[EL] Wisconsin state ruling against Trump; Texas reply briefs at SCOTUS: more news and commentary

Fri Dec 11 08:51:50 PST 2020

In Wisconsin State Election Contest, State Court Judge Rules Against Trump<https://electionlawblog.org/?p=119538>
Posted on December 11, 2020 8:49 am<https://electionlawblog.org/?p=119538> by Rick Hasen<https://electionlawblog.org/?author=3>

Patrick Marley<https://twitter.com/patrickdmarley/status/1337437769371693058> with the play-by-play.

You may recall that the Wisconsin Supreme Court ruled 4-3 against hearing an action directly challenging the election results, with the 4 in the majority requiring the Trump campaign to start in a trial court. The dissenting chief justice ended up appointing the trial judge to hear that challenge, and the trial judge just ruled against Trump.

The ruling could be appealed but I don’t expect a different result.

There is still an additional federal case by Trump pending in Wisconsin, and we may hear about that later today. From yesterday’s argument, the judge sounded quite skeptical about granting any relief.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Dec. 17: “Unpacking the 2020 Electoral College Process: A Conversation among Election Law Scholars”<https://electionlawblog.org/?p=119536>
Posted on December 11, 2020 7:30 am<https://electionlawblog.org/?p=119536> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest<https://u.osu.edu/electionlaw/events/unpacking-the-2020-electoral-college-process-a-conversation-among-election-law-scholars/> in the very helpful OSU conversations.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Must-Read Adam Serwer: “If You Didn’t Vote for Trump, Your Vote Is Fraudulent”<https://electionlawblog.org/?p=119534>
Posted on December 11, 2020 7:17 am<https://electionlawblog.org/?p=119534> by Rick Hasen<https://electionlawblog.org/?author=3>

In The Atlantic:<https://www.theatlantic.com/ideas/archive/2020/12/voter-fraud/617354/>

The Michigan protester’s declaration that Trump won the election (by a landslide, no less) falls into the same category. The majority of people who make such declarations understand that in fact, Trump did not win, that he received fewer votes than his opponent, and that the Electoral College result reflects that loss. But they support Trump’s claims that the vote was fraudulent, and his efforts to pressure Republican officials in key states to overturn the result. To Trump’s strongest supporters, Biden’s win is a fraud because his voters should not count to begin with, and because the Democratic Party is not a legitimate political institution that should be allowed to wield power even if they did.

This is why the authoritarian remedies festering in the Trump fever swamps—martial law<https://www.npr.org/2020/12/05/943220215/backing-trump-some-ex-military-officers-spread-conspiracies-urge-martial-law>, the usurpation of state electors<https://www.washingtonpost.com/politics/trump-pennsylvania-speaker-call/2020/12/07/d65fe8c4-38bf-11eb-98c4-25dc9f4987e8_story.html>, Supreme Court fiat<https://www.washingtonpost.com/politics/courts_law/supreme-court-trump-pennsylvania-election-results/2020/12/08/4d39e16c-397d-11eb-98c4-25dc9f4987e8_story.html>—are so openly contemplated. Because the true will of the people is that Trump remain president, forcing that outcome, even in the face of defeat, is a fulfillment of democracy rather than its betrayal.

The Republican base’s fundamental belief, the one that Trump used to win them over in the first place, the one that ties the election conspiracy theory to birtherism and to Trump’s sneering attack on the Squad’s citizenship, is that Democratic victories do not count, because Democratic voters are not truly American. It’s no accident that the Trump campaign’s claims have focused almost entirely on jurisdictions with high Black populations.

“Detroit and Philadelphia—known as two of the most corrupt political places anywhere in our country, easily—cannot be responsible for engineering the outcome of a presidential race,” Trump said<https://www.whitehouse.gov/briefings-statements/remarks-president-trump-election/> on November 5. Since then, Trump’s legal challenges have targeted cities<https://www.washingtonpost.com/national/2020/11/20/f0d11954-2b71-11eb-9b14-ad872157ebc9_story.html> with large Black populations—not just Philadelphia and Detroit, but also Pittsburgh, Milwaukee, and Atlanta. Trump improved his vote margin slightly in these places, while getting destroyed in nearby suburbs. But because the outdated popular perception of suburbs is that they are white, they lack the assumption of illegitimacy that Trumpists attach to cities.

The absence of not only evidence of any systemic fraud, but even compelling anecdotes that might be misleadingly trumpeted throughout right-wing media, has not deterred the president or his supporters. Republican legislators are already scheming to put new restrictions on the franchise, justified by claims of fraud so baseless that not even their handpicked judges can find a foothold to sustain them. The necessary ingredient is not actual voter fraud, but Democratic victory at the ballot box, real or potential.

ccording to a 2020 survey by the political scientist Larry Bartels<https://www.pnas.org/content/pnas/early/2020/08/26/2007747117.full.pdf>, three-quarters of Republican voters believe that “it is hard to trust the results of elections when so many people will vote for anyone who offers a handout.” Because Republicans believe, as Mitt Romney put it after his defeat in 2012, that Black people vote for Democrats only because they are offered “free stuff,”<https://www.theatlantic.com/politics/archive/2012/07/romney-after-naacp-if-you-want-more-free-stuff-vote-for-obama/428103/> Black votes are considered illegitimate even if they are legally cast. Those votes could be legitimate if more of them were cast for Republicans, the party of true Americans, but as long as they are cast for Democrats, they can be dismissed as the result of Democratic brainwashing. Demanding that Black votes be tossed out is not antidemocratic, because they should not have counted in the first place.

That this racist belief has a partisan valence makes it no less racist. If one’s fundamental rights are contingent on adhering to the political beliefs of the ruling clique, they are not rights at all.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>

Texas Files Its Reply Briefs in Supreme Court; Supreme Court Could Rule at Any Time<https://electionlawblog.org/?p=119532>
Posted on December 11, 2020 7:12 am<https://electionlawblog.org/?p=119532> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the briefs here <https://www.supremecourt.gov/DocketPDF/22/22O155/163493/20201211095822921_TX-v-State-LeaveReply-2020-12-11.pdf> and here<https://www.supremecourt.gov/DocketPDF/22/22O155/163492/20201211095715842_TX-v-State-MPI-Reply-2020-12-11.pdf>.

With the earlier PA case from Rep. Kelly, the Supreme Court issued a one line order denying the emergency relief requested about an hour after the reply was filed.

This case is more complicated, because there are at least two Justices who believe that cases of original jurisdiction have to be heard on the merits. But not all Justices who dissent (or partially dissent) need to note their dissents if it is a summary order.

I expect we will hear something today, or perhaps tomorrow if the Court decides to write an opinion. I expect the Court will reject this suit, for reasons I’ve given earlier.<https://electionlawblog.org/?p=119395>

I find the support for this case among about half of the congressional republicans really troubling<https://twitter.com/rickhasen/status/1337188101999890432?s=20>, but I don’t think that makes it more likely the Court will grant the case.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Biden’s electors prepare to seal his victory, as Trump and coronavirus rage; In interviews, more than two dozen swing-state electors detailed plans for Monday’s vote — and a hint of anxiety about Trump.”<https://electionlawblog.org/?p=119530>
Posted on December 11, 2020 7:03 am<https://electionlawblog.org/?p=119530> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/12/11/biden-electoral-college-vote-444487>

Monday’s Electoral College vote formalizing Joe Biden’s presidential win will be the culmination of months of orchestration by the Biden campaign to ensure minimum drama — and maximum coronavirus safety — while President Donald Trump’s flailing bid to remain in power has shaken other institutions.

Interviews with 25 Democratic electors in five states Biden flipped, as well as Biden campaign and state party officials, reveal a determination to leave as little as possible to chance — a significant change for a process that has typically been a postelection afterthought. The Electoral College process has gotten renewed scrutiny this year, as Trump has resisted his defeat and sought to delegitimize the machinery of the election.

For the Biden campaign, the process began months before the election, as his team worked to ensure that only its most loyal foot soldiers and high-profile leaders secured elector positions. It was a shift from four years earlier, when the neglected process allowed some freelancing activists to secure powerful posts and, in some cases, vote against the popular vote winner in their state<https://www.politico.com/story/2016/12/electoral-college-electors-232836>.

And the Biden campaign has spent the days since Election Day making sure each of the president-elect’s electors is armed with precise logistical information, transportation and a backup plan, should anything interfere with their ability to arrive on time to cast the official votes to make Biden president — including the possibility that there could be last-minute protests or attempted disruptions from supporters of the president.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Republicans are calling partisans instead of election professionals for their hearing on voting in Wisconsin”<https://electionlawblog.org/?p=119528>
Posted on December 11, 2020 7:00 am<https://electionlawblog.org/?p=119528> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel reports.<https://www.jsonline.com/story/news/politics/elections/2020/12/10/wisconsin-gop-election-hearing-hear-partisans-not-pros/3882529001/?for-guid=b1fa6aa6-67c1-11ea-add6-0ea48be01751&utm_source=jsonline-Daily%20Briefing&utm_medium=email&utm_campaign=daily_briefing&utm_term=hero>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The 106 House Republican Signers of Amicus Brief Supporting Texas’s Case to Steal the Election Are Not More Conservative Ideologically on Average<https://electionlawblog.org/?p=119526>
Posted on December 11, 2020 6:59 am<https://electionlawblog.org/?p=119526> by Rick Hasen<https://electionlawblog.org/?author=3>

Interesting.<https://twitter.com/sanford_gordon/status/1337171801928048641?s=20>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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