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

Tue Dec 8 15:16:47 PST 2020

OK. Let's play the statistical game. A practical look at the election
results, when merged with what most political consultants have observed over
the years, would support the notion that if there was fraud it was on the
part of Election Day voters who voted for Donald Trump. 

1.	In the states in question, Biden won the mail-in (absentee) voting
overwhelmingly. Those ballots carry the high security of being inspected by
both machine and humans to verify the eligibility of the voter to cast the
ballot, thus lessening the opportunity for fraud.
2.	In those same state, Trump won the less secure Election Day voting,
where the identification of the person casting the ballot was subject to far
less scrutiny, thus heightening the opportunity for fraud.
3.	Political consultants know that as a general rule neighbors vote as
do their neighbors. So, it the higher security ballots went for Biden would
it not be expected that the lower security ballots in the same precincts and
neighborhoods also should have voted for Biden.

I acknowledge the specious nature of this argument but offer that it makes
at least as much sense as any of the arguments put forth by the Trump legal
team.

Larry 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf
Of Gaddie, Ronald K.
Sent: Tuesday, 8 December 2020 3:00 PM
To: Paul Gronke <paul.gronke at gmail.com>; Hasen Rick <rhasen at law.uci.edu>;
Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] New Texas voting lawsuit; more news and commentary

It would be a blast writing the cross-examination questions of this report. 

Keith Gaddie, Ph.D. 

President's Associates Presidential Professor of Architecture & Journalism

Executive Faculty Fellow of the University of Oklahoma

Senior Fellow of Headington College 

General Editor, Social Science Quarterly

"I would like to build a University of which the football team could be
proud." ~George Lynn Cross

  _____  

From: Law-election <law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu> > on behalf of Paul
Gronke <paul.gronke at gmail.com <mailto:paul.gronke at gmail.com> >
Sent: Tuesday, December 8, 2020 4:33 PM
To: Hasen Rick <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >; Election
Law Listserv <law-election at uci.edu <mailto:law-election at uci.edu> >
Subject: Re: [EL] New Texas voting lawsuit; more news and commentary 

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_T
X-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_T
X-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_T
X-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
<mailto:calderja at reed.edu> 

Media Inquiries: Kevin Myers myersk at reed.edu <mailto:myersk at reed.edu> 

On Dec 8, 2020, at 7:34 AM, Rick Hasen <rhasen at law.uci.edu
<mailto:rhasen at law.uci.edu> > wrote:

 <https://electionlawblog.org/?p=119395> 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

Posted on  <https://electionlawblog.org/?p=119395> December 8, 2020 7:25 am
by  <https://electionlawblog.org/?author=3> Rick Hasen

I may need to take back what I said about Rep. Kelly's PA suit being the
<https://electionlawblog.org/?p=119196> dumbest case I've ever seen filed on
an emergency basis at the Supreme Court.

<https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/
Press/SCOTUSFiling.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=go
vdelivery&utm_term=> This new one from the indicted Texas AG Ken Paxton (but
<https://twitter.com/RMFifthCircuit/status/1336313335566970881> missing the
name of Texas's Solicitor General, who surely would not sign this garbage)
probably should win that prize.

 <https://twitter.com/steve_vladeck/status/1336312379408322560> Steve
Vladeck canvasses the reasons why the Court won't touch the case (including
<https://twitter.com/steve_vladeck/status/1336329901859688451>  its rules 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  <https://electionlawblog.org/?cat=8> fraudulent fraud squad,
<https://electionlawblog.org/?cat=29> Supreme Court

 <https://electionlawblog.org/?p=119393> "Arizona GOP asks if followers
willing to give their lives to 'stop the steal'"

Posted on  <https://electionlawblog.org/?p=119393> December 8, 2020 7:15 am
by  <https://electionlawblog.org/?author=3> Rick Hasen

<https://thehill.com/homenews/news/529195-arizona-gop-asks-if-followers-will
ing-to-give-their-life-to-stop-the-steal> More unhinged:

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%20t
o%20give%20their%20lives%20to%20%E2%80%98stop%20the%20steal%27%E2%80%9D> 

Posted in  <https://electionlawblog.org/?cat=12> chicanery

 <https://electionlawblog.org/?p=119390> Pennsylvania Files Its Opposition
in Supreme Court in Rep. Kelly Case, Teeing Up Order from J. Alito or Court
Likely Today

Posted on  <https://electionlawblog.org/?p=119390> December 8, 2020 7:11 am
by  <https://electionlawblog.org/?author=3> Rick Hasen

You can find the brief
<https://www.supremecourt.gov/DocketPDF/20/20A98/162968/20201208090425848_20
A98%20Response%20in%20Opposition%20efile.pdf> here. 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%20Cou
rt%20in%20Rep.%20Kelly%20Case%2C%20Teeing%20Up%20Order%20from%20J.%20Alito%2
0or%20Court%20Likely%20Today> 

Posted in  <https://electionlawblog.org/?cat=29> Supreme Court

 <https://electionlawblog.org/?p=119388> Lou Dobbs Tells Trump's Stephen
Miller to Hire Marc Elias for Half a Billion Dollars

Posted on  <https://electionlawblog.org/?p=119388> December 8, 2020 7:00 am
by  <https://electionlawblog.org/?author=3> Rick Hasen

 <https://twitter.com/marceelias/status/1336127557259943938?s=21> Watch.

The whole thing is
<https://www.mediaite.com/tv/lou-dobbs-snaps-at-stephen-miller-over-white-ho
use-not-doing-more-on-trump-legal-fight-why-dont-you-answer-me/> unhinged.

<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp
%3D119388&title=Lou%20Dobbs%20Tells%20Trump%E2%80%99s%20Stephen%20Miller%20t
o%20Hire%20Marc%20Elias%20for%20Half%20a%20Billion%20Dollars> 

Posted in  <https://electionlawblog.org/?cat=8> fraudulent fraud squad,
<https://electionlawblog.org/?cat=1> Uncategorized

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

 <mailto:rhasen at law.uci.edu> 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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