 3a - 5a, but I’ll cut to the chase for those who don’t want to wade through.

The first test essentially assumed that the 2020 election was identical to 2016 in every aspect. There were not changes in candidates, in politics, in demography, in COVID-19 pandemics, etc etc etc.

The results? He showed convincingly that the 2020 election was not identical to the 2016 election. I know readers will be shocked at this.

The second test assumed that the ballots counted and reported by the time “many Americans went to sleep on November 3rd" were identical to those counted after November 3rd.

And he showed convincingly that the ballots counted on November 3rd were not “randomly drawn from the same population” as the ballots counted / reported after November 3rd.

The second claim is a case where ignorance may be bliss: he declares that “I am aware of anecdotal evidence from election night that some Democrat (sic) strongholds were yet to be counted. There was also some speculation that the yet-to-be-counted ballots were likely absentee mail-in ballots.” He is “not aware of any data supporting” this even though there is already documented evidence about when local jurisdictions reported their results (“anecdotal evidence”) and I suspect (though do not know for sure) that we could track the proportion of early in-person, Election Day, and absentee ballots that were in each results release.

He even compares the 50 state results from 2016 and 2020 as analogous to 50 coin tosses (pg. 9a). Stats profs are going to have fun times with this one.

A set of misleading Z-test masquerading as careful statistical analyses is par for the course for what Rick describes as a “press release masquerading as a lawsuit.”

---
Paul Gronke
Professor, Reed College
Director, Early Voting Information Center
http://earlyvoting.net
---
Paul Gronke
Professor, Reed College
Director, Early Voting Information Center
http://earlyvoting.net

General Inquiries: Jane Calderbank calderja at reed.edu

Media Inquiries: Kevin Myers myersk at reed.edu

> On Dec 8, 2020, at 7:34 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
> 
> Texas Asks Supreme Court for Permission to Sue Georgia, Pennsylvania, Michigan, and Wisconsin Over How They Conducted the Election, To Disenfranchise Voters in These States and Let State Legislators Choose Electors. It Won’t Work <https://electionlawblog.org/?p=119395>
> Posted on December 8, 2020 7:25 am <https://electionlawblog.org/?p=119395> by Rick Hasen <https://electionlawblog.org/?author=3>
> I may need to take back what I said about Rep. Kelly’s PA suit being the dumbest case <https://electionlawblog.org/?p=119196> I’ve ever seen filed on an emergency basis at the Supreme Court.
> This new one <https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SCOTUSFiling.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=> from the indicted Texas AG Ken Paxton (but missing <https://twitter.com/RMFifthCircuit/status/1336313335566970881> the name of Texas’s Solicitor General, who surely would not sign this garbage) probably should win that prize.
> Steve Vladeck canvasses <https://twitter.com/steve_vladeck/status/1336312379408322560> the reasons why the Court won’t touch the case (including its rules <https://twitter.com/steve_vladeck/status/1336329901859688451> on taking cases directly under its original jurisdiction).
> My view in brief: his is a press release masquerading as a lawsuit. Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’t too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).
> 
> What utter garbage. Dangerous garbage, but garbage.
> 
>  <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D119395&title=Texas%20Asks%20Supreme%20Court%20for%20Permission%20to%20Sue%20Georgia%2C%20Pennsylvania%2C%20Michigan%2C%20and%20Wisconsin%20Over%20How%20They%20Conducted%20the%20Election%2C%20To%20Disenfranchise%20Voters%20in%20These%20States%20and%20Let%20State%20Legislators%20Choose%20Electors.%20It%20Won%E2%80%99t%20Work>
> Posted in fraudulent fraud squad <https://electionlawblog.org/?cat=8>, Supreme Court <https://electionlawblog.org/?cat=29>
> 
> 
> “Arizona GOP asks if followers willing to give their lives to ‘stop the steal'” <https://electionlawblog.org/?p=119393>
> Posted on December 8, 2020 7:15 am <https://electionlawblog.org/?p=119393> by Rick Hasen <https://electionlawblog.org/?author=3>
> More unhinged: <https://thehill.com/homenews/news/529195-arizona-gop-asks-if-followers-willing-to-give-their-life-to-stop-the-steal>
> 
> The Arizona Republican Party late Monday asked supporters if they are willing to give their lives in the fight over the results of the election.
> 
> The party retweeted right-wing activist Ali Alexander’s promise that he is “willing to give my life for this fight.”
> 
> “He is. Are you?” the state GOP added.
> 
>  <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D119393&title=%E2%80%9CArizona%20GOP%20asks%20if%20followers%20willing%20to%20give%20their%20lives%20to%20%E2%80%98stop%20the%20steal%27%E2%80%9D>
> Posted in chicanery <https://electionlawblog.org/?cat=12>
> 
> 
> Pennsylvania Files Its Opposition in Supreme Court in Rep. Kelly Case, Teeing Up Order from J. Alito or Court Likely Today <https://electionlawblog.org/?p=119390>
> Posted on December 8, 2020 7:11 am <https://electionlawblog.org/?p=119390> by Rick Hasen <https://electionlawblog.org/?author=3>
> You can find the brief here <https://www.supremecourt.gov/DocketPDF/20/20A98/162968/20201208090425848_20A98%20Response%20in%20Opposition%20efile.pdf>. It begins:
> Petitioners ask this Court to undertake one of the most dramatic, disruptive
> invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor’s certification of presidential election results. And for good reason: “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.” Order, Wis. Voters All. v. Wis. Elections Comm’n, No.
> 2020AP1930-OA, at 3 (Wis. Dec. 4, 2020) (Hagedorn, J., concurring).
> 
> In seeking such unprecedented relief, Petitioners might be expected to present claims of the utmost constitutional gravity. Instead, the pair of claims they advance are fundamentally frivolous. Neither claim was pressed or passed upon below. Neither claim implicates a circuit split. Both claims are mired in procedural and jurisdictional defects that preclude this Court’s review. The first question—which seeks to raise Elections and Electors Clause challenges to Act 77—is not actually presented by this case. And the second question—which argues that the Pennsylvania Supreme Court violated the First and Fourteenth Amendments in its application of laches—asks this Court to constitutionalize huge swaths of state procedural law without any credible basis in constitutional principles or this Court’s precedents.
> 
> Even if Petitioners could surmount these obstacles, they would still need to justify the relief they seek. This first-of-its-kind injunction raises major constitutional questions. Yet Petitioners address none of them. They do not explain how a remedy premised on massive disenfranchisement would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials. Nor do they seek to square their position with the separation of powers, the Twelfth Amendment, or basic principles of federalism—all of which foreclose the injunctive relief that Petitioners seek here.
> 
> 
> These failings also explain why equity stands as an insuperable obstacle to Petitioners’ application. “Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof. The public must have confidence that our Government honors and respects their votes.” Donald J. Trump for President, Inc. v. Pennsylvania, No. 20-3371, 2020 WL 7012522, at *9 (3d Cir. Nov. 27, 2020). But Petitioners would throw all that to the wind. After waiting over a year to challenge Act 77, and engaging in procedural gamesmanship along the way, they come to this Court with unclean hands and ask it to disenfranchise an entire state. They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash. In issuing equitable relief, this Court rightly seeks to avoid inflaming social disorder. So to say that the public interest militates against Petitioners would be a grave understatement. Their suit is nothing less than an affront to constitutional democracy. It should meet a swift and decisive end.
> 
> This is a truly excellent brief all around.
> 
>  <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D119390&title=Pennsylvania%20Files%20Its%20Opposition%20in%20Supreme%20Court%20in%20Rep.%20Kelly%20Case%2C%20Teeing%20Up%20Order%20from%20J.%20Alito%20or%20Court%20Likely%20Today>
> Posted in Supreme Court <https://electionlawblog.org/?cat=29>
> 
> 
> Lou Dobbs Tells Trump’s Stephen Miller to Hire Marc Elias for Half a Billion Dollars <https://electionlawblog.org/?p=119388>
> Posted on December 8, 2020 7:00 am <https://electionlawblog.org/?p=119388> by Rick Hasen <https://electionlawblog.org/?author=3>
> Watch. <https://twitter.com/marceelias/status/1336127557259943938?s=21>
> The whole thing is unhinged <https://www.mediaite.com/tv/lou-dobbs-snaps-at-stephen-miller-over-white-house-not-doing-more-on-trump-legal-fight-why-dont-you-answer-me/>.
>  <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D119388&title=Lou%20Dobbs%20Tells%20Trump%E2%80%99s%20Stephen%20Miller%20to%20Hire%20Marc%20Elias%20for%20Half%20a%20Billion%20Dollars>
> Posted in fraudulent fraud squad <https://electionlawblog.org/?cat=8>, 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://www.law.uci.edu/faculty/full-time/hasen/>
> http://electionlawblog.org <http://electionlawblog.org/>
> 
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