[EL] ELB News and Commentary 12/9/20

[Rick Hasen]

“As Trump Rails Against Loss, His Supporters Become More Threatening”<https://electionlawblog.org/?p=119427>
Posted on December 8, 2020 9:06 pm<https://electionlawblog.org/?p=119427> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/12/08/us/politics/trump-election-challenges.html>

With a key deadline passing Tuesday that all but ends his legal challenges to the election, President Trump’s frenzied campaign to overturn the results has reached an inflection point: Certified slates of electors to the Electoral College are now protected by law, and any chance that a state might appoint a different slate that is favorable to Mr. Trump is essentially gone.

Despite his clear loss, Mr. Trump has shown no intention of stopping his sustained assault on the American electoral process. But his baseless conspiracy theories about voting fraud have devolved into an exercise in delegitimizing the election results, and the rhetoric is accelerating among his most fervent allies. This has prompted outrage among Trump loyalists and led to behavior that Democrats and even some Republicans say has become dangerous.

Supporters of the president, some of them armed, gathered outside the home of the Michigan secretary of state<https://www.bbc.com/news/election-us-2020-55220570?xtor=AL-72-%5Bpartner%5D-%5Binforadio%5D-%5Bheadline%5D-%5Bnews%5D-%5Bbizdev%5D-%5Bisapi%5D> Saturday night. Racist death threats filled the voice mail of Cynthia A. Johnson, a Michigan state representative. Georgia election officials, mostly Republicans, say they have received threats of violence. The Republican Party of Arizona, on Twitter, twice called for supporters to be willing to “die for something” or “give my life for this fight.”

“People on Twitter have posted photographs of my house,” said Ann Jacobs, the chair of the Wisconsin Elections Commission, who alerted her neighbors and the police about the constant threats. She said another message mentioned her children and said, “I’ve heard you’ll have quite a crowd of patriots showing up at your door.”

Mr. Trump himself has contacted numerous Republican state officials, pressing them to help him overturn the election he clearly lost. He has subjected others to repeated public shamings, lambasting governors to take action they are not legally allowed to take to keep Mr. Trump in power.

But absent a single significant victory in his dozens of lawsuits — and with a key defeat delivered by the Supreme Court on Tuesday<https://www.nytimes.com/2020/12/08/us/supreme-court-republican-challenge-pennsylvania-vote.html?action=click&module=Top%20Stories&pgtype=Homepage> — the president’s crusade is now as much a battle against the electoral process itself, as he seeks to cast doubt on free and fair elections and undermine Joseph R. Biden Jr. before he takes the oath of office.

“There is long-term damage when this kind of behavior is normalized,” Jeff Flake, a former Republican senator from Arizona, said on Twitter<https://twitter.com/JeffFlake/status/1336152381411581953>. “It is not normal, and elected Republicans need to speak out against it.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Letter from 1,500 attorneys says Trump campaign lawyers don’t have ‘license to lie’”<https://electionlawblog.org/?p=119425>
Posted on December 8, 2020 9:02 pm<https://electionlawblog.org/?p=119425> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2020/12/08/trump-lawyer-letter/>

More than 1,500 lawyers condemned efforts by the Trump campaign’s legal team to reverse the election results in an open letter that urged the American Bar Association (ABA) to investigate the conduct of the team, including its leader, Rudolph W. Giuliani.

“President Trump’s barrage of litigation is a pretext for a campaign to undermine public confidence in the outcome of the 2020 election, which inevitably will subvert constitutional democracy,” the letter says. <https://lawyersdefendingdemocracy.org/call-for-bar-condemnation-and-investigation-of-president-trumps-campaign-lawyers-for-subverting-american-democracy/> “Sadly, the President’s primary agents and enablers in this effort are lawyers, obligated by their oath and ethical rules to uphold the rule of law.”

The letter escalates the concerns of Rep. Bill Pascrell Jr. (D-N.J.) who on Nov. 20 filed complaints with ethics boards in five states calling for Giuliani and other members of the team to be investigated and disbarred. <https://www.washingtonpost.com/politics/2020/11/24/rudy-giuliani-disbar/?itid=lk_inline_manual_5> The criticism has been echoed in op-eds and letters by attorneys who have rebuked the team for filing frivolous lawsuits and tarnishing the legal profession.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Texas files an audacious suit with the Supreme Court challenging the election results.”<https://electionlawblog.org/?p=119423>
Posted on December 8, 2020 8:58 pm<https://electionlawblog.org/?p=119423> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/12/08/us/politics/texas-files-an-audacious-suit-with-the-supreme-court-challenging-the-election-results.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Safe Harbor’ Day Marks a Further Step Toward Sealing Joe Biden’s Victory in Electoral College”<https://electionlawblog.org/?p=119421>
Posted on December 8, 2020 8:54 pm<https://electionlawblog.org/?p=119421> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ reports.<https://www.wsj.com/articles/safe-harbor-day-marks-a-further-step-toward-sealing-joe-bidens-victory-in-electoral-college-11607462374>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Nation Reached ‘Safe Harbor.’ Here’s What That Means.”<https://electionlawblog.org/?p=119419>
Posted on December 8, 2020 8:52 pm<https://electionlawblog.org/?p=119419> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/12/08/us/politics/election-safe-harbor-deadline.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Detroit elections expert defends TCF operations, refutes allegations during Senate hearing”<https://electionlawblog.org/?p=119417>
Posted on December 8, 2020 8:48 pm<https://electionlawblog.org/?p=119417> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press<https://www.freep.com/story/news/politics/elections/2020/12/08/detroit-elections-fraud-misconduct-allegations-senate-hearing/6489804002/>:

In a clear and methodical tone, a longtime Michigan elections expert refuted a litany of fraud and misconduct allegations<https://www.freep.com/story/news/politics/elections/2020/12/01/detroit-vote-counting-tcf-center-trump-michigan-election-results/6474768002/> focused on absentee ballots in Detroit<https://www.freep.com/story/news/politics/elections/2020/12/02/giuliani-hearing-allegations-no-evidence-election-fraud/3795651001/> during a legislative hearing on Tuesday.

Chris Thomas served roughly 37 years as the state elections administrator, working under Republican and Democratic secretaries of state. This year, he worked as a senior adviser for Detroit, spending time at TCF Center, where the city counted absentee ballots.

His testimony was clear: Thousands of absentee ballots in Detroit were not counted multiple times. Dead people did not vote. Mysterious ballots did not turn up at TCF in the middle of the night.

“I’m not here to tell you it was perfect but it was a damn good election,” Thomas testified.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Arizona Supreme Court rejects GOP effort to overturn election results, affirms Biden win in state”<https://electionlawblog.org/?p=119415>
Posted on December 8, 2020 8:41 pm<https://electionlawblog.org/?p=119415> by Rick Hasen<https://electionlawblog.org/?author=3>

Arizona Republic:<https://www.azcentral.com/story/news/politics/elections/2020/12/08/arizona-supreme-court-rejects-effort-overturn-results-affirms-biden-win/6487995002/>

The Arizona Supreme Court on Tuesday affirmed President-elect Joe Biden’s victory in Arizona, upholding a lower court’s finding that there was no misconduct, fraud or illegal voting in the general election<https://www.azcentral.com/story/news/politics/elections/2020/12/04/arizona-judge-rejects-republican-effort-overturn-state-election-results/3821578001/>.

The ruling came hours before the so-called “safe harbor” cutoff, a federal deadline by which states must resolve election-related disputes in state courts to guarantee Congress will count their electors’ votes.

Arizona Republican Party Chair Kelli Ward had initially filed the challenge in Maricopa County Superior Court, seeking to have a judge void Biden’s 10,457-vote win in Arizona. In her claim, she questioned the signature verification process used by Maricopa Countyto authenticate mail-in ballots, as well as the duplication process election officials used <https://www.azcentral.com/story/news/politics/elections/2020/12/02/arizona-ballot-review-found-discarded-trump-votes-republican-party-says/3799242001/> to count ballots that tabulation machines couldn’t read.

Ward brought the election contest under a state law that allows voters to dispute certified results if they suspect misconduct, illegal votes or an inaccurate count. But, over a day and a half of testimony and oral arguments<https://www.azcentral.com/story/news/politics/elections/2020/12/03/arizona-republican-party-lawsuit-overturn-election-results-goes-trial/3794819001/>, her team failed to prove anything beyond a handful of garden variety mistakes, Superior Court Judge Randall Warner said.

In an order issued Tuesday after Ward appealed to the Arizona Supreme Court, Chief Justice Robert Brutinel agreed.https://www.usatodaynetworkservice.com/tangstatic/html/pphx/sf-q1a2z3be0d353f.min.html

The court agreed Ward’s challenge had failed to “present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest number of votes for office,'” he wrote — “let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”

“Elections will not be held invalid for mere irregularities unless it can be shown that the result has been affected by such irregularity,” he wrote. “The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Social media bet on labels to combat election misinformation. Trump proved it’s not enough”<https://electionlawblog.org/?p=119413>
Posted on December 8, 2020 8:35 pm<https://electionlawblog.org/?p=119413> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/12/08/tech/facebook-twitter-election-labels-trump/index.html?bt_ee=3lyD7yh%2Bz7%2BdcedgD8ST295xYAMBxpBN3164VvsDdhiesgD%2FSgM0hEfy%2Feu2aMXA&bt_ts=1607487521458>

Around the election, social media platforms including Facebook and Twitter were praised<https://www.bloomberg.com/news/newsletters/2020-11-05/social-media-s-election-misinformation-report-card> for how quickly and widely they applied warning labels to misinformation.

But President Donald Trump’s 46-minute video last week, which was riddled with election misinformation and conspiracy theories discredited by his own officials and the courts, has made unmistakably clear what many digital democracy experts have been warning for months: labels are not enough.Social media platforms’ misinformation labels, they’ve said, are inadequate and ill-matched for the torrent of false claims that continue to divide Americans and jeopardize their faith in democratic processes.

Within minutes of Trump’s posts going up on Facebook and Twitter, the social media platforms sprang into action. Beneath the video, Facebook reminded users that Joe Biden “is the projected winner” of the election, citing Reuters and other reporting agencies. Twitter applied a warning label beneath the tweet containing the video clip, saying “This claim about election fraud is disputed.” Google’s YouTube informed users in a label that the Associated Press had called the race for Biden.

That didn’t stop the clips from racking up millions of views. Trump’s video, which he said “may be the most important speech I’ve ever made,” had been viewed 14 million times on Facebook and 5.5 million times on YouTube as of Monday afternoon. A shorter clip of the speech that Trump posted to Twitter has been viewed 3.5 million times.
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Posted in cheap speech<https://electionlawblog.org/?cat=130>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Supreme Court Rejects Republican Challenge to Pennsylvania Vote”<https://electionlawblog.org/?p=119411>
Posted on December 8, 2020 8:25 pm<https://electionlawblog.org/?p=119411> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak <https://www.nytimes.com/2020/12/08/us/supreme-court-republican-challenge-pennsylvania-vote.html> for the NYT:

The Supreme Court on Tuesday refused a long-shot request from Pennsylvania Republicans to overturn Joseph R. Biden Jr.’s victory in the state, delivering an unmistakable rebuke to President Trump in the forum on which he had pinned his hopes.

The Supreme Court’s order<https://www.supremecourt.gov/orders/courtorders/120820zr_bq7d.pdf> was all of one sentence, and there were no noted dissents. But it was nonetheless a major setback for Mr. Trump and his allies, who have compiled an essentially unbroken losing streak in courts around the nation. They failed to attract even a whisper of dissent in the court’s first ruling on a challenge to the outcome of the election.

The court now has three justices appointed by Mr. Trump, including Justice Amy Coney Barrett, whose rushed confirmation in October was in large part propelled by the hope that she would vote with the president in election disputes. But there was no indication that she or the other Trump appointees were inclined to embrace last-minute arguments based on legal theories that election law scholars said ranged from the merely frivolous to the truly outlandish.

Mr. Trump and his Republican allies have lost about 50 challenges to the presidential election in the past five weeks, as judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

Mr. Trump has not come close — even once — to overturning the results of a single state’s election, let alone the results in at least three states that he would need to take a victory from Mr. Biden. And around the country, judges have started to express their frustration with his attempts to have the courts substitute their will for those of voters.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Supreme Court<https://electionlawblog.org/?cat=29>


“Tensions over Minnesota election outcome on display as Senate panel meets; At GOP-led hearing on election integrity, Secretary of State Steve Simon warns of ‘disinformation.'”<https://electionlawblog.org/?p=119409>
Posted on December 8, 2020 8:12 pm<https://electionlawblog.org/?p=119409> by Rick Hasen<https://electionlawblog.org/?author=3>

The Star-Tribune reports<http://w.startribune.com/tensions-over-minnesota-election-outcome-on-display-as-senate-panel-meets/573333741/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Georgia Senate GOP push for end to no-excuse absentee voting”<https://electionlawblog.org/?p=119407>
Posted on December 8, 2020 8:05 pm<https://electionlawblog.org/?p=119407> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.detroitnews.com/story/news/politics/2020/12/08/georgia-senate-gop-push-end-excuse-absentee-voting/115121670/>

Republicans in Georgia’s state Senate are calling for an end to absentee voting without cause and want to ban ballot drop boxes, after an increase in mail voting helped propel Democrat Joe Biden to a narrow victory over President Donald Trump in the state.

Trump has for months made unsubstantiated claims about the integrity of mail-in votes and has made baseless claims of widespread fraud in Georgia’s presidential election. GOP election officials have vehemently and repeatedly disputed those claims, saying there is no evidence of systemic errors or fraud in the November election.

As I wrote<https://www.nytimes.com/2020/11/23/opinion/trump-election-courts.html> a few weeks ago in the NY Times:

Mr. Trump’s litigation strategy also will make things worse when it comes to voting rights. The common thread in his campaign’s postelection litigation connecting Trump allegations of people of color illegally voting<https://electionlawblog.org/?p=118928> in Democratic cities in swing states and corrupted voting machines<https://www.nytimes.com/2020/11/11/technology/no-dominion-voting-machines-did-not-delete-trump-votes.html> is a lack of any evidence to support the claims. Many of the lawsuits have been laughed out of court for lack of evidence, voluntarily dismissed, or involve so few votes that they could not plausibly change the outcome. These unsuccessful lawsuits will nonetheless provide a false narrative to explain how it is that Mr. Biden declared victory and serve as a predicate for new restrictive voting laws in Republican states.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“20 Things We Learned About Money in Politics in 2020”<https://electionlawblog.org/?p=119405>
Posted on December 8, 2020 7:59 pm<https://electionlawblog.org/?p=119405> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.brennancenter.org/our-work/analysis-opinion/20-things-we-learned-about-money-politics-2020> at the Brennan Center.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


Breaking: Without Noted Dissent, Supreme Court Denies Relief in Rep. Kelly PA Voting Case That Sought to Disenfranchise State’s Voters (This is The One I Said Had the Dumbest SCOTUS Argument I’ve Ever Seen)<https://electionlawblog.org/?p=119401>
Posted on December 8, 2020 1:44 pm<https://electionlawblog.org/?p=119401> by Rick Hasen<https://electionlawblog.org/?author=3>

Justice Alito referred<https://twitter.com/johnkruzel/status/1336425672940675073?s=20> it to the whole Court.

Earlier:

Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case<https://electionlawblog.org/?p=119196>

Anyone who thought that the Supreme Court was going to save Trump in THIS case has no experience with Supreme Court arguments or election law.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, Supreme Court<https://electionlawblog.org/?cat=29>


New York: “Judge orders partial recount in Brindisi-Tenney House race” [Updated with link to court opinion]<https://electionlawblog.org/?p=119399>
Posted on December 8, 2020 9:40 am<https://electionlawblog.org/?p=119399> by Rick Hasen<https://electionlawblog.org/?author=3>

Syracuse.com:<https://www.syracuse.com/politics/2020/12/judge-orders-partial-recount-in-brindisi-tenney-house-race.html>

A state Supreme Court judge today ordered a partial recount of absentee ballots in the undecided House race between Rep. Anthony Brindisi<https://www.syracuse.com/topic/22nd%20Congressional%20District/> and Claudia Tenney<https://www.syracuse.com/politics/2020/12/claudia-tenney-asks-judge-to-dismiss-lawsuit-declare-her-winner-over-rep-anthony-brindisi.html>.

Justice Scott J. DelConte also denied a motion by Tenney’s lawyers, who had asked the court to order the eight counties in the district to immediately certify her as the winner by 12 votes in an election where more than 318,000 ballots were cast.

Instead, DelConte ordered each county Boards of Elections in the 22nd Congressional District to correct their counting errors in the election.

Where it’s not possible to correct the errors, the counties must go back and conduct a manual hand count of the ballots in question, DelConte wrote in a 20-page order.

DelConte wrote that Tenney’s proposal would require him to “ignore multiple errors by the respondent Boards of Elections, disregard proper challenges to invalid ballots that were counted and valid ballots that were not counted…and ignore hundreds of ballots that were never canvassed in the first place.”

The judge added, “That is not the role of the court. The winner of this election must be decided by the real parties of interest: the voters. And to do so, every valid vote must be counted.”

Update: you can find the 20 page opinion at this link<https://electionlawblog.org/wp-content/uploads/tenney.pdf>.
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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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